Darfur between defiance of accused and hindrance of Justice

By Elrayah Hassan Khalifa

August 9, 2008 — On June 30th 1989 Sudanese people woke up to say their farewell to their democratically elected government and to receive the worst nightmare in their modern history; a military government called itself The Government of National Salvation (GNS), putting an abrupt halt to the ongoing peace agreement between the forced outgoing democratic government and Sudan People’s Liberation Movement/Army (SPLM/A). From its inception GNS concealed its real identity, assuring disassociation with any group or party. However, people of Sudan were smart enough to identify the group whose interests were against peace with SPLA/M and whose project was the total Islamization and Arabization of the country. Thus, it was not a novel for GNS to escalate the war in the South and to resort to any means including declaration of Jihad, to crush Southerners and win the war. However, after depleting the country resources and killing young men by pushing them into an aggressive war, untrained, GNS relinquished the notion of Jihad and agreed to sign the Comprehensive Peace Agreement (CPA) with the SPLM. The war in the South could well be a subject matter of war crimes owing to the atrocities committed by the military and paramilitary troops of the government which included killing POWs, burning villages, raping women and giving counterinsurgency impunity to raid the villages and enslave children. However, since the parties reached an agreement and in the absence of fact finding committee or investigators to investigate any complaints from either side there was no point for initiating legal proceeding in this issue.

From a government reputable for its efficient civil service system, Sudan, under the current regime, was transformed into a state of chaos; lacking the minimum standard of berucarcy. Administrative mechanism was manipulated solely to empower the supporters of the regime with wealth and power. On the other hand, GNS employed various weapons to fight its political opponents, the most important of which was termination of employees. Tens of thousands of highly qualified employees were laid off for no reason other than their lack of enthusiasm to the policy of the regime. Other employees were forced to go on training camps where they were subjected, besides military training, to rigorous religious programs against their will. Those who held opposing views have faced detention without due process. But that is not the whole story; the government had deterrent treatment for resolute opponents. One of these means was the notorious ghost houses; places where detainees kept and subjected to unspeakable torture. Detainees who were lucky to survive, told disturbing tales about the types of torture applied on them. Lies and cover ups were the main methods the government employed to outwit human rights organization, when paying visits for inspections. Following these state of affairs, Sudanese citizens started to evacuate the country in an unprecedented brain drain in history. As the policy of the regime was to vacate the country from any person who opposes or does not support its civilization project (Islamic Shari a law), it has left the door open for those who want to leave the country. In light of these preceding facts, one could imagine how the government of Sudan would deal with the conflict of Darfur.

DARFUR ISSUE:

The people of Darfur suffered a tediously protracted marginalization and neglect from the central government of Sudan. They have always been underrepresented in their own region. Furthermore they were destituted of their share in wealth and power at the national level. When GNS signed the CPA with SPLM; the people of Darfur felt that this was the appropriate time for the government to repair the damage of neglect and allocate some fund from the oil revenues to start developing the region. They requested the government to include their grievances within the CPA agreement as a national issue, but the government rejected their request with disdain. The long standing neglect and inequitable treatments which the people of Darfur suffered, not only from the current government, but from all governments which ruled Sudan since independence made them conscious of the fact that nothing would assert their rights other than violence. When people of the South took arms and fought for their rights, thought the Darfurians, the government of Khartoum listened and submitted to their claims.

The present conflict started in 2003 and escalated into one of the fiercest confrontations in African continent. There have been an estimated of 30,000 casualties, one million people are displaced within the region and over 120,000 have fled into neighboring Chad. As was indicated earlier, the region of Darfur has always been marginalized by the central government in terms of infrastructure, economic development and education, despite their loyalty to the Northern. Clashes took place between the nomads (who called themselves Arabs) and sedentary farmers (who came to be called Africans). Earlier when there was enough pasture and water for both groups, nomads were always welcomed by farmers. Besides grazing their animals, they fertilized the farmers’ lands. They also sold their products and bought the necessities they needed. The relationships between all the tribes were smooth and the deep interactions led to intermarriage between them. When conflict aroused it was usually settled by local chiefs, who were widely respected and their judgment was honored. Things have changed after drought and desertification hit the region and impacted the lives of all populations in the area. Competitions for posture and water led to frequent frictions, which in turn fomented the lurking animosity between nomads (which are called Baggara tribes) and the farmers (which are largely Fur Masalit and Zaghawa). Though Zaghawa are nomads they were not regarded as Arabs. The animosity was largely created by the feeling of superiority among the nomad Arabs, who felt they were the source of civilization; language and culture, hence they should be given the upper hand in administering the region, albeit their number is small. This perception was supported by leading politicians in the North, whom, ironically, the Darfurians constitute solid block of their party (Umma party) voters. Darfurians on the other hand, have always felt degraded and neglected by the central government but were bestowed with legendary patience acquired through their continual life of hardships and sufferings. The central government neither left the conflict to the locals, whose competency was proved to be effective in the past, nor did it equip the official administrations. Thus the region of Darfur was left in a complete absence of conflict resolution mechanism.

