Four years ago, the US declared the conflict in Darfur to be genocide. Later the UN found "serious" human rights violations by Sudan. Now an international court is ready to finger Sudan's leader for genocide and war crimes. Do such edicts on behalf of justice help stop mass killings by a ruthless government? That's not likely in Darfur.
Human rights activists say an indictment of Sudanese President Omar al Bashir by the International Criminal Court (ICC) is a moral necessity. It will assert a legal principle of universal values in the face of mass atrocities, even if the court can't bring him to trial. A threat of arrest and trial may even be a way to revive a stalled peace process.
Others, who seek a negotiated peace with Sudan to save Darfur refugees, say pursuit of court justice with slim ability to act on it will only harden Sudan's position. It may push Sudan to retaliate with more violence. They point to a previous ICC indictment of two lesser Sudanese officials which has had no effect.
These reactions to the ICC's move point to a problem for a permanent global war-crimes court: It has no independent "hard power" of enforcement. The 106 nations behind its creation are obligated to turn over indicted suspects to the Hague-based tribunal. But if Mr. Bashir doesn't travel, he's safe.
The US hasn't joined the ICC, fearing the body may someday become anti-American and bring charges against US soldiers serving overseas. But without the added might of the US to pressure or snag the world's worst criminals, the ICC might end up being a paper tiger.
The ICC's charges against Bashir are the first against a sitting head of state. The court itself is an attempt to end the practice of the international community setting up temporary tribunals for specific situations, such as those for Rwanda and former Yugoslavia. Having a permanent court, in theory, signals to dictators that the world is ready to bring justice down on them.
Its creation is a triumph by human rights advocates who want to prevent the kind of atrocities seen during the 20th century. They assert peace must come with justice. But that view can often be a triumph of idealism over realism.
The human-rights community has failed to create a broad-based backing for many of its causes, including the ICC – the kind that would bring overwhelming support among Americans and others to act boldly against genocide and other major crimes.
The temporary tribunals have generally worked because the will of the international community was strong to act in every case or the situations allowed enforcement. In Darfur's case, the world's will is weak, with only an ineffectual African force now trying to prevent more slaughter.
Sometimes justice must be set aside or traded for peace, as was the case in Sierra Leone's civil war of the 1990s. A decision there not to prosecute key rebel leaders won over remaining rebels and brought peace.
The UN Security Council has been unwilling to enforce peace in Darfur. But it does have the ability to suspend the ICC prosecution of Bashir. It should consider such an action if it might bring a negotiated settlement. Peace needs to come first. The time for justice will be more ripe, and enforceable, later.