Waiting for Justice

by Helene Cooper, The New York Times, July 27, 2008

WASHINGTON — Let’s pretend, for a moment, that you are Sudan's president, Omar Hassan al-Bashir, sitting in Khartoum and likely to face charges of genocide and crimes against humanity from the International Criminal Court for the last five years of bloodshed in Darfur.

CRIMES OF WAR Evidence of killings by government troops abounds in Sudan.

You’re watching CNN International, and what comes on the screen but Radovan Karadzic, the notorious Bosnian Serb leader, apprehended after 13 years in hiding and about to be hauled to the United Nations-backed tribunal in The Hague on war-crimes charges.

Now what, Mr. Bashir?

A) Do you get really nervous at this peek into your future and decide to straighten up, do what the international community has been telling you to do, sign a peace deal and let peacekeeping forces into Darfur?

B) Or do you get only mildly nervous at this peek into your future, figure that you have some options, and decide that since there’s a wanted poster with your face on it, you might as well forget the peace deal and give the Janjaweed even freer rein to attack civilians and maybe even a few relief workers?

The dueling war-crimes cases of July — first Mr. Bashir is told that a prosecutor is seeking a warrant for his arrest on war-crimes charges, and then Mr. Karadzic actually gets arrested in Belgrade, Serbia, in a move that will most likely send him to The Hague — received two very distinct reactions from the international community. The reason may well lie in the two very distinct pathways that Mr. Bashir could choose in our opening puzzle.

Just about everyone except a few übernationalistic Serbs appeared to cheer the arrest of Mr. Karadzic, who was indicted for the 1995 massacre in Srebrenica in which Bosnian Muslim men were singled out for slaughter. But curiously, the request by the International Criminal Court’s prosecutor, Luis Moreno-Ocampo, for a warrant for Mr. Bashir’s arrest was greeted with ambivalence among international human rights activists.

“The problem is, it doesn’t stop the war,” said one human rights official, who spoke on condition that his name not be used. Gary Bass, a Princeton professor who wrote a book on the politics of war-crimes tribunals, said human rights advocates were caught in a bind in the Bashir case because they worry that an indicted Mr. Bashir might think he has no option but to continue waging war; if he makes peace, he will still have an indictment hanging over his head and could end up in The Hague.

“From a human rights perspective, what’s more important?” Mr. Bass asks. “Delivering justice for people who’ve been victimized, or preventing future victimization?”

There is a strand of those within the human rights community who say that war-crimes indictments should be used only after a conflict is resolved, because such indictments, they say, can extend the length of a conflict. Advocates of this view point to the case of Joseph Kony, head of the Lord's Resistance Army, the guerrilla group that has been engaged in an armed resistance against the Ugandan government since 1987. During peace negotiations in 2005, the I.C.C. issued arrest warrants for Mr. Kony and his deputies, charging them with crimes against humanity that include murder, rape, sexual slavery and the enlisting of children as combatants.

Mr. Moreno-Ocampo met with some human rights advocates before issuing the warrants; the advocates said they urged him not to do it. Mr. Kony’s advisers said they would never surrender unless they were granted immunity from prosecution, but the Ugandan government doesn’t have the power to revoke a war-crimes indictment. A tenuous peace is holding right now in Uganda, but human rights advocates point out that Mr. Kony remains at large — he is believed to be hiding in eastern Congo — and fighting could flare up again at any time.

International justice advocates say the don’t-indict-until-the-conflict-is-over argument is bogus. “The push for justice is getting a bum rap,” said John Norris, executive director at Enough, a group that seeks to end genocide. “What they miss is what an indictment does to change the internal debate. It’s a big thing when the international community stands up and says ‘this guy is reprehensible and we’re not going to do business with him.’ ”

Mr. Norris worked on the Kosovo war for the State Department during the Clinton administration. He said he was in Moscow for negotiations in 1999, while NATO forces were bombing Serbia, when news came that the Serbian president, Slobodan Milosevic, had been indicted for war crimes. Russian negotiators, Mr. Norris said, “saw this indictment as a disaster.”

“They said the war was never going to end,” Mr. Norris said. “Everybody was gnashing their teeth about it.” But, he argues, the indictment didn’t change Mr. Milosevic’s calculations. In fact, it was only a week later that Mr. Milosevic gave in to NATO’s demands and the war ended.

Why? For one thing, Mr. Milosevic had endured a fierce bombing campaign. For another, he believed — rightly — that he had other options. Indeed, it wasn’t until two years after he was indicted, in 2001 — after he had lost elections — that he was forced to surrender to Yugoslav security forces. He was then transferred from a jail in Belgrade to United Nations custody just inside Bosnian territory, and eventually to The Hague, where he died two years ago, his trial incomplete.

Mr. Karadzic’s case is even more striking. After the Bosnian war ended in 1995, he lived as a fugitive for 13 years. It wasn’t until Serbia elected a new government more interested in joining Europe than in nationalism that the authorities arrested the Bosnian Serb leader.

Those cases suggest that one way war-crimes indictments are useful is not so much to obtain justice, but as a tool to help shape the postwar behavior of a country: its new leaders may need a way to re-engage the outside world. In the case of Mr. Karadzic, Serbia’s new leaders realized he was of more use to them as a way to get back into the good graces of Europe.

An indictment also didn’t change the calculations of Charles Taylor, the Liberian president indicted for war crimes in March 2003. But it did play a role in clearing a path for peace, all the same.

Just a few months after he was indicted, Mr. Taylor agreed to a deal that forced him to leave Liberia for what was supposed to be a safe haven in Nigeria. Part of the deal, which Mr. Taylor struck with Nigeria’s president, Olusegun Obasanjo, was that he could stay, unarrested, provided he didn’t meddle in West African affairs and wars while in exile.

Prosecutors with the Special Court for Sierra Leone said that Mr. Taylor didn’t keep that promise, and Mr. Obasanjo rescinded Mr. Taylor’s “safe haven.” He was captured while trying to leave Nigeria in 2006, and was eventually carted off to The Hague; meanwhile, in his absence, Liberians had elected a new democratic leader, Ellen Johnson Sirleaf, who promised reconciliation.

Professor Bass of Princeton says that while he’s not sure war-crimes indictments are always the way to go in the midst of a conflict, he does think indictments sometimes embolden a country’s opposition, making a despot’s reign more tenuous. “It tells domestic political opponents that maybe the time is right to get rid of you,” he says.

And, he adds, no matter the problems it may create, there’s something to be said for justice.

“Does finding out the truth mean something?” he asks. “For a lot of people — like the Armenians, for instance — it does.”