The long-awaited decision by the chief prosecutor of the International Criminal Court, Luis Moreno-Ocampo, to indict Sudanese President Omar Hassan Ahmed Bashir on genocide and war crimes charges has been greeted with relief and satisfaction by the vast majority of people haunted by the tragedy of Darfur.
For Darfur activists -- and no African cause since the movement against apartheid in South Africa has had such reach or influence -- Bashir is the architect of what they are certain has been a genocide just as surely as Adolf Hitler was the architect of the Holocaust. And if this is true, they argue, it would be immoral not to try to bring Bashir and other central figures in the Khartoum dictatorship to justice. Some of these campaigners argue that the indictment represents the first significant step toward an effective regime of international justice in which world leaders guilty of crimes against humanity will no longer enjoy the kind of impunity that they have had in the past.
Attractive as these arguments are, and counterintuitive as it may seem to oppose them, they are nonetheless deeply flawed. To begin with, the bedrock assumption of those committed to the concept of international justice represented by the International Criminal Court is that peace and justice are almost always compatible goals -- and that, on the rare occasions when they are not, justice should have priority.
But in reality, there is no reason to believe this is true. Indeed, the example of post-apartheid South Africa illustrates this perfectly. Real justice would have demanded that the leaders of the white racist regime pay for their crimes; peace, on the other hand, demanded an accommodation. The moral genius of the African National Congress was to understand that peace was what the newly liberated country needed, not civil war, and so instead of trials there was a Truth and Reconciliation Commission in which, in exchange for confessions, the authors of the horrors of apartheid were effectively let off scot-free.
There is also the example of post-Pinochet Chile. Few observers of that country seriously believe that Gen. Augusto Pinochet would have stepped down in 1990 if he had believed that he would be required to face a war crimes tribunal, or that the Chilean military would have agreed to the return to democracy. Patricio Aylwin, the president of Chile during the transition, made the bargain all but transparent when he remarked, "We will tackle the excesses of the past," adding, "within the realm of the possible." Like the ANC, Aylwin understood that justice cannot and should not always be the first priority, much as one might wish it otherwise.
