The ICC “Application” Concerning International Crimes in Darfur

Dilatory, exceedingly cautious, of little consequence, and taking minimal cognizance of the salient ethnic features of human destruction in Darfur

By Eric Reeves

Feb 27, 2007 — As the Darfur genocide enters its fifth year, and two years after UN Security Council Resolution 1593 (March 2005) referred violations of international law in Darfur to the International Criminal Court (ICC), the ICC has finally identified two of those instrumentally responsible for ethnic slaughter in Darfur. Under Article 58 of the Rome Statute that created the ICC, evidence of large-scale crimes against humanity will now be submitted to the Pre-Trial Chamber (a form of international “grand jury”), which will “review the evidence submitted [by the ICC Prosecution] and decide how to proceed” (Summary, Situation in Darfur, Prosecutor’s Application Under Article 58(7), February 27, 2007, page 9; hereafter “PA”).

It is a misnomer to describe today’s actions as the issuing of “indictments”: lead ICC Prosecutor Louis Moreno-Ocampo has presented evidence, in a 94-page “Application,” that will be assessed by the ICC Pre-Trial Chamber. This assessment is evidently a very slow process, and creates for Darfur an even more dilatory time-frame for the workings of justice and meaningful accountability. Moreno-Ocampo has said, “it could take several months for the ICC judges to decide on whether to issue summons or arrest warrants” (Reuters [dateline: The Hague, The Netherlands], February 27, 2007).

What we have at present, then, is the public naming of two particularly vicious actors in the Darfur genocide, but with no prospect of extradition, justice—or deterrence. It is a very small step, and the Prosecutor’s Application does nothing to make explicit the role of senior members of the National Islamic Front regime in orchestrating, and presently sustaining, genocide in Darfur. Further, it does nothing to address the overwhelmingly urgent issue of the moment: protection for vulnerable civilians and for humanitarian organizations operating in Darfur. On the contrary, Khartoum has already predictably and peremptorily dismissed the ICC findings, as well as its authority, and the regime may actually move more aggressively and with more hostility in the wake of the ICC Prosecutor’s Application. The BBC today reports humanitarian organizations as bracing for the impact.

It is certainly true that Ahmed Mohamed Haroun, former Minister of State for the Interior, is a notable figure to have been identified for his crimes. His reporting responsibilities during the period in question connect him directly to the most senior members of the National Islamic Front, including former Minister of the Interior (and current Defense Minister) Abdelrahim Mohamed Hussein. Hussein was among those named last year as obstructing the Darfur peace process by a UN Panel of Experts. Hussein is the one currently orchestrating actions by Khartoum’s armed forces, including the deliberate aerial assault on civilian targets, especially in North Darfur. Hussein is also the member of the Khartoum security cabal most committed to a policy of forcibly expelling Internally Displaced Persons from the camps where they enjoy marginal security and humanitarian access.

Notably, Ahmed Haroun was also named over a year ago in the highly authoritative Human Rights Watch report of December 2005 (“Entrenching Impunity: Government Responsibility for International Crimes in Darfur,” at http://hrw.org/reports/2005/darfur1205/). No extant report does more to establish the hierarchical nature of the military and political chains-of-command in the Darfur genocide. And Haroun is listed by Human Rights Watch under the highest category of government officials, including President Omar al-Bashir and former Minister of the Interior (and current Defense Minister) Hussein. The central conclusion of this superb report has enormous significance in the context of the ICC’s targeting of Haroun:

“Since early 2003, the leadership in Khartoum has relied on civilian administration, the Sudanese military and Janjaweed militias to implement a counterinsurgency policy that deliberately and systematically targeted civilians in violation of international law. Ultimate responsibility for the creation and coordination of the policy lies in Khartoum, with the highest levels of the Sudanese leadership, including President Omar El Bashir, Vice-President Ali Osman Taha, and key national ministers and security chiefs.”

Human Rights Watch also declared, with fully justifiable certainty:

“Despite persistent Sudanese government characterization of the Darfur conflict as a ‘tribal conflict,’ and repeated denials of state coordination of abusive militia groups, there is irrefutable evidence of a Sudanese government policy of systematic support for, coordination of, and impunity from prosecution granted to the ‘Janjaweed militias,’ a policy that continues to this day.”

