IJCentral: International Justice Central

Two weeks ago at El Fasher airport in Darfur, I watched Sudanese soldiers load up an Antonov bomber, in full view of the U.N. plane I was seated inside. The recent headline-making comments of the outgoing U.N.-African Union force commander, Gen. Martin Luther Agwai, that the war in Darfur is “over,” therefore strike me as overly optimistic. They bring to mind George W. Bush’s similarly premature message of “mission accomplished” in Iraq, which was displayed on a banner aboard the USS Abraham Lincoln in 2003 behind the president’s podium. As with Iraq, there is a long way to go before anyone involved in Darfur should be congratulating themselves.

Deaths from direct violence in Darfur have decreased significantly from what they were at the height of the conflict in 2003 and 2004, and most aid workers on the ground describe the fighting as having stagnated. But the comments of General Agwai are still misleading. There is no compelling reason to believe that the present situation constitutes a permanent cessation of the war, as opposed to a temporary lull in fighting.

In general, a war is declared over when one side has defeated the other, or if warring parties agree to a peace. Neither scenario exists in Darfur. Although the rebel groups are fractured to the point that almost none of them are likely to threaten the government in the short term (the Justice and Equality Movement being the exception), they have not given up. And the so-called Darfur Peace Agreement, signed by the government and just one of the rebel groups back in 2006, has still not been implemented.

The current “calm but tense” situation may be the byproduct of factors that are fluid, rather than a reflection of any fundamental shift in the situation. Right now it is the rainy season, which makes it difficult for any group to attack by land because Darfur’s dirt roads turn to mud. The Sudanese government is also trying to put on its best face while it waits for the outcome of the Obama administration’s policy review, which is expected in a few weeks, in the hope that the dovish approach of the U.S. envoy, Scott Gration, will win the day. As these and other factors change, we may still see the resumption of hostilities.

Put these considerations together and the foundations of General Agwai’s claim look precarious at best. Moreover, even if the passage of time shows the commander’s assessment to be correct, his comments are small comfort to the 2.7 million Darfuris who remain stranded in displaced-persons camps because it is too dangerous for them to return home. Imagine if, after Hurricane Katrina, U.S. officials issued press statements saying, “The hurricane is over.” They would have been correct, but they would have been missed the point. In the wake of Katrina, New Orleans’ communities were destroyed, the social fabric was ruptured, the city faced a collapse of medical services, and there was breakdown of law and order. In addition, everyone inside the city knew that unless the levees were rebuilt, a new hurricane could wreck the exact same havoc. So too in the case of Darfur.

Many critical humanitarian services that Darfuri civilians relied on have been cut back or halted since the Sudanese government expelled key aid agencies after the president was indicted by the International Criminal Court in March this year. For women and girls, the situation is particularly dire. The organizations expelled were the ones that provided medical care, and psychosocial and legal services to women and girls who had been raped-something that happens with depressing regularity whenever they try to leave the outskirts of the camps.

The men in refugee camps who have visited their villages report that not only does the situation remain insecure, but oftentimes their lands have been occupied by Arab groups from Mali, Niger, and Chad. In short, even when the war ends, much remains to be done before there is peace and security in Darfur

The U.N.-AU force was not deployed to stop a war. However, a large part of its mandate is to protect civilians. With the collapse of law and order, and pervasive insecurity from armed militias throughout Sudan’s western region, those civilians are stuck in camps, bereft of the dignity their self-sufficiency once brought them. They live daily with the knowledge that should those with guns and bombers decide to resume hostilities again, there is very little to stop them. Mission accomplished? Not yet.

Hamilton is the author of the forthcoming book The Promise of Engagement, an investigation into the impact of citizen advocacy on Darfur policy and the situation on the ground in Sudan. She is an Open Society fellow and a visiting fellow at the National Security Archives.

Much hay has been made since the ICC announced the arrest warrants for Sudanese President Omar al-Bashir, about the fact that the warrants were issued for crimes against humanity (5 counts) and war crimes (2) but not for genocide, the third category of crime that Prosecutor Luis Moreno Ocampo had included in his request for the warrants on July 14, 2008.  Many people that I respect in the international justice field have seized on this decision by the ICC judges as if it represents some kind of a failure for the Prosecutor because they thought he should not have accused al-Bashir with genocide in the first place, or because they thought it was too controversial, or are disappointed that the judges decided against issuing a warrant for genocide.  Aren’t these critics satisfied with crimes against humanity and war crimes?  Here’s the definition of crimes against humanity from the Rome Statue, the founding document of the ICC:

“Particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.”

Whatever the reasons, it really feels like splitting hairs, or finding the negative in what I see as huge positive step forward for humankind.  We finally have a Court that is capable of issuing arrest warrants for a sitting head of state - that’s amazing.  As former ICC Senior Trial Attorney says in the film “The Reckoning: The Battle for the International Criminal Court”, the Sudan/Darfur case is the kind of case the Court was made for, to hold leaders of countries to account when they commit war crimes, crimes against humanity and genocide.  As the Prosecutor said at the press conference last week announcing the warrants, the judges considered his requests and decided not to issue the warrant for genocide - this shows a well functioning and independent court, where the judges don’t simply rubber stamp what the Prosecutor gives them.  One of the judges had a dissenting opinion, but the other two decided against - the Prosecutor said he would review their arguments against and perhaps file an appeal.  So let’s focus on the positive aspects of what the ICC is doing, and provide constructive criticism when appropriate.

A genocide charge may not be hanging over al-Bashir’s head at the moment, but crimes against humanity and war crimes are, and let’s focus on that.

