Where justice and politics meet, the United Nations Security Council

In questions of justice in conflicts authors have often described a marked divide between the interests of Western countries and the needs of the local populations directly affected by the conflict on the ground. Two prominent examples are Roy Licklider, who has argued that:

‘We are not just engaged in academic debates now; we are talking about other people’s countries and other people’s lives. And we do not know, in such a manner as to persuade others, what is true, what will work […]’

Adam Branch accuses the ICC of experimenting with African populations in their quest to bring justice to conflicts. As has been argued in various posts published in this blog there are always vested interests in questions of justice during conflicts. For example, in the case of the ICC’s investigations of the Lord’s Resistance Army, traditional leaders have been very vocal in their demands for traditional justice because their traditional authority is at stake. But how much truth is behind the view of a clash of international and local interests in pursuing justice in conflicts beyond the different interests at play?

The case of the ICC warrants against the President of Sudan over war crimes and alleged genocide committed in Darfur serve as a valuable case study to answering this question. The international pressure on Sudan over the Darfur conflict had been mounting for several months before the ICC was brought into play by the United Nations Security Council. Even the US decided to implicitly endorse the referral of the situation in Darfur to the ICC despite their concerns about the court by abstaining and not vetoing Resolution 1594 on 31 March 2005. Throughout the whole conflict verbal condemnations and pressure, especially by France, the US, UK and Canada, had been mounting. This tendency continued after the ICC referrals and culminated in a coordinated international campaign to pressure China, as the main supporter of the GoS, during the 2008 Olympics in Beijing. Human rights organizations like Amnesty International and Human Rights Watch have also consistently been pushing for accountability in Darfur. Additionally, the US applied unilateral sanctions under strong civil society pressure at various points during the conflict.

Save Darfur rally in Central Park, NYC

Yet, this verbal engagement has not been followed up by deeds in any way. The African Union Mission in Sudan (AMIS) was accepted by Sudan in October 2004. It was endorsed by the UN Security Council as its deployment meant that Western states could dodge pressure to become active in Darfur by pointing at the AU. Yet, AMIS failed to stabilize the situation amongst a lack of vital equipment and payment delays for the soldiers stationed in Darfur. The international community never supported the mission to a sufficient degree. In early 2008, after months of stalling by the Government of Sudan and a lack of commitment by Western states, the AU mission was finally replaced by a UN/AU hybrid mission called UNAMID. Yet, history is repeating itself with UNAMID. In 2010 the deployment progress of the mission was still at little over 50 per-cent and vital transport helicopters that are needed to operate effectively in the vast savannahs and deserts of northern and western Darfur were still missing.

Support for the ICC investigations was lacking in a similar manner. Canada, France, the US, and the UK verbally demanded accountability but never backed up their demands with any real action. The US made it a point to expressly declare that they were not legally obliged to arrest President al-Bashir after his indictment in March 2009. Other actors like the UN and Germany reacted hesitantly, emphasizing the independence of the ICC upon issuing the indictment for al-Bashir instead of supporting the court. The pattern that emerges is clear: The relevant actors on the international stage were happy to outsource the problem by issuing a referral to the ICC and to deploy a peacekeeping mission without committing themselves with any resources.

UNAMID soldiers in Darfur

At the same time, the displaced population of Darfur bore the brunt of the conflict. After being driven out of their villages in combined attacks by Sudanese air and land forces and Arab Janjaweed militias, the IDP population suffered from a lack of humanitarian aid due to obstructions by the Government of Sudan and a lack of funding. A UN investigation in the Kaylak IDP camp encountered a mortality rate 40 to 150 times higher than the threshold for emergency situations. When the ICC Chief Prosecutor decided to indict Sudan’s President, al-Bashir reacted by immediately expelling 13 Western aid organisations which he accused of ‘spying’ for the Court. The humanitarian situation predictably worsened as a result. At the same time the most important rebel group at that point, the Justice and Equality Movement, decided to abort peace negotiations that it had started with the government in February 2009 as a reaction to the ICC indictments. With the Government of Sudan lashing out at the Court and it’s perceived supporters and the rebels being emboldened by the indictment, conflict intensity surged again in mid 2009.

The situation hasn’t changed much since 2009. The IDP population is still suffering from the repercussions of the conflict. Armed banditry remains high and the conflict’s intensity has again increased, after the Doha negotiations only managed to include one militarily insignificant rebel group, the Liberation and Justice Movement. With conflicts between the government and the Sudan People’s Liberation Movement – North flaring up in Abyei, Blue Nile and Southern Kordofan after the secession of Southern Sudan, the Darfur rebel movements and the SPLM-N have joined forces in a bid to topple the government. Ahmad Haroun, the first Sudanese government official indicted by the ICC, is today the governor of Southern Kordofan and has been accused of more human rights violations during the emerging conflict there. Al-Bashir has travelled to several countries, including China and ICC Member States Chad and Kenya since his indictment in 2009. The ICC indictments are still there, but nobody has acted on them and calls for their implementation from Western states have become rare.

Internally displaced persons in a camp in Darfur

To sum up, the ICC referral of the situation in Darfur seems to be an attempt by the international community to be seen doing something during the crisis in Darfur that moved so many people across the globe in 2004 and 2005. When it comes to backing up these calls, with real actions or at least effective diplomatic and economic pressure backed up by the will to commit resources, the same states that have endorsed the referral have consistently failed. At the same time, the vulnerable population of Darfur is left to suffer the brunt of the backlash from the ICC indictments of government officials in Sudan. If the UN Security Council decides to refer a case to the ICC, it should accept a moral duty to deal with the political implications of such a move and to make sure that the innocent victims of a conflict are not further victimised.