Home | Comment & Analysis    Sunday 21 September 2008

Deferral of ICC indictment is against justice in Darfur


By Mahmoud A. Suleiman

September 20, 2008 — Media reports talk of the British and French governments will back efforts in the United Nations Security Council (UNSC) to stall the International Criminal Court (ICC) issuance of an arrest warrant against president of Sudan, Omer Hassan Ahmed al-Bashir in order to protect the peace process in Darfur and Southern Sudan. It is flabbergasting and disappointing to the victims of crimes against humanity, war crimes and genocide. If this is actually true, despite the fact that both countries are members of the ICC and have been the main advocates at the UNSC for referring the Darfur case to the Court, their credibility will be called into question. Many Sudanese people in Darfur thought that these Veto-wielding UNSC countries maintain credibility but it seems they have chosen to take that unexpected route nonetheless. On the face of it, this stance of the two permanent members of the UNSC seems to have been resorted to on the pretext to protect the Comprehensive Peace Agreement (CPA/ Naivasha Agreement) signed on the 9th January 2005 that has ended the 21-year civil war between the Sudanese People’s Liberation Movement (SPLM) and the Government of Sudan (GOS). The CPA stands firm, but needs more support from the international community for its implementation. The government of Sudan (GOS), the key partner in the Government of National Unity (GNU) is renowned for flouting rules and violating agreements with impunity. In the recent turn of events, it was learned that the indicted Sudanese president, Omer Hassan Ahmed al-Bashir has relieved Pagan Amum, the general secretary of SPLM of his position as Minister of Cabinet Affairs. This news is not surprising since some of the hawks within the NCP elements such as Nafie Ali Nafie, a close presidential adviser, former inventor of the “Ghost Houses” and National Islamic Front (NIF) security and intelligence chief, criticized Mr. Pagan and called on him to step down. The ghost houses, by the way, are torture houses used only by nights where screams of the victims could be heard from far distances but by day time these houses stand empty and silent. Earlier, the Sudanese foreign minister Deng Alor advised the government of Sudan to cooperate with the ICC.

Human Rights Watch said that the Naivasha agreement has settled the 21-year conflict waged mostly in southern Sudan, and will provide for a referendum in the south on self- determination in six and a half years. Human Rights watch expressed concern at the absence of any substantive human rights clauses in the Naivasha peace accord despite the devastating war in southern Sudan and the ongoing cycle of impunity that has contributed to what we now see in Darfur.

The French stance is difficult to figure out where the International Criminal Court (ICC) is “a key tool, both in combating impunity when the most serious crimes, striking at the very essence of humanity are committed and in preventing the use of violence," according to the EU Presidency, currently held by France which is of great significance, given that France has a veto at the UN Security Council.

It is a common place that the Comprehensive Peace Agreement (CPA) has been reached between the Government of Sudan (GOS) and the SPLM and not with individual members in the GOS or the SPLM. Accordingly, the CPA should continue in force whether the president of the NCP, Omer Hassan Ahmed al-Bashir is in power or being arrested and taken to The Hague. The truth of this assertion rests in the fact that the CPA has continued to remain viable despite the sad death of Dr. John Garang De Mabior, the father of the Vision of ‘New Sudan’. The same case will be if al-Bashir departs to the ICC. Therefore, it is quite absurd that the international community’s unfounded concern about the fate of CPA or the peace in Darfur in the post-al-Bashir era. The pillars of true peace are justice! No peace without justice!

Sudan signed but has not ratified the Rome Statute of the (ICC) and is refusing to cooperate with its jurisdiction, but the UNSC triggered the provisions under Chapter VII of the United Nations Charter, to enables it to refer situations in non-State parties to the world court if it deems that it is a Threat to International Peace and security. This is beside Responsibility to Protect (R2P) Principle which in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity, the UN member countries are prepared to take collective action, in a timely and decisive manner through the UNSC. President Omar Hassan Ahmed al-Bashir will not be able to escape with impunity without being subjected to justice for the crimes he committed and is continuing to commit against the people of Sudan in Darfur no matter how long it takes.

The (UNSC) passed 17 resolutions on the Darfur crisis, all of which are internationally binding. The Sudanese regime has not complied with anyone of those resolutions to date, bearing in mind that they are meant to achieve security and peace in the region of Darfur. Many critics say that the UNSC is either a toothless lion or its members act with double standards; in both situations its credibility is tarnished. The Security Council failed to extend the arms embargo to the Sudanese government, impose travel sanctions and asset freezes on key government and military officials or implement the no-fly zone over Darfur.

Sudan’s ambassador to the UN Abdalmahmood Abdalhaleem Mohamed has said in his usual belligerent rhetoric that the government of Sudan intends to ask the Security Council to block the prosecution, describing any attempt to arrest Bashir as "an act of war." He added that President Omar al-Bashir is weighing all options, including an undefined military response!

