On the 4th of March 2009, after seven months of deliberation, the International Criminal Court charged President Omar Hassan al-Bashir of Sudan with war crimes and crimes against humanity in the violence that has engulfed the Darfur region in recent years. But he escaped the charge on genocide at least for now, as the ICC has made it clear that the charges could also be amended to include genocide if relevant evidence subsequently comes to light. This is remarkable because it is the fisrt time the court has sought the arrest of a sitting head of state since it opened in 2002. Reactions have been characterized by outrage, apprehension, and celebration. To his immediate supporters, this reeks of neocolonialism in which the insufferably haughty and hypocritical Western powers target Africa and seek to humiliate its leaders. Thousands of furious demonstrators took to the streets of Khartoum and attacked the ICC, Western countries, the UN, and chanted their support and love for their beleaguered president. Larger demonstrations are expected in the days to come.
Some concede that President al-Bashir may be culpable, but worry that this will destabilize the country and make the situation in Darfur worse. It might even re-stoke the older north-south conflict whose settlement under the Comprehensive Peace Agreement adopted on December 31, 2004 is quite fragile. They prefer peace to justice. This purported trade off is the basis of some of the opposition to the court’s action in the African Union and the Arab League. In the words of the Chairperson of the AU Executive Council in his address to the Council on January 29, 2009: “The greatest challenge facing the peace process in Darfur is the request made by the Chief Prosecutor of the ICC on the 14th June 2008, for the indictment of the President of the Republic of the Sudan, General Omar al Bashir. While in principle the African Union has no objection to bringing, perpetrators of human rights violations to justice, the reality remains that President al-Bashir remains a critical stakeholder in the search for peace in Darfur. Accepting the request for the issuance of a warrant to arrest [him] at this time will most likely derail the peace process in the Sudan.” At the end of its recent summit held in Addis Ababa at the beginning of last month, the Assembly of the AU endorsed the call made months earlier by the AU’s Peace and Security Council for the UN Security Council to “defer the process initiated by the ICC.”
The need to defer justice in pursuit of peace also informs opinions and concerns among some relief agencies. In the words of Franklin Graham, president and chief executive of Samaritan’s Purse and the Billy Graham Evangelistic Association, writing in The New York Times: “I want to see justice served, but my desire for peace in Sudan is stronger. Mr. Bashir, accused of genocide and crimes against humanity, is hardly an ideal peacemaker. But given all the warring factions in Sudan, there is no guarantee that his replacement would be better….Now, his arrest could threaten the south’s elections and referendum, and hurl the country back into civil war. His removal could also spur retaliation by Bashir loyalists and other forces against civilians, United Nations peacekeepers or international aid workers.”
Such vacillations cut no ice with human rights activists who welcomed the indictment of President al-Bashir last June and the issue of the arrest warrant on 4 March 2009. There have been television and newspaper pictures of demonstrators celebrating outside Sudanese embassies in various countries. For them peace and justice are inseparable, the perpetrators of impunity should not be absolved of their crimes by fears of more impunity from them. This merely serves to perpetuate the cycle of impunity by allowing the architects of war crimes and crimes against humanity to go scot-free. These sentiments are expressed with characteristic moral clarity by emeritus Archbishop Desmond Tutu, in an impassioned an op-ed essay entitled “Will Africa Let Sudan Off the Hook?“, in which he argued that the issuance of the arrest warrant “presents a stark choice for African leaders – are they on the side of justice or on the side of injustice? Are they on the side of the victim or the oppressor? The choice is clear but the answer so far from many African leaders has been shameful. Because the victims in Sudan are African, African leaders should be the staunchest supporters of efforts to see perpetrators brought to account. Yet rather than stand by those who have suffered in Darfur, African leaders have so far rallied behind the man responsible for turning that corner of Africa into a graveyard.“
He eloquently dismissed charges that the ICC and the indictment of President Bashir merely is nothing but legal cover for western imperialist machinations. “I regret that the charges against President al-Bashir are being used to stir up the sentiment that the justice system – and in particular, the international court – is biased against Africa. Justice is in the interest of victims, and the victims of these crimes are African. To imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment to justice we have seen across the continent. It’s worth remembering that more than 20 African countries were among the founders of the International Criminal Court, and of the 108 nations that joined the court, 30 are in Africa.” I wholeheartedly endorse the views of the venerable archbishop.
