Justice for Atrocities is Hard (So Get It Right in Darfur)

Faced with grisly accounts of burned villages and mass killings, a number of governments and other observers are calling for those responsible for atrocity crimes in Burma to be held accountable.  However, it’s not easy to see what mechanism or institution would be able to set such a process in motion.  If one is identified, though, the hard part will just have begun. Experience in Sudan, where the government has been unwilling to cooperate with a twelve-year-long effort to seek justice, shows just how difficult the task will be.

The International Criminal Court (ICC) has been investigating genocide and other atrocities in Sudan’s Darfur region since 2005, when the UN Security Council empowered it to do so after correctly assessing that no one else could or would.  The Court has been opposed all the way by the same government that is allegedly responsible for the eliminationist campaign of murder and rape in Darfur that forms the heart of the investigation, and it has received too little in the way of support from other states.

Supporters of justice should seek to draw lessons from the ICC’s Darfur experience, which has seen five arrest warrants issued and none carried out.  Just as importantly, though, they should find creative, narrowly targeted ways to move past the current stalemate in the Darfur investigation, and in the process, help change it from a cautionary tale to one that signals that incremental progress is possible even in hard cases. 

For a sense of where the ICC’s Darfur inquiry stands, consider two pieces of diplomatic theater that were acted out last month.  First, the ICC prosecutor dutifully briefed the Security Council for the 26th time on the state of her investigation.  Several states lamented the lack of concrete progress in the Court’s proceedings, while others essentially welcomed it.  Even those expressing support for the investigation made only abstract calls for improved cooperation.

Second, a panel of ICC judges made Jordan at least the seventh country to be referred to the Security Council for possible penalties following its decision not to carry out the Court’s warrant for the arrest of Sudanese President Omar al-Bashir, a recent visitor who has been charged with genocide.  History has made clear the Council will impose no such penalties.

No one expects this procedural churn to have any impact on the ground or in the courtroom, which is deeply frustrating for those who believe that lasting stability in Darfur requires some measure of justice for the crimes committed there and some solidarity with the victims.  It should be worrisome, too, for those who want their commitments today — for example, that those responsible for the atrocities occurring now in North Korea, or South Sudan, or Burma will be held accountable — not to ring hollow.

Some observers have suggested that the ICC prosecutor should consider ending her briefings to a passive Security Council.  What if, instead, the states in a position to do so tried harder to build a coalition capable of finding areas of common ground, and pressed recalcitrant states to support progress in this stalled investigation?  Such common ground will remain elusive regarding Bashir himself, who has perversely become a rallying point for a number of states keen on defying the Court when it takes on governments.  Indeed, key African states have managed to parlay the backlash against Bashir’s arrest warrant into an African Union position that the entire Sudan investigation should be canceled.

But what about rebel leader Abdallah Banda?  He faces ICC war crimes charges for his alleged role in a lethal 2007 attack by his group on an African Union peacekeeping base at Haskanita in south Darfur.  Banda is, of course, a relative nobody, and it would be less than fully satisfying to see him tried for his “mere” war crimes while the authors of genocide remain free.  His case is a good starting point, though, for an international community collectively struggling to handle more difficult issues.

Why?  Banda stands accused of responsibility for the killing of peacekeepers, a perennial and widely shared concern for the UN Security Council and the states that provide the most soldiers and police to the UN and African Union’s missions (which, interestingly, include the African states most critical of the ICC in Darfur).  Banda’s prosecution also raises none of the legal or political concerns at the heart of the African Union’s objections regarding the ICC investigations of Kenyan and Sudanese officials.  Indeed, while key states later managed to turn the African Union against the Darfur investigation, part of the African Union’s response at the time of the Haskanita killings was to call for those responsible to be brought “to international justice.”

None of this means Banda would be easy to apprehend.  Reporting by the UN’s Libya panel of experts suggests he has been involved with armed groups fighting in eastern Libya.  The Sudanese government is not keen to help send any of its nationals to The Hague, even those who are not high-ranking officials.  But the point of focusing on Banda would be to build some starting point for consensus and dialogue, with a view to moving past the outright rejection and excuses that Sudan and its supporters offer up for their non-cooperation.  The Banda case helps show that even some of the investigation’s biggest critics should have some interest in its success.

What would it look like to pursue this?  A small group of African states and other supporters of accountability on the Security Council could use the time between now and June to make the ICC prosecutor’s 27th briefing on Darfur a less sterile exercise.  Those states could work quietly behind the scenes to have the Security Council call for Sudanese and Libyan authorities to cooperate in apprehending Banda and transferring him to the ICC.  They could ask the Security Council’s panels of experts focused on Darfur and Libya to include Banda among their investigative priorities.

Even the United States could assist by including Banda in the State Department’s War Crimes Rewards Program, which could help elicit more information about his whereabouts.  It was the genocide in Darfur that prompted the Bush administration to put the U.S. government’s backing behind an ICC probe for the first time, a position that the Obama administration continued.  The Trump administration has also expressed support for accountability in Darfur, including calls for those charged in the inquiry to be brought to justice and for Sudan to fulfill its obligations under the Security Council’s decisions.

Would these steps help advance the stalled Darfur investigation and give it the broader momentum of a much-needed “win”?  No one knows.  The effort would be more compelling and effective if backed or led by Senegal and Nigeria, the home states of the peacekeepers slain at Haskanita.  If not these steps, though, the international community needs to take some other creative action, because for better or worse, this is what justice would look like in Burma too, and in other tough cases that are crying out for accountability today.  Progress in any of them will require a hard slog of constant pressure against unyielding political obstacles.

 

Image: Scott Nelson/Getty 

About the Author(s)

Adam Keith

Served in several positions at the U.S. Department of State and as a director on the National Security Council staff from 2007 to 2017.