In the peace vs. justice debate there are essentially two camps. One argues that justice can and should never be sacrificed in the name of peace. The other camp maintains that there will be occasions where establishing a durable peace in fact requires foregoing the relentless pursuit of justice. I believe that those who argue that justice can never be sacrificed in the name of peace are simply being unrealistic. However, I also disagree with those who have called for an immediate suspension of the warrant against President al-Bashir. The time may come when such a suspension could advance the peace process, but at this point it would not serve the interests of peace or justice.
Under the UN system, the Security Council has primary responsibility for the maintenance of international peace and security. Article 16 of the Rome Statute recognizes that the Security Council’s mandate to maintain peace and security will, if necessary, take precedence over the ICC’s mandate to prosecute war criminals. The priority of peace over justice is not absolute. The Security Council cannot simply vacate warrants, and suspension requires a resolution under Chapter VII, meaning that the Permanent 5 must be in agreement on the matter. However, the Security Council can suspend warrants every year indefinitely. The Rome Statute itself thus recognizes that there will be occasions where the maintenance of peace and security demands that justice be (at the very least) delayed. This is so even when the crimes are as horrendous as those under the jurisdiction of the Court — war crimes, crimes against humanity, genocide and (the yet to be defined) aggression.
This stands to reason. Even in stable countries with functioning justice systems, compromise is necessary. Criminals are given lighter or no sentences in exchange for pleading guilty or testifying against other criminals. In such exchanges “justice” is not served in the sense that society has defined an appropriate punishment for a crime, yet a person committing that crime escapes the punishment. Some will even escape the public denunciation of a conviction. Yet practical necessity requires that we compromise this ideal of justice in order to have a functioning system. Article 16 recognizes that just as practical considerations make compromise necessary in domestic systems, they may also do so in the international context. The question is not whether we sacrifice justice for peace. Rather, the question is how much justice should be sacrificed and how much peace must be gained in exchange?
This brings us to the case of Omar al-Bashir. Many have called for the warrant to be suspended because of possible disruptions not only to the peace process in Darfur, but to a shaky peace between Khartoum and rebels in the South of Sudan. Under the latter agreement, referenda on some form of internal autonomy are scheduled for 2011. Bashir was instrumental to bringing about that agreement, and is seen as crucial to its continued viability. Others point out that since the warrant was issued, Bashir has expelled several aid organizations that were providing badly needed food and medical care in Darfuri refugee camps.
In this context, the arrest warrants can function as a bargaining chip in continued negotiations with Khartoum. Because of the warrant against him, Bashir cannot travel abroad without risking being arrested and extradited to the Hague. This is part of a broader range of travel and trade restrictions that have been imposed on Sudan. They can therefore be part of negotiations aimed at bringing about a peace agreement in Darfur, allowing access to the area by NGOs and aid organizations, and continuing progress on the peace process in the South. An interesting side effect of such an approach is that it would require the active engagement of the UN Security Council, particularly the P5.
Suspending the warrants now would just sacrifice a valuable bargaining chip while getting nothing in return. However, if Bashir were willing to comply with certain agreed conditions, the justice could be delayed, perhaps indefinitely. It is fair to point out the injustice in letting authors of genocide escape prosecution. However, it seems to me that far greater injustices are inevitable if the international community does not use every means at its disposal to bring peace to Sundan.
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