For human rights advocates and campaigners who have spent the last few years calling for the indictment of al-Bashir and his accomplices at the highest level of the Sudanese political establishment, the warnings about the possibility of a collapse of the peace process and a reversion to conflict in the south of the country are nothing but a red herring. These warnings are reminders of the old arguments that have been bandied about when nations have had to make choices between holding perpetrators of gross violations of human rights accountable and pursuing peace and national reconciliation at all costs. Such calls have been part of the debates about how to rebuild societies in post-conflict situations, from post-apartheid South Africa and East Timor to Liberia and Sierra Leone. Aspects of these arguments have been echoed in more recent times in both Kenya and Zimbabwe in the wake of the post-election violence in both countries and the soul-searching that has gone on about the underlying issue of decades-old violations of human rights, especially in the latter: should the imperative of securing peace and national reconciliation trump the need to punish impunity and bring justice to victims of egregious human rights violations? For many human rights campaigners, this is a false choice. Both can be achieved, if the right conditions and mechanisms are agreed and put in place. Peace without accountability for impunity would be a false and fragile peace.
Moreover, for supporters of the emerging international criminal justice system and human rights advocates alike, allowing al-Bashir to escape the ICC’s indictment on the grounds of political expediency would set a bad precedent that his supporters in the AU and the Arab League may celebrate but the wider world may come to regret. Such a development would compromise the authority of the new international tribunal, weaken attempts at strengthening human rights protection around the globe, derogate from the global effort to punish impunity while giving succor and hope to downtrodden and vulnerable populations in places like Darfur and beyond. It would also give legitimacy to the false claim that the ICC is part of a Western-led neo-colonialist plot aimed at targeting and harassing African political leaders and their countries while leaving other alleged perpetrators of violations of human rights, genocide, war crimes and crimes against humanity untouched. Proponents of that claim conveniently fail to point out that three of the four cases currently pending before the court (Central African Republic, Democratic Republic of Congo and Uganda) were initiated at the request of the African governments themselves, and that the indictment of Bashir is not the outcome of a mindless personal campaign by the ICC prosecutor, as it is sometimes presented in the al-Bashir-friendly media, but a result of a request for investigation into the alleged violations in the Darfur region by the United Nation’s Security Council.
The indictment of President Omar al-Bashir and the issuance of a warrant of arrest by the ICC marks an important milestone in the quest for justice for the people of Sudan as a whole, and not only the immediate victims of the violations in Darfur. To characterize this as evidence of neo-colonialism is to invoke a dubious, albeit popular, canard. Africa which has suffered more than most from human rights violations at the hands of outsiders and its own vicious leaders should be at the forefront of establishing a global culture that promotes and protects human rights, peace, and security. Playing such a role enables Africa to criticize others with integrity. I am sure many Africans would have wished an ICC existed in the days of slavery and colonialism to bring the perpetrators of those crimes to justice. I also think many look forward to bringing other contemporary perpetartors of war crimes, crimes against humanity, and genocide ensconced in some of the world’s most powerful countries to justice by the ICC. They include the engineers of the devastating war in Iraq, provoked and waged under utterly false pretences, as well as those who orchestrate the recurrent vicious wars and humanitarian disasters in Palestine. We will be in a stronger position in the struggle to create a more humane world if we do not exonerate our own political criminals and serial human rights abusers. The causes for peace, security, and justice are indeed interrelated, indivisible, interdependent, and universal.