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Refugee women in the Otash refugee camp in Sudan on September 26, 2007. (AP/Alfred de Montesquiou)
On July 14, the chief prosecutor of the International Criminal Court took the first steps toward indicting Sudanese President Omar al-Bashir. Bashir is accused of genocide and crimes against humanity in Darfur, where an estimated 200,000 have died and more than 2.5 million have been displaced from their homes. The move toward indicting him set off controversy and a debate about whether it would further complicate efforts to bring peace to the country. While some experts predict the prosecutor's charges will obstruct negotiations with Khartoum, others argue that only sustained international pressure on Bashir's regime will spur a peace process.
Africa has dealt with transitional justice in various ways. The 2003 indictment of Liberian President Charles Taylor by the UN-backed Special Court for Sierra Leone is held up as a model of justice leading to peace. South Africa's Truth and Reconciliation Commission, which granted amnesty in exchange for confessions of guilt from perpetrators of abuses under apartheid rule, represents an alternative model. Because the ICC judges will take several months to determine whether to indict Bashir and issue an arrest warrant, Sudan's path has yet to be determined.
Whatever happens, the process will come with its complications. Many critics of the ICC prosecutor's efforts are supporters of the Sudanese government. China, which invests in Sudan's oil industry, suggests UN members listen to the concerns of Arab and African leaders (Reuters) who say pressing charges against Bashir could result in further instability in Sudan. The Arab League cautioned against (AP) the "dangerous ramifications on the peace process in Sudan." The African Union, which has peacekeepers deployed in Darfur, wants the United Nations to suspend the ICC's investigation (VOA).
The UN Security Council has the authority to suspend an ICC investigation (Economist) for a year. Such a suspension has already been proposed for another ICC case—that of the Lord's Resistance Army in Uganda. The Security Council has yet to take up that case, and it's not clear whether it will consider suspending the Sudan investigation. The council itself sent the Sudan case to the ICC for investigation in 2005, which resulted in the indictment of two high-level Sudanese officials in 2007.
Some critics of the Bashir indictment believe it would imperil the people of Darfur—who might become targets of government-backed reprisals—and could damage peace talks. "If all-out regime change is not the goal, then to secure a peace in Darfur means negotiating with Bashir rather than fantasizing about arresting, trying and imprisoning him," writes David Rieff in a Los Angeles Times op-ed. But many analysts say the peace process was faltering long before the ICC announcement. "The unpalatable truth is that there is no peace in Darfur," the head of the joint UN/AU peacekeeping force in Darfur wrote in South Africa's Mail and Guardian. Two mediators from the UN and AU recently stepped down, to be replaced by an envoy that does not speak either English or Arabic (Reuters), the primary languages of those at the negotiating table.
Several human rights activists say Darfuris strongly favor bringing Bashir to trial. When Sara Darehshori, senior counsel in Human Rights Watch's international justice program, interviewed Darfur refugees in Chad last year, they asked her when Bashir would be indicted by the ICC. "There is no justice in Sudan," one refugee told her. "If there was, we would not be here." A report from ENOUGH, a project to end genocide and crimes against humanity, argues that the only way to end the conflict in Sudan is to introduce accountability. But Sudan expert Alex de Waal suggests on his blog that support for the ICC is not unanimous inside Darfur, and outside the region there is strong sentiment against the possibility of an indictment.
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