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Sudan: Darfur, Justice vs. Peace
AfricaFocus Bulletin
Jul 21, 2008 (080721)
(Reposted from sources cited below)
Editor's Note
On July 14, 2008, the chief prosecutor of the International
Criminal Court (ICC) asked the court to indict the president of
Sudan, Omar Hassan al-Bashir, on charges of genocide, crimes
against humanity and war crimes committed in Darfur. "Will this
be a historic victory for human rights, a principled blow on behalf
of the victims of atrocity against the men who orchestrated
massacre and destruction? Or will it be a tragedy, a clash between
the needs for justice and for peace, which will send Sudan into a
vortex of [further] turmoil and bloodshed?" - Alex de Waal
This AfricaFocus Bulletin contains an analysis by Alex de Waal on
the impact of the ICC decision to charge Sudanese President Omar
Al-Bashir, highlighting the threat that insistence on justice will
further reduce the chances of peace, by provoking even more violent
actions by the Sudanese government. Another AfricaFocus Bulletin
sent out today contains an alternative perspective, from the Enough
Project, arguing that in fact the increased international pressure
on Sudan's leader could be a step forward towards peace.
As this two contrasting analyses show, the impact of the ICC
decision is highly unpredictable and hotly disputed, both among
Sudanese and among international advocates for peace and justice in
Sudan.
Whichever view of the ICC decision is correct, however, the debate
does obscure one critical point: the failure of the international
community to provide adequate support for the African Union-UN
peacekeeping force in Darfur (UNAMID). This operation is understaffed,
under-equipped, under-funded, and vulnerable to attacks.
Established one year ago with an authorized strength of up to
19,555 military personnel, 6,432 police, and more than 5,000
civilian personnel, it currently has less than 8,000 troops, less
than 2,000 police, and a little over 1,000 civilian personnel.
Critical equipment is lacking, including helicopters, aerial
reconnaissance, transport and logistics units. And more than half
of the $1.3 billion budget assessed on UN member states for the
first year was unpaid as on the end of April. For more detailed
information on UNAMID, including monthly reports, see
http://www.un.org/depts/dpko/missions/unamid
For previous AfricaFocus Bulletins on Sudan, and other related
links, visit http://www.africafocus.org/country/sudan.php
Additional commentaries on the ICC decision include:
July 14, International Crisis Group, "Opportunities and Risks for Peace"
http://allafrica.com/stories/200807141036.html
July 14, Inter Press Service, "Genocide Charges Split Global Community"
http://allafrica.com/stories/200807141818.html
July 16, Suliman Baldo and Marieke Wierda, "UN Should Stand Fast of War Crimes Case"
http://allafrica.com/stories/200807160870.html
July 18, Inter Press Service, "ICC Indictment Sparks Hope, Fear"
http://allafrica.com/stories/200807190001.html
For a well-informed analysis of the background to the conflict in
Darfur, there is no better single source than the book by Alex de
Waal and Julie Flint, Darfur: A New History of A Long War. The most
recent edition was released by Zed Books in May 2008.
It is available at
Amazon.com
http://tinyurl.com/5odnb6
Amazon.co.uk
http://tinyurl.com/58p5bs
Powell's Books
http://tinyurl.com/5putgy
For an additional selection in the AfricaFocus Bookshop of recent
books on the crises in Sudan, see
http://www.africafocus.org/books/afbooks.php#sud1 (Amazon USA) or
http://www.africafocus.org/books/afbooks_uk.php#sud1 (Amazon UK).
++++++++++++++++++++++end editor's note+++++++++++++++++++++++
Sudan and the International Criminal Court: a guide to the
controversy
Alex de Waal
http://www.opendemocracy.net
http://www.ssrc.org/blogs/darfur
Today, 14 July 2008, the chief prosecutor of the International
Criminal Court (ICC), Luis Moreno-Ocampo, asked the court to indict
the president of Sudan, Omar Hassan al-Bashir, on charges of
genocide, crimes against humanity and war crimes committed in
Darfur. Here, Luis Moreno-Ocampo is taking a bold and momentous
step for global human rights and for Sudan. It is also
controversial and fraught with danger. Will this be a historic
victory for human rights, a principled blow on behalf of the
victims of atrocity against the men who orchestrated massacre and
destruction? Or will it be a tragedy, a clash between the needs for
justice and for peace, which will send Sudan into a vortex of
turmoil and bloodshed?
Over the last month, the Social Science Research Council (SSRC)
blog has hosted a debate on the imminent indictment, which has
attracted diverse contributions by scholars and experts.
