In post-ICC indictment, shall national interests rescind partisan politics?

By Mahgoub El-Tigani

July 25, 2008 — Following ICC Prosecutor Luis Moreno-Ocampo presentation of case with evidence against Sudanese President, Hassan Ahmad al-Bashir, for genocide, crimes against humanity and war crimes in Darfur (The Hague, 14 July 2008), the Sudanese government held a spiral of protests led by the indicted head of state and his party; but then vaguely joined by the other political parties: a meeting held with the opposition parties at the Republican Palace in Khartoum to discuss the ICC prosecution, however, revealed a few developing aspects of the Sudanese political relations under the indicted Brotherhood rule.

There are shared interests and agenda between the different players in the arena: The International Community, including former socialist Russia and China arms sales’ and other oil deals’ “diplomacy;” the Darfuris and the Sudanese supporting the Darfuri victims of war, in particular; and the African Union supported by the CPA Friends are desirous of peace, decent return of displaced people, and political stability of the region.

Whereas the ethical stands of human rights’ and democracy groups press for peace making and peace keeping by the finest guarantees possible, namely an all-Sudanese national consensus augmented by the UN enforceable powers, the Government of Sudan (GoS) has barely shown similar stands since it opted to “manage the crisis” for the sake of its own agenda (a newly constructed Darfur in which only Darfuris committed to the government’s ideology [that of the NIF/NCP] receive war rewards, including unlawful land acquisitions of the displaced Darfuris, added to the unlawful denial of economic and social benefits and state protections to all GoS opponents and potential enemies, the majority of Darfuris in and outside Sudan).

The complications quadrupling in this quagmire have been daily increased by the elusive attitudes of the government towards the key tenets of resolving the crisis: principled compliance with the UN Security Council resolutions; fair, indiscriminate negotiations with all armed movements; principled constitutional rule by the CPA and Interim Constitution; promotion of North-South state relations; and advancement of GoS-Opposition relations free of corruption and security harassment to accomplish the forthcoming national elections and democratic rule.

CIVIL SOCIETY CLAIMS

The genocidal acts made possible by the government’s unprecedented violence in Darfur against the Zagawa, Massalit, and Fur ethnicities, in addition to heinous crimes against humanity and war crimes against many other Darfuri citizens motivated both international and national human rights and democracy organizations to appeal to the International Community to intervene with effective measures to end the crisis. One such appeal was the Appeal to the World on the Human Crisis of Darfur, issued months before approval of the UN resolutions on Darfur following the massacres of thousands of the Darfuri innocent people by government-Janjaweed troops.

The Appeal was addressed to the UN Secretary General, the UN Commission on Human Rights (Geneva), the African Commission on Human Rights (Banjul), the IGAD (Nairobi), the African Union (Addis Ababa), the Arab League (Cairo), the European Union (Brussels), the Sudan Government (Khartoum), and the National Democratic Alliance (a Sudanese opposition umbrella in Khartoum): The hundreds of Sudanese and non-Sudanese who signed the document and had it posted in several web sites, including shro-cairo.org “appeal to the world, to the civil societies, the labor and trade unions, and all social forums and peoples’ democracy, peace, and human rights organizations to join this Call to stop the human suffering of the Sudanese people in Darfur, Western Sudan.”

Clearly, the signatories “hold the government of Sudan fully responsible for the perpetration of the civilian atrocities in Darfur. Aware of the tragic dimensions of the Darfur’s Crisis, which amounts to state-led genocide as it has increasingly perished the lives of thousands as well as the displacement of a million citizens seriously endangered with illness, starvation, and death, the Undersigned support the principles of international intervention for the creation of Peace Corridors in Darfur under the auspices and the ongoing monitoring of the United Nations and the African Union.”

The Appeal made the point that: “The safety of Darfur Peace Corridors must be guaranteed by monitors from the African Union with the backing of the United Nations. The Sudan Government should be held responsible for all security matters along the Corridors. As the main responsible party, the government must be accountable before the United Nations Security Council for all breaches of security along the Peace Corridors.”

The signatories then “call for the creation of safe havens, full re-instating of the victimized indigenous population into their misappropriated lands and for the simultaneous removal of recently settled government militia and their supporters from such lands. Legal, administrative, and financial compensation and humanitarian aid for these victimized people must be fully ensured before they return to their identified homes. We call for the immediate enforcement of these urgent measures with clearly defined mission and objectives.”

“We hold the government responsible for the perpetration of the conflict in Darfur: the urgent tasks facing us now are to alleviate the present plight of the Darfur victims and to lay the blame for the present humanitarian crisis squarely on the Sudan government.” The Appeal went perhaps unnoticed for years, until the ICC Prosecutor Application set in motion a new upheaval for the ruling regime and its president, only a few days ago, in the course of the ICC and the UN Security Council’s concerns for the Darfur Crisis.

