International Justice or Western Conspiracy? The Response to ICC Charges against Bashir in Africa
Published: 1 Jul 2008
International Justice or Western Conspiracy? The Response to ICC Charges against Bashir in Africa
Refugee Rights News
Volume 4, Issue 5
On Monday, July 14, 2008, the Prosecutor of the International Criminal Court, Luis Moreno Ocampo, presented evidence to the Court’s Pre-Trial Chamber alleging that Sudanese President Omar El-Bashir has been responsible for ten counts of war crimes, crimes against humanity and genocide in Darfur. The Pre-Trial Chamber is now considering whether or not to issue a warrant for Bashir’s arrest.
The move has sparked a wide ranging and intense debate around the world–including among African heads of state, politicians, civil society organizations and journalists. As elsewhere in the world, the debate has been tense and a wide variety of views have come to the fore.
Some have supported the Court. These advocates have argued that there can be no doubt that serious international crimes have been committed in Darfur–and their perpetrators must be held accountable. Others have expressed frustration with the lack of progress made by peace negotiators and peacekeeping forces and have viewed the ICC as a beacon of hope in an otherwise dismal international response to the crisis.
On one side, concerns have been expressed about the western nature of the Court. The Court is alleged by some to be, at best, insensitive to political and cultural realities in Africa and the Arabic speaking world and, at worst, a stooge of Western neo-imperialists. On the other side, critics of the Court have reflected on the potential of the charges to provoke a violent response from the government, expose peacekeepers and humanitarian workers to additional risk, embolden rebel groups to obstruct peace, and derail the peace process.
This article is an attempt to survey the state of the debate in Africa, but is not intended to present the opinion of the International Refugee Rights Initiative.
Hope for Darfur?
Some of the voices which have been most supportive of the Court have been Darfurians. Despite the fact that many Darfurians and Sudanese are hesitant to speak publicly in such a politically charged environment, support for the Court is still audible. Ahmed, a Darfurian in exile who served as an interpreter expressed one simple reason why–“The ICC gives hope to my people back home.”
Salih Mahmoud Osman, a member of the Sudanese parliament and a human rights lawyer has also been supportive: “for the people in the camps it is sufficient to know that someone is identifying those responsible for the crimes against them.”
“The parliament is dominated by Bashir’s men; the judiciary is incompetent and not able to provide justice; the international community has for long turned a blind eye to Darfur. What other avenue do the people of Darfur have?” asks Mr. Osman.
Domestic political responses
One of the key concerns expressed about the Court’s move to charge Bashir is that it would create internal instability and lead to further dangers for humanitarian actors and peacekeepers in the region. Indeed the Darfur Consortium, a coalition of more than 50 Africa-based and Africa-focused organizations working on Darfur, responded with concern for the well being of the people:
The Prosecutor’s application should not be allowed to become a pretext for curtailment of human rights and fundamental freedoms in Sudan, obstruction of humanitarian deliveries and operations or to undermine on-going political processes for peace, political reform and transformation in Sudan.
Sudan seems, if anything, quieter than in the run up to the announcement.
This is not to say that future developments — most notably a potential confirmation of the charges by the Pre-Trial Chamber — might not spark violence or instability. But for now Bashir and his National Congress Party (NCP) seem to be contented with the domestic and international support they have received. Sudanese expert Suleiman Baldo has called this “more support than its narrow political base might justify.”
Salva Kiir, the Sudanese Vice-President and leader of the Sudan Peoples’ Liberation Movement (SPLM), has been appointed to head a “High Level Committee to Manage the Crisis with the ICC.” Yassir Arman, a spokesman of the SPLM, has emphasized the need to keep the peace: “It is a serious situation and it could threaten the peace and stability if it is not well-managed…the main issue is to put a quick and fair end to the Darfur crisis.”
Elsewhere in the South, the response has been quite muted, according to the Ugandan Daily Monitor which quoted Sudanese Parliamentarian Lucy Aba as saying “we can’t talk about it. That’s a big issue.”
Sadiq Al Mahdi, leader of the Umma Party, has warned that the NCP might consider the charges as “a virtual declaration of war with all the consequences” or lead to escalation from the rebels. He noted that although his party acknowledges “that war crimes and crimes against humanity were committed in Darfur” and recognizes the jurisdiction of the Court, “the indictment of the Head of State leads to a basic conflict between accountability and stability.”
Here national pride is certainly a factor. One blogger commented that as “a Sudanese nationalist … even if I disagree with the policies of the … regime. I would not like to see the President ‘taken away’ by the ICC’s Moreno Ocampo.”
Others, however, have argued that this expression of solidarity masks a serious weakening of the regime–and Bashir personally–as they have pushed others to come on board.
Following the prosecutor’s announcement, the African Union (AU) responded immediately with strong criticism. Tanzania’s Foreign Minister Bernard Membe, speaking on behalf of the AU, said that they were “asking the ICC to re-examine its decision… If you arrest Bashir, you will create a leadership vacuum in Sudan. The outcome could be equal to that of Iraq.”
The equation of the situation with the ongoing conflict in Iraq shadows one of the recurrent criticisms of the move; that it is too Western in focus and that it is at best insensitive to African realities and at worst a neo-Imperialist plot.
This view has been explicitly forwarded by the government of Sudan. In a statement reproduced on a blog run by the Social Science Research Council, “Making Sense of Darfur,” the government referred to the charges as the “apex of an unprecedented five-and-half year campaign of false propaganda and grotesque misinformation by Darfuri rebel groups and international activist groups about the conflict in Darfur.”
