James Cockayne is a Senior Associate at the International Peace Institute, New York.
Last night’s indictment of Sudanese President Bashir by the International Criminal Court will split international ranks. Bashir was indicted on charges of crimes against humanity and war crimes, but the judges rejected a charge of genocide, 2-1, for lack of evidence of genocidal intent.
Bashir’s indictment complicates peace efforts in Darfur and fragile southern Sudan. But history suggests it may, in time, reveal the road to peace.
Six years ago, Liberian President Charles Taylor was indicted by the Special Court for Sierra Leone. Now he’s on trial in a borrowed ICC courtroom. At first, his indictment exacerbated violence in Liberia. But when international support for his trial became clear, his local support evaporated, creating space for peace to take hold.
Similarly, Richard Goldstone’s ground-breaking indictment of Karadzic and Mladic in the mid-1990s (which apparently infuriated former Secretary-General Boutros-Ghali) allowed the US to marginalize the pair, simplifying negotiation of the Dayton Peace Accords by Slobodan Milosevic. He later faced a similar fate: indicted for crimes in Kosovo, he was marginalized from within, triggering the slow democratization of Serbia.
The prospects of such a process taking hold in Sudan are less clear. Bashir enjoys considerable support from the Arab League and African Union. The fact that the ICC has so far indicted only Africans doesn’t help. Iran’s recent calls for the indictment of Israeli leaders for war crimes in Gaza are intended to spotlight potential double-standards in international justice.
This international division puts the UN in a tight spot. Already dependent on AU cooperation for its peacekeeping effort in Darfur, UN officials are nervous that UN staff and aid workers might become targets for violent expressions of opposition to the indictment. Short of that, Sudan might simply follow Iraq’s lead during the 1990s and refuse to admit UN personnel of certain nationalities. It has already – today – expelled some NGO aid workers.
In the long-run, though, Sudanese officials will probably find they can’t change the ICC’s mind by twisting the UN’s arm.
The Group of 77 and others might try to force a vote in the Security Council to suspend the prosecution for 12 months, under Article 16 of the ICC Statute. But even if that passed, the issue would return annually. Just one veto would see the prosecution proceed. Although the UK has lately sent somewhat mixed messages, that veto would probably come from France or the US, if a resolution made it to a vote.
For now, the first question is whether Bashir fashions his own exit, or whether, like Milosevic and Taylor, his supporters politely show him the door. One option might be for him to go temporarily into exile, as Taylor did. The Arab League is said to be mulling that proposal.
And the second question is how many people get hurt along the way. Unfortunately, the silencing of opposition figures in Sudan in recent months, perhaps to shore up wavering support within Khartoum’s ranks, suggests the answer may not be pretty.