Contributors have diverse opinions and have provided arguments from
different disciplines and perspectives. In pursuit of its aim of
providing social-science expertise on matters of immediate import,
the SSRC has hosted this debate as a resource for those interested
in delving deep into the complexities of the issues that confront
Sudan, the ICC and the United Nations. This article provides a
guide to the main strands of the debate.
The prosecutor's application
The application to the court follows from the previous indictments,
of Ahmed Harun (then in the ministry of the interior with
responsibility for Darfur, now minister of state for humanitarian
affairs) and militia leader Ali Kushayb. Both were indicted for
their roles in the massacres of 2003 and 2004. Speaking to the
United Nations Security Council on 5 June 2008, Luis Moreno-Ocampo
indicated his intention to finger the men who instructed Harun.
But the decision Luis Moreno-Ocampo has made on 14 July by naming
Presdient al-Bashir makes history. The prosecutor is striking an
immense blow for universal jurisdiction. He is seeking to
demonstrate that no one can enjoy impunity for crimes. He is taking
a step towards a world constitution in which the barriers of
national sovereignty are swept away in favor of the rule of law
with global reach. This point is emphasised by William Schabas and
also by Ronald Jennings.
The legal arguments
It is significant that Luis Moreno-Ocampo has indicated that his
investigations range more broadly than the period of massacres of
2003-04. In his address to the United Nations Security Council -
which referred Darfur to the International Criminal Court with
Resolution 1593 in 2005 - he claimed that government actions the
subsequent period represent the continuation of a systematic
campaign of crimes against humanity. If he does indeed proceed to
asking the court to make charges on this basis, it is an ambitious
claim. The prosecutor would, in effect, be charging that the entire
apparatus of the government of Sudan is involved in a coordinated
and systematic, criminal enterprise.
The legal options open to the prosecutor have been analysed by Jens
Meierhenrich.
There are three main avenues he could have chosen to pursue:
- allege a conspiracy to commit war crimes, crimes against
humanity, or genocide
- charge senior government figures in Khartoum with joint criminal
enterprise to commit a range of crimes
- prosecute on the basis of command or superior responsibility for
crimes, in effect returning to the 2007 case against Ahmed Harun
and following it up the chain of command.
Is the prosecutor on solid ground when he claims that a policy of
eradication has continued for the three and a half years since the
beginning of 2005? On this point, Moreno-Ocampo's empirical case
has been criticised by Julie Flint, who points out how much has
changed. Fabrice Weissman of Médecins sans Frontières (MSF) makes
similar points, especially with regard to the displaced camps.
These observers argue that evidence for such a policy, pursued in
a determined and coordinated manner, is slender. Socio-economic
analyses of Darfur by various authors (reviews of publications on
markets and livelihoods, and of the political economy of Sudan)
make the point that it is better understood as a "complex
emergency" than an ongoing genocide. Pieter Tesch has also
criticised parallels with the holocaust and especially
Moreno-Ocampo's controversial comparison with the Nazis.
Julie Flint and these other contributors do not dispute that
horrendous crimes have been committed and that responsibility
reaches up to the highest echelons of the Sudanese state apparatus.
Nor do they cast doubt on the continuing crisis and the violations
perpetrated by Khartoum and its proxies. But they do question the
prosecutor's depiction of the current situation, and do question
the wisdom of his approach.
The prosecutor's decision to pursue a charge of joint criminal
enterprise against a head of state is certain to cause controversy.
The charge has been developed in United States law and is used
primarily to catch racketeers and gangsters; it has often been used
(such as in the well-known RICO cases) as a charge of last resort,
a dragnet to catch individuals who may not have individual
culpability for a crime but who are deemed to have common purpose
with others who have actually committed the crimes.
As discussed by Jens Meierhenrich, this approach could eviscerate
the principle of individual responsibility for crimes and set a
precedent in international law with very far-reaching consequences.
By the same token that joint criminal enterprise allows a
prosecutor to reach into the highest echelons of state power, it is
also open to indiscriminate use. For example, it could be applied
to make a head of state, or government ministers, criminally
culpable for crimes committed by their underlings, even if they had
no direct involvement in or even knowledge of those crimes.
Sudan's polarisation
Sudanese opinion on the ICC's role is polarised - and not simply
"for" versus "against". Many Darfurians are enthusiastic about the
indictment of the men they consider responsible for the destruction
of their land and the slaughter of tens of thousands of people (see
Omer Ismail's contribution). There are already exuberant
demonstrations in Khartoum of support for the ICC among Darfur's
displaced and its rebels. Many opponents of President al-Bashir,
including southerners, are similarly delighted that he has finally
received the condemnation that they believe he deserves. Without
doubt, Bashir's adversaries - in Darfur, the south and within
Khartoum itself - will feel emboldened. The dangers of emotive
polarisation leading to bloodshed should not be minimised.
