Investigators from the International Criminal Court (ICC) at The Hague are due to arrive in Sudan in the coming days. Yet vocal opponents have recently argued that the Court is responsible, albeit unwittingly , for contributing to the atrocities in Darfur. This is tantamount to stating that courts are responsible for fueling crime and injustice – a claim that could only lead to the perverse conclusion that courts should shun their primary responsibility to seek justice.
To say that attempts by the international community to hold responsible perpetrators of massive human rights violations are, in themselves, factors that contribute to more crimes being committed, is a complete misstatement of causality.
The causes of the crimes being committed in Darfur are the responsibility of the Sudanese government and its proxies, which, in the eyes of the international community, have carte blanche to act in Darfur. As the failures of the African Union Mission in Sudan (AMIS) painfully remind us, the presence of peacekeepers does not, in itself, prevent such atrocities, which can only be prevented if the perpetrators stop committing them. Deflecting attention away from their responsibility and blaming the carnage on the ICC is not only specious but dangerous.
This perspective also ignores the fact that the Sudanese government was given many opportunities to stop the violence – even before a slew of resolutions was passed by the United Nations – but failed each time. The referral of Darfur to the ICC was only one in a series of measures aimed at ending the cycle of impunity for a long history of atrocity in Sudan.
The government’s murderous counterinsurgency campaign that resulted in the killing of two million people in southern Sudan and the forcible eviction of millions more never even made it to the UN Security Council over more than two decades of a brutal civil war that started in 1982 and ended in 2005.
Having succeeded in getting away with mass murder once, Khartoum will use every argument and tool in its arsenal to ensure that it gets away with it again.
Those who attack the ICC are only compounding the problem by giving the government ample ammunition with their campaign to undermine the Court’s legitimacy. The assertion about the ICC is not only uninformed and disingenuous, but historically inaccurate and ignorant of the realities of the situation. Resistance to a UN force being sent into Darfur surfaced at least 18 months before the ICC’s referral. It did not result from the referral, as some have claimed.
The main reason that the government rejects a UN presence is that – unlike the presence of AMIS – it would limit the government s ability to manipulate the presence and to continue targeting unarmed civilians in its criminal counterinsurgency strategy in Darfur. Furthermore, according to the current practice of the UN Security Council, a UN peacekeeping mission would not necessarily enter with a mandate to conduct arrests for the ICC.
Those who oppose the ICC investigation, including the perpetrators themselves as well as their unwitting international backers, make the oft-cited argument that justice is blocking the path to peace in Darfur. That is utterly and obviously untrue. It is the dogged insistence of the government to end the conflict militarily – and its success in outmaneuvering a poorly-coordinated and -led international diplomacy – that is the obstacle to peace in Darfur.
Khartoum has managed to deflect its responsibility for engaging in a genuine political and diplomatic process to end the conflict in Darfur by diverting the energies of the international community into protracted peacekeeping negotiations focusing on minutiae like helmet color and insignia. As it engineered a succession of stalemates, the government hoped its military campaign would sufficiently alter the balance of power on the ground to make further political negotiations irrelevant. Unexpected resistance by the splintering rebel groups worsened the security situation with no end in sight for the innocent victimized civilians.
The campaign that is now emerging against the ICC provides Khartoum a dangerous tool in its confrontation with the international community. Supporting a system that punishes and prevents the most serious crimes committed by humankind is a moral imperative, and therefore not for perpetrators to dictate whether, or on what terms, such sanctions occur.
Uganda is currently learning this lesson. There, the fragile peace talks will ponder the issue of accountability in far more detail than have past peace negotiations, in large part because of looming ICC prosecutions. What those who attack the ICC have gotten so wrong is that if there is no real threat of accountability, there will be nothing left to stand in the way of future atrocities. In that scenario, the chances for lasting peace will tragically disappear.
Juan E. Méndez is Special Adviser to the UN Secretary-General on the Prevention of Genocide and President of the International Center for Transitional Justice (ICTJ).