By Anne Bartlett
October 15, 2013 - Watching the African Union over the last few days, one might be forgiven for thinking that they had forgotten who they are supposed to serve. The pitiful mockery of justice displayed by the delegates to the AU summit in Addis Ababa, Ethiopia, seems to ignore the bodies lying in morgues throughout Sudan, the carnage visited on Darfur, Nuba Mountains and Blue Nile; the millions that have perished in the South and the grieving families who have lost loved ones. Self-interest writ large across the proceedings screams loud and clear that impunity is the order of the day for sitting heads of state, who for their own power hungry reasons, cross the line and murder their own innocent citizens.
And yet, since 1956, if there is one driver to the ever increasing cycle of violence and abuse in Sudan, it is impunity. Impunity has allowed former presidents to walk free after being involved in horrendous crimes. It has provided the foundation for the Courts of Decisive Justice, the flogging and abuse of people in the streets, the disgusting spectacle of the public hanging of Mahmoud Mohammed Taha, of the bizarre application of Sharia law (even outside of the scope of what Sharia law is permitted to do), the rape, murder and maiming of citizens left and right, and the creation of extrajudicial detention and torture centers such as ghost houses.
If this isn’t bad enough, when sitting heads of state then expand their activities to genocidal campaigns, crimes against humanity and war crimes, impunity continues to reign supreme. Innocent men, women and children can be chopped down where they stand and nothing should be said. The survivors can then be herded into IDP camps and denied food and we are told that trying to hold the perpetrators accountable only causes more problems. The same missing food can then be exported while populations starve and we are told that there should be African solutions to African problems. I’m in favor of African solutions to African problems, but tell me Mr. Mbeki: Where are the solutions? I’ve only seen the problems.
The familiar argument that is always trotted out when talking about the ICC is that it is a tool of the West to brutalize Africa, or as President Kenyatta called it recently: “a toy for declining powers”. It is of course hard to deny that Britain, France, Belgium and many other European colonial powers shouldn’t be hauled in front of the Court for the heinous crimes they’ve committed in the past – if there was jurisdiction for those crimes. No one is arguing that the United States’ unwillingness to submit themselves to the jurisdiction of the Court isn’t a case of gross double standards that should be changed immediately. But do two wrongs really make a right here? Is this an argument that Africa should pursue? Are we really saying that in order to get back at the failures of the West, we have to ignore homicidal dictators like al-Bashir of Sudan?
It is easy to argue that the majority of ICC prosecutions since 2002 to date have been against African leaders, and if we take this in its strictest sense, it is demonstrably true. But to make such an argument ignores the history of the court as it evolved from the aftermath of the Nuremburg Trials and the Tokyo trials, right through to the ad-hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). As such, what we have today is a process that grew from the body of jurisprudence which emerged from earlier international tribunals. Looking at the international tribunals onwards, by far the largest number of indictments emerged from the International Criminal Tribunal for Yugoslavia (ICTY) – 161 in fact. If taken in historical perspective, it is therefore clear that the current numbers game says very little about the actual activities of the court or the application of justice in the longer term.
Furthermore, while it became so fashionable for commentators like Alex de Waal and Mahmood Mamdani to bash the former Chief Prosecutor Luis Moreno Ocampo over the head, their actions amount to little more than cheap shots. Luis Moreno Ocampo has a long history of holding human rights abusers to account, starting with the Trials of the Juntas in 1985, which brought dictators in Argentina to the dock. No attempt to hold abusers accountable is ever easy, and the road to the end of impunity for forced disappearances, murder and torture in Argentina was bumpy to say the least. But maybe the fact that Argentina is now leading the way with the current ESMA Mega Cause trials for justice in the case of 800 persons who were victims of clandestine torture centers, says something of those early attempts to end impunity. Sudan and Africa have a lot to learn from the case of Argentina. Maybe the time has come to stop shouting and start listening.
For the people of Sudan who have been terrorized in the last few weeks by the actions of Bashir and the NISS, there are lessons to be learned. The first is to support the work of the ICC. The second is to work to stop impunity, every day, on the ground, in every meeting, between every citizen. The dictators and abusers of Sudan have long since relied on the fact that that there is no accountability. They rely on the fact that in political meetings, people politely shake their hands even if they have murdered and tortured people. They rely on the fact that they can show up at social events and that silence allows them free passage even when they have carried out all manner of abuses. They rely on tolerance for their greed and inhumanity. The people of Sudan can start by saying “no” to impunity. They can refuse to shake hands, refuse to play the game of silence and turn their back on these criminals and their actions, once and for all.
Impunity thrives on self-interest, silence, fear and indifference. It thrives on people who protect the guilty. To the African Union, perhaps the time has come to re-read your mandate. Didn’t it say something about promoting peace, security, and stability on the continent? Didn’t it say something about promoting democratic principles and institutions, popular participation and good governance? Didn’t it say something about protecting human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments? Where did these ideas go? Can someone please explain?
Dr. Anne Bartlett is a Professor and Director of the Graduate Program in International Studies at the University of San Francisco. She may be reached at: email@example.com.