An Inkling of Hope, Justice for Darfur

The following article originally appeared in the Boston Globe. Rebecca Hamilton is an Open Society Fellow.

The pretrial chamber of the International Criminal Court is soon expected to formally announce an arrest warrant against the president of Sudan, Omar Al Bashir, for crimes in Darfur. When word reaches Darfuri refugees over short-wave radio, a rare cry of jubilation will echo across their sprawling camps. As 33-year-old Amira of Oure Cassoni camp told me: "Only if Omar Al Bashir is arrested can there be peace in Sudan."

In the short term, Amira's hope is unlikely to be fulfilled. It is the Sudanese government's responsibility to execute the arrest warrant, and it will not hand over its own president anytime soon. And yet the court's announcement should not be dismissed as (yet more) words in lieu of action.

Khartoum is terrified of the court. In the seven months since the ICC prosecutor announced he was seeking an arrest warrant against Bashir, Khartoum has gone to extraordinary lengths to stop the case. It has promised to allow jurists from neighboring countries to oversee prosecutions it claims to be conducting in relation to crimes in Darfur. This week, it even signed a "confidence-building agreement" with one of the Darfur rebel groups. These apparent concessions are unlikely to reflect any genuine shift in Khartoum's approach to Darfur. However, they speak volumes about the power the Sudanese government attributes to the ICC.

The court began its first trial only last month. It has no police force, and depends on states to carry out its orders. Why does an embryonic institution with no independent enforcement mechanism instill such fear in one of the world's most brutal regimes? Because in at least the 108 states that have signed up to the court, and in several more that have not yet joined, the ICC's judicial authority is seen as legitimate.

Despite multiple condemnations by human-rights groups and the US government's determination that the situation in Darfur was genocide, law-abiding states have not united against the actions of the Sudanese government. Many governments have been unwilling to jeopardize their economic and diplomatic relationships with Khartoum by pointing the finger. China, for instance, has feared the disruption of its oil contracts with Sudan. And Khartoum has masterfully exploited the resulting divisions in the international community.

An arrest warrant against Bashir can change all this: No longer does the dividing line have to be between those who criticize the Sudanese government and those who do not. Instead it can be about those who want to align themselves with legally punishable behavior and those who reject it. Overnight, the costs of lining up silently alongside Khartoum have increased.

Ahead of the court's announcement, even those who have perpetrated some of the massive crimes in Darfur have started to abandon Khartoum. In video footage released by the Aegis Trust last week, one former commander begins his testimony about the atrocities by stating: "The Sudanese Government, all time said, no genocide there, no rape there. I am from the PDF—Janjaweed—I want to tell the world the truth."

Following the announcement, we may see allegiances shift away from Bashir within Sudan's ruling National Congress Party. Of course a power struggle alone is no solution; those who would vie for the leadership of the party have as bad, if not worse, human rights credentials than Bashir himself. However, the warrant may at least deter anyone with leadership aspirations from the behavior that led to Bashir's indictment.

Even a small increase in the vigor with which the crimes in Darfur are condemned could lead to behavioral change in Khartoum. No one in the ruling party wants their government to be an international pariah. If the price for avoiding this is to ensure that Sudanese citizens are not the victims of mass atrocity in the future, then it is a price that Khartoum's current and aspiring political leaders may well be willing to pay—even before Bashir is in the dock.