New York Times, NY
July 26 2008

Waiting for Justice

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.

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.’

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