Darfur and international justice

...Not only does it have no police powers and no means of apprehending those indicted, it has no way of protecting those who might be endangered in the wake of an indictment...

...This was the basis for Secretary of State Colin Powell's September 2004 finding of genocide...

...Moreover, no other intervening force, no matter how multilateral, could compete on the ground with the UN-sanctioned force...

...secretary of state declare that genocide was occurring in Darfur and not act-too embarrassing in particular for Secretary-General Kofi Annan, whose failure in Rwanda had occurred precisely a decade earlier...

...This is the essence of grim camp life for more than 2.7 million displaced persons, primarily women and children...

...Indeed, on the occasion of the grim tenth anniversary, marked on April 7, 2004, Annan had gone so far as to warn that "outside military action may be needed in western Sudan to halt `ethnic cleansing' in the strife-torn Darfur region...

...They accused the prosecutor and pre-trial chamber of "targeting" Sudan, of behaving "unfairly," and predictably of "neocolonialism," as well as much else...

...it is quite another to end it...

...The mission had ample resources and a full complement of translators for the investigators, who included genocide researchers, human rights experts, police specialists, and a range of others...

...Any political or material motive, on such an analysis, would fatally compromise the required mens rea, that is, genocidal intent...

...Such a decision clearly had nothing to do with issues growing out of the ICC indictment...

...The consequences were well known to the Khartoum regime as it made its barbarous decision...

...And these figures don't begin to take account of the consequences of the population movements being spurred by a growing lack of food, potable water, and primary medical care throughout Darfur...

...Such robust talk soon ended, of course, at the behest of political figures at the UN such as Kieran Prendergast, then under-secretary-general for Political Affairs.1 1Prendergast offers a remarkable confession of his cynicism about the notion of a "responsibility to protect" in the context of Darfur: "On Our Watch," PBS Nightline, November 11, 2007) www.pbs.org/wgbh/pages/frontline/ darfur/?campaign=pbshomefeatures_1_frontlinebronourwatch_ 2007-11-21 Annan's actual response to Powell's finding was to appoint a UN Commission of Inquiry on Darfur (COI...

...China and Russia both expressed ongoing disapproval (even though Russia had also voted for 1593) and made clear that Security Council action to support the ICC indictments would be vetoed...

...Moreover, it is clear that the COI did not consider all the known and relevant evidence, despite claiming to have done so...

...a weasel phrase if ever there was one...

...He is author of A Long Day's Dying: Critical Moments in the Darfur Genocide...

...Yet under present circumstances, how would this deferral be anything but a gratuitous gift of time to al-Bashir...

...Of even greater concern is the potential movement of more than one million Darfuris from South Darfur into chronically food-insecure Bahr elGhazal province in South Sudan...

...At least on the issue of genocide, this seems a remarkably na‹ve view...

...It is true that levels of violence and violent mortality have come down sharply from the most intense phase of the fightingApril 2003 through early 2005-and this has led some to claim that there never was a genocide, or if there was one, it's been over for several years (no matter that the UN reports 317,000 people were newly displaced in 2008, nearly all of them violently...

...Instead, the next steps in the crisis were taken by Khartoum, which announced vague plans to "supplement" the international humanitarian effort in Darfur...

...They [Khartoum officials] had been waiting for a chance to strike out at these organizations'" (March 22, 2009...

...The Rome Statute anticipated in Chapter 16 that the UN Security Council, with responsibility for "international peace and security," might justify a year's deferral of prosecution...

...The pursuit of justice by the ICC comes rather with a heavy price in human suffering...

...This is the very essence of the genocidal campaign against African populations in Darfur that may have slowed in 2005 (primarily for lack of targets of opportunity), but has not halted...

...And just as the determination of genocide did much to galvanize advocacy on behalf of Darfur, especially in the United States, so a "non-genocide determination" increasingly animates voices on the Left that would have us believe the Khartoum regime needs to be accommodated, needs international patience, must not be cornered or pressured excessively...

...How did UN-authorized actions by the ICC earn scorn, dismissal, or anger in so many quarters, including at the UN and reportedly on the part of Secretary-General Ban Ki-moon...

...Some wish to make this argument...

...How seriously does the international community take its commitment to ICC justice...

...And perhaps this is all the Obama administration is prepared to offer, for more robust efforts would require significant commitments of time from senior officials who already confront a long agenda requiring immediate attention...