It is in this context that we must understand the implications of the ICC’s naming today of Ahmed Haroun. For Haroun was of particular importance in Khartoum’s orchestration of the genocide during its most violent phase in 2003-2004. His contacts with senior members of the National Islamic Front regime would have been extensive and fully coordinated, given his central role in the genocidal counterinsurgency strategy adopted following the April 2003 attack on el-Fasher air base, the regime’s primary military installation in Darfur. As the ICC indictment notes:

“The turning point in the counterinsurgency strategy occurred after the attack against the Al Fashir airport in April 2003 with unprecedented losses for the Government. Shortly after, the recruitment of Militia/Janjaweed greatly increased, ultimately into the tens of thousands.” (PA, page 3)

This military event is widely understood to have triggered the National Islamic Front’s shift from a conventional military confrontation with the Darfur rebel groups to a genocidal counterinsurgency strategy. Thus the timing of Harun’s deployment to the region is of particular note:

“After the attack on Al Fashir, Ahmad Harun was appointed Minister of State for the Interior of the Government of the Sudan and tasked to head the ‘Darfur Security desk.’ State and local Security Committees in Darfur, which were comprised of representatives of the Sudanese Army, the Sudanese Police, the Sudanese intelligence agencies, reported to Ahmad Harun, especially on matters relating to the staffing, funding, and arming of the Militia/Janjaweed in the context of the counterinsurgency.”

“The most prominent of the coordination tasks entrusted to Ahmed Harun as the head of the ‘Darfur Security desk’ was his management of, and personal participation in, the recruitment of Militia/Janjaweed, to supplement the Sudanese Armed Forces. Ahmad Harun recruited Militia/Janjaweed with full knowledge that they, often in the course of joint attacks with forces of the Sudanese Army, would commit crimes against humanity and war crimes against the civilian population of Darfur and he did so with the aim of furthering them.” (PA, page 4)

Although Ali Kushayb, the Janjaweed leader identified by the ICC today, may have been directly responsible for more deaths and human suffering, it was Haroun who was finally the key instrument of policies fashioned by the most senior members of the National Islamic Front regime in Khartoum, policies aptly described by Alex de Waal in the London Review of Books (“Counterinsurgency on the Cheap,” August 5, 2004):

“[The counterinsurgency war in Darfur] is not the genocidal campaign of a government at the height of its ideological hubris, as the 1992 jihad against the Nuba Mountains was, or coldly determined to secure natural resources, as when it sought to clear the oilfields of southern Sudan of their troublesome inhabitants. This is the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit.”

Today’s actions by the ICC do not reach nearly high enough into the senior ranks of this vicious “security cabal.” The naming of Haroun and one of the most murderous of the Janjaweed leaders is at best a very modest first step. Certainly the obvious next step is to address the implications of another finding of the Human Rights Watch report, this in the context of Khartoum’s commitment to appoint regime loyalists as the governors (“walis”) of the three Darfur states:

“The governors reportedly have direct reporting lines to the President. The crucial role of the ‘civilian hierarchy’—the state governors, provincial commissioners, and locality directors—and their links to the Ministry of Interior were revealed in some detail in four government memoranda from 2003-2004, obtained by Human Rights Watch. These memoranda indicate that these officials were not just bystanders to events, but were pivotal figures in a chain of command that reached from the highest-level Sudanese leaders in Khartoum to the locality or sub-provincial level within each state, via these civilian officials. There are indications that at least in some cases these civilian officials also had hierarchical authority over the military commanders during military operations.”

As Human Rights Watch makes abundantly clear, Ahmed Haroun was not acting on his own, but within the context of a highly organized, hierarchically commanded campaign of ethnically-targeted civilian destruction. Dismayingly, this reality is too partially captured by today’s PA document:

“State and local Security Committees in Darfur, which were comprised of representatives of the Sudanese Army, the Sudanese Police, the Sudanese intelligence agencies, reported to Ahmad Harun, especially on matters relating to the staffing, funding, and arming of the Militia/Janjaweed in the context of the counterinsurgency.”

The ICC PA also notes Haroun’s intimate links with both the Janjaweed and Khartoum’s regular military forces (the Sudan Armed Forces [SAF]). But the ICC PA does not do nearly enough, even if only on a provisional basis, to provide a broader context for understanding ultimate responsibility for the Darfur genocide.