China’s Foreign Ministry spokesman Liu Jianchao said Beijing maintains friendly relations with Sudan and is deeply concerned and worried about the ICC charges against president al-Bashir. He continues to say that the situation in the Darfur region is at a sensitive and critical moment and that China hopes all sides can resolve their differences through consultation and avoid adding complications that could interfere with or harm the atmosphere of cooperation. It is understood that China is consulting with other U.N. Security Council members to see if the court could be blocked from issuing an arrest warrant against Mr. Bashir, according to the Associated Press.

Analysts believe that Omar al-Bashir’s threats in which he claims that he will make Sudan another Somalia if he is convicted by the International Criminal Court (ICC) as part of the world widely known lies of his collapsed unpopular regime and empty rhetoric for domestic consumption. Those are his usual raving menaces of refusal and soon return to surrender to reality under stark warning or confrontation. Unfortunately, al-Bashir and his clique do not learn from their mistakes and never take lessons from experience. To say the world is better off without Omer al-Bashir and his NCP regime is to speak an obvious truth. The old habits of bullying and blackmailing are not going to save al-Bashir from the predicaments of his abhorrent deeds in Darfur. The NCP needs to stop this nonsense and cooperate with the ICC.

The Comprehensive Peace Agreement (CPA) should not be exploited or taken as escape goat or the “Wooden Horse of Troy” to turn into survival instrument for the National Congress Party (NCP) regime led by the indicted Marshal Omer Hassan Ahmed al-Bashir. The CPA remains an achievement of the people of the Southern Sudan, a price of their decades of struggle and endurance during which two and a half million people perished in the conflict. The Naivasha agreement will not and should not freeze the indictment of Omer al-Bashir. If the ICC judges at The Hague agree to the request of arrest warrant for Gen. al-Bashir, it will mark the first time the ICC has brought charges against a sitting head of state. In that event, the Sudanese political powers should intervene by forming a national transitional government for continuity and avoiding a vacuum. Dr. Khalil Ibrahim, Sudanese leader of the Justice and Equality Movement (JEM) has been reported by the news media Sudan Tribune as proposing the formation of an interim government now that the indictment of the Sudanese president by the International Criminal Court (ICC) has "eroded his legitimacy" and created a "new reality" "The erosion of legitimacy of the current Sudanese government obligates all political parties and forces to intervene in a responsible way and prevent the country from sliding into chaos, anarchy and constitutional vacuum." Although, supposedly, fears have been raised that the arrest warrant could lead to attacks on UN peacekeepers in Darfur or the expulsion of Western diplomats, but it was reported that Al-Zahawi Ibrahim Malik, the Minister of Information and Communication as saying that Sudan would guarantee the safety of foreigners. After Omer al-Bashir loses the battle against the ICC, the Sudanese people are “going to hang him out to dry” and will not shed tears!

Will the UNSC as a “Dove of peace” for the world accomplish its mission in Darfur by distancing itself from the plans aiming at stalling the arrest warrant of the indicted Sudanese president by the International Criminal Court (ICC)? That is a sixty-four dollar question ($64 question)!

Dr. Mahmoud A. Suleiman is the Deputy Chairman of the General Congress for Justice and Equality Movement (JEM). He can be reached at mahmoud.abaker@gmail.com

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  • 21 September 2008 07:28, by Freedom Fighter

    I want to make three comments with respect to this article. Firtly, it is premature now to predict whether the two countries you have mentioned will actually aprove the deferral of indictment and arrest warrant, since there is conflicting news report especilly on the French side. Second, I want to assure Mr. Suleiman that SPLM people are well aware that CPA was never meant to protect criminals, but it was meant to peacefully dismental the apartheid regime (NCP) and establish New Sudan which belongs to all its people. Lastly, you Mr. Suleiman and all JEM people you better keep your mouth shut, or you will make us support Albashir. Your chairman, Ibrahim Al-Khalil was a former Al-bashir Mujahad in the South and he killed people, raped women, and burned down many villages in the South. Your chairman need to apologize publicly to the people of the South for his past behaviors.

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    • 21 September 2008 10:03, by Samani

      Mr Akande’s Oxford colleague, Phil Clark, an Australian political scientist born in Sudan who specialises in African conflicts, describes Mr Moreno-Ocampo’s decision to bring genocide charges as “a major gamble by the prosecutor who believes that, even though Bashir may never face trial, indicting an incumbent head of state will inherently bolster the International Criminal Court [in areas] where it is currently weak”. These, he adds, include international legitimacy and relations with states that do not accept the court’s jurisdiction, such as the US.

      “The move against Bashir is intended to show that the ICC is willing to pursue difficult cases of high-ranking officials and to regain some of the legitimacy that the Court has lost in Uganda and the Democratic Republic of Congo,” says Dr Clark.

