Bashir arrest can’t solve Darfur unrest

Written by Devapriyo Das

Wednesday, 22 July 2009 19:16

On July 14 2008, the International Criminal Court (ICC) Chief Prosecutor, Luis Moreno Ocampo, requested that Sudan’s President, General Omar-al-Bashir, be indicted on charges of genocide, war crimes and crimes against humanity.

When the ICC finally issued an arrest warrant for Bashir on 4 March 2009, the charge of genocide had been dropped, but it maintained that Bashir bore “individual criminal responsibility” for crimes against humanity including murder, extermination, forcible transfer, torture and rape, committed since 2002 against the Fur, Zaghawa and Masalit peoples of his country’s Darfur region.

Ocampo said that being a sitting President does not grant Bashir immunity against prosecution. As signatories to the Rome Statute that mandates the ICC, thirty African countries, including Uganda, now have a legal obligation to arrest Bashir should he set foot on their territory.

Sudan itself is not a signatory.
“Why do you have a confusion?”, the Argentinean Ocampo asked journalists during July 13 press conference in Kampala after they queried Uganda’s willingness to honour its ICC commitment.

“It’s a legal obligation. Uganda has a legal obligation to arrest President Bashir, if he decided to travel to Uganda.” Ocampo was in Kampala avowedly to discuss the ICC’s existing warrants against five commanders of the Lord’s Resistance Army and the forthcoming review of the Rome Statute.

Still, his timing was pertinent: just weeks before the Kampala Smart Partnership Conference which Bashir is invited to attend, and days after the African Union (AU) Summit in Sirte, Libya, where African leaders declared they would not arrest Bashir until the AU’s own committee, chaired by former South African President Thabo Mbeki, had submitted a report following independent investigations into the indictment.

The AU had already asked the UN Security Council to defer issuing the warrant by 12 months – which it refused do. Ocampo, however, asserts that the Sirte discussions of the AU are “basically political […] it’s not about the cases we are doing in the Court.

They are discussing how to manage this between African Union and [the] UN Security Council.” He also regards Uganda’s fulfilment of ICC obligations as crucial, because the country is a temporary member of the Security Council, its Chair for the month of July, and the first country to refer a case to the ICC.

“Ocampo may be right that this is a treaty obligation”, says Prof. Mahmood Mamdani, a renowned Ugandan political scholar who has written extensively on the Darfur conflict. “Treaties, however, are often renegotiated and revised in light of experience, which is likely to be the case with this treaty too.”

He told The Observer that “The Ugandan political leadership will have to live with contradictory obligations, those to the Rome Treaty and those to the African Union resolution on non-cooperation with the ICC on this matter, while keeping in mind the fact that arresting the President of another country may be tantamount to declaring war against it.”

There is little love lost between Khartoum and Kampala. Each has played its part in undermining the other’s stability in a bid to exert regional control. Sudan has funded and armed the LRA for over two decades, and thereby invited a proxy war with Uganda who supported the rebel Sudan People’s Liberation Army.

Hostilities ended only in December 2004 with the signing of the Comprehensive Peace Agreement (CPA) and the creation of a semi-autonomous South Sudan.

Uganda’s Minister of State for Foreign Affairs, Okello Oryem, first seemed to raise the stakes when he appeared with Ocampo and said “Uganda’s obligations to the Rome Statute remain unwavering.”

He added that an arrest warrant for Bashir had already been deposited in the Office of Uganda’s Solicitor-General. However, he conceded immediately afterwards that, “On the other hand, [Bashir] is not a chicken thief who you start arresting in [an] unceremonial manner.”

Now, the statement of Uganda’s ICC obligations has embroiled the Uganda government in a diplomatic crisis, leaving Uganda’s President Yoweri Museveni red-faced and hoping that Bashir simply stays away. This is unlikely to impress Ocampo who has previously defended the warrants against Bashir and Kony saying the ICC targets those with greatest culpability for committing crimes against humanity.

This, he maintains, does not remove other mediation or justice efforts of other actors like religious and cultural leaders in Northern Uganda and Sudan. “I believe President Bashir is destined to face charges”, Ocampo asserts, “but in the meantime, the important point is to stop the crimes in Darfur.

There are 2.5 million African victims there who are suffering a condition of life that is established to terminate them,” he said. No one is calling for Bashir to be exonerated; but as Mamdani observes, “Like some human rights activists, Ocampo abstracts the pursuit of justice from its political context, forgetting that goals like justice can only be realized within an ongoing political context.

I call this human rights fundamentalism, because it obscures the relationship between law and politics and therefore the context of legal reform.”

Origin

The problems in Darfur do not begin and end with Bashir. They originate from historical injustices in the colonial period—deliberate marginalisation of Darfurians, whether Arab or African or Muslim or Christian, by successive regimes in Khartoum.

Severe climate change has also pushed the region’s pastoralist and agrarian tribes into conflict with each other. The simplistic and popular portrayal of the conflict as one where Arab Muslim chauvinists kill indigenous Black Africans, is dangerously wrong.

Moreover, in Darfur, as in Northern Uganda, victims will have to live with their erstwhile persecutors: there is no promised land for them to inhabit even if justice were actually meted out to Bashir. In fact, arresting Bashir could potentially threaten the fragile peace in South Sudan, and by extension, the prevailing peace in northern Uganda.

“The most human rights fundamentalism and human rights intervention can hope to achieve is regime change, not political and legal reform,” Mamdani says.

Citing ongoing military misadventures aimed at ‘sorting out’ undemocratic nations, he says, “I don’t know any example of a foreign intervention – whether in Iraq or Afghanistan or elsewhere – which has gone beyond regime change to achieve political accountability and rule of law.  These latter objectives are best achieved through internal reform which, after all, was the objective of the CPA that brought us the possibility of peace in the South.”

For now, the Darfur problem remains an internal affair with an irrevocably international dimension. What it will take for its people to drink again from an oasis of peace, still remains to be seen.