Moreover, while Human Rights Watch and other human rights organizations have done so much to establish the ethnic basis of human destruction, suffering, and material loss in Darfur, this reality has been peculiarly elided from the evidence presented by the ICC Prosecutor. We are told that:

“A characteristic of the armed conflict in Darfur is that the majority of civilian deaths in the region have been caused during attacks on towns and villages in Darfur carried out by the Militia/Janjaweed either singly or together with Sudanese Armed Forces. The vast majority of attacks carried out by the Sudanese Armed Forces and/or Militia/Janjaweed in Darfur were directed at areas inhabited by mainly Fur, Masalit and Zaghawa tribes.”

“The Sudanese Armed Forces and Militia/Janjaweed did not target any rebel presence within these particular villages. Rather, they attacked these villages based on the rationale that the tens of thousands of civilian residents in and near these villages were [presumed] supporters of the rebel forces. This strategy became the justification for the mass murder, summary execution, and mass rape of civilians who were known not to be participants in any armed conflict. Application of the strategy also called for, and achieved, the forced displacement of entire villages and communities.”

But the ICC Prosecutor refuses to state the obvious implication: the attacks were on villages not simply because “civilian residents in and near these villages were supporters of the rebel forces.” The civilian residents were constantly attacked on the basis of their ethnicity. How else to explain why “Arab” villages as close as 300 meters from “non-Arab” or “African” villages stood unharmed, even while total annihilation was occurring in the neighboring but ethnically distinct villages? How to explain the attacks on villages of the Fur, Massaleit, Zaghawa and other African tribal populations that had no proximity whatsoever to significant rebel military presence? How to explain the characteristic use of racist language by attacking Janjaweed forces (“zurga,” “abid,” Nuba), often attacking in coordination with the military forces of a regime committed to both an Arabizing as well as Islamizing agenda?

The evidence of a deep racial animus in the conflict was evident years ago. Indeed, three years ago this writer reported evidence that was already terribly abundant:

“A young African man who had lost many family members in an attack heard the gunmen say, ‘You blacks, we’re going to exterminate you.’ Speaking of these relentless attacks, an African tribal leader told the UN news service, ‘I believe this is an elimination of the black race.’ A refugee reported these words as coming from his attackers: ‘You are opponents to the regime, we must crush you. As you are black, you are like slaves. Then the entire Darfur region will be in the hands of the Arabs.’ An African tribal chief declared that, ‘The Arabs and the government forces…said they wanted to conquer the whole territory and that the Blacks did not have a right to remain in the region.’” (“Unnoticed Genocide,” The Washington Post, February 25, 2004)

Why in place of an ethnic identification of the many scores of Fur men and boys executed during the infamous Wadi Saleh massacres of Spring 2004 does the ICC Prosecutor refer only to the Fur as becoming “booty”:

“In his speech, Ahmad Harun stated that since the ‘children of the Fur’ had become rebels, ‘all the Fur’ had become ‘booty’ for the Militia/Janjaweed. The Militia/Janjaweed who had heard the speech commenced a looting spree as soon as Ahmad Harun departed. In the days that followed, Ali Kushayb and the Militia/Janjaweed under his command began attacking the towns and villages between Bindisi and Mukjar. When victims of the looting complained, they were told that the Militia/Janjaweed ‘could do what they wanted’ because ‘they were acting on the orders of the Minister of State.’”

But too often, in many tens of thousands of cases, there were no survivors of Janjaweed predations left to “complain.” The ICC Prosecutor is understandably agnostic on the question of scale of destruction. But there is overwhelming evidence to suggest that between 80 and 90% of all non-Arab or African villages have been destroyed. More than 2.5 million people have been displaced, overwhelmingly from African tribal groups. And extant evidence in aggregate suggests that approximately half a million people have died in the maelstrom of state-orchestrated ethnic violence, now spilling rapidly into neighboring eastern Chad.