Others are less celebratory; one civil-society activist said that
"This government deserves everything that can be thrown at it. But
it is the people of Sudan who will pay the price." Another
comments: "All of us want justice but justice cannot be achieved in
a social vacuum. We should choose the time for justice. Today it is
the lives of people that count." A Sudanese political leader -
known for publicly supporting the ICC in principle - regards this
as "a classic case in which justice and stability are at
loggerheads." Many Sudanese - including people who are not
supporters of the government - are worried about their country's
political stability. Some are concerned that the prosecutor's
action is depriving them of their democratic rights to choose their
own government (see Abdalbasit Saeed's contribution).
Omar al-Bashir will not surrender himself voluntarily to the
International Criminal Court. In resisting, will he be stigmatised,
shamed and thus weakened? The possibility of the stigma of an
indictment acting as a deterrent to future crime, an end to a
culture of impunity, is examined by Nicki Alam. These outcomes seem
improbable. Al-Bashir has already vowed never to hand over any
Sudanese to the ICC and has accused the court of being a
"terrorist" organisation. He may see an attempt to indict him as an
act of war.
The likelihood that al-Bashir will react angrily, seeking to
retaliate to avenge his sense of humiliation, is examined in my
posting based on the writing of criminologist James Gilligan. In
assessing al-Bashir's response, the long-standing rule of thumb for
Khartoum elite politics should not be forgotten: the greatest
threat to the president comes from those closest to him. His
actions will be driven by calculations of internal threat more than
by his assessment of how threatening the ICC or the UN troops in
Sudan, might be.
In the aftermath of the Justice & Equality Movement (JEM's) attack
on Khartoum on 10 May 2008, the government is feeling vulnerable
and the army especially feels that it needs to demonstrate its
strength. President al-Bashir is also known for his propensity to
respond to insult with fury, and is reportedly preoccupied with
what he sees as foreign conspiracies to overthrow him. His response
cannot be predicted.
Africa's ambivalence
The ICC prosecutor may have the law on his side. But whether he can
win his case in the court of world opinion is a different matter -
especially in Africa. When a common criminal is in the dock, he is
on trial. When a sitting head of state stands indicted of crimes
against humanity, both he and his prosecutor are on trial. A point
made by several contributors is that the ICC does not operate like
a regular criminal court. The choice of individuals to indict and
the charges to bring against them are political decisions. Luis
Moreno-Ocampo's political judgment and the future of the ICC are
under scrutiny as much as the record of President al-Bashir.
The ICC's exclusive focus on African cases to date is causing some
unease in Africa. It represents an expansion of western power at
the expense of African concerns, including national sovereignty and
the possibilities of pursuing local mechanisms for justice. Chidi
Odinkalu and Beshir Gedda make these points. It is notable that the
African Union (AU), an early supporter of the ICC, is showing a
distinct lack of enthusiasm for the direction of the court. The
AU-ICC cooperation memorandum, which was expected to be finalised
by this time, has been put on hold. As Stephen Ellis describes, the
precedent of the Charles Taylor prosecution shows that this will be
a highly political act.
Beshir Gedda's second contribution argues that Moreno-Ocampo's
strategy has less to do with justice and Africa and more to do with
international politics: it is aimed at getting United States
support for the court. William Schabas makes a similar point: "A
more robust judicial intervention in Sudan from the Court has the
potential to restore its flagging credibility."
Peace-and-justice dilemmas
Several contributors have predicted political turmoil as the most
likely outcome of the indictment (they include Mary Harper and
Michael Davies's far-reaching "worst-case scenario" - a frightening
prediction that is privately shared by senior United Nations
staff). Well-connected individuals fear that the indictment may
spell the restriction or expulsion of UN missions, the end of
Sudan's comprehensive peace agreement (CPA) agreed in January 2005,
and new outbreaks of violence. The prosecutor's step comes at a
time when the partnership between the National Congress Party and
the Sudan People's Liberation Movement (SPLM) that underpins the
CPA is very fragile.