...And because of the severe deployment limitations that Khartoum successfully negotiated, UNAMID has proved disastrously weak...

...These organizations provide humanitarian, recovery, and development aid that is critical to the very survival of the South, which confronts monumental problems of governance, as it struggles to reestablish agricultural communities free of violence and respond to widespread food insecurity and lack of clean water...

...some 1.1 million people "will stop receiving general food distributions...

...By early April the rhetoric had changed: "We have to figure out a mechanism to get those NGOs back in place, to reverse that decision, or to find some mechanism whereby we avert an enormous humanitarian crisis...

...In the end, however, it was simply too embarrassing for the UN Secretariat to have the U.S...

...And here we come to the contradiction that is at the heart of the ICC as currently constituted...

...Annan and his political advisers wanted none of this...

...Still, my own many contacts within the Darfuri diaspora and with some in Darfur strongly suggest that these people remain adamant about pursuing justice, even at the cost of great suffering, even death...

...special envoy Gration adopted in April...

...More than 1,100 carefully randomized and painstakingly conducted interviews make up the findings of the final report, "Documenting Atrocities in Darfur...

...We will never know what deterrent effect a fully equipped, well-trained brigade-with excellent logistics, transport, intelligence, and communicationsmight have had at the height of the genocide, but there is a very good chance that mortality would have been substantially reduced and the need for humanitarian assistance greatly reduced...

...If north/south war resumes-a clear and growing possibility-then all of Sudan is likely to be engulfed in violence...

...Should justice have been deferred in the interests of "peace...

...Many have argued as much...

...In another key moment of definition, Article 2 (clause b) of the Genocide Convention specifies as genocidal those acts "causing serious bodily or mental harm to members of the [targeted] group...

...But with the consequences so great, it seems unwise to retreat into the legal axiom that "hard cases make bad law...

...Eight months later, three judges of Pre-Trial Panel 1 (three women from three different continents) found unanimously that there was sufficient evidence to justify a warrant for numerous counts of crimes against humanity and war crimes...

...it is not typically the product of pure racial or ethnic or religious hatred...

...In Darfur the expulsions represented over half the total humanitarian capacity...

...Unsurprisingly, the legal reasoning by the COI in the short section on genocide (fewer than ten pages in a report of almost two hundred pages) is a scandal to reason, common sense, and international jurisprudence.2 2See Eric Reeves, "Report of the International Commission of Inquiry on Darfur: A critical analysis" (two parts), Idea: A Journal of Social Issues, October 14, 2005 (Volume 10, No...

...State Department, conducted an extensive set of interviews in Darfuri refugee camps along the Darfur/Chad border...

...This universal expulsion order includes South Sudan, whose leaders serve in what is nominally a Government of National Unity (GNU) in Khartoum...

...The reason these people need protection, humanitarian assistance, and justice is of course the genocidal counter-insurgency campaign waged relentlessly by Khartoum, now well into its seventh year...

...Eastern Chad, already severely overburdened by more than 250,000 Darfuri refugees, could see a doubling of the refugee population by July, according to aid workers...

...Long anticipated, the arrest warrant was immediately used by alBashir's National Islamic Front (NIF) regime as a pretext for expelling thirteen major international humanitarian organizations from Darfur and from other highly distressed regions of northern Sudan...

...A telling example: the mass executions of Fur men and boys in the Wadi Saleh area of West Darfur had been reported by both Human Rights Watch and Amnesty International in spring 2004...

...The COI's findings would not appear until the end of January 2005, and, while finding overwhelming evidence of crimes against humanity and war crimes, the COI report managed not to find sufficient evidence of "genocidal intent...

...Article 2 (clause c) of the Genocide Convention specifies as genocidal those acts "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part...

...It is sustained by a paralyzing insecurity that has been engineered by Khartoum ("chaos by design," according to Human Rights Watch) and derives directly from the impunity long enjoyed by Khartoum's regular soldiers and proxy militias, as well as the political and military leadership...

...An assessment of the lost capacity, conducted by the UN's Office for the Coordination of Humanitarian Affairs, suggested that "1.5 million beneficiaries will no longer have access to health and nutrition services...

...No other member state at the UN disputed the actual findings of the report, provided any informed criticism of Powell's characterization of the slaughter as genocide, or balked at his ominous conclusion that "nothing new follows from this determination...

