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Darfur Crisis: Peace or Justice? Print E-mail
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by Youssef Wardany
Exclusive for Al Waref

The crisis in Darfur has become a landmark case in the history of criminal law. For the first time, the United Nations (UN) Security Council has referred a situation to the International Criminal Court (ICC), accusing the president of a sovereign country of committing genocide and war crimes.

Moreover, the final decision of this case will provide an answer to the international community’s theoretical debate: Which is more important, attaining “justice” or achieving “peace?”

The War in Darfur, a region of western Sudan, has evolved around conflicting ethnic and tribal identities, unlike the second Sudanese war between north and south that was largely fought across religious lines. According to the 2005 UN Report on Darfur, "The various tribes that have been the object of attacks and killings do not appear to make up ethnic groups distinct from the ethnic group to which persons or militias that attack them belong.” The victims of this conflict number between 200,000 and 500,000 dead and injured, with over two million forced to leave their homes. 

The UN Security Council issued multiple decisions about Sudan that refer explicitly and implicitly to the case in Darfur, prominent among them are resolution no. 1564 from September of 2004 and resolution no. 1593 from March of 2005. The first resolution called for establishing an international commission of inquiry, which would immediately investigate reports of human rights violations and determine whether acts of genocide have occurred in Darfur. One March 31, 2005, the second resolution, no. 1593, referred the situation in Darfur to the ICC Prosecutor, and in doing so recognized that the pursuit of justice is required to address the threat to peace and security in Darfur.

On April 27, 2007, the ICC issued two warrants of arrest, the first for Ali Kushayb,  one of the top commanders of the Militia/Janjaweed, currently believed to be in the custody of the Sudanese Police pursuant to a warrant of arrest issued by the Sudanese authorities in April 2005; and the second concerning Ahmad Muhammad Harun, Minister of State for the Interior of the Government of Sudan from 2003 to 2005, and Minister of State for Humanitarian Affairs since 2006.  The persecutor condemned them with 51 accusations.

On July 14, 2008, the general prosecutor requested an arrest warrant against Sudanese President Omar al-Bashir for genocide, crimes against humanity, and war crimes. ICC Prosecutor, Lois Moreno-Ocampo accused al-Bashir of using the entire state apparatus to attack civilians in towns and villages inhabited mainly by target groups; committing killings, rapes, torture, obstructing the delivery of humanitarian assistance, and hindering peacekeeping operations. The Pre-Trial Chamber 1 requested the Prosecution to submit additional supporting materials in relation to those aspects of the Prosecution's request for a warrant of arrest for al-Bashir no later than November 17, 2008. The general prosecutor stated on October 8, 2008 that he would present a case against the rebels in Darfur who attacked peacekeepers in Haskanita in September 2007, mentioning that “Gravity in this case is not a matter of Numbers, but a matter of impact.” This was already done on November 19th, 2008.

Sudanese strategy in dealing with the warring in Darfur has varied according to the international pressure exerted and the status of appeal. Three main tactics have been utilized to lessen the stresses of international condemnation and the prosecution of the ICC.

Firstly, the Sudanese Government has tried to mobilize the legal tools available to deny the ICC jurisdiction in discussing this case from the beginning, claiming that Sudan had not ratified the Rome Statute and the President al-Bashir has a diplomatic immunity under the traditional international law rules. This was challenged by ICC and various of legal experts worldwide, noting that article 13(b) of the Rome Statute gave the court the right to intervene in non-member states if the case is referred by the Security Council acting under Chapter VII of the United Nations Charter, and  that article 27 states clearly that “official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.” The Sudanese Government has continued to use this tactic even now, depending on the amount of support it receives from Arab and African countries that fear their potential responsibility in similar crimes.

Secondly, after realizing the strength of counter evidences, al-Bashir government has urged the Arab League and African Union to use their diplomatic ties, asking the Security Council members to use their powers according to the article 27 of Rome statute to postpone the ICC ruling for 12 months that can be renewed later. The Sudanese government put much emphasis on the efforts of China and Russia which contain strong diplomatic ties with Sudan to lead this process. It tries also to convince its French counterpart that the regime will take the necessary steps to settle the war and promote peace in Darfur.

Finally, the government tried to send positive signals to the international community, suggesting that the situation would be improved on the ground by fostering peace negotiations with the rebel groups and by issuing orders for national courts to begin examining war crimes committed in the region. Thus, on February 17, 2009 in Qatar Sudan has signed an accord with the Justice and Equality Movement, the main rebel movement in the region. This accord states the need to engage in broader peace talks with the aim of building mutual confidence measures, such as putting an end to government attacks on internally displaced persons (IDPs) camps and a prisoner exchanges.

The international community is always skeptical of President al-Bashir’s intentions because of the failure of previous peace talks with the rebels and the perpetuation of mass human rights violations in the region. The Sudanese regime has engaged in a long series of failed negotiations with the main rebel groups before: in Nigeria in 2006, in Libya in October 2007, and in November 2008 when the president himself launched his initiative named ''People of Sudan'. These initiatives were seen by many analysts as a “waste of time” and “a governmental strategy to stave off an arrest warrant against al-Bashir.”

Whether these measures will succeed or not will become apparent in a matter of time, as the final ruling of the court's Pre-Trial Chamber is expected in the coming weeks. But what will happen when the chamber issued an arrest warrant against the Sudanese President is contingent upon the success of the diplomatic efforts led by the Arab League and African Union, with support from China, Russia and potentially France to postpone the fulfillment of the arrest warrant for a year? In case of failure in these efforts, the President al-Bashir will be isolated inside Sudan, incapable of travelling or passing through any country of 108 signatories of Rome Statute with a large potentiality for mounting of violence and government military led operation in Darfur. The failure scenario is more likely to happen, especially in light of the appointment of Susan E. Rice as U.S. Permanent Representative in the Security Council because of her strong opposing stand for the Sudanese government practices in Darfur.

The correct balance between the duty of justice and the pursuit of peace is now at stake, and the future of Sudan is ambiguous. The international community should be honest with itself and decide if it wants peace to evolve in the biggest country in Africa and create hope for the rest of Darfur’s inhabitants, or if it would prefer to give preference to taking revenge for the criminal acts committed.


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