It is only a little more than fifteen years ago that the first of the contemporary international courts was created to prosecute those who commit war crimes, crimes against humanity, and genocide. Yet there is already a persistent theme in criticism of such tribunals: in their effort to do justice, they are obstructing achievement of a more important goal, peace.
Such complaints have been expressed most vociferously when sitting heads of state are accused of crimes. The charges filed by the prosecutor of the International Criminal Court against Sudanese President Omar Hassan al-Bashir for crimes against humanity and genocide in Darfur are the latest example. Indeed, the denunciations of the justice process this time are more intense and more vehement than in the past.
The complaints were also loud in 1995 when the prosecutor for the International Criminal Tribunal for the former Yugoslavia indicted the President of the Bosnian Serb Republic, Radovan Karadzic, and his military chief, General Ratko Mladic, and even louder when they were indicted again later in the same year for the massacre at Srebrenica. The timing of that second indictment especially aroused critics, because it came just before the start of the Dayton peace conference. Because they faced arrest, Karadzic and Mladic did not go to Dayton.
But, as matters turned out, their absence did not hinder the parties from reaching an agreement. Indeed, it may have helped as the leaders of Bosnia, Croatia, and Yugoslavia negotiated an end to the war in Bosnia.
In 1999, the ICTY indicted Slobodan Milosevic, President of Yugoslavia, for crimes committed in Kosovo. Again, there were denunciations that focused on timing. NATO’s intervention in Kosovo was underway, and critics claimed that prosecuting Milosevic made the tribunal an arm of NATO and would prevent a settlement. That prediction was wrong. Milosevic capitulated two weeks after he was indicted, and the war ended.
The next sitting head of state to be indicted was Liberian President Charles Taylor. Although the prosecutor for the Special Court for Sierra Leone indicted Taylor in March 2003 for his crimes in the war that had devastated that country, the indictment was not disclosed publicly until three months later. Again, timing was a principal factor in sparking outrage. The indictment was made public in June 2003, while Taylor was attending a peace conference in Ghana that was intended to settle the civil war in his own country.
As hosts of the conference, the Ghanaians were particularly incensed at being asked to make an arrest under such circumstances, and refused to do so. Though it is possible to sympathize with the Ghanaians, who were placed in a very awkward position, the indictment intensified demands for Taylor’s removal. He fled into exile in August, effectively ending the war. Taylor is now being tried in The Hague, and, after two decades of horrendous conflict, Liberia is at peace and rebuilding under a democratic government.
We cannot rule out the possibility that doing justice in Darfur will make it more difficult to achieve peace there. Justice and peace are independent values. Each is immensely important in its own right. In the long run, doing justice seems a way to contribute to peace, but one cannot be sure that things will work out that way every time.
On the basis of the record so far, however, some skepticism seems in order over the claim that justice will obstruct peace. After all, the conflict in Darfur has been underway for five and a half years. An estimated 300,000 people have been killed by forces ultimately controlled by al-Bashir, and an estimated 2.7 million have been forcibly displaced. Just a week before the indictment, seven African Union and UN peacekeepers were killed and 22 injured during an ambush by well-armed militiamen. No peace settlement is under serious consideration. So what basis is there for suggesting that the indictment of al-Bashir is obstructing a settlement? What settlement is there to obstruct?
It should be noted that the Darfur case was referred to the ICC by the UN Security Council. The treaty establishing the ICC empowers the Security Council to delay a prosecution if this is needed to bring about a peace settlement. So critics of the indictment should at least be made to bear the burden of demonstrating to the Security Council that a peace settlement is likely if they wish the Council to act.
The world embarked on the creation of international criminal tribunals a decade and a half ago in order to end the impunity with which heads of state and leaders of guerrilla groups commit atrocious crimes. That effort is gradually succeeding, and the indictment of al-Bashir, who is as entitled to the presumption of innocence as any other defendant, is an important milestone on the long road that must be traveled to reach the goal that the world set for itself.
Aryeh Neier, the president of the Open Society Institute and a founder of Human Rights Watch, is the author most recently of Taking Liberties: Four Decades in the Struggle for Rights.