THE GOVERNMENT AND OPPOSITION POLITICS

The meeting political parties held with Bashir and his ruling NIF/NCP at the Republican Palace the day following ICC Prosecutor’s Application revealed some particularities of the Sudanese politics, namely that national collaborative politics tend to overrule government-opposition divisions in varying degrees along situations of mounting external pressures. All factors constant, the Bashir-led NIF/NCP ruling group has often geared and steered by emergency law the Sudanese political arena to extract favorable stands, release strains, or reduce tensions in all government-made crises since 1989 to the present time.

The Sudanese striving for democratic elections of a new president and state governments resembled, however, a new determining factor as the opposition parties lined together to pass a new act to elect a new president and state governments. With the act already passed, the opposition groups opted for sustainable peaceful relations with the ruling party to ensure fair and free elections. Despite disagreements about the size of representation, women’s candidacy list, and other related issues, the government-opposition parties established improved political relations. As indicated by the Palace meeting, the mode was “reconciliatory;” still, a few implications were unmistakably encountered:

To resolve the escalated tensions between the ICC/UN and the Bashir-led group, the Umma and DUP traditional parties confirmed the need for national reconciliation “within increased agreement on national unity and participation.” The Communists asked for “equalitarian treatment to the Abd al-Wahid-led movement and called for a stronger role by an opposition-government joint political committee to resolve the crisis.” The Nasserists “criticized the security control of public freedoms.”

None of the parties’ spokespersons condemned Bashir or even recognized the legality of his indictment by the ICC/UN competent institutions. Instead, the ICC was ignored, mocked at, and indeed belittled since the government was publicly supported and then simply advised by a party spokesperson “to line behind the African Council of Peace which asked the ICC Prosecutor to withdraw his Application to help maintain the peace process.” A different view, however, was voiced by the Turabi-led opposition group whose spokesperson said in an interview with Jazeera: “This is a situation of legal liabilities: Muslims know the Prophet himself made it possible for himself to stand before judges, and all individuals are liable to stand for trial according to law.”

Days after the Palace meeting, however, the SPLM Secretary General referred clearly to “the occurrence of genocide” in Darfur in undeniable blame of the role the Khartoum’s ruling regime played. Some observers thought the SPLM statement was a clear check on the government-opposition alliance to liquidate the intensity of Bashir’s international indictment, apparently to urge NIF/NCP commitment to fair and free elections. On the latter goal, however, this writer believes that the elusive nature of the ruling regime and its unabated plots to undermine the CPA, circumvent the Interim Constitution, and control the Elections’ Act leave a negligible margin, if any, for the opposition to enforce democratic agenda in exchange.

Although the ICC Prosecutor Application is independent and strictly legal, the Prosecutor’s Application has certainly shaken the political image of President Omer Hassan al-Bashir and his ruling group inside Sudan, the neighboring nations, and the outside world, which might further affect the NIF/NCP preparatory campaigns on electoral candidacy. This is probably true in the absence of a reliable media, the increased harassment of the press, and the prevailing security measures in the aftermath of the Justice and Equality attack on government military establishments in Omdurman this last May.

Having attained “a sympathetic round” with the opposition’s “engineered support,” besides a few indifferent Arab League statements towards the Darfur Crisis and the ICC Application, in addition to unprecedented African Union caution not to press for charges against his leadership, or even to pledge stronger enforcement to the UN approved plan in Darfur (including the internationally required surrender of two previously indicted senior aides of Bashir), the farcical tour Bashir exercised before notoriously-guarded audiences of Darfur, not to mention the millions displaced in the Darfur Sahara, affirmed the NIF/NCP favorite response to the world: “we couldn’t care less!”

THE ICC PROSECUTOR

The decisive response to the years’ suffering of the voluminous victims of the Darfur Crisis (estimated by the most reliable UN estimates in millions displaced, tens of thousands extra-judicially killed, and many others tortured, arbitrarily arrested, and unlawfully harassed) came unsurprisingly by the ICC Prosecutor on July 14, 2008.

The Darfur situation was referred to the Office of the Prosecutor by United Nations Security Council Resolution 1593 (2005) which affirmed that justice and accountability are critical to achieve lasting peace and security in Darfur. Since the start of the investigation, the Prosecution has collected statements and evidence during 105 missions conducted in 18 countries. Throughout the investigation, the Prosecutor has examined incriminating and exonerating facts in an independent and impartial manner.

For the purpose of the Application, the Prosecution has relied primarily on: (1) witness statements taken from eyewitnesses and victims of attacks in Darfur; (2) recorded interviews of GoS officials; (3) statements taken from individuals who possess knowledge of the activities of officials and representatives of the GoS and of the Militia/Janjaweed in the conflict in Darfur; (4) documents and other information provided by the GoS upon request of the Prosecution; (5) the Report of the UN Commission of Inquiry (“UNCOI”) and other materials provided by the UNCOI; (6) the Report of Sudanese National Commission of Inquiry (“NCOI”) and other materials provided by the NCOI; and (7) documents and other materials obtained from open sources.’

