Unintended consequences
The ICC was arguably a noble endeavour, set up in 2002, eight years after the genocide in Rwanda. The ICC’s mission was to improve international justice for victims of major crimes. The government in Khartoum saw the court as an instrument of Western political power. The object was regime change, not justice, said al-Bashir. The ICC was designed as a court of last resort, when national jurisdictions failed to implement justice. It was seen by some as a complement to local justice, whether formal courts or traditional African reconciliation methods such as the semi-successful Truth and Reconciliation process in South Africa. States were supposed to invite the ICC to assist. In Sudan’s case the UN Security Council mandated involvement, albeit controversially.
Western intervention in Africa had rarely made things better and usually made them worse. Khartoum said that the ICC had no legal right to intervene in Darfur, not least because Sudan was not a signatory to the Rome treaty that had established the Court. Defenders of al-Bashir pointed out that all the ICC indictments had been in Africa. They were playing very successfully to the anti-colonial sentiments, not only in the African Union and the Arab League, but throughout the developing world. Khartoum’s diplomacy prompted Sudan to be elected leader of the G77 in February 2009, in a deliberate snub to the ICC.
Thirty-four African states joined the ICC and many came to regret it when all thirty-six people publicly indicted all turned out to be African. In April 2014 the AU held an international conference in Addis to discuss what it perceived as ICC bias. Terence McNamee, a Canadian, summed up the proceedings:
The ICC’s sharpest critics claim that international law does not apply to the powerful, only the weak – hence the focus on Africa, the new court’s ‘laboratory’. The major powers have become, in essence, both players and referees, formulating the rules of the game but refusing to play by them.1
Opposition to the ICC’s African ventures was often not ideological but pragmatic: would it make conditions better or worse? In Darfur, or Uganda, or the Democratic Republic of the Congo, or the Central African Republic, countries where the ICC had become entangled? Nor was Khartoum’s fury entirely ideological: a delicious fervour would have erupted there from an ICC arraignment of an Israeli leader. The arrest warrants undermined peace efforts in Darfur, and prolonged the tragedy. Khartoum’s hasty response of ejecting impeccable Western non-government organizations such as Médicins sans Frontières also made the suffering worse in Darfur. The ICC and Khartoum were being sucked into an action-reaction cycle, which was intensifying, not resolving, conflict.
The many critics of Khartoum said: if al-Bashir is innocent, why not go to The Hague and prove it? I did not raise that point when I visited the president’s official Khartoum home in April 2009; that might have been a bit like fondly reminiscing about a favourite Jewish grandmother to the Fűhrer. Al-Bashir outlined his sense of grievance, though he couched it diplomatically. The president said: ‘When Morgan Tsvangirai raised his hand to take the oath of office in the government of national unity – with Robert Mugabe – all the international pressures and legal threats were forgotten. Maybe I should ask Tsvangirai to raise his hand here as well?’ Al-Bashir felt victimized. His advisors constantly made the point that the Comprehensive Peace Agreement did not include specific judicial claims to punish the numerous war crimes on both sides. The 2005 agreement was threatened with disruption. That is why the SPLA ministers, then a part of the national unity government in Sudan, fretted to me about a possible return to war because of ICC destabilization. Sudan was often projected as a tough authoritarian ‘Islamo-fascist’ state. It was certainly authoritarian, but also potentially fragile. The implosion of Sudan would mean its removal as an ally in Washington’s ‘war on terror’.
The most persuasive argument against ICC involvement was the threat to peace, but Khartoum – while not recognizing the ICC – also mounted an elaborate legal counter-offensive, employing the best Western lawyers. A part of this defence was that President al-Bashir had national immunity because he was head of state, and inter alia the arrest warrants contradicted international law. Khartoum insisted, however, that the real challenge was political not legal, part of a long plot to dethrone another Islamic leader in an oil-rich country.