From this state of affairs erupted two rebel movements, who, despite the magnitude of the protracted injustice and neglect, addressed the government politely and in a civilized fashion. These two groups are Sudan Liberation Movement (SLM), based on Fur and Masaleet tribes and Justice and Equality Movement (JEM), consists of Zaghawa tribe. The revolt started on April 2003 by attacking Alfashir, a big city in Darfur, killing 72 troops of the garrison, destroying four aircraft on the ground and arrested the garrison commander. The reaction of the government was both unrealistic and disproportionate. It kept calling rebellions “armed bandits”, or that foreign countries funded them (an unsubstantiated allegations yet to be proved by the government) for a sole reason of causing disruptions in an attempt to undermine the government of Sudan. Though the attack by the rebellions was relatively small, intended only to send a message to the government, but it seemed the voice of reason was the last resort to this government (the case of the South was a good example).

The retaliation of the government was not expected to go that far and extend to intentionally killing civilians; including children, women and old men. It was not expected to overstep the limit of humankind morality (assuming the government has one) and engage in massive use of air force to bombard weakening civilians inside their villages. The government took advantage of the presence of nomadic Arabs whose grudges against Darfurians (blacks) were commonplace and were only waiting for a chance to unleash their malicious animosities against Darfurians. Those nomadic Arabs are the notorious Janjaweed used earlier by the government as proxy in its conflict with the South. Like its conflict with the South the government gave Janjaweed impunity, and helped them with the airstrikes. The policy of the government was deeper than just committing atrocities against people of Darfur. Its aim was to Arabize and Islamize the country, as a means of intercepting the Africanization trend brought by SPLM/A. Hence, the government endeavored to replace African-like populace with Arab-like and the people of Darfur do not fit in the second category. Based on this policy Large number of nomadic tribes from neighboring countries have entered Darfur region and settled. Some of these tribesmen were recruited by the government to serve as Janjaweed. They were given horses, weapons and free rein to kill, sabotage and rape. Destroying the means of livelihood such as filling the wells, killing the cattle and burning the villages; stands out as a strong evidence of the intention of the government to vacate the country from Darfurians, though the government claimed that its intention was to deny the rebels sanctuary in Darfur. In other words the government shifted its prime responsibility of protecting its own people from atrocities, to becoming the main orchestrator of the campaign of ethnic cleansing.

THE INTERNATIONAL COMMUNALITY:

The international community as usual did not take action until 2004 when the Secretary-General announced the establishment of a commission of Inquiry to determine whether acts of genocide had occurred in Darfur. The Committee concluded that; while there was killing of civilians, torture, enforced disappearances, destruction of villages and rape, but the acts could not be characterized as genocide. However, it recommended the council to act urgently to both stop perpetrators and rescue victims. After this finding of massive violation of human rights, Security Council’s only action was to call on the government of Sudan to disarm the Janjaweed militias, claiming that Darfur was not “on its agenda.” With international pressure from humanitarian and human rights groups, after the deteriorating situation in Darfur, Security Council passed resolution 1556 determining that the situation in Sudan constitutes a threat to international peace and security to the stability of the region. The resolution went further to “Call on the Government of Sudan to fulfill immediately all of the commitments it made in the 3 July 2004 Communiqué, including particularly by facilitating international relief for the humanitarian disaster by means of a moratorium on all restrictions that might hinder the provision of humanitarian assistance and access to the affected populations, by advancing independent investigation in cooperation with the United Nations of violations of human rights and international humanitarian law, by the establishment of credible security conditions for the protection of the civilian population and humanitarian actors, and by the resumption of political talks with dissident groups from the Darfur region, specifically the Justice and Equality Movement (JEM) and the Sudan Liberation Movement and Sudan Liberation Army (SLM/A) on Darfur.”

