The move to indict President Bashir has divided opinion and sparked a contentious debate – that of the relative merit of Peace Vs Justice. On the whole, human rights groups have welcomed the prospect of bringing Bashir to justice, viewing the move as a chance to improve accountability in a country ravaged by impunity. Many believe that only sustained international pressure on Bashir’s regime will push forward the hope of peace for Darfur. Others however have strongly criticised the move to indict Bashir, warning that a warrant could have potentially catastrophic consequences for the peace process and the people of Darfur. Below is an overview of some of the critics’ main arguments and responses to these.

Justice vs. Peace: A False Dilemma?

Some analysts believe that an ICC warrant for Bashir will be a major blow to the peace process. David Rieff, for example, has made the case that justice, whilst gratifying, is in reality the enemy of peace, and that the only route to a secure peace in Darfur involves engaging with Bashir. In a similar vein, Alex de Waal recently wrote that the Prosecutor’s application for a warrant "is not in the interests of justice, peace and democracy for Sudan."

A concern raised by critics of the ICC is that issuing warrants for senior officials will harden the Sudanese Government’s attitude to negotiations and destroy attempts to increase the presence of an international peacekeeping force in Darfur. They believe that, fearful that any such force may arrest and bring Sudanese leaders before the ICC, the Khartoum Government will be more likely to increase its opposition to the UNAMID deployment, thereby making the ICC an "unwitting party to the government’s atrocities."

The suggestion, however, that it is fear of the ICC driving Khartoum’s opposition to a peacekeeping force is fundamentally wrong. Khartoum has indeed long been opposed to the presence of an effective peacekeeping force in Darfur, and has frequently used violent means to intimidate the hybrid UN/AU mission (UNAMID).

As for the argument that claims that peace in Darfur can only be achieved by engaging with Bashir, and that an arrest warrant will make this impossible, it rests on the false premise that Khartoum is seriously committed to achieving a lasting peace in the first place. Peace talks have never had the full commitment of the Sudanese Government. Khartoum has indeed systematically bombed meetings of rebel commanders meeting to align their positiion ahead of peace talks. The Government has implemented neither the Darfur Peace Agreement, nor the comprehensive Peace Agreement and it has a track record of failing to comply with ceasefires and disrupting peacekeeping and aid efforts. This, unfortunately, is unlikely to change.

An ICC warrant could provoke a violent backlash

Critics of the ICC’s indictment against Sudanese President Bashir warn that this move could imperil the people of Darfur. Civilians may become targets of government-backed reprisals and the work of humanitarian organisations and peacekeepers could be endangered.

Bashir has indeed threatened serious consequences if a warrant is issued, but in reality, civilians and peacekeepers have never been safe in Sudan as threats to peacekeepers are neither new, nor solely caused by the threat of ICC prosecution.

On July 8th 2008, for example, seven African peacekeepers were killed and others critically wounded. Days later, another peacekeeper was shot. The Government has also frequently impeded humanitarian efforts, going as far as appointing one of the ICC indictees, Ahmad Haroun, a man responsible for the atrocities in Darfur, as Minister for humanitarian affairs. Humanitarian aid has as a matter of policy been impeded by the Sudanese Government, prompting this month a UN humanitarian coordinator to voice his concern that humanitarian flights had not been granted access to reach some 100, 000 civilians displaced by recent fighting.

The ICC and the UN Security Council must therefore not bow to the Sudanese Government’s threats of more violence. Indeed, as two commentators have put it, "If the government of Sudan is allowed to use threats of additional violence and further crimes to defer or even dispel the possibility of justice, the victims of Darfur are ultimately betrayed."

The Importance of Accountability

For decades, a persistent lack of accountability has been a significant factor in undermining peace and stability in Sudan. As Sara Darehshori writes: ‘Impunity more often than not contributes to renewed cycles of violence; accountability, on the other hand, may yield positive benefits for long-term stability and development of rule of law.’ Indeed, failure to demand accountability for serious crimes perpetrated by the Sudanese government may embolden them to continue to use the same tactics.

