Sudan: Deterring Future Darfurs

The decision of the International Criminal Court to order the arrest of Sudan’s President Omar Bashir for crimes against humanity and war crimes will reignite the debate over whether pursuing justice helps or hinders peace.

At one end of the spectrum are those who insist that any attempt to prosecute Bashir will obstruct efforts to end conflict in Sudan. But they have a difficult case to make, given the regime’s violent history, and the lack of any significant moves towards peace in recent years. Then there are justice advocates who argue there will be no peace in Sudan until Bashir and his henchmen are held accountable for their atrocities. However, while such an outcome is obviously highly desirable, history is replete with peace deals achieved at the cost of impunity for perpetrators of atrocities.

The reality is that we just don’t know if prosecuting Bashir will accelerate or delay the prospects of a sustainable peace in Sudan. It is a question we will only be able to answer with the benefit of hindsight.

But there is a bigger question we need to pose, the significance of which extends far beyond Sudan. That is whether prosecution of Bashir will cause other would-be perpetrators to think twice before unleashing violence against their own people? Or, to put it another way, can international justice deter leaders from committing atrocities against their own people?

In the preamble to the Court’s founding document, the Rome Statute, there is a clearly expressed determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to [their] prevention”, and it is not too difficult to demonstrate that the threat of criminal prosecution affects the calculations of abusive leaders. One of the reasons Zimbabwe’s President Mugabe is so determined to cling to power is his fear of being hauled before an international court. What is much harder to establish is whether potential proscecutions can so influence leaders as to actually prevent future conflicts.

There are plenty of examples in which the threat of criminal prosecution failed to deter perpetrators of atrocity crimes, and it is difficult to point to cases of successful deterrence.

But this may simply mean that we can’t concretely establish deterrence, not that it doesn’t work. As with conflict prevention efforts more broadly, it is difficult to establish something that never happens: in this case, that a conflict would have ensued, and atrocities would have been committed, but for the deterrence.

In any case, history is of limited benefit when considering these issues, as international institutions and norms are much stronger today than they were even ten years ago, ensuring that the risks of prosecution are greater, and hence more likely to impact on potential perpetrators’ calculations.

Given these challenges, a more useful exercise is to analyse how deterrence can be made more effective.

Deterrence proceeds on the assumption that actors are rational - and hence will respond to the prospect of punishment for contrary behaviour. Punishment here generally means incarceration following conviction, or delegitimisation leading to a weakening of the actor’s hold on power.

The effectiveness of deterrence largely depends on the certainty and severity of the consequences. Actors in a conflict may have different knowledge. In the early stages, rebels in remote areas may have limited understanding of the threat posed by international justice. Government leaders, however, particularly now in Africa, are much more alive to the possibility of ICC investigation, and will likely factor that into their considerations.

Not all actors are rational when it comes to committing crimes. Individuals may act on impulse, with little consideration of the longer-term consequences. But this will rarely be the case in respect to atrocity crimes, particularly those meriting the attention of the ICC, which are — almost by definition — of a scale that requires systematic planning and implementation.

In any event, actors will often calculate that the benefit to be gained from crimes outweighs the risk of punishment. Benefits for rebels include capture of the state, and for governments may include holding onto power. The risk of punishment may also be perceived as very low, and the likelihood of prosecution is a relevant factor. To the extent rebel leaders focus on the risk, they may calculate it as being minimal. The threat may not be much higher for government leaders, but that is changing - with Chile’s Augusto Pinochet, Chad’s Hassan Habre, Serbia’s Slobodan Miloševic and Liberia’s Charles Taylor all having faced prosecution.

Maybe the best that can be said about deterrence is that the threat of prosecution and delegitimisation may influence decisions, and perhaps more so for government leaders than rebels.

But influencing is important, particularly when leaders are deciding how to respond to a challenge to their authority. In so responding they usually have a number of policy options: they can seek to crush those rebelling against their authority; they can try to undercut them politically (eg, by addressing some of the grievances of the rebels’ constituency); or they can attempt to come to a deal with them.

In today’s world of instant global communications, large-scale atrocities can rarely be carried out in secret, so a decision to crush their opponents, which will almost invariably result in such atrocities being committed, cannot be hidden from the world’s view. If leaders knew such attention was likely to result in investigation and prosecution, they may choose to respond differently to a challenge. It will not be decisive, but it could be an influential factor.

All of this should be borne in mind following the indictment of Bashir.  When his fellow African and Arab leaders claim that his prosecution will destabilise Sudan and make peace more remote, there will be pressure to put the prosecution on hold. Those with power to do so must make their decision with the full understanding that such prosecution may be one of the few ways in which the world can effectively reduce the likelihood of future Rwandas, Srebrenicas and Darfurs.