‘Throughout the investigation the Prosecution monitored the security of victims and witnesses and implemented protective measures. The Prosecution and the Victims and Witness Unit of the Registry continue to monitor and assess the risks to victims and witnesses. Three years after the Security Council requested him to investigate in Darfur, and based on the evidence collected, the Prosecutor has concluded there are reasonable grounds to believe that the President of Sudan Republic Mr. Omar Hassan Ahmad al-Bashir bears criminal responsibility in relation to 10 counts of genocide, crimes against humanity and war crimes.”

The Prosecutor’s Application for a warrant of arrest under Article 58 against Omar Hassan Ahmad al-Bashir concluded, on investigation of crimes allegedly committed in the territory of Darfur, the Sudan, on or after 1 July 2002, that “there are reasonable grounds to believe that Omar Hassan Ahmad al-Bashir bears criminal responsibility for the crime of genocide under Article 6 (a) of the Rome Statute, killing members of the Fur, Masalit and Zaghawa ethnic groups (also referred to as “target groups”), (b) causing serious bodily or mental harm to members of those groups, and (c) deliberately inflicting on those groups conditions of life calculated to bring about their physical destruction in part.”

“For crimes against humanity under Article 7 (1) of the Statute, committed as part of a widespread and systematic attack directed against the civilian population of Darfur with knowledge of the attack, the acts of (a) murder, (b) extermination, (d) forcible transfer of the population, (f) torture, and (g) rapes; and for war crimes under Article 8 (2)(e)(i) of the Statute, for intentionally directing attacks against the civilian population as such, and (v) pillaging a town or place.”

“The Prosecution does not allege that al-Bashir physically or directly carried out any of the crimes. He committed crimes through members of the state apparatus, the army and the Militia/Janjaweed in accordance with Article 25 (3)(a) of the Statute (indirect perpetration or perpetration by means). At all times relevant to this Application, al-Bashir has been President of the Republic of the Sudan, exercising both de jure and de facto sovereign authority, Head of the National Congress Party and Commander in Chief of the Armed Forces. He sits at the apex of, and personally directs, the state’s hierarchical structure of authority and the integration of the Militia/Janjaweed within such structure. He is the mastermind behind the alleged crimes. He has absolute control.

The evidence establishes reasonable grounds to believe that al-Bahir intends to destroy in substantial part the Fur, Masalit and Zaghawa ethnic groups as such. Forces and agents controlled by al-Bashir attacked civilians in towns and villages inhabited by the target groups, committing killings, rapes, torture and destroying means of livelihood. Bashir has thus forced the displacement of a substantial part of the target groups and attacked them in the camps for internally displaced persons (“IDPs”), causing serious and bodily harm – through rapes, tortures and forced displacement in traumatizing conditions – and deliberately inflicting on a substantial part of those groups conditions of life calculated to bring about their physical destruction.

RESOLVING A GOVERNMENT-MADE CRISIS

In ordinary cases, if a national crisis is incited by government, it follows that the crisis resolution will be formally removed by the government in full collaboration with opposition groups and the International Community. Contrariwise, the Darfur crisis continues to escalate by a government determined to impose its own partisan goals. The government incited, led, messed-up, and escalated the crisis to almost non-resolvable levels.

The same government has just started another round to perform theatrical shows in the post-indictment era, which in the final analysis would create more problems than it might possibly do to ease the situation. While the Darfuri victims of these policies and practices continue to suffer, the government continues to offer elusive offers only to embarrass national politics and to invite mounted international measures.

Earlier, the Sudanese activists’ Appeal “call on the competent authorities to apprehend and to put on trial all of the war criminals who committed heinous crimes – including killing and other bodily injury, burning of homes, crops and entire villages, looting and pillage, branding and mass rape of women and children – against the innocent civilians of Darfur. The Darfur war criminals, and their main accomplices, whether Janjaweed militias or government officials, must be fairly tried before an international war crimes tribunal. These trials should be independent, publicly supported, and guided by the principles of international law and customary law.”

Correctly, the Appeal writers further ascertained: “We believe the final resolution to end the Darfur conflict lies mainly with the Sudanese people. We have no doubt that the Sudanese will end the current dictatorial regime, and will fulfill their aspirations for democracy and the peaceful resolution of all conflicts within the Sudan’s borders. Therefore, we ask the international community to support all efforts of the Sudanese people to bring a comprehensive, lasting and just peace to that presently deeply troubled country.”

At this point of the Sudanese-Darfuri crisis, it is not clear whether the African Union and the Arab League would move the NIF/NCP ruling party to cooperate with the ICC/UN to improve the situation in Darfur. The Sudanese civil society concern, however, seems quite appealing to the Sudanese political parties, perhaps more importantly than they might ever appeal to the Bashir regime: Would the Sudanese parties’ abandon all pegged sympathies with the NIF/NCP partisan stands to be able to rescind governmental policies in order to lead the justice process the People of Sudan yearn to enjoy, before they attempt to rescind the CCI Prosecutor’s Application?!

* The author is a sociologist at the Department of Social Work & Sociology in Tennessee State University, Nashville TN, USA. He can be reached at [email protected]