In mid-July the International Criminal Court (ICC) indicted Sudanese President Omar al-Bashir for war crimes and genocide.
The evidence strongly suggests that the nation's president, who displaced a democratically elected government to take power in 1989, has been responsible for violence and bloodshed in Sudan.
If accountability and justice were the only issues at hand, the ICC would be right in its attempt to indict him. But justice is not the only issue, nor even the most important one. Sober voices are questioning the effect indicting al-Bashir will have on the peace of Sudan.
Their worries are justified. Several rebel groups who support the ICC decision are refusing to cooperate with African Union (AU) peace mediators. The United Nations is pulling out all non-essential staff.
The Sudanese government's statement that it may not be able to protect peacekeepers sounds more like a threat than a warning. United Nations staff on the ground are concerned that the indictment is rallying resistance, which could lead to more bloody conflict.
The AU is one of many organizations to come out in favor of promoting peace first. It has asked the ICC to hold off indictments until the region settles down.
THE INCIDENT is the latest example of irresponsible ICC indictments in the face of volatile predicaments in Africa.
The ICC has indicted Africans involved in conflicts in Uganda, the Democratic Republic of Congo, and the Central African Republic. In each of these situations, the indictments interfered with national attempts to build and keep fragile peace.
Uganda's history, post independence, is characterized by waves of coups, military dictatorships, and war. The current president, Yoweri Museveni, is a member of the National Resistance Party (NRA), which came out on the winning side of a civil war in 1986.
The party's rule is contested. The Lord's Resistance Army (LRA) has been fighting the good fight since 1987, giving rise to numerous charges of human rights abuses. In 2005, the ICC indicted five members of the LRA, including leader Joseph Kony.
Though peace talks had started and stopped several times before the indictments, the ICC has been generally credited with prompting additional talks in 2006. Weeks before the talks were to begin, the Ugandan government offered Kony amnesty for past crimes in exchange for his promise to renounce terrorism.
Kony rejected offers of amnesty, denying to the BBC that atrocities had not been committed. It is no small matter that the ICC was unlikely to respect the government's offer. Leaders refused to sign any agreement until ICC charges were dropped, but the ICC refused.
In February, the Ugandan government finally coaxed Kony to sign a peace accord, but the ICC may yet ruin this negotiated peace. Part of the accord calls for Ugandan Courts to prosecute war criminals, but the ICC may not respect the prosecutors' discretion or allow the country's courts to have the final word.
"It is the ICC judges who decide if a national trial will be sufficient for their cases," explained Richard Dicker of Human Rights Watch (HRW).
TAKE TWO other cases of ICC bull-headedness:
1. The Democratic Republic of Congo had a devastating ethnic war in 1999. All sides have been accused of murder, rape, pillage and recruiting child soldiers. Three disarmament programs have taken place since 2004, when the thankless task of pacification began. Displaced refugees were only recently able to return home and the area is still not entirely stable.
In July 2006 rebel leader Mathieu Ngudjolo Chui demobilized his troops in exchange for general amnesty. He joined the Congolese national army as a colonel and was training in February 2008, when he was arrested by Congolese officials and handed over to the ICC.
Had he known that this was to be his fate, what are the chances that he would have demobilized? And, going forward, what are the odds that other Chui's will lay down their arms?
2. In 2002, President Ange-Felix Patasse of the Central African Republic called upon Jean-Pierre Bemba, a citizen of the Democratic Republic of Congo (DRC), and his group of rebels, The Movement for the Liberation of Congo (MLC), to help him contain a coup d'etat. Bemba obliged, though the coup succeeded anyway.
In 2004, the new CAR president, Francois Bozize called upon the ICC to investigate war crimes committed during the coup, which opened a whole new kettle of cod. In 2006, Bemba received the second largest number of votes in the DRC presidential elections. When his opponent, Joseph Kabila, took the presidency, Bemba settled for the Senate.
The new Senator fled the country in 2007 after a clash between government forces and Bemba supporters. Kabila has since accused Bemba of high treason. Though local law mandates that Senators automatically have immunity, Kabila was hoping to overturn this. The ICC saved him the trouble.
Bemba was indicted and arrested for war crimes committed in Central African Republic. The MLC, which has become a legitimate political party, has called for the ICC to respect national laws. They have been largely ignored. Congolese troops were dispersed to "quiet" Bemba supporters, who took to the streets to demand his release.
THOUGH PROSECUTING war criminals seems a very natural and harmless thing for an international criminal court to do, it is not always a benign activity. The ICC is completely disregarding national sovereignty and putting peaceful resolutions in jeopardy.
Leaders in these regions need to make difficult decisions. Sometimes this results in horrible men walking free. It isn't justice. They drink margaritas on yachts despite their history of mass murder, torture, and other heinous acts. And it isn't always effective. Charles Taylor of Liberia was accused of meddling in local politics despite being sent away on amnesty.
But oftentimes difficult compromises are necessary to staunch bloodshed. Bad men walk free but people's lives are saved. Perhaps the price of justice can be too steep. This should be a question that countries wrestle with themselves without the ICC imposing an answer.
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