What we have today, as the people of Darfur realize all too clearly, is an exceedingly limited account of the responsibility for the ethnically-targeted violence of recent years. Let us listen to the voices of those Darfuris who have been asked about today’s ICC actions:

“People in the war-torn region insist that Bashir deserves justice and most of them want him to be tried first. ‘Omar al-Bashir is the chief war criminal,’ said Fatma Adam Yagoub, the leader of women’s affairs at the Abu Shouk camp for displaced Darfuris in the northern Darfur capital city of El Fasher. ‘He makes the plans and then he has other people carry out the plans.’” (Deutsche Presse Agentur [dateline: Gereida, South Darfur], February 27, 2007)

“Sheikh Isaac Adam is the community leader of Tur village in south Darfur. Last April his people were chased from their homes by Arabs dressed in Sudan government uniforms. ‘Bashir is a criminal,’ Adam told Deutsche Presse-Agentur in a camp for the displaced in south Darfur outside the town of Kaas. ‘He gave the janjaweed weapons. The international court must try him.’”

With an honesty that seems to have escaped most in the international community, Yagoub declared bluntly, “’The government is part of the problem. You cannot catch yourself.’”

Jar el-Naby, one of the most principled commanders of the powerful rebel faction known as “Group of 19,” was similarly blunt:

“The commander of one the largest non-signatory rebel factions said while the ICC announcement was an important step, the two names were ‘a drop in the ocean.’ ‘They were executives, but there are more people who planned … genocide and ethnic cleansing in Darfur, and the blood of Darfur cannot have been spilled in vain,’ said Jar el-Neby, commander of a breakaway arm of the SLM.” (Reuters [dateline: Khartoum], February 27, 2007)

For its part, Khartoum continues as it has in the past—adamantly denying the ICC either authority or legitimacy, and proceeding instead with preposterous domestic show trials:

“Sudan’s justice minister, speaking shortly after the ICC named the first two suspects it wants tried for war crimes in Darfur, also dismissed the court’s evidence as lies concocted by those fighting the state. ‘The court has no jurisdiction to try any Sudanese for any alleged crimes,’ Justice Minister Mohamed Ali al-Mardi told a news conference in Khartoum.” (Reuters [dateline: Khartoum], February 27, 2007)

“‘We are not concerned with, nor do we accept, what the International Criminal Court prosecutor has opted for,’ Sudanese Justice Minister Mohammed Ali al-Mardi [said].” (Associated Press [dateline: Khartoum], February 27, 2007)

And to ensure there is no mistaking the regime’s contempt for the ICC’s effort to work to meet the highest possible evidentiary standards, Mardi would go on to declare:

“‘All the evidence the prosecutor referred to is lies given to him by people who bear arms against the state, bear arms against citizens and kill innocent citizens in Darfur,’ [Justice Minister Mardi] said.” (Reuters [dateline: Khartoum], February 27, 2007).

With no independent police or enforcement resources of its own, the ICC is impotent (as we have seen in northern Uganda), and there is nothing to suggest that Khartoum will ever feel obliged to cooperate in any fashion with the Court—particularly since those most culpable occupy the most senior positions of power, and are most threatened by any progressing ICC investigation. Indeed, as Associated Press reports from Khartoum of Ahmed Haroun, the regime figure targeted today by the ICC:

“he is known to be a member of President Omar al-Bashir’s inner circle and one of the most energetic of the ruling party’s younger leaders.” [ ]

“Trained as a lawyer, Haroun is regarded as one of the rising stars of the ruling National Congress Party [the renamed National Islamic Front—ER]. At one time he was the youngest minister of state in the government. He was selected for what were seen as difficult tasks because of his diligence and legal training.” (Associated Press [dateline: Khartoum], February 27, 2007)

CONTINUING FAILURE OF WILL

The role of the ICC in responding to the catastrophe in Darfur has been oversold from the beginning. When the enabling UN Security Council resolution (1593, March 2005) was in doubt, Human Rights Watch spoke in exceedingly foolish terms about the “deterrent effect” of an ICC referral. More honestly, and certainly more accurately in retrospect, Refugees International warned at the time that an ICC referral might actually increase tensions on the ground in Darfur, and pose yet greater threats to humanitarian workers. Certainly there is no evidence whatsoever to support Human Rights Watch’s “deterrence” theory, even as there is very considerable evidence of the dramatic deterioration in security for aid operations throughout Darfur over the past year and a half. Today the BBC reports that humanitarian groups are bracing for possible reprisals, a very real fear given the ongoing war of attrition against these groups, a war highlighted in the “advance copy” of the Report of the Secretary-General on Darfur (February 26, 2007, paragraphs 2-24).