The government statement also criticizes the ICC’s exclusive focus to date in Africa which it claims, has “consigned Africa only as a laboratory for politically motivated prosecutions.” Although this is clearly a convenient mechanism for the government of Sudan to dismiss criticism, it also has resonance for African advocates and political leaders, who cannot help but notice that all four of the Court’s first cases are focused on Africa and have seen some of the missteps of the Court so far. Indeed a Congolese activist, Georges Kapiamba, of the Association Africaine de Defense des Droits de l’Homme (ASADHO), remarked in relation to the case in the Democratic Republic of Congo (DRC) that some Congolese felt like “guinea pigs” of the Court.
Others see the targeting of Africa as political. For example, the Senegalese human rights organization Recontre Africaine pour la Defense des Droits de l’Homme (RADDHO), despite calling the charges “totally justified,” noted that “African states are the weakest of the so-called international community and are the easiest preyfor the ICC” (emphasis added). One Ethiopian activist, Beshir Gedda, was even more explicit, calling the Prosecutor’s strategy “regime change by criminal indictment.”
Related to this is the notion that the Court’s assertion of legal impartiality masks its political nature. In the words of one prominent Nigerian human rights activist, Chidi Odinkalu, “the reality is that the prosecutorial calls made by the Prosecutor are political and are perceived as such in the affected communities and beyond.” He notes that being either too closely tied to politics or too independent of them, a tendency he calls “international justice fundamentalism,” will undermine the Court. In other words, the Prosecutor walks a political tightrope and he must be aware of this reality. Failure to do so will erode support from people, especially in Africa.
The critique of the Prosecutor’s political role was implicit in the AU Peace and Security Council’s statement which stressed “the need for international justice to be conducted in a transparent and fair manner, in order to avoid any perception of double standard” and expressed “concern at the threat that such development may pose to efforts aimed at promoting the rule of law and stability, as well as building strong national institutions in Africa.”
The AU is now asking that the proceeding be suspended to “give peace a chance.”
An African alternative?
A number of Africans have critiqued the African Union’s response as not focused enough on the need for justice. “As an African, I feel embarrassed and shocked by the action of the African Union,” said Kenyan 2004 Nobel Peace Prize winner Wangari Maathai.
Another commentator, L. Muthoni Wanyeki, head of the Kenya Human Rights Commission, reflected on why the Court has focused on Africa. “The answer is quite simple–until African leaders stop violating our human rights, Africans will seek recourse wherever they can.”
Charles Onyango-Obbo, a journalist writing in the East African, reflected that was considered palatable to Africans could change. He referred to Rwanda’s adoption, at around the same time, of a legal amendment which would allow a sitting head of state to be prosecuted. “[P]erhaps the Rwanda example demonstrates that things that are considered ‘impossible,’ or are deemed to be ‘un-African’ can actually be achieved more easily than most people realize.”
Others have pointed to an African mechanism as the solution. Ugandan President Yoweri Museveni has noted that the “position of the AU should be to investigate ourselves. We don’t condemn the indictments but the AU should conduct investigations itself so that we decide on our own”. This sentiment was reflected in the AU Peace and Security Council’s decision appointing a high level panel to consider “how best the issues of accountability and combating impunity, on the one hand, and reconciliation and healing on the other, could be effectively and comprehensively addressed … with the active involvement of the AU”. RADDHO echoed this call at the civil society level asking for the creation of an independent, continental criminal court to judge such crimes.
Another key concern has been that labeling Bashir a war criminal may undermine the prospects for peace. The government of Sudan has argued that this will only embolden the rebel groups, which it claims are the key obstacles to peace. This concern was also reflected by South African President Thabo Mbeki who said that the peace process in Darfur and the rebuilding of post-civil war Sudan. “Both of them require the very active participation of President Bashir,” he said.
Supporters of the Court point out that the peace process has been hopelessly stalled and that this move has reinvigorated debate and may force progress. In practical terms, Salih Mahmoud Osman has pointed out that Bashir personally has never attended any of the talks and argued that the move should not be an obstacle to talks.
The future of the case has already been the subject of significant debate at the United Nations (UN) Security Council. Last week a reference to the possibility of invoking a suspension of the case using Article 16 of the Rome Statute was included in the Resolution mandating the extension of the region’s peacekeepers. The debate is extremely polarized and negotiations and concessions would be needed in order to garner sufficient support for the move. As Sudanese expert Suleiman Baldo has noted, “Khartoum wouldn’t easily change its behavior,” but the need for support for such a measure may force concessions.
Barring an Article 16 Resolution, the Pre-Trial Chamber will make a decision on the application for an arrest warrant in the next few months. If an arrest warrant is issued it will hinder Bashir’s possibility for travel and engagement with the international community, but with the Court lacking a force to make arrests he may never face trial.
For some that doesn’t matter. Salih Mahmoud Osman noted that the Court “may fail (to arrest and bring President Bashir to trial), but the fact that the international community recognizes the suffering of the people of Darfur and is willing to go after those responsible for it means a lot to them.”
For others this avoids the main point, which is protecting civilians. In the words of Chidi Odinakalu,
It is easy to think that high-sounding peace agreements inked on exotic beach resorts can sort out these situations or that flying off the leaders in manacles to antiseptic locations like Den Haag in proceedings arguably seen by many of their people as show trials or five-star non-events will do the trick. These polarities avoid the difficult job of protection, prioritization and re-construction (of psyches, communities, institutions, structures, and infrastructure) that that must follow mass atrocities.
For more information see:
The Social Science Research Council’s “Making Sense of Darfur” at http://www.ssrc.org/blogs/darfur/category/darfur/
The Darfur Consortium’s Survey of African media coverage at http://www.darfurconsortium.org/darfur_in_the_news/african_media/index.html