Everyone is crying out for peace, none is crying out for justice; I say, everyone is crying out for peace, none is crying out for justice; But, there will be no peace, till man gets equal rights and justice– Peter Tosh
The International Criminal Court, (ICC) has issued a warrant for the arrest of the Sudanese President, Omar Al-Bashir for crimes against humanity – murder, extermination, forcible transfer, torture, and rape; and War Crimes- intentionally directing attacks against civilian population and pillaging. It is the first time a sitting head of state has been on the receiving end of such a warrant.
Western diplomats say the charges are certain to go ahead and stand ready to carry out the arrest. The US accuses Bashir and other senior officials of responsibility for genocide in Darfur. The US also designated Bashir’s government as a state sponsor of terrorism.
The Sudanese government and officials have dismissed the allegations against Bashir as fabricated and part of an attempt by the US and the West to “blackmail” Sudan; The Sudan’s information ministry branding the ICC “the white man’s court”. Al-Bashir’s presidential adviser, Mustafa Osman Ismail, branded the ICC “one of the tools of the new colonization” aimed at destabilizing the sprawling oil-rich nation. Sudan had previously refused to hand over two other officials indicted by the ICC.
The African Union and other African Heads of state, The Arab League and the Islamic Conference Organisation have all chosen to support President Al Bashir. They argue that the indictment will only further destabilise the fragile security situation and leave the people to starve.
They may be right. The ICC’s actions threaten peace negotiations between the Sudanese government and one of the main rebel groups. Those in whose name this action is taken have most to lose from it, at least in the short term.
The Sudanese government has already ordered 10 aid agencies, including Oxfam and Save the Children, to leave the country. Up to two million rely on aid workers for food, shelter, clean water and medical supplies. The next to be ordered out could be the United Nations’ peacekeepers, who have been attempting to protect civilians since early last year.
Africans question why only Africans have been charged since the ICC began its work six years ago. The chairman of the African Union has accused the court of “double standards,” asking why no cases have emerged from conflicts in the Caucasus, Iraq or Gaza. Why not the many other Congolese warlords whose forces all are accused of gross atrocities, including those of President Joseph Kabila? And what about the leaders in Rwanda, Uganda and other African countries that sent troops to Congo?
The African states were the strongest supporters of establishing the ICC. The court wouldn’t have been possible without them. Thirty of the court’s 108 member states are African. Now they charge that the hypocrisy of the ICC is manifested by the fact that three of the council’s five permanent members — China, Russia and the United States — refuse to join the international court.
Every indictment by the ICC has brought acted on requests from African members — Uganda, Congo and Central African Republic. Al-Bashir’s arrest warrant is the exception, initiated by the U.N. Security Council. But there has been a significant shift in the past year.
They wonder whether the precedent set by the court Wednesday would extend to former U.S. President George W. Bush, amid charges his officials were the architects of criminal detention policies that led to torture in Iraq and at Guantanamo detention centre in Cuba.
‘The world’s justice may look with one eye’, But what are the facts about Sudan?
In 2003, after ethnic African tribes from Darfur staged a revolt against Khartoum over neglect and discrimination, the government mobilised militias of Arab herders known as Janjaweed. They collaborated with the military in a campaign of murder, pillage and rape against civilians. The wave of killing in Darfur left as many as 300,000 people dead and drove 2.7 million from their homes.
The situation in Darfur remains dire: “genocide” continues. Rapes in and around the refugee camps continue. Humanitarian assistance is still hindered. More than 5,000 displaced persons die each month”.
The ICC judges say there is evidence that Omar al-Bashir is personally responsible for organising attacks against the population of Darfur, “murdering, exterminating, raping, torturing and forcibly transferring civilians and pillaging their property”. A 34-year-old deserter from the Sudanese army claimed he was ordered to implement a scorched-earth policy in Darfur, erasing villages, raping the women and killing everyone, including babies. Luis Moreno-Ocampo the chief ICC prosecutor said the evidence against Bashir was overwhelming, and UN member states must be ready to enforce the arrest warrant.