...One could argue that this statement marked the demise of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, at least as a document that has any legal entailments...

...But southern political leaders-including Salva Kiir, president of the Government of South Sudan and first vice president of the GNU-were neither consulted nor informed about the expulsions, the shutdown of Sudanese organizations, or the proposed elimination of organizations working in the South...

...Not to accept this conclusion is to insist that all genocides must be on the model of the Nazi extermination: purely ideologically driven, and perhaps even counterproductive to the German war effort...

...This fierce determination should be sobering for those in the international community who seem not to consider Darfuri opinion in negotiating with Khartoum and yet do nothing to protect the people on whose behalf they are supposedly negotiating...

...Certainly we can't know, for example, the deterrent effect that the example of al-Bashir has generated in the minds of future g‚nocidaires...

...But if we make the ICC hostage to political circumstances and considerations, we truly politicize it...

...Bodkin also served on the Coalition for International Justice investigative team (she was the only person to serve on both teams...

...And what, other than a standing force (perhaps under the UN umbrella, perhaps not), will ensure that ICC arrest warrants cannot be held in contempt by men such as Omar al-Bashir...

...Certainly Western leaders were well aware of what would follow from Khartoum's expulsions...

...But it is one thing to target impunity...

...Eric Reeves has published extensively on Sudan, nationally and internationally, for more than a decade...

...Although he may not be arrested any time soon, the very fact of an active international indictment charging him with crimes against humanity will slowly erode the legitimacy of his regime (this is already in evidence on the part of some formerly supportive Arab and African countries...

...This is not the kind of language one might expect to be effective in exerting pressure on Khartoum to reverse course on international humanitarian aid...

...It implicitly relies on the international community (including Interpol and nations that are signatories to the ICC) to make arrests...

...A slapdash assembly of Sudanese organizations, as well as small aid organizations and a few personnel from the Arab world, were proposed as replacements...

...With whom will the Court consult in making its political decisions...

...Even without a UN genocide determination there was still the massive evidence of crimes against humanity and war crimes, which could neither be mitigated nor concealed (there is little in the COI report that had not been widely reported earlier by human rights organizations...

...THE ICC AND THE INTERNATIONAL COMMUNITY How did pursuit of international justice through the ICC trigger what may be the most destructive phase of the genocide in Darfur...

...These could not be more clearly "deliberate" acts "calculated to bring about [the targeted group's] destruction in whole or in part," particularly the attacks that occurred with no rebel military presence (the vast majority...

...The expulsion of international humanitarian organizations and the shutdown of domestic organizations also left more than a million people without assistance in Eastern Sudan, in the squalid settlements around Khartoum, in the Nuba Mountains and Southern Kordofan, and in Abyei...

...Should the Pre-Trial Panel have delayed even longer announcing the results of its deliberations...

...it is but another way of ensuring the irrelevance of the Genocide Convention...

...Many Darfuris had excessively high hopes for the ICC indictment of al-Bashir and were dismayed that he was not arrested, and that things did not change on the ground, except for the worse...

...At the same time, Khartoum also shut down some of the most important Sudanese human service and human rights organizations...

...In all cases, the explanations offered for expulsions or shutdowns were not supported by any evidence made public...

...Notoriously, Powell declared that as far as the United States was concerned, "nothing new follows from this [genocide] determination...

...Justice is coming not so much at the price of peace because there is no credible peace process in prospect...

...If the regime does not really comprise g‚nocidaires, then perhaps deferential negotiations will succeed (this was certainly the tone U.S...

...views...

...We can't know the tenor or substance of private diplomatic discussions, but publicly Gration seemed to signal a major shift in U.S...

...and in response President Barack Obama declared that the regime's actions were "not acceptable...

...France, the United Kingdom, and the United States-the three countries critical to any action at the UN or multilaterally-had no meaningful plan for dealing with the long-predicted response by the Khartoum regime...

...Indeed, some have argued that the deliberate blocking of humanitarian assistance in circumstances such as obtained in Burma following Cyclone Nargis and currently in Darfur amounts to a crime against humanity, which in al-Bashir's case would simply be another count in a long list of such charges...

...and there can be no doubt that Khartoum's fear of the ICC contributed not only to the actions taken against humanitarian agencies but also to a relentlessly deteriorating security environment, affecting both civilians and remaining aid workers...

