Lack of creativity a problem

I keep reading people like de Waal and the folks at Wronging Rights mock the ICC arrest warrant as akin to the naivete of the college student's Save Darfur's movement. In the book of these folks, anyone who has a role to play should *not* play that role, but should instead evaluate the potential consequences of their actions in their role, and then they alone should weight the calculus (always utilitarian, interestingly) of moral weight and decide what to do. These critics think that the utilitarian calculus in Darfur is obvious: Darfuris will be hurt by the arrest warrant, in the millions, and the benefits are... well, they never usually say what the benefits are, leaving the impression the only benefit of the arrest warrant is smugness.

They often point to the arrest warrant as changing the game, but never analyze how exactly it changes the game in Khartoum, and especially in relation to Khartoum and its neighbors, and Khartoum and the SPLA. Mind you, I don't know how it changes the game, and neither do game theorists. But I do know it changes the game in complicated ways, and there is no way to make a satisfactory calculus of the longer-term implications. Does the arrest warrant now prevent al-Bashir from attacking South Sudan or Chad? Maybe. There are dozens of similar considerations to weigh. Was Moreno-Ocampo supposed to have weighed all these considerations, and then also weigh his professional obligation as a prosecutor in a court, on a case referred to him by the Security Council, and known how to decide? Do any of the critics honestly think that in an advanced moral/ethics philosophy class for graduate students we would arrive at a conclusion on this question?

Finally, the minimal ethical seriousness of the critics is somewhat shocking. these are people whose jobs are to be thinker- their comparative advantage is in thinking. And so their ethical responsibility is to be contributing to a creative and helpful civil discourse about how to bring about a resolution to the challenges faced by the pursuit of justice (and the arrest warrant) and the continuing efforts to ensure a transition to an independent South Sudan following the referndum of 2011.

In that spirit, let me suggest one creative, perhaps crazy, policy change for various powers. Fly to Juba, and start having honest diplomatic discussions for ways to break the deadlock. leverage the SPLA- strengthen the SPLA, invite northern opposition leaders. many French West African countries went through sudden reversals of political fortunes when France suddenly declared that they would no longer support dictators. national conferences were organized, and some dictators were suddenly peacefully deposed. Others (like Blaise Compaore in Burkina Faso) managed to survive the winds of change, but were chastened. Is now the opportunity to help make that happen in Sudan? Will al-Bashir refuse to let opposition leaders travel to Juba? Will he refuse to allow a reconciliation conference? Will he refuse to allow a Sudanese solution to the probelm? Will he refuse a deal where a new government of national unity in Sudan promises to vigorously defend al-Bashir agains tthe charges, and agrees that if found guilty even after a vigorous defense, he will be imprisoned in Khartoum according to terms set by the government of national unity?