Mayhem in Darfur: The Accountability, Peace and Immunity Debate

Abstract

No one quite tells in precise terms what ‘justice’ is all about, that is why it is so useful a term. Today, the word is almost constantly on everyone’s tongue and might signify almost anything. It is used by all, ranging from the most repressive and atrocious regimes responsible for heinous international crimes, to victims of such egregious human rights abuses. It is a term with a ‘penumbra of uncertainties.’ Borrowing the words of Plato and other philosophers, Kirk tells us the classical definition of justice captured in one phrase, suum cuique, which means to each his own. Despite the recurring controversy over the meaning and normative content of the notion of justice, modern human rights enterprise posits the idea as articulating at least four obligations in the context of atrocity crimes, i.e., the duty to prosecute, disclosure of the truth, the right of victims to reparation and guarantees of non-repetition. The article examines the utility of prosecutorial justice as a comprehensive tool for combating gross violations of human rights and serious breaches of humanitarian law without ignoring other interrelated imperatives of justice. It seeks to posit the debate between peace and justice and tries to make a critical analysis of whether the concern for justice truly jeopardizes the effort for peace in the particular context of Darfur. It professes to look into the prospect of prosecution of those accused of perpetrating the most serious crimes of concern and examines the significance of ICC prosecution to the people of Darfur. By analyzing relevant international precedents and new developments in international criminal law, this article examines the state of the law relating to a sitting head of state immunity. It assesses whether the ICC indictment of President Omar Hassan Al-Bashir is politically motivated or a legally justified action against impunity.