...But though no one voted against Resolution 1593 at the time, and two African countries voted for it, at the critical moment there was far too little international support for the ICC determinations...

...In particular, Khartoum's claim to have evidence that the aid organizations had cooperated with the ICC was patently false...

...It is this impunity that the ICC prosecutor targeted...

...The pointlessness of the Convention would have been laid bare had deliberations occurred, the secretariat reasoned, and the damning ghosts of Rwanda would have been unstoppable...

...We should not be surprised that Khartoum has been aggressively acquiring a wide range of new arms and weapons systems since the signing of the Comprehensive Peace Agreement...

...Terrifyingly, the NIF regime is prepared to make such catastrophic violence into a threat as part of its ruthless survivalism: "Push us too hard on Darfur, and you will lose your coveted diplomatic achievement of a north/south peace...

...In August/September 2004 the Coalition for International Justice, at the behest of the U.S...

...Meaningful efforts on behalf of Darfur-especially those aimed at moving China into a more helpful posturewould demand a substantial expenditure of diplomatic capital, so much of which was lost in the sands of Iraq...

...Nor has there been restitution or compensation for the brutally destructive attacks on African villages: targeting grain and seed stocks, cutting down mature fruit trees, poisoning wells with corpses, burning homes, markets, mosques, and all that might sustain life...

...The ICC is unlikely to encounter anything but "hard cases" in the near term, and these must be the basis on which the court and its legal actions are judged...

...government, including a number of international human rights groups, myriad genocide scholars from around the world, Darfur experts, as well as organizations such as Justice Africa (UK) and Yad Vashem in Jerusalem...

...The Arab League and African Union both expressed their dismay at the ICC actions "against" Sudan, as did the Organization of the Islamic Conference...

...The New York Times reported, "`This was in the works for a long time,' one senior aid official involved in Darfur relief said...

...But this was not a serious or independent commission...

...indeed, the decision may well have been encouraged by the lack of a forceful Western or UN response to the previous expulsions-and by silence on the part of the Arab League and the African Union...

...This is not merely counter-insurgency...

...But the presence of such discernible motives does not preclude an intent to destroy the African tribal groups of Darfur, "as such...

...POLITICS ABROAD Darfur and international justice ERIC REEVES On March 4, 2009, Pre-Trial Chamber 1 of the International Criminal Court (ICC) announced that it was charging Sudan's president, Omar al-Bashir, with war crimes and crimes against humanity...

...Should the ICC Prosecutor have delayed his prosecution...

...And unlike the so-called "responsibility to protect"-another moment of international idealism, unanimously embraced at the UN World Summit of 2005 precisely because it had no legal or institutional entailments-the ICC is a functioning, not merely notional, form of idealism, with real world consequences...

...Nonetheless, the COI had done its main political work: to spare the UN from confronting a genocide determination of its own, particularly since everyone knew that such a determination would mean nothing to veto-wielding members China and Russia in the unlikely event serious action on Darfur were ever contemplated at the Security Council (under Articles 4, 5, and 8 of the UN Genocide Convention...

...And yet the international community, continuing its failure to respond to Darfur, neither coerced nor persuaded Khartoum to readmit the expelled organizations...

...The expulsions and proposed expulsions reflect the arrogance and racist self-regard that have long defined the NIF regime and pose yet another threat to the deeply endangered north/south Comprehensive Peace Agreement (January 2005...

...it is genocide...

...The argument that the ICC announcement was not so much the cause as the pretext for expulsions was considerably strengthened by Khartoum's declaration the following week that all international humanitarian and development organizations would be to required to leave all of Sudan within a year...

...Genocide may be, and typically is, instrumental in some sense...

...It is true that Arab groups in many cases were the beneficiaries of villages and lands cleared in such fashion, even as Khartoum benefited, at least in terms of its own ghastly calculus of how to secure military and political control of Darfur...

...But the Court itself has been able to do nothing to diminish the vulnerability of civilians in Darfur, the very victims on whose behalf it seeks justice...

...Now, violence has become so chaotic, the rebels so fractured, the number of civilians endangered so overwhelmingly large, that mounting a humanitarian military intervention would be impossible without a much larger force than UNAMID at full strength (26,000 troops and police-although more than a year and a half after the authorizing UN Resolution, the force is only at approximately 60 percent effective deployment...