Contemporary international criminal law received a boost when on July 2002 the ICC came into existence, the new court has jurisdiction over genocide, crimes against humanity and war crimes committed on or after 1 July 2002. Article 27 of the ICC abolishes all immunities for heads of state and members of governments and parliaments: Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such person.
The Rome Statute of the International Criminal Court is predicated on the principle of complementarity under which states have the primary duty to bring to justice those responsible for international crimes, but the International Criminal Court may assert its concurrent jurisdiction in any case where a state is unable or unwilling genuinely to investigate or prosecute.
Several commentators have argued vehemently against the indictment and possible arrest of President Al Bashir and his ministers on the grounds of his Immunity from prosecution as the president of the Sudan based on the International law doctrine of sovereign Immunity.
The struggle to provide justice to individuals who have been victims of gross human rights abuses and other crimes against humanity has often been a struggle against nation-state sovereignty. Heads of state could act with impunity against their own citizens because they could use state sovereignty as a shield against criminal charges.
Recent development of international criminal law has happened at the expense of sovereignty and weakened the theory. Before the ICC, Article IV of the Convention for the Prevention and Punishment of the Crime of Genocide 1948 stipulates that official position in government or other organization affords no defence against individual responsibility.
The 1993 Vienna Declaration and Programme of Action, called for states to ‘abrogate impunity legislation for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law’.
Earlier Senator Augusto Pinochet was arrested in London pursuant to a request for his extradition to Spain to face charges for crimes against humanity which had occurred while he was Head of State. This marked the first time a former Head of State had been arrested in England on such charges.
After that Slobodan Milosevic of the Federal Republic of Yugoslavia was indicted by the prosecutor of the International Criminal Tribunal for the former Yugoslavia for atrocities committed in Kosovo. This marked the first time that a serving Head of State had ever been indicted by an international tribunal.
These developments in international law come about from recognition that there are offences that are contrary to jus cogens – the pre-emptory rules of international law; that there are crimes so grave that the world community cannot just remain silent.
State practice forswears genocide, torture and extra judicial executions and consequently gives such international crimes the status of jus cogens , which in turn means that each state has an erga omnes obligation to the international community not only to refrain from committing such crimes but to co-operate in ensuring their investigation and punishment – a legal obligation owed every member of the international community either to put on trial or to extradite for trial elsewhere any person reasonably accused of violating jus cogens by perpetrating a crime against humanity.
The offence of ‘crime against humanity’ has thus been revived and developed since Nuremberg to signify a crime that is so serious that it entitles any state to claim jurisdiction. This professed right of international jurisdiction can trump any right of immunity held by state officials. This is why this indictment by the International Criminal Court of the President of Sudan on war crimes charges is a victory for the human rights community.
Those who argue that amnesty is a more powerful weapon for peace point to Ugandan rebel leader Joseph Kony, who defaulted on a peace agreement after the ICC, issued an arrest warrant against him.
On October 14, 2005, the International Criminal Court (ICC) in The Hague issued warrants for the arrest of five leaders of the Lord’s Resistance Army (LRA) accused of killing, raping, robbing civilians and systematic kidnapping of children, forcing them to fight and using girls as sex slaves.
Those that accuse the ICC of being a stumbling block to the Ugandan peace process would be wise to look at the history of the Lords Resistance Army.
In 1986, the Holy Spirit Mobile Force was created around Alice Auma Lakwena, a woman healer who combined Christian Pentecostal elements, particularly the direct intervention of the Holy Spirit, with more traditional African beliefs in charms that can prevent injuries. In November 1987, Alice Lakwena left Uganda for Kenya, but the movement reformed itself under a cousin of Lakwena, Joseph Kony, and was renamed the Lord’s Resistance Army. Kony also believes that he is in direct contact with the Holy Spirit and considers himself a medium. Kony claims: “God can confirm that I am an embodiment and the personification of the Holy Spirit.”
