Indicting Bashir would be a risky move to be sure. One gamble, well articulated in this forum, is that it will have negative consequences for peacemaking and for Sudan’s politics. According to this prediction, we must regrettably put off concerns over achieving justice for now – or at least find less radical means of obtaining it – so as not to upset the peacemaking process. Another analysis, however, argues that (a) the short-term prospects for peace are not reliably or necessarily worsened by such indictments, particularly relative to the status quo, (b) there are important and real long-term benefits to taking these actions (so long as the case moves forward properly), and (c) there are important and real long-term costs of not making such an indictment. According to this gamble, fears of short-term negative consequences, while entirely reasonable, do not justify worsening our long-term prospects for obtaining a justice system that actually works when confronted with the world’s largest and most heinous crimes. Moreover, if justice is to be deferred peacemaking, it is not the duty of the ICC Prosecutor to do so: the Security Council could invoke Article 16 of the Rome Statute to forestall proceedings a year at a time. Regardless, if such an indicted is issued, we must also take measures to responsibly minimize the chances of short-term harms, including to the peace process, to the deployment of a protection force, and to humanitarian operations.

1. Short-term Uncertainty: Will an indictment derail the peace process (and more)?

As commentators in this forum have rightly noted, an indictment of Bashir or other very-high level officials could not only set back the peacemaking process, but also send counterproductive ripples through the political landscape, push the government to close down humanitarian access, and drive Bashir and others further into a siege mentality that prevents productive engagement and the political trades required to make peace. These concerns are well-articulated throughout these pages and I will not reconstruct all the argument and predictions here.

Alternatively, though, something else might happen. High-level indictments of Bashir or others might put real pressure on individuals, altering their behavior or setting the stage for a peace deal and for the consent required to get a real protection force on the ground. This includes the rebels – who will fear they may be next on the list. While some would rally behind Bashir, harden their resistance, and mobilize their constituencies behind nationalist, anti-Western messages, they and others also do not want to be indicted war criminals, and don’t want to go to jail. This could come to benefit the peace process through several means. The most obvious is conditionality. At a minimum, officials not-yet indicted feel they can avoid an indictment by pushing for peace. Alternatively, Article 16 of the Rome Statute could provide a conditionality mechanism. This article allows the Security Council to forestall investigations or trials for one-year (renewably). In theory, this mechanism allows the ICC Prosecutor to remain independent of political calculations, while still providing a means of avoiding massive costs to the peacemaking process if necessary, and opening the door for conditionality in order to change behavior. (On the other hand, whether an indictee would be willing to make political deals in return for impunity when it can only be guaranteed a year at a time remains an important question).

While it is worthwhile to try to predict outcomes, we don’t know what impact such indictments would have and there is more than enough uncertainty to require that we consider multiple possible outcomes and the costs of inaction as well as the cost of action. If we take the status quo as a weak control case, we get only a slightly better predictor of what impact not issuing these indictments might have in the short-term. The current state of affairs does not inspire confidence that peace or security will be achieved so long as the quest for justice does not interfere. The political process has failed to a greater degree than most predicted four or five years ago. The meager trickle of a protection force that has made it into Darfur is doing little to protect civilians – instead it has itself been subject to hijackings, abductions, and murder (including Wednesday’s egregious attack that killed at least seven). In short, it is not clear that any process is “on the rails” in order for it to be derailed. I do not argue that even the status quo is a good predictor of the impact of not making indictments — the bottom line is that we do not know either way, and thus do not have sufficiently strong reason to forego justice.

2. Long-term pros and cons of indicting or not indicting

Going beyond Darfur or Sudan, the ultimate outcome of continuing to negotiate with war criminals in hopes that it brings about peace is not a promising one. In a domestic analogy, suppose a bank robber enters a bank, kills several civilians, then uses his remaining hostages as bargaining chips with the police negotiator. In countries with able police forces, there are no circumstances under which the robber/murderer receives immunity and walks away. The reason is not only that it is a bad policy in the long-run, but because when immunity can be granted for anything, there is no reason to trust even those with whom we are negotiating not to resort again to use of force and commit crimes as a means of obtaining power and bargaining chips simultaneously. One may argue that because the Comprehensive Peace Agreement did not require justice for high-level officials who committed atrocities in that war, many of the very same officials have been able to use genocidal tactics again in Darfur. If granted immunity yet again, why should anyone, in Sudan or elsewhere, see cause to avoid genocidal tactics next time? (The bank-robber analogy is dangerously limited — sovereignty is not at stake, we assume the existence of a capable police force, and we the worst-case scenario is not nearly so bad as might be the case when dealing with mass atrocities in ongoing conflicts.)

Also potentially harmful, but less talked about, would be any negative longer running consequences of such indictments. A major but unavoidable concern is that already, the ICC has proven itself enough of a headache for the Security Council that they will probably be much more reluctant to make referrals in the future. Perhaps the Security Council hoped that an ICC referral would be a way of dealing with the Darfur issue without getting its hands dirty. This has proven to be false. More worrisome, if a sitting head of state is indicted, it makes the ICC “scarier” to everyone, and especially to those whose own hands are not clean. A consensus among some member states could very well emerge, publicly or quietly, to assure that there is not a supportive environment for future referral attempts. There is no way forward but to fight through this, and ensure that ICC cases are made with the utmost concern and focus on the worst crimes and criminals. The fact that potential war criminals would not like an effective system of justice is not a good reason to forestall its development.