Experience from other conflicts also provides strong grounds to believe that justice and peace are in fact complementary, mutually reinforcing objectives, and that marginalizing leaders who commit atrocities can lead to significant benefits. In northern Uganda, ICC charges against leaders of the rebel Lord's Resistance Army have helped bring an end to years of brutal fighting and marginalised the LRA's chief, Joseph Kony. Sara Darhshori also notes that the indictments of Charles Taylor and Milosevic ultimately contributed to peace in the region. Whilst controversial at the time, she explains that these indictments "ultimately paved the way for groundbreaking achievements in the restoration of human rights" and "In the long run, they all eventually contributed to peace and stability. And the sky that was supposed to fall never actually fell."

What do Darfuris think about the situation?

In 2007 Waging Peace researchers brought back a petition, signed by over 60, 000 refugees, from Chadian camps. It called on the international community to intervene to stop the killings and restore peace and justice in Darfur. The petition represents the voice of the Darfuri people who, frustrated with their leaders, felt they could communicate their desperation directly to decision makers in the West. The petition, which includes testimonies interspersed within its body, strongly supports the ICC and its indictement of President Bashir.

In October 2008 hundreds of Darfuri refugees travelled to the Hague from across Europe to call for the arrest and trial of Sudanese President Omar al Bashir. At the demonstration, Darfuri refugees expressed their support for the work of the ICC. Khatir M Kayabil, Secretary General of the Darfur Union in the UK, one of the groups responsible for organising the demonstration, said: "Critics of ICC action against Bashir argue that it could damage prospects for peace in Darfur, yet the very people not getting heard in this debate are the Darfuris themselves. We are the victims of the crimes for which President Bashir has been charged, and we don’t want this brutal dictator appeased. We need justice. And we need to be heard."

Below are some recent examples the Sudanese Government acting to impede humanitarian efforts and the peace process

• In January 2009, intense fighting broke out in the town of Muhajariya, after the JEM rebel group seized the town. It has been reported that it is the worst violence in Darfur in a year. The government rejected a rebel offer to withdraw if peacekeepers assumed control there, instead taking it by force, using indiscriminate aerial bombardment. UN officials are extremely concerned about the dire humanitarian situation in the town. This week a UN Humanitarian Coordinator called urgently for access to over 100, 000 civilians displaced by the fighting. However, humanitarian agencies have been unable to obtain clearance for humanitarian flights.
• On 11 February 2009, peace talks between the JEM and Sudanese Government were undermined by the alleged advance of Government forces towards rebel faction’s positions.
• Sudanese authorities last year expelled from Darfur the head of the Dutch branch of the charity Medecins Sans Frontieres. Since the outbreak of the conflict, it has also targeted for expulsion the charities CARE, the Norwegian Refugee Council, and the UK’s Oxfam and Save the Children. In 2007 two members of the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) were expelled.
• On 23 January 2009, a UN report stated that Sudanese forces violated international human rights law by using lethal force in "an unnecessary, disproportionate and therefore unlawful manner," when they fired on a crowd in a displaced persons camp in Darfur last August, killing 33 civilians.

CONCLUSION

The critics of the ICC’s indictement of Sudanese President Bashir would have a stronger case had the Khartoum regime shown signs of commitment to peace and security in Darfur.

However, the Sudanese Government’s renewed offensive in Darfur and its continued impediment to the deployment of peacekeepers and the delivery of humanitarian aid in Darfur indicates that holding Bashir accountable for his acts may be the only way to achieve real and substantive peace in Darfur.

Whilst it is true that in balancing the sometimes competing demands of peace and justice, difficult decisions often have to be made, in the case of Sudan, the extent of the atrocities committed by the regime and it’s history of consistently violating commitments weighs the scales very heavily against ever giving them any kind of immunity.

Undoubtedly the ICC’s decision is a pivotal step forward. And a key point of leverage that offers Darfuris their best chance for improved humanitarian and security conditions, and long-term peace.