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The International Criminal Court Targets Sudan's President: Is it Justice or Regime Change?

Posted on: Tuesday, July 29, 2008

Keywords: Peace Building, Sudan, Africa

On July 14, the chief prosecutor for the International Criminal Court (ICC) moved to indict Sudan's president, Omar Hassan al-Bashir on charges of genocide, war crimes, and crimes against humanity in Darfur. The move has sharply divided the international community; even many human rights advocates are ambivalent about the indictment.

Few people outside of Bashir's ruling circle deny that his government has trained, armed, and funded the janjaweed militias that have killed more than 300,000 people, systematically committed rape as a weapon of war, and displaced millions in Darfur.

But there is strong disagreement about whether the indictment will help bring peace and justice to Sudan and whether the chief prosecutor's move is impartial or politically motivated.

This is the first time that the ICC has indicted a sitting head of state. That the chief prosecutor is calling for the arrest of Sudan's president is leading some to label the move as a prelude to "regime change."

On July 19, the 22 countries of the Arab League adopted a resolution to show "solidarity with the Republic of Sudan in the face of any schemes aimed at undermining its sovereignty, unity and stability and not to accept the unbalanced position of the [Court]." The Organization of Islamic Conference and the 53-member African Union have joined the Arab League in condemning the indictment.

Those who support the ICC and the principle of universal jurisdiction need to understand the criticisms of those who oppose the indictment, even if we don't draw the same conclusions. Among the critics are many people who care deeply about human rights and resolving the crisis in Darfur, but worry that the indictment may:

Provoke a violent backlash against people in Darfur.

  • Bashir's National Congress Party warned on state television that the indictment would push Darfur "into more violence and blood."
  • Many people fear that the charges could provoke reprisals against aid workers and UN-African Union peacekeepers in Darfur, who rely on the Sudanese government for protection. A government official has said that the indictment could affect humanitarian organizations working in Darfur. Bashir himself recently threatened to turn Darfur into a "graveyard" of blue helmets.
  • Regardless of the indictment, Sudan is obligated under international law to ensure full, safe, and unhindered access of aid workers to Darfuris in need and to facilitate the full deployment of UN peacekeepers.

Represent an unfair double standard.

  • All four of the investigations opened by the ICC have focused on Africa. Some interpret this as external meddling in the continent's affairs.
  • Many of the terms of Bashir's indictment also apply to George Bush. According to the ICC, Bashir's culpability for war crimes hinges on the fact that he "was directly responsible [for the activities of the militias]. He is the president. He is the commander-in-chief." As US president and commander-in-chief, Bush waged an illegal war against Iraq. His invasion violated the UN Charter and he presided over torture and illegal detentions in violation of the Geneva Conventions.
  • The ICC's jurisdiction in Sudan stems from the fact that the UN Security Council asked the Court to investigate Sudan. Like the US, Sudan does not recognize the authority of the Court. The difference is that the US enjoys a permanent seat on the UN Security Council, where it can veto any move to refer US nationals to the ICC.

Destabilize Sudan.

  • If Bashir is actually arrested, his removal could create a dangerous power vacuum in Africa's largest country, with negative repercussions for the whole region.
  • Within a week of the indictment, the Darfur rebel group, Justice and Equality Movement (JEM) proposed the formation of a new interim government saying that the indictment has "eroded [Bashir's] legitimacy" and created a "new reality" in the country.
  • Toppling Bashir could unravel the fragile peace deal between the central government and rebels in southern Sudan. Bashir struck the 2005 agreement despite opposition from hardliners in his own party. It is widely seen as Sudan's best hope for easing the political marginalization that caused decades of war between the south and the central government even before the Darfur crisis erupted in 2003.

Enable Bashir to consolidate power.

  • Most people resent foreign intervention unless they request it. Even people who are critical of their government may rally around a leader whom they perceive to be targeted by outsiders. Many Iranians have reacted that way to US threats against their government. Iraq is full of people who despised Saddam Hussein's government, but resent the US occupation even more.
  • Bashir was quick to capitalize on this tendency by presenting the ICC indictment as an attack on Sudanese independence and national dignity.
  • Even in Darfur, where we might expect support for the indictment to be strongest, response has been tempered by a preference for a Sudanese solution to the crisis.

Undermine regional institutions like the African Union.

From a human rights perspective, to some it may seem obvious that Bashir should be indicted for atrocities in Darfur. But read the list of countries formally opposing the indictment and you'll see that ICC is further polarizing the world along divisions already inflamed by Bush's "war on terror." That, in itself, is a dangerous thing. Even more important to consider is the ambivalence of people in Darfur, who want to see Bashir held accountable for his crimes, but worry that the indictment may be a case of pursuing justice at the expense of peace and stability.

Ultimately, justice cannot be pursued as an academic exercise divorced from the daily reality of those most threatened by the crisis. In targeting Bashir, the ICC must exercise responsibility towards people in Darfur and the rest of Sudan. In fact, consideration for their welfare is built into the ICC's mandate.

So what do the women and families at the center of this crisis need and want? What are the proposals of people in Darfur for stopping the violence, aiding survivors, and pursuing justice? MADRE is working closely with our Sudanese sister organization, Zenab for Women in Development to address these questions and to keep international justice mechanisms like the ICC relevant and accountable to the people they are meant to serve. We will continue to provide updates as they become available.

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