From the seventeenth century – through the Nazi war trials – until today, trials of senior political leaders have usually been a result of defeat in war (from King Charles I via Slobodan Milosevic to Saddam Hussein). The trials confirmed defeat, and often victors’ justice rewrote laws. Not a single head of state indicted for major crimes has ever been acquitted; because the legal verdict had always been pre-ordained by a political verdict. In this view, political trials are, to adapt Clausewitz, a continuation of war by other means. Al-Bashir, an elected head of state, had not been defeated. Arguably, he was at the top of his game. To quote the Queen in Alice in Wonderland: ‘Sentence first – verdict afterwards.’
International law evolved for good practical reasons as well as negative political ones. Many of the ecological challenges facing the planet are no respecters of international boundaries, nor is AIDS. So legislation on health or climate change are evolving to cope with planet-wide crises. Similarly, war crimes – for example, atrocities in Yugoslavia, or genocide in Cambodia and Rwanda – have inevitably transformed decrepit ideas of national sovereignty. The African Union itself had moved from non-interference in other African states to non-indifference to major crimes. In short, international law was evolving to cope with crises that the Westphalian concept of 1648 could not deal with. This was inevitable, and beneficial. But was this evolution to be used for humanitarian benefit, or short-term political goals?
The ICC, while claiming universal jurisdiction, was simply not international. More than half the world’s population was not in its jurisdiction. The US, Russia, China and India, among many other countries, were not members of the ICC. Khartoum insisted that because it was a nonsignatory of the 2002 Rome treaty, the Court was acting beyond its powers in pursuing a state which had not signed up. Nor does the Court have any police powers. By asking a signatory state to detain al-Bashir (in international air space, it had been suggested), the arresting state could also be violating international law, if it complied with the request. Air piracy could compound the struggle with sea piracy.
Publicly, Khartoum said that the president was free to travel to any friendly state and, just in case, in the local region, Sudanese jet fighters would escort him. Privately there were several scares for the president. In 2011 a flight to Beijing was apparently aborted, and in 2013 al-Bashir left Nigeria very early because of rumours that he might be arrested. In August 2013 he was apparently barred from Saudi air space. Even in next door Addis, the presidential protection unit got wind of an attempt to arrest him. Mostly, however, al-Bashir appeared to travel around Africa and the Middle East with relative ease, even to countries that were signatories of the ICC treaty.
Meanwhile, Khartoum also attacked Britain and France for funding and provoking the ICC to pass ‘crazy laws’, though it should also be noted that the other permanent members of the Security Council, especially Russia and China, let alone the US, did not wield the veto on the Darfur referral to the ICC. Khartoum’s defenders argued that the ICC had chosen not to criminalize waging ‘aggressive’ war, a charge at the heart of the Nuremberg war crimes trials, and which more than one legal authority had compared with the 2003 Anglo-American invasion of Iraq. A war cry echoed throughout Arabia and Africa: if al-Bashir, why not Blair or Bush?
Legal experts also suggested that, in its first case, regarding the alleged use of child soldiers in the Democratic Republic of Congo, the ICC had ridden roughshod over key legal procedures, violating many of the main defendants’ rights. Nor had it commented on the JEM’s use of child soldiers, some of them captured in the 2008 raid on Omdurman. In sum, are the processes of the ICC undermining the development of sound international law?
The ICC had actively pursued case
s only in Africa. For years, the Court decided not to investigate any Western involvement or complicity in alleged war crimes, crimes against humanity or genocide, whether in Iraq, Afghanistan, or Gaza. It was true that Africa had had more than its fair share of despots. Some of the arguments for deploying African national courts, or traditional tribal reconciliation, were often unconvincing. Many of the traditional rites were patchy, inauthentic and most African courts systems were deficient, even in relatively successful countries such as Kenya – as failure to process captured Somali pirates demonstrated. Moreover, concepts of international humanitarian rights, as defined by the UN, should be universal. Suggesting African exceptionalism – that Africa should use its own methods, such as Mozambique’s national reconciliation after its civil wars, or Zimbabwe’s former national unity government – could smack of racism; that Africa was not ready for advanced legal systems.