As the insurgency is “God-guided”, it is therefore very difficult to find compromises on the human level. He sees himself as the agent of divine retribution for the past transgressions the government has committed against Ugandan northerners.
Joseph Kony, the leader of the LRA, was set to meet with the U.N. special envoy for the conflict until his spokesman, David Matsanga, said he would not sign the peace agreement until arrest warrants issued by the International Criminal Court, or ICC, in The Hague are lifted.
Another rebel leader, Bosco Ntaganda, accused of killing more than 1,500 civilians in northeast Congo and driving some 100,000 from their homes is also wanted by the International Criminal Court for war crimes, but Congo chose rather to deal with him and integrate his fighters into the national army. The move appears so far to have diminished the rebel threat in eastern Congo.
But in the case of Uganda, their main grouse was not only the ICC indictment but also that the agreement with the Ugandan government contains so many contentions items they disagree with.
It is unfortunate, though not entirely surprising, that the African Union and other African Heads of state have chosen to throw their support behind president Al Bashir. After all, majority of them came to power by shedding the blood of innocent citizens and have stayed put ever since. Most still see nothing wrong with waging war against their defenceless citizens. This is not an occasion to ignorantly rail against western conspiracy and neo-imperialism. We should be bold enough to call a spade a spade.
While is difficult to maintain that elusive “balance between attaining justice and sustainable peace”, for Oumba Daoud Abdelrasoul all he wants is justice. He fled the conflict in Darfur six years ago and still lives in a refugee camp in eastern Chad. Across the border from the village he left as it was burnt to the ground, he remembers gunfire and corpses scattered and rotting in the scrub as the survivors ran. he told UK Guardian of March 5, 2009: “My younger brother and my two uncles had their throats slit in front me. I had to watch as others were thrown alive into fires. The village was burnt, the government ordered scorched earth all the way to the border,”.
Said Abdullah Djouma Abaka, the leader of a destroyed Masselit village. “I’m haunted by the fact that as we were fleeing, I saw bodies on the ground, I recognised the faces. These were people I knew and I couldn’t stop to bury them. I might live here, but my heart is there in the village. People are still terrified and we can’t go back.”
Other refugees told how women and girls were pulled aside and raped as militiamen on horseback and in pick-up trucks surrounded villages.
These refugees from the Darfur tribes eagerly waited for the international criminal court’s warrant for the arrest of Sudan’s president, Omar al-Bashir, for crimes against humanity and war crimes.
Some would argue for “a balance between attaining justice and sustainable peace”, others would argue that the ICC will, like its ad hoc predecessors, ‘be little more than the backdrop for show trials against small countries like Rwanda, Sudan and the former Yugoslavia’; That the combatants who are likely to appear in the International Criminal Court will be those without superpower support.
But for the victims, all they want is justice; they want rights and then compensation for what they lost. they don’t believe an accord with the government is possible; they want Bashir to be judged first.
In an article on NVS, I had argued that our inability to do something about the Darfur genocide is a shame to all black Africans.
We know the real African leaders. One of them, South African Nobel laureate Archbishop Desmond Tutu had said African leaders are behaving shamefully and dismissed concerns that the court’s action would impede promoting peace.
“Are they on the side of the victim or the oppressor?” Tutu asked in a column in The New York Times. “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.”
I can’t wait to see President Al-Bashir go the way of Colonel Théoneste Bagosora. It took the UN International Criminal Tribunal for Rwanda (ICTR), the UN International Criminal Tribunal for Rwanda (ICTR), nearly nine years, to found the highest authority over the Rwandan military in April 1994, when the genocide of ethnic Tutsis and moderate Hutus by Hutu extremists began, responsible for the imprisonment for genocide, crimes against humanity and war crimes and sentenced the alleged mastermind and two co-defendants to life imprisonment.
Our only prayer is that it doesn’t take that long, for the Darfurians to get the real peace that could only come with justice.
Daniel Elombah publishes www.elombah.com. His essay on nation-state sovereignty versus human rights can be read here. He could be contacted on firstname.lastname@example.org