One hardly knows what to make of the continuing argument for the deterrent effect of ICC actions, such as made today by UN High Commissioner for Human Rights Louise Arbour:

“UN human rights commissioner Louise Arbour, whose office has accused Khartoum of systematically failing to protect civilians and bring those responsible to justice, said she hoped the move [by the ICC] would be a ‘strong deterrent’ against more bloodshed.” (Reuters [The Hague, The Netherlands], February 27, 2007)

Is this fatuousness or disingenuousness? As so often in UN pronouncements on Darfur, it’s impossible to sort the two out.

KHARTOUM’S OTHER INTERNATIONAL CAMPAIGNS

Central African Republic:

What must not be lost amidst discussion of the ICC action concerning Darfur is the failure of the international community to advance any meaningful plan to provide security in the greater humanitarian theater of Darfur, eastern Chad, and northeastern Central African Republic. CAR—whose people are among the poorest in the world, and whose suffering is least visible—recently enjoyed some much deserved news attention with the courageous visit of UNICEF good-will ambassador and actress Mia Farrow. But there must be immediate follow-up to this critical moment of visibility, by both humanitarian organizations and by the international community in providing a security presence. For there is abundant evidence that Khartoum lies behind much of the civil unrest in northeastern CAR. Associated Press reports ([dateline: Birao, CAR], February 26, 2007):

“Central African Republic has struggled for more than a year to contain a homegrown low-intensity rebellion in the northwest. Now, a new insurgency in the northeast near Sudan’s Darfur region has compounded this fragile nation’s troubles and displaced tens of thousands of people. ‘The security situation was always deplorable, but it’s gotten worse with Darfur,’ regional Governor Franck Francis Gazi said in Birao, the small sun-blasted capital of Vakaga, a region held for a month by rebels until late 2006. ‘The conflict in Sudan has consequences for us. There is a cause and effect.’”

Associated Press also reports:

“In April 2006, Chadian rebels based in Darfur traversed Central African Republic en route to attack Chad’s capital, N’djamena. The same month, a cargo plane carrying arms and dozens of unidentified combatants left Sudan and landed on two consecutive days in the Central African Republic town of Tiringoulou. Some diplomats and senior UN officials believe the plane carried the seeds of the northeast rebellion.”

An especially acute assessment of Khartoum’s motives is offered by Lamine Cisse, the UN’s special envoy to Bangui (capital of the Central African Republic):

“The UN’s special envoy to Bangui, Lamine Cisse, said if Sudan was supporting the rebellion, it might be doing so to discourage peacekeepers from deploying here. ‘Their strategy is no troops in Darfur,’ Cisse said. ‘So, no troops close to the boundary with Darfur. They can’t say … “Don’t accept troops in your country,” because it’s a question of sovereignty. But on the ground they can make trouble.’”

“Sudan also may be supporting rebels in Chad and Central African Republic to undermine their governments. Bozize is closely allied with Chad, and Chadian soldiers form a crucial part of Bozize’s presidential guard. Under a security agreement, Chad’s military is free to cross into Central African Republic.” (Associated Press [dateline: Birao, CAR], February 26, 2007)

UN deployment to Darfur:

Within Darfur itself the security conditions on the ground continue to deteriorate, with no signs of either a cease-fire or a serious peace process. Indeed, the UN Secretary-General is obliged to note in his February 26, 2007 Report to the Security Council:

“On 27 December [2006], members from the three non-signatory parties, the SLM/Abdel Wahid, the SLM/Ahmed Abdelshafi, and G19 announced their merger into one movement known as the SLM /Non-signatory Factions (NSF). The also announced a ‘cessation of hostilities unless attacked,’ and reiterated their commitment to the N’djamena ceasefire agreement. The Birmaza area in North Darfur where their meeting took place was bombed, however, two days after this meeting.” (paragraph 31)

There could be no more telling vignette of Khartoum’s determination to prevent non-signatory rebel groups forming a cohesive negotiating front, one that might enable significant near-term progress in peace negotiations, if a credible forum were provided. The same determination to forestall peace talks is evident in the continuing imprisonment of rebel humanitarian coordinator Suleiman Jamous in Kadugli, Kordofan Province (see my analysis of this barbarism at http://www.sudanreeves.org/Article153.html).