Nevertheless, the targeting of only African leaders – Charles Taylor, Joseph Kony, etc. – did imply white racism. It had been suggested that arresting African leaders was simply easier than taking on Western leaders. And the Court’s actions in this regard were often seen as enforcing the ICC’s credibility: that it was actually seen to be doing something. This was macho politics, not law. The Court’s African focus fired up a continental paranoia about a new form of neo-colonialism. So far, however, the ICC had not produced a single unchallenged conviction. The ICC’s timing had never been good. Just as the Lord’s Resistance Army leaders were about to make peace directly with the Ugandan government, the Court’s arrest warrants for those same leaders prompted them to return to war. And in February 2009 Khartoum’s peace talks with JEM rebels were prospering. One fatal mistiming might seem an accident, but a repetition in the arrest warrants for al-Bashir might appear a conspiracy to some in Africa.
There was a long history of forceful action against Sudan backfiring. By 1996 the US had succeeded in isolating Sudan. The regime was fighting wars on several fronts and its back was against the wall. Then, in August 1998, the Clinton administration attacked a medical facility in Khartoum, claiming the factory was making weapons of mass destruction. Washington’s claims were subsequently shown to be false. Almost overnight, Sudan was embraced by the developing world. African states and the Arab League, previously hesitant about the Khartoum regime, kicked out against a perceived injustice. The Africa group at the United Nations nominated Sudan to take the African seat on the Security Council (ultimately blocked, with difficulty, by Washington). Diplomatically – even taking Darfur into consideration – the Sudanese had not looked back. And, in a further twist, the US economic sanctions against Sudan, in place since 1997, largely insulated Sudan from the Western economic meltdown that began in 2008. The cranes dominating Khartoum’s skyline were evidence of Sudan’s booming oil-based economy.
Likewise, the ICC action now made al-Bashir a poster-boy for the Sudanese nation, almost regardless of party, just as he was standing in the presidential election of 2010. Many Sudanese, both opponents and allies, were likely to rally around him. Another unintended consequence was that, like Mugabe, fear of the ICC could have made al-Bashir president for life. He might not have risked retiring, even if he had wanted to, after twenty-five years in power. No one expected the ICC to entrench dictatorships. Except for the insurgents in Darfur, the ICC action was seen domestically as an assault on Sudan. Nationalism was fired up. The ICC action was presumably supposed to weaken President al-Bashir; it had the opposite effect.
Internationally, those Africans supporting al-Bashir over the ICC were not necessarily doing so because they admired him – many disliked him. They did so because Sudan was the lightning rod of a growing African impatience with diktats from the West and their former colonial masters in Europe. In the interlude between the ICC’s original indictment in July 2008 and the issuing of arrest warrants, Sudanese diplomacy (and others hostile to the ICC) had succeeded in positioning the issue as a Eurocentric, Franco-German-British court embracing the old ‘White Man’s Burden’ of civilizing savage Africans by forcing white man’s magic on them; in this instance Western legal structures alien to traditional African reconciliation mechanisms, let alone cultural norms.
Richard Dowden, the director of the Royal African Society, summed it up nicely: ‘The ICC cannot hand out justice in Sudan as if it were Surrey [England].’ More robustly, The Hague had also been dubbed ‘Europe’s Guantánamo Bay for Africans’, where it administered sub-prime justice. Therefore the ICC was seen to ignore those African voices, be they Ugandan, Sudanese or in the AU, who said that the Court’s arbitrary pursuit of African leaders was impeding or delaying peace. It can be argued that the ICC had inadvertently prolonged the horrific war in northern Uganda by aborting seemingly fruitful peace talks by issuing warrants against rebel leaders. In the case of Darfur, the ICC warrants against al-Bashir merely bolstered rebel intransigence regarding peace talks. They claimed they would hold out, until al-Bashir was arrested. This would mean an indefinite prolongation of the Darfur war.