Finally, there is a major concern about long-term costs that could also worsen the short-term outlook and change the whole analysis: that indictments of Bashir and/or others are handed down but not executed. If they are not executed because the Security Council invokes Article 16, this is more acceptable, as it falls within the correct functioning of the system and still allows the ICC to strike fear in the hearts of war criminal elsewhere who may not be so lucky to get political protection (including rebel commanders). However if the arrest is not executed only because nobody is able/willing to make the arrest and the indictees are prudent about avoiding travel to any place they could be arrested, the ultimate impact may be to weaken the court. It looks like the next round of indictments will not be kept under seal, so catching people by surprise (as with Taylor) is not the approach this time. Even without arrests however, the stigma and severe travel restrictions that come with an indictment are not an insignificant sanction.

3. Challenging the Grounds for an Indictment

All this of course depends on the veracity of a number of underlying assumptions. One is that the ICC will get it right, indicting the right people for the right crimes and managing the process effectively. Several previous posts and publications, particularly by Julie Flint and Alex de Waal, have argued that in fact the court does not have high-quality evidence of the sort of crimes it seems to be suggesting are occurring. I assume away this problem here, by presuming that the evidence the court has and will bring to bear in any prosecution will either be sufficient, or the case will be lost or thrown out.

However, this raises the question of just what crimes Bashir and others could or should be indicted for. Most of us agree that heinous crimes amounting to either crimes against humanity or genocide were committed in Darfur in 2003 and 2004, as planned and executed by officials high and low. Nobody has faced justice for this command responsibility as yet, and this could be the basis for charges.

While less universally agreed on, clear and systematic crimes have occurred since then as well. Fewer of them involve direct violence, though some do. Aerial bombardment is one obvious indication of state involvement and planning. Not all aerial attacks necessarily target civilians or fail to minimize civilian casualties – but some appear to. We have seen occasional bombings even this year: in January and February in Abu Soruj, Sirf Jaj, Sirba, and Suleia; for several days in mid-February near Jebel Moon; in April at Kush Kush (killing 62 civilians, according to the 9 May 2008 UNSG report); and at Um Sidir and Shegeg Karo, also in May.

However, more generally the shift has been not only away from larger attacks but also to less direct, visible methods. A thorough case may well reveal that while massive coordinated attacks have dropped off since the 2003-2004 phase, when the pattern of violence and other known policy choices and actions are considered collectively, government officials demonstrably remained active in employing less-direct means of committing massive crimes against civilians. At its worst, a pattern of crimes that indicates a systematic effort to undermine livelihoods and other means of survival rather than direct killing could include acts prohibited in Article 2(c ) of the Genocide Convention – “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” If not genocide, such acts may still meet the threshold for extermination or other widespread and systematic inhumane acts under crimes against humanity. While the people of Darfur are famously resilient survivors, this does not mean crimes intended to drive groups of them to destruction should be tolerated, if indeed the evidence indicates this has occurred – and that is up to the Prosecutor’s case and the judges’ response to it.

Was the Prosecutor “exaggerating” when he reported to the Security Council that “The entire Darfur region is a crime scene” or that it has required “the sustained mobilization of the entire State apparatus”? It is hard to tell since these are figures of speech more than literal statements. Perhaps, though, they lend themselves too easily to misinterpretation and exaggeration by the press or activists and were thus not the right terms to use. Surely the Prosecutor will use more precise descriptions in a legal case than in giving a public report. But it may be that the spirit of the case does in fact rest on the breadth of these crimes and the involvement of large parts of the state apparatus – and I imagine the Prosecutor may argue that when the evidence is all put together, both the breadth and depth of these crimes appears to be greater than is currently thought.

4. Avoiding and Bracing for Consequences

The question I would like to pose here is how we might reduce the likelihood of negative consequences or mitigate their impacts.

How can we mitigate potential negative political and peacemaking consequences? I do not know, particularly since we don’t yet know what they will really be. The best I can offer is that nations must fulfill the need that has remained incompletely fulfilled all along: to put forth our very best diplomatic effort, including through high-level and rigorous coordination with other stakeholders around the world.

An indictment of Bashir could produce a wave of new political realities and opportunities – we would be wise to meet it with the energy and coordination needed to live up to our diplomatic responsibility.
Other negative consequences may accrue to UNAMID and humanitarians. How can the UN brace for the impacts this would have on the protection force they are trying to deploy? Will their deployment simply be more completely choked off and set back by Khartoum, or will the government go so far as to directly or indirectly attack the force? The Department of Peacekeeping and others at the UN should consider how they might manage such a situation and ask whether they are prepared.
How can humanitarians brace for potential fallout from Khartoum? Humanitarian agencies rightly keep themselves a distance from politics and military operations. But that will not save them if Khartoum decides to kick them out. This would certainly backfire for Sudan, further showing their brutality, and leading to an immediate and enormously loud lobbying in the parliaments of many countries supporting these aid operations. In the meantime, humanitarians might seriously consider preparations they should be making now in case they must leave their beneficiaries behind – including the handover of management for critical operations, and tactical training of their beneficiaries to help them cope with a potential worsening in security or loss of basic subsistence support.

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In summary, the potential immediate consequences of indicting Bashir, including damage to the peacemaking process, are worth considering. But this is not a case where a viable peace deal is around the corner if only we can postpone justice anyway. An indictment has political consequences – but these should be treated by political organs such as the Security Council, through Article 16. We must do what we can to foresee and mitigate potential negative consequences, and to make sure the pieces are in place for an indictment to be successful – e.g. the political will to make an arrest happen. But these concerns should not stop the ICC from doing its job, which is to follow the evidence where it leads and to end the present era in international justice wherein we reinforce impunity for those who commit the world’s most heinous crimes, even when they are willing and able to do so again.

Chad Hazlett is a member of GI-Net.