And despite the factitiously optimistic account by Ban Ki-moon in his report to the Security Council, it is clear that the “UN/AU hybrid operation” supposedly negotiated in Addis Abba on November 16, 2006 (in the “Conclusions” document of the “High Level Consultation on the Situation in Darfur), has stalled. There has been painfully little progress over more than three months. Of the 186 personnel called for in the “first phase” of this “operation” (the “light package” of support to the AU), Ban Ki-moon can report that as of February 26, 2007 only 81 personnel had deployed. And while Secretary-General Ban provides one picture of the contemplated “heavy/second phase” of the “support package” to the AU, this is wholly at odds with what Khartoum is saying publicly.

Ban’s version:

“The second phase—or “heavy” package—of United Nations support to [the African Union Mission in Sudan/AMIS] was finalized during a second round of consultations undertaken in Addis Ababa between the African Union and United Nations teams on 20 and 21 January [2007]. During the discussion, it was agree that the UN would provide a number of critical enabling capabilities to AMIS totaling 2,250 military personnel, including personnel dedicated to providing static camp protection; 3 Formed Police Units and 301 individual police advisors for a total of 721 civilian police; and 1,136 civilian personnel to undertake substantive tasks in relation to the implementation of the Darfur Peace Agreement.” (February 26, 2007 Report to the Security Council, paragraph 35)

Khartoum’s version:

“[The government of] Sudan said that negotiations are going on with the African Union and the UN to implement the second phase of the UN support to the African troops in Darfur, the foreign ministry said that this phase includes between 400 to 500 experts and technicians.” [ ]

“The spokesman for the ministry of foreign affairs, Ali al-Sadiq, said in press statements yesterday that the three sides would implement the second package after it was approved. He said the second package would cost 45m dollars which the UN had pledged to provide. Al-Sadiq said the second package involved between 400 and 500 experts and technicians and would take between two to three months to implement. He further admitted there were difficulties facing the implementation of the first [“light”] package but described these as minor saying they had mainly been overcome.”

There seems to be very little in common in these two accounts of the same “second/heavy” support package to the African Union mission in Darfur. Here we should note that Secretary-General Ban celebrates the December 2006 inauguration of meetings by the “Tripartite Committee Mechanism,” a body that includes not only the AU and the UN, but Khartoum’s génocidaires. As many have observed, including UN officials, this effectively confers veto-power upon the regime in deliberations about security arrangements, including not only the terms for the “second/heavy phase” of assistance to the AU, but the character, size, command structure, and mandate of the actual peace support operation—supposedly to approximate to 20,000 troops and civilian police, but in fact a matter entirely unsettled.

It thus matters little what the AU and UN agree, or what Ban reports to the Security Council. What matters is what Khartoum agrees to, and foreign ministry spokesman al-Sadiq gives us all too clear a picture of how severely attenuated any “AU/UN hybrid operation” will be.

THE REAL MEANING OF THE INTERNATIONAL CRIMINAL COURT “APPLICATION”

Today’s actions by the ICC are entirely of a piece with other international responses to the Darfur crisis: belated, insufficient, unable to halt growing violence on the ground and consequent insecurity for civilians and their increasingly fragile humanitarian lifeline. Despite the terrifying vulnerability of some 4.5 million conflict-affected civilians in the greater humanitarian theater; despite the most tenuous humanitarian purchase on the ground in Darfur, which has brought all aid organizations to the very brink of withdrawal; despite the deep and repeated betrayals of Darfur over the past four years; despite all this, there is no sign that the International Criminal Court is any more able to halt the continuing genocide by attrition than other international actors of consequence. Until the world community finds the courage to confront Khartoum’s génocidaires for who they are, rather than the notionally legitimate interlocutors they are expediently treated as, there will be no change in Darfur. We will see death and suffering stretching out indefinitely before us.

It is a sight to extinguish belief in justice.

* Eric Reeves is a professor at Smith College in Northampton, Massachusetts, and has published extensively on Sudan. He can be reached at [email protected]; website : www.sudanreeves.org