The ICC intervention had the effect of making Sudan Africa’s spokesman on issues such as the ICC. Many African countries and leaders were happy for Sudan to make the sort of stand which they supported, but were politically unable to make themselves. Also, the Arab League and other Islamic states rallied behind Khartoum because the ICC was seen as another Western intervention in a majority-Muslim state. The ICC action had not improved Western relations with the Arab and African worlds.
Internationally, the ICC issue had also manifested itself at the worst possible time. As the Western economic meltdown worsened by the minute, confidence in ‘white man’s magic’ was at a historic low in the period 2008-12. For Africa, the only possible bright spot was the election of the African-American Barack Obama as US president. He also faced difficult choices regarding Africa and the ICC, not least in satisfying domestic lobbies, such as the Save Darfur Coalition, which had peddled misinformation on an industrial scale, not least about allegations of genocide.
Washington had long declared its opposition to the ICC, arguing that it would be used to exact ‘political’ justice, and that states and individuals would be pursued for political reasons under the façade of justice. Paradoxically, the American position on Sudan and the ICC had proved this to be absolutely the case. While attacking the ICC in the strongest terms, Washington nevertheless acquiesced in the UN Security Council referral of Darfur to the ICC (while demanding immunity for its own citizens); and had urged Sudan to submit to ICC demands. To many observers this was precisely the sort of political vendetta the US had itself warned that the ICC might be used for.
The ICC action may have served as a warning shot across the bows of other regimes, not least Mugabe’s destructive presidency. But, in a war-ravaged continent, peace must precede justice, whether defined as African or European. Compromise was possible. There did not have to be a head-on clash between peace versus justice – they could be complementary. Nor was a collision inevitable between national versus international approaches, punishment versus conciliation. A middle course might begin with the ICC also focusing on criminal leaders in other continents. Otherwise, to its many African critics, the ICC’s arrest warrants for al-Bashir would look like the twenty-first-century equivalent of old-fashioned nineteenth-century gunboat diplomacy – but minus the gunboats. Meanwhile, the suffering went on in Darfur. And that’s what the ICC was designed to relieve.
Low-level insurgency continued at the time of writing in 2014 and no comprehensive peace plan had been fashioned. The whole ICC manoeuvre had not worked for a number of reasons. The legal processes were utterly flawed or, as one commentator derided it, ‘Keystone Kops meets Alice in Wonderland’. The Sudan indictments had cost millions of euros and the procedure, led by Ocampo, had been a shambles, despite or because of his showmanship. More and more African states pulled away from the ICC, not least after another head of state, this time a Kenyan, was indicted. Al-Bashir generally travelled freely throughout Africa
and the Middle East, as an honoured guest, not as a fugitive. The much bigger tragedies in Africa, for example in the DRC, were largely ignored, even though the scale of fatalities there – maybe five million – did start to approach the numbers of a real genocide, the Jewish holocaust. Only the US government, under immense internal pressure from domestic lobbies, used the genocide term about Darfur; whereas impartial experts, many very hostile to Khartoum, thought the ICC’s judgements were legally autistic and factually incorrect.
At the start of the war African as well as Arab militias were armed by Khartoum, hardly the action of a government intent on exterminating African tribes. Millions of Darfuris fled to the safety of government-garrisoned towns and cities. Jews in the early 1940s did not usually flock to the Wehrmacht for refuge. The over one million Darfuris in the Khartoum area went about their business unhindered. The government co-operated in a vast humanitarian system, the biggest in the world, with thousands of Sudanese aid workers in support of foreign charities and UN aid agencies. The most impeccable of them, the MSF, was in attendance for the whole of the heavy fighting of the initial stage of the conflict. They saw no signs of genocide, although they had boldly attacked it in Rwanda. Many of the troops in the regular army were Darfuris and, although there were cases of coercion in enforcing the scorched-earth policy, it was unlikely that they would consistently follow