Collaborative Justice

The ICC should reach out to Darfur and include it in the prosecutorial process

A few pieces of paper may have recently jeopardized the lives of 2.75 million refugees. Earlier this month, Luis Moreno-Ocampo, prosecutor of the International Criminal Court, issued an arrest warrant for Sudanese president Omar al-Bashir, citing crimes against humanity and war crimes. As pundits and scholars alike have warned, al-Bashir’s retaliation was brutal. He immediately shut down 13 relief agencies, giving no explanation other than allegations that the ICC and these NGOs were conspiring against him.

Ocampo’s ICC indictment was a bad idea from the start. In a nation ravaged by government-sponsored war, torture, rape, and murder, ensuring that humanitarian NGOs remain active is crucially important for the lives of ordinary Darfuris. The now-defunct NGOs contributed 80 percent of the workers to the UN World Food Programme’s efforts in Darfur and maintained hygienic standards in packed refugee camps. However effective or ineffective these organizations may be, 2.75 million refugees depended on their aid, along with millions more.

Others argued that the international community would mobilize around this indictment, justifying Ocampo’s actions. This cold calculation of politics for blood was wrong. Instead of increasing aid or taking multilateral action against Darfur, the UN remains silent about NGO expulsion. Why? China is unwilling to retrench its support for Sudan. It blocked a basic press statement from the UN Security Council that would have condemned Khartoum for this retaliatory injustice. The African Union and the Organization of the Islamic Conference, two potential sources of international support in the region, remain silent, and are unlikely to act against al-Bashir.

With these grim results, risking Darfuri lives for a poorly structured indictment process has proven tantamount to manslaughter—or at least gross negligence. Policymakers expected this reaction from al-Bashir. Shortly before Ocampo issued the indictment in July, a reporter asked him whether he thought the potentially terrible consequences of the arrest warrant would be his fault. Ocampo cavalierly replied, “Today they are being killed. Today they are being destroyed and have no hopes.”

With proclamations like this, Ocampo positioned himself as a rescuer who could swoop in and immediately change Sudan. He implied that tomorrow things would be different. Tomorrow Darfuris would not be destroyed and would have hope. It is not that easy. Even if the situation had improved, Ocampo’s individualistic view of the indictment process would still be untenable. It overestimates the impact of one body—whether it is Ocampo or the ICC on al-Bashir or al-Bashir on Darfur. The recent backlash does not invalidate international law as a force of justice. It invalidates international law as a blunt instrument, used by prosecutors like Ocampo.

What, then, is the alternative? How should the ICC have approached this extraordinarily delicate situation? To answer these questions, look back to 1819, when the British Empire prosecuted the human rights violators of the 19th-century: slave traders.

Staffed by both British and local judges, mixed commissions were anything but individualistic. Through a series of bilateral treaties with the French, Portuguese, Spanish, Dutch, and American empires, Britain convinced states to cede sovereignty to Britain in its effort to crush the slave trade. Not only did these international tribunals charge foreigners with the task of judging domestic citizens, but they also worked in tandem with the Royal Navy as it seized illegal slavers on the high seas.

Jenny S. Martinez, a professor at Stanford Law School, called these courts the first “international human rights tribunals” in a recent article. As such, they preceded a line of famous international courts, including the International Military Tribunal at Nuremburg (1945) and the International Criminal Tribunal for the Former Yugoslavia (1993). What makes the mixed-commissions system an apter analogy in terms of Darfur today, though, is the peacetime incentives behind its establishment.

Mixed-commission courts were not post-conflict institutions intended to mete out justice for war crimes. They were, instead, functional components of Britain’s global efforts to suppress the slave trade in peacetime. Countries ratified the courts’ founding treaties because of incentives like money, threat of attack, and involvement. Each nation had a judge and a commissioner of arbitration involved, holding equal power on the court benches. The model was largely successful; the mixed commissions liberated about 80,000 slaves in their 50 years of existence.

The ICC is not a 19th-century superpower engaged in gunboat diplomacy. However, it should look to these cooperative commissions for guidance. The problem in Darfur has become more political than ever.

Al-Bashir shut down these NGOs not only to prevent an alleged conspiracy, but also to reassert his political might in this uncertain time. That is why the indictment was so wrongheaded in the first place—millions of lives have been compromised for what has become a P.R. stunt.

Political problems call for political solutions. A viable case against al-Bashir would be one that respected his Sudanese sovereignty. ICC efforts that involved state actors in Darfur, specifically Sudanese judges, would lend this international legal action domestic legitimacy among oppressed and propagandized Darfuris. This collaborative and respectful approach is the only road to justice.


Noah M. Silver ’10, a former Crimson associate editorial editor, is a history concentrator in Quincy House. He worked in the Executive Office at the Council on Foreign Relations in summer 2008.