      He believes Mr Moreno-Ocampo is lobbying the Security Council to help enforce the warrant against Bashir. “If such support is not forthcoming,” Dr Clark adds, “the prosecutor will argue that [his office] has done its job as effectively as possible but suffered from a lack of political will in the Security Council.”

      Why, though, has the prosecutor not sought to bring charges against any further members of Sudan’s political and military leadership? And the other question that has left lawyers scratching their heads is why the prosecutor is seeking Bashir’s arrest for genocide, the most serious crime with which he can be charged and the most difficult to prove. How is he meant to have committed it?

      With “rape, hunger and fear” Mr Moreno-Ocampo told reporters on July 14. These were Bashir’s weapons.

      Rape? Bashir is said to have authorised the rape of women and girls by the Janjaweed militia as well as by armed forces and Sudanese security agents. That would presumably have led to the birth of mixed-race children.

      But the prosecutor does not accept Bashir’s racial bifurcation of the Sudanese people: he regards the tribes aligned with the government as “Arabs” while desribing his opponents as “Africans”. Both victims and perpetrators are Africans who speak Arabic, as Mr Moreno-Ocampo explains. So — quite apart from the fact that children born to rape victims frequently assume the ethnic identity of their mothers — how can rape bring about the physical destruction of a “national, ethnical, racial or religious group”, to quote the statute? At the very least, it would have to be systematic and on a huge scale over many years. Doing “significant and irreversible harm” to communities is not the same as wiping out part or all of a people.

      Hunger? Attacks on villages are said to have destroyed the victims’ means of survival. Eviction is said to have destroyed “the fabric of the groups, whose identity is linked with the land”. Such actions are appalling. But do they amount to the crime of genocide?

      Fear? “Individuals who refuse to commit crimes are dismissed and replaced or even prosecuted,” says Mr Moreno-Ocampo. That’s genocide?

      Yes, says the prosecutor. “This is genocide by attrition... The crime of genocide is a crime of intention.”

      No it’s not. A glance at article 6 the Rome Statute, from which the court derives its authority, shows — as you would expect — that the crime of genocide requires both intention and action. The required intent is, as I say, “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Qualifying acts include killing; causing serious harm; inflicting conditions calculated to bring about a group’s physical destruction in whole or in part; preventing births; and forcibly transferring children to another group.

      It is true that Mr Moreno-Ocampo singles out the first three of these acts — accusing Bashir of killing his victims through the apparatus of the state, causing them serious mental harm and inflicting conditions designed to bring about the physical destruction, in part, of the three ethnic groups. It is also true that he is seeking Bashir’s arrest for crimes against humanity and for war crimes, separate offences under the Rome Statue. But where is the evidence from which we can infer Bashir’s genocidal intent? Old Africa hands were aghast after he had outlined his case.

      “I left the press conference stunned,” said Alex de Waal, a programme director at the Social Science Research Council in New York and co-author with Julie Flint of Darfur: a new history of a long war .

      “For 19 years, President Bashir has sat on top of a government that has been responsible for incalculable crimes. Hundreds of thousands of Sudanese citizens have died in violence, or been starved or rendered homeless, or have been tortured or otherwise punished. The head of state must bear much responsibility for these countless crimes committed by those who profess their loyalty to him.

      “Two weeks ago, Moreno-Ocampo succeeded in accusing Bashir of the crime for which he is not guilty. That is a remarkable feat.”

      Dr de Waal, who has studied human-rights issues in Sudan for 20 years, does not recognise the prosecutor’s picture of a president in absolute control, dedicated to destroying entire ethnic groups in Darfur. He believes Mr Moreno-Ocampo’s “political misjudgments” have made life easier for Bashir and harder for the court.

      “By presenting his case in such stark terms,” Dr de Waal says, “the prosecutor has made it easy for his critics to dismiss him as ill-informed and driven by a desire for publicity, and has made it harder for the advocates of justice in Darfur to pursue the challenge of calling to account those responsible for crimes no less heinous than genocide.”

      And Antonio Cassese, a former president of the International Criminal Tribunal for the former Yugoslavia who chaired the UN commission of inquiry into Darfur, has questioned whether the three tribes allegedly targeted by Bashir constitute distinct ethnic groups — given that they speak the same language, have the same skin colour and embrace the same religion as the majority. True, each tribe has its own dialect and territory. But Prof Cassese, who teaches law at the University of Florence, suggests that if these were to be the criteria then all Sicilians would have to be regarded as a distinct ethnic group.

      What happens now? The prosecutor cannot issue an arrest warrant himself. That decision is one for a pre-trial chamber of three judges. Their decision is now awaited. But there seems little prospect that we shall ever see Bashir convicted of genocide.

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