There was conclusive evidence to the effect that the government of Sudan was profoundly involved in these atrocities, if not the sole player and instigator of this tragedy, but nevertheless the resolution was void of any indication to the government involvement in carrying these attacks. These violations have been recorded few months later when the situation worsened in Darfur and human rights groups were able to document the horrendous crimes committed or otherwise instigated by the Sudanese government. The Security Council was expected, as the sole institution for maintaining international peace and security and the last resort for stopping transgressors and rescuing victims; to pass a tough resolution against the government of Sudan. But it had been crippled by the narrow interest of China and Russia, who, were expected to veto any sanction against Sudan! Darfurians had no options but to wait another two months, only for the Security Council to declare the entire fiasco of the Sudanese government to better the humanitarian conditions and to protect civilians against attacks of the Janjaweed militias. Security Council, seeing that the government of Sudan was not complying with its resolutions, passed resolution 1564 to include practical steps of ending the state of impunity by arresting the Janjaweed militias and any one who was responsible for human rights abuses. The resolution also made reference to the African Union (AU) to expand its monitoring mission. The resolution further established Commission of Inquiry to investigate violations of international crimes. The government of Sudan has never implemented any of the Security Council resolutions; on the contrary it continued to defy the international community by intentionally disregarding its resolutions. Even so and notwithstanding the declaration of the United States Congress unanimously that Sudan had committed genocide against the people of Darfur, Security Council could not step up to its role. It passed resolution 1574, which did not condemn the government of Sudan. In fact it urged “the Joint Assessment Mission of the United Nations, the World Bank and the parties, in association with other bilateral and multilateral donors, to continue their efforts to prepare for the rapid delivery of an assistance package for the reconstruction and economic development of Sudan”! In resolution 1591 The Security Council decided that, in light of the failure of all parties to the conflict in Darfur to fulfill their commitments, to increase pressure on the parties by imposing a travel ban and assets freeze on those impeding the peace process, committing human rights violations and violating measures set out in previous resolutions. The resolution also condemns the failure of the government to disarm militiamen and apprehend and bring to justice Janjaweed leaders and their associates who had carried out human rights and international humanitarian law violations and other atrocities.

These consistent patterns failure to observe the Security Council resolutions; have led to the adoption of resolution 1593, which was based on the report of the International Commission of Inquiry on violations of international humanitarian and human rights law in Darfur. The Council determined that the situation in Darfur continued to constitute a threat to international peace and security; as such acting under Chapter V11 of the Charter of the United Nations decided to refer the situation in Darfur (since July 1rst 2002) to the prosecutor of the International Criminal Court. This resolution came after two years of unendurable sufferings of victims of Darfur, who were caught in the middle between immoral, astute government and inadequate Security Council. Chapter V11, article 3 of the UN Charter, empowers the Security Council to determine if there is a threat to the international peace and security and then make the recommendations or decide the measures to be taken. Some of the measures which the Security Council might take are specified in article 41 and 42 of Chapter V11. Article 41 provides that “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” If the measures specified in Article 41 proved to be inadequate, at that point Security Council would resort to Article 42 which provides “it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” Security Council found it appropriate, to end once and for all the untold misery of the people of Darfur; rightfully referred the matter to the prosecutor of the International Criminal Court. In article 13 of its statues, the International Criminal Court specifies three ways by which it can assume jurisdiction, one of which is pertinent to resolution 1593, which goes: “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”

Algeria, Brazil, China and United States; abstained from voting notwithstanding their acknowledgement to the overwhelming evidence against the government of Sudan provided by the International Commission of Inquiry on violations of international humanitarian and human rights law on Darfur. It goes without saying that people of the world conferred great responsibility on the Security Council to take strong measures to restore international peace and security. The report of the Commission did not only reveal the massive crimes committed by the government, but it further added blocking of humanitarian aid to the victims; an attitude which was later characterized by the court prosecutor as genocide by attrition. The position of the United States in abstaining was not justifiable by any means. Her representative states “The United States continues to fundamentally object to the view that the ICC should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute. That strikes at the essence of the nature of sovereignty. Because of our concerns, we do not agree to a Security Council referral of the situation in Darfur to the ICC and abstained in the voting on today’s resolution. We decided not to oppose the resolution because of the need for the international community to work together in order to end the climate of impunity in the Sudan and because the resolution provides protection from investigation or prosecution for United States nationals and members of the armed forces of non-State parties”

By evoking the essence of the nature of sovereignty USA representative brought to the memory the position of Winston Churchill when he was called to intervene to rescue the Jews from the Holocaust in Nazi Germany. At that time and because Churchill was observing the sovereignty of the state of Germany, he refused to intervene. He added that so long as Germany was acting within its territories, he did not have legitimate reason to intervene. Had Germany acted beyond its boundaries that could have been an issue of international law. This statement has left millions of Jews to be exterminated in one of the most horrendous crimes in modern history. Even after having the benefit of hindsight we can not judge Churchill harshly on this matter, for two reasons; one of which is lack of precedents on the issue at the time and the second is the sacrosanctity of sovereignty at the time when the concept of nation state was relatively new. Now almost all members of the United Nations have singed or ratified the Universal Declaration of Human Rights in December of 1948. This declaration has provided for the fundamental rights of all human beings; the most important of which is the right to life, liberty and security of person. Sovereignty of the state therefore shall be respected and recognized provided; it does not jeopardize or otherwise violate human rights and freedoms. To say otherwise would be to put the wagon in front of the horse. Ironically, it was USA which conducted the trials of Nuremburg (November 1945-October 1946) to prosecute the Nazis for their crimes against the Jews, under the International Military Tribunal. Now we have those expendable blacks of Darfur, why not pushing hard through the mechanism of the International Criminal court to restore peace and security for them. It was not enough for members of the Security Council to pay lip-service expressing their sympathy and solidarity with the victims, despite their convictions of the evidence brought by the prosecutor. The suggestion of American and Algerian to rely on the AU in resolving this conflict would only be counter productive and would further prolong the sufferings of the victims. The AU does not have the capability or the experience to resolve this issue single-handedly. Yet, the decision of the Security Council to refer the matter to the International Criminal Court was a historical step, which would end the long sufferings of the victims of Darfur and seek justice for them.