I am troubled by a persistent current of thought regarding ICC Prosecutor Luis Moreno Ocampo’s call for the arrest of the President of Sudan, Omar al-Bashir, on charges of war crimes, crimes against humanity and genocide.  Judges at the ICC are currently considering whether to issue the warrants, and based on leaked information that was published in the Washington Post (now taken down from their website after the ICC Public Information Office denied that warrants had been issued), I suspect that the judges will issue warrants charging al-Bashir with war crimes and crimes against humanity, but not genocide.  In any case, those who say that the warrants for al-Bashir should be suspended or retracted if they are issued are putting forth the worn-out argument that the international community is treading on thin ice and may provoke a violent backlash from al-Bashir, thereby derailing the peace process in Sudan (What peace process? Can they be serious?).  A good example of this is an article from the Guardian UK by Paul Adrian Raymond, quoting Alex De Waal of course, saying that al-Bashir will lash out, that Africa will retreat from international justice and become a “universal jurisdiction free zone”.  These arguments claiming that justice is an idealistic folly of human rights advocates are on the wrong side of history.  I was raised in Latin America in a time when dictators ruled and they were considered untouchable.  But civil society persevered, often mocked for their “futile efforts”, and now 30 years later, lo and behold, generals went to prison, dictators were put on trial, and Latin America is practically a dictator-free zone.  Justice played a crucial role in this transformation, and the establishment of the rule of law has become a given in most Latin American societies - witness the ongoing trial of ex-President Alberto Fujimori of Peru, now in the dock facing charges of human rights violations in his own country.  I think that eventually the rule of law will prevail in Africa as well, and if the ICC helps it get there, it will be fulfilling its justice mandate.  I don’t buy the Alex De Waal argument - I think that the majority of Africans want the rule of law to prevail, regardless of what their leaders may say.  Power doesn’t like limits, and the ICC is a threat to those who would prefer to operate with impunity, but I think that the impunity gap will be closed.  And as ICC Deputy Prosecutor Fatou Bensouda says, “Africa is at the vanguard of international justice”.  Africa is the continent with the highest number of countries that are members of the ICC, and it’s good to remember that Prosecutor Moreno Ocampo did not initiate the ICC cases in Africa - Uganda, the DR Congo and the Central African Republic are all ICC member states, and they referred themselves to the ICC, and the Sudan/Darfur case was referred to the ICC by the UN Security Council.  So these charges that the Prosecutor has targeted Africa have no foundation - these conflicts in Africa are real, and accountability must be pursued or there will never be peace.

Senegal’s President Abdoulaye Wade says that he wants to hand over former President of Chad Hissene Habre over to the the African Union (AU) to face trial for crimes against humanity.  Habre is accused of killing 40,000 and torturing 200,000 during his 8-year reign, which would definitely make him an International Criminal Court (ICC) case, but for the fact that his alleged crimes were committed before the temporal jurisdiction of the ICC went into effect in July 2002 (Habre fled to Senegal after his regime collapsed in 1990).  Of course, as Reed Brody of Human Rights Watch says, the AU is not a state and has no capacity to try Habre.  Senegal’s President Wade says he doesn’t have the resources to create a special court and put Habre on trial, and doesn’t want to hand him over to Belgium where a court has sought his arrest based on universal jurisdiction, because he doesn’t want to see an African leader tried outside of Africa.  This whole jurisdictional mess points out the value of having a permanent ICC in place.  If Habre had committed his crimes after 2002, he would be in the sights of the ICC, as President Omar al-Bashir of Sudan is now.  Because of the circumstances, a universal jurisdiction case from a domestic national court such as the one opened in Belgium against Habre seems to be the only option, but the world of international justice will have a lot more clarity when all countries have ratified the ICC and it has universal jurisdiction based on the consensus of an international treaty, the Rome Statute.

An excellent blog post by Raj Purohit and Amjad Atallah in the PSA blog, titled “International Justice Systems and the Muslim World: Why Bashir is Wrong” points out the absurdity of the argument saying that Sudanese President Omar al-Bashir should not be indicted by the ICC because it is acting as a tool of the west in its fight against the Muslim world.  Let’s not overlook the fact that the people targeted in Darfur by the al-Bashir regime are Muslims, so this argument doesn’t hold much water.  To the argument that if Israel is not charged with war crimes because they are protected by major powers, then Sudan shouldn’t be charged either, the authors say,“There is an obvious absurdity to the argument that as long as anyone can commit a war-crime, everyone should be allowed to commit a war-crime.” 

The problem of Israel’s conduct raises the issue of UN Security Council reform, because as long as the major powers can exercise veto power over resolutions, it is highly unlikely that a resolution will be passed asking the ICC to investigate Israel for committing war crimes.  And Middle Eastern countries should follow Jordan’s lead and join the ICC, because if Lebanon were a member state of the ICC in 2006, for example, it would have allowed the ICC to open a case against Israel.  As pointed out by the Costa Rican representative at a recent meeting of the UN Security Council regarding the Sudan/al-Bashir case, Costa Rica joined the ICC to gain some measure of protection from aggression by larger states with firepower, reasoning that the rule of law could be their shield.

If the evidence gathered by the ICC holds up, then al-Bashir, as well as Sudanese Minister for Humanitarian Affairs Ahmad Haroun and Janjaweed militia leader Ali Kushayb, both indicted by the ICC, they will someday be convicted of orchestrating a genocidal campaign to drive the people of Darfur from their land and into extinction.  Unlike the temporary ad-hoc tribunals for the former Yugoslavia and Rwanda, the ICC is a permanent court and will still be here after leaders like al-Bashir fall from power.  I’m convinced they will face their day at the Court.