No peace without justice: but can justice precede peace?

Two interesting articles on international criminal law came out of the New York Times stable this weekend.

Jean-René Ruez was an international war crimes investigator in the former Yugoslavia. An account of his experiences is published in the IHT. Ruez's motto is clearly, and understandably, "No peace without justice." But what happens when those goals come into conflict?

"The Pursuit of Justice vs. the Pursuit of Peace" reports on the plan of the ICC Prosecutor to seek an arrest warrant for Omar Hassan al-Bashir, Sudan’s president tomorrow.

The predictable responses have included fears that this will:

(1) jeopardise the safety of the joint UN/African Union peacekeepers - presently unable to defend even themselves properly - and other humanitarian workers in Darfur, already accused of being spies for the ICC;

(2) be an obstacle to any kind of peace settlement; and

(3) destabilise the region, as an already paranoid regime - armed by China - resorts to increasing violence.

The permanent International Criminal Court could well do more harm than good here. There is simply no realistic prospect of Omar Hassan al-Bashir being arrested in the short term. As I've outlined below, on the topic of Zimbabwe, criminal regimes simply cannot be prosecuted before there is stability in their country and a transition of power,which will likely require their cooperation.

The ICC prosecutor is an independent officer, who has a job to do - and he is doing it. The problem here is not him fulfilling his duty, it's that the Security Council approved referring Darfur to the Court as a substitute for taking any more effective action in the first place.

Perhaps in the long run, this will bring pressure to bear on the Sudan that will produce constructive results; but in the short term, it carries incredible risks for those on the ground in Darfur.

PS: for the more optimistic among us, Richard Goldstone has published possibly the best set of counter-arguments to my position. (Although the argument that "the indictments may delegitimize the government in the eyes of the Sudanese people, especially the elites in Khartoum" seems especially optimistic.)