Celia McKeon of Conciliation Resources makes the important point
that accountability mechanisms should pay due regard to the need
for peace. Under the Rome statute of July 1998 that set up the ICC,
the prosecutor is in fact required to ensure that any prosecution
is in the interests of justice and the interests of the victims. My
posting on the deficiency of the justice provisions in the Darfur
peace agreement (DPA) signed in May 2006 makes the complementary
point that the UN Security Council's referral of Darfur to the ICC
had the unintended consequence of excluding accountability issues
from the peace talks, with the outcome that the ICC has become the
only judicial mechanism operative with regard to the crimes
committed Darfur. If - as now seems almost certain - ICC
prosecutions are stalled, then there will have been no progress at
all in obtaining justice for the victims of atrocities in Darfur.
Chad Hazlett is more sanguine, arguing that Darfur's peace process
is stalled and that the adverse consequences of an indictment can
be managed. Peace and political stability are not the prosecutor's
prime concern. The Rome statute set up the prosecutor as an
independent agent concerned with the pursuit of justice. When the
UNSC referred Darfur to the ICC on 31 March 2005, it mandated the
prosecutor to examine the evidence and pursue criminal prosecution.
Other concerns such as humanitarian relief, peace and civilian
protection were dealt with by other UNSC resolutions. The
prosecutor is obliged to consider the interests of the victims, but
ultimately it is for the Security Council to exercise its powers to
defer ICC activities, should it choose to do so. Moreno-Ocampo has,
as examined in my posting of 11 June, thrown down a gauntlet to the
UN Security Council.
What next?
Around the world, human-rights campaigners are expecting a bold
step from Moreno-Ocampo which they can hail as the single most
important blow for justice and human rights for many years. They
argue that such an action by the chief prosecutor will signal that
there is no impunity for crimes, even for a head of state, and
demonstrate that the international community will stand up for the
human rights of victims, whatever the consequences - and thus
irrevocably change the world for the better. Moreover, by giving
hope and solidarity to the victims of unspeakable crimes in Darfur,
these campaigners contend that the indictment of al-Bashir will be
a huge step towards realising human dignity, democracy and peace.
Others disagree, and fear the casualties of justice triumphant.
Responsibility now passes to the judges of the ICC, who must now
consider the evidence presented and decide whether to indict the
men named. In theory, the judges could reject all or part of the
application, because they consider the evidence deficient. On past
record, this is unlikely.
The UN Security Council could in principle intervene and, using its
powers under Article 16 of the Rome statute, defer any prosecution
for a year. At present this seems improbable. The prosecutor has
checkmated the two countries most opposed to the ICC. The US, which
refuses to support the court on principle, has determined that the
crimes in Darfur constituted genocide, and both presidential
candidates have committed themselves to a tough line on Sudan.
China is unlikely to want to endanger its standing in the world
with less than four weeks to go to the Olympic games.
Chad Hazlett makes the interesting point that use of Article 16 can
be seen, not as a rebuff to the court, but as a use of the ICC
mechanism to bring pressure to bear on the Sudanese government. His
posting focuses on how an indictment can be used as an important
point of leverage for achieving both justice and peace.
The challenge to the United Nations and the international community
will be as profound as to Omar al-Bashir. Sudan's status as a
pariah state will be confirmed while al-Bashir's defiant stand
would be no more than his habit of nineteen years. But for the
international community - respectful of the rule of law and
supportive of the ICC, but also committed to the CPA and the
national elections, and supporting two huge peacekeeping and
civilian-protection missions - the dilemmas are acute. Cornelia
Schneider's article on the UN and the ICC makes it clear that the
UN forces are not under any legal obligation to execute ICC
arrest-warrants - a step that would certainly bring them into sharp
conflict with the Sudanese government. But whether it is possible
for UN officials and peacekeeping troops to sit at the same table
with Sudanese officials whose president and commander-in-chief is
officially accused as a war criminal, and to enter into
legally-binding agreements with him and his government, remains to
be seen.
These legal issues will arise only if the judges of the court
decide to uphold an application from the prosecutor and issue an
indictment. The focus will now shift to the next act in this drama
- the decision of the judges. If past experience is a guide, they
will take at least a month to examine the application.
The UN Security Council's approach to the Darfur crisis has
deployed a vast array of instruments including sanctions, peace
processes, peacekeeping and the ICC. These decisions have rarely
been coordinated and prioritised, and the last four years appear
increasingly like an exercise in giving powerful new weapons to
untrained foot-soldiers who lack a single commander. These weapons
may cause less danger to the enemy than the risk of friendly-fire
casualties to their own side. Some fear that the Security Council
referral of Darfur to the ICC may yet turn out to be the
international community's biggest self-inflicted wound.
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with
a particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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