After careful investigations , the International Criminal Court had issued arrest warrants on 27 April against two accused; Ahmad Harun, former Minister of State for the Interior of the Sudan, and Ali Kushayb, a Janjaweed leader who had committed crimes against humanity and war crimes in Darfur. The Sudanese government continued its arrogant attitude and refused to cooperate with the International Criminal Court. The office of prosecutor was not legally obliged to comply with the principle of Complentarity as the matter was referred to the court by Security Council. The inference being that once the matter has been brought by Security Council to the court, then the court should have the primary jurisdiction of the case. Even so, to ascertain that all Sudanese accountability initiatives have been addressed and in order to comply with technicalities of the admissibility of the case, the office of the prosecutor undertook visit to Khartoum. It appeared that there was no credible proceedings took place with respect to both accused. Ali Kushayb was interrogated briefly and was released for lack of evidence. As for Ahmad Harun; it was declared by the Ministry of Interior that he had been interrogated and there was no case. The minister further added that the International Criminal Court had no jurisdiction and that the prosecutor was only an intruder. The office of prosecutor exerted all the necessary efforts to effect the arrest of the two defendants, but the government of Sudan not only refused to cooperate, but rewarded on of the accused by promoting him and giving him access to the refugees’ humanitarian aid. While office of prosecutor continued to investigate other violations, it concluded that the government of Sudan failed to “respect resolution 1593 (2005) and to cooperate with the office or the court and urged the Security Council to act and put an end to this pattern of non-cooperation.”

THE CURRENT SITUATION

On July 14, 2008 the Chief prosecutor of the International Criminal Court Luis Moren- Ocampo alleged that Omer al-Bashir, the President of Sudan bore individual criminal responsibility for genocide, crimes against humanity and war crimes, committed since 2003 in Darfur. The reaction of the President of Sudan did not change; only this time he raised the tone of his braggadocio attitude in defying the international community. In essence he was saying to the prosecutor; come and get me if you are strong enough. The government of Sudan mobilized the people in an effort to give the outside world the impression that the people of Sudan were behind their President. On the other hand this same government undertook double standard attitude. While it stood firm, unshaken and uncompromisingly resolute (in the Sudanese media) against any cooperation with the International Criminal Court, it held intensive diplomatic negotiations in New York, to find a resolution from this intricate predicament. The world did not hear such an outcry throughout the unimaginable torture of the victims of Darfur (20003-2008) from African leaders or the Arab League, who expressed their concern about the move of the Prosecutor. Had they displayed the same enthusiasm and moved in the same intense manner they could have solved the problem of Darfur. Both African and Arab leaders fear that this trial might set a precedent, uphold an international rule of law and hence might jeopardize their totalitarian system of governments and further expose their poor records of human rights.

Sudan, through the mediation of AU, pushed to freeze the arrest warrant by the Security Council for one year. This could only happen if this move is not vetoed by any of the permanent members. The disturbing fact is that the international community could respond to the threats of the Sudanese government if these threats implied either blocking the aid from the Darfurian refugees, or expelling the humanitarian workers and peacekeeping mission. If this scenario occurred and the Security Council passed such a resolution then the perpetrators were able to impose their agenda in spite of the will of the international community. It is deplorable that, while some members of the Security Council are struggling to get the Security to freeze the arrest warrant of the Sudanese President, he is still speaking disrespectfully of the international institutions. Last Thursday July 31st 2008 “ The UN Security Council renewed the mandate for peacekeepers in Darfur on Thursday in a resolution that Washington criticized for raising concerns about moves to indict Sudan’s president for genocide. Most Western powers accepted wording that makes clear the council would be willing to discuss freezing any International Criminal Court indictment of President Omar Hassan al-Bashir for genocide in the interest of peace in Darfur.” (Daily Times) I believe it is the duty of the United States to stand against this trend and restore to the Security Council its reputation as a great edifice, which people of the world conferred great responsibility on.

The author is a Sudanese based in California USA.