January 19, 2019

On the carrots-sticks toolbox (& Art. 16 not being part of it)

An op ed yesterday (co-authored) by John Prendergast in USA Today argued the Obama administration should offer both carrots and sticks to get behavioral change from Sudan. In policy 101 terms that should be an uncontroversial assertion. But on Sudan, those who have suggested carrots in the past have been viewed with skepticism by activists, leading to something of a no-win situation that comes through pretty clearly in my book –  Unilateral U.S. sticks are ineffective, and the U.S., depressingly, isn’t willing to spend its capital to get multilateral sticks working (which is what it really should be doing). But at the same time it has been constrained from offering carrots by U.S. public sentiment which balks at the notion of “rewarding” Bashir’s regime for anything. As Prendergast writes:

“Because of international sentiment that opposes sanctions and other forms of pressure, the U.S. shies away from creating any real consequences for Sudan’s war crimes. And because activists and Congress strongly favor imposing such consequences, U.S. officials avoid serious discussion of peace incentives.”

I think this no-win ‘box’ has been a real one. As he acknowledges in the op ed, Prendergast has been part of the dynamic which has kept carrots (“peace incentives”) in the political no-go zone.  This actually makes him the best placed person I can think of to write such an op ed. When “JP” suggests carrots, this is unlikely to be read by activists as going soft on Khartoum – which is the charge that would be laid against most other people making the same suggestion. As an opinion leader in the advocacy community, this kind of signaling from Prendergast may lead mass movement activists to open themselves up a little to the possibility of carrots (appropriately linked to verifiable change) being one part of an effective leverage package. However convincing activists of this may no longer be the biggest problem.

After many years of the U.S. promising normalization of relations and never following through, the offer of carrots is no longer seen as credible by Khartoum. It’s important to point out here that not following through on normalization has been the correct course in the absence of real change on the ground. However it has been problematic nonetheless because the U.S., at least under the Bush administration, did not make its promises of normalization conditional upon real change on the ground, but rather upon the signing of agreements. Normalization should never have been offered for the signing of any agreement; verifiable implementation is the only metric on which carrots should be promised. But having made the mistake of promising normalization in return for the mere signing of various pieces of paper, the U.S. has lost the credibility of its word vis-à-vis Khartoum after these pieces of paper were signed and no normalization was forthcoming.

The other dynamic in play is that Sudanese officials believe (and indeed have been told explicitly by U.S. officials) that even if the U.S. wanted to, it couldn’t follow through on its promises of so-called “peace incentives” because Congress and the activists make it politically untenable for it to do so. If Congress and activists drew back from their hard line on this – and perhaps yesterday’s op ed is trying to kickstart such a process – then Sudanese officials might start to reassess the odds. But from conversations I have had in Khartoum I would say this is a calculation that is going to take considerable time and effort to modify – in my experience Sudanese officials accord Congress and activists more power than either would imagine themselves having.

Writing on the EnoughSaid blog today (and re-posted in the HuffPo), Prendergast defends his op ed,  which he has evidently received some flak for writing. It’s a good post, which I recommend reading. But with my old Den Haag hat on, I have to mark a serious objection to one line in it. In the context of defending his suggestion that the U.S. consider offering to get the ICC case against Bashir suspended through Article 16 at the UN Security Council in return for verifiable improvements on the ground, Prendergast writes: “Article 16 was specifically included in the ICC charter to give countries leverage where there might appear to be none, and only in support of peace.” This is wrong – and dangerous.

The decision to include Article 16 in the Rome Statute had nothing to do with “leverage” for states. Article 16 was a compromise solution (proposed by Singapore and originating out of discussions over jurisdiction – law buffs can go to the Art. 16 chapter in Triffterer for this) negotiated in Rome to define the terms of the relationship between the court and the UN Security Council. It was included to ensure the UN Security Council had a mechanism to put the ICC at arm’s length for a finite period if the ICC’s involvement was disrupting promising peace negotiations or risked exacerbating a fragile situation (i.e. it was interfering with the UNSC’s  Ch. VII maintenance of “international peace and security” responsibilities). The distinction between this understanding of Article 16 and the view of Article 16 as a point of “leverage” is a subtle but important one.

The ICC’s work can be suspended by the UN Security Council in the interests of peace, but we should always be clear that the ICC is not a bargaining chip to be used to gain leverage to push for peace. Justice is not a tap to be turned on and off at will by countries looking for leverage – even with the best of intentions. Indeed the very vision behind the creation of the ICC is to break away from this old world view where justice is like any other item in the “leverage toolbox” of pressures and incentives; it should not be seen as a tradeable commodity.

Thinking of justice as an on/off bargaining chip analogous to say economic sanctions is problematic at any time. But given the heightened fears about the politicization of justice and the tensions between the AU and the Security Council on the Bashir warrant, talking about Article 16 in terms of leverage or bargaining chips is particularly dangerous right now. The ICC will never be able to realize the vision of its founders if it is treated as something that the P5 on the Security Council can stop and start to bolster their own leverage over a given regime.

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