...genocide finding (of course a genocide determination has been made by many besides the U.S...

...As the Sudan Tribune reported, [Gration said] that he is in Sudan "to look, listen, and learn...

...This in turn gives promise of a political opening in Khartoum, where the NIF's control of the military and security services has effectively suppressed all meaningful political opposition for the past twenty years...

...and yet the forensic specialists with the COI did not put a spade in the ground, in Wadi Saleh or elsewhere, if we are to believe one of the most informed participants in the COI.3 3Sergeant Deborah Bodkin, a Canadian police investigator, in personal communication with the author...

...But the authority of the ICC is also eroded by al-Bashir's ongoing defiance...

...The developments leading up to the ICC's March announcement have a long history, one that is already being rewritten by the politically tendentious (particularly on the Left) and by those eager for self-exculpation...

...But this apparently categorical statement was more a rhetorical effort to demonstrate concern than a prelude to meaningful action...

...It is hardly of concern to Khartoum, which is why the regime continues to insist that this force will be the only military means allowed to protect millions of vulnerable people...

...Not coincidentally, in early April Obama sent his newly appointed special envoy for Sudan, retired Air Force general Scott Gration, to convey U.S...

...It is convenient to forget that with timely military intervention in early 2004, the international community-with or without UN approval-could have saved hundreds of thousands of lives (one reason that those who are skeptical about genocide in Darfur tend to cleave to lower mortality figures is that they do not wish to acknowledge that any intervention in the wake of Iraq, especially one involving an Arab government, could have saved so many lives...

...water supply, sanitation and hygiene services [to over one million people in Darfur] will soon be interrupted...

...But as John Holmes, the normally politic head of UN humanitarian operations, bluntly declared after conferring with Khartoum officials about their plan: "These are Band-Aid solutions, not longterm solutions...

...The expulsion of aid organizations not only severely compromised the health and lives of millions of people in displaced persons camps and throughout Sudan, but also removed troubling international "eyes on the ground," which had served as a better deterrent to attacks on civilians than the failing UN/African Mission in Darfur (UNAMID...

...Or to find some mechanism...

...rather, it was an effort to buy time for the UN and the international community, and-most important-to undermine the U.S...

...The UN response was to pass Resolution 1593 (March 2005), referring the legal investigation of atrocity crimes in Darfur to the ICC...

...Informed officials recognized the expulsions for what they were: Khartoum's carefully considered use of the opportunity provided by the ICC announcement to do what the regime's g‚nocidaires had long wished...

...There could hardly be a more difficult case than Sudan by which to assess the promise and risk of the ICC as an international legal institution...

...In July 2008, after more than three years of investigation, ICC prosecutor Luis Moreno Ocampo announced that he was seeking an arrest warrant for al-Bashir, charging the regime president with war crimes, crimes against humanity, and genocide...

...He added that he came "with my hands open" and hoped that Sudan's government will respond "with a hand of friendship," saying that "like all my American colleagues, ana ahib Sudan," or "I love Sudan...

...It reveals much of the fecklessness and cowardice that has brought Darfur to the precipice and now threatens the viability of the ICC...

...tone and policy toward Khartoum...

...Enforcing that decision, then, is itself a violation of international law and international humanitarian law...

...The potential for a collapse of the food distribution system in this fragile region is great, and in March the Famine Early Warning Network System (FEWS Net) sent out extraordinarily dire warnings...

...The effects of these expulsions were immediate...

...One highly distinguished and representative member of the Darfuri civil society, who has spent nearly all his time on the ground in Darfur since the beginning of the genocide, insisted to me that even if international humanitarian aid could be restored by Security Council passage of a Chapter 16 resolution, Darfuris would be strongly opposed to such a quid pro quo...

...With what kind of binding or nonbinding relationship...

...Rather, this language signaled that the United States was prepared to maintain a holding pattern or even attempt a rapprochement with the very men who, as Obama has emphatically declared, continue to commit genocide in Darfur...

...While much of the world, especially the Arab League and the countries of the African Union, was pushing for the ICC indictment to be quashed or at the very least deferred for a year under Chapter 16 of the Rome Statute (a power explicitly granted to the UN Security Council), Darfuris themselves remained deeply committed to international justice in the Hague...