Saving Darfur: The International Criminal Court and the Language of Righting Wrongs

Police wait for President Bashir to arrive in El Fasher last year

Fighters of the Lord’s Resistance Army, Uganda’s shadowy rebel cult, have forced more than 130,000 people from their homes in the Democratic Republic of Congo since Congolese soldiers joined Ugandan and Southern Sudanese forces in launching an all-out assault on guerilla hide-outs before Christmas. Hundreds of civilians have died at the hands of the LRA.

But just over two years ago, LRA negotiators were days from signing a peace deal with the Ugandan government to end Africa’s most brutal war – two decades of bloodshed horrific even by the skewed yardstick of the world’s most violent continent. Joseph Kony, the reclusive LRA leader, cried off sick with diarrhoea and never signed the deal.

The reason, according to one of his closest lieutenants who defected just over a year ago, was that he feared trial and execution by the International Criminal Court in The Hague. Now his loyal footsoldiers – many of them snatched as children – are waging their brutal war once again.

Kony may be wrong about the risk of execution – the ICC doesn’t kill criminals – but his example is instructive in thinking about Darfur as the world waits for the Sudanese president, Omar al Bashir, to be indicted on war crimes charges. The decision of the ICC judges on whether to charge Bashir is expected in days or weeks with massive consequences for Darfur, Sudan and Africa in general.

With peace talks between the Sudanese government and rebels of the Justice and Equality Movement starting in Qatar today, why do anything to disrupt the faint chance of peace in Darfur? (A bit like arresting Martin McGuinness during talks that led to the Good Friday agreement, is how one western diplomat in Khartoum put it). Or is the whole thing a cynical plot by Khartoum to make the ICC judges think again.

Either way, criminalising a head of state can only raise temperatures in an already volatile country, putting peacekeeping operations at risk and forcing aid agencies on to a defensive footing. A shaky peace deal with the south, signed in 2005 ending more than 20 years of civil war, will weaken further under the pressure. And the Darfuri rebels could become sufficiently emboldened to have another crack at the capital, Khartoum.

Against that is the need to hold leaders to account for their actions. If war crimes have been committed in Darfur then the people responsible should be prosecuted.

This debate – framed as justice versus peace in the Darfur context – is nothing new. Humanitarian actors have to grapple with similar issues in every theatre of misery. Generally the aid agencies on the ground come down on the consequentialist, pragmatic side of the argument, and opt for a position that allows them to continue doling out sacks of food, medicine and water pumps. For them, questions of justice and rights and responsibilities come second to saving lives. (Although their language often uses terms such as "rights" and "responsibilities" they are actually used as a shorthand for consequentialist positions, where ends are more important than means. See rule utilitarianism, for example.)

The further you travel from Africa, the more rights-based theories of ethics take over. The issues look much more black and white from New York, London or the Hague. And there is no doubt that a proper, long-lasting peace can only come with a just settlement – and that might very well involved carting people such as Kony and Bashir off to the ICC. But it might very well also reduce the possibility of peace being reached at all. That, of course, doesn’t matter if you are a following a justice or rights-based deontological approach: Means overtake ends in importance. The right thing to do is the right thing to do, regardless of whether it actually achieves peace.

So much of this comes down to worldview. And the two approaches are ultimately incompatible. The debate over the role of the Save Darfur coalition is one such example of how the two sides are speaking different, untranslatable languages. Advocates of justice-based arguments are unlikely to be swayed by appeals to the negative consequences of taking Bashir to the ICC, for example. They have already decided that consequences are less important than justice.

At times these differences flare into outright hostility. For a summary of positions you can read Michael Kleinman, whose background is with aid agencies, and David Sullivan, of the Enough project.

Not only are the positions incompatible, the two sides cannot even talk to each other. At the very least they need a common ethical language so that the opposing worldviews can express their differences in terms that the opposition can understand. In practice many people use a mix of deontological and consequentialist ethics for their everyday lives (it’s wrong to lie, except in certain circumstances, such as to avoid hurting someone’s feelings, say) and the challenge is to find a similar framework for social ethics, that can accommodate both worldviews, allowing the two sides to express their differences in a common language.

So for me, this is not about picking sides, it’s about trying to reconcile the differences between people who should be on the same team. For now, the more time I spend in Africa, the more attractive I find the messy, contradictory, imperfect solutions that stop the fighting. They may not tackle the deep-seated injustices and may just be storing up problems for the future. They might not resolve the big issues, but it stops people dying. Just ask the 130,000 people displaced by the LRA.

This tension between advocacy and humanitarian organisations in Sudan will be one of the key themes in a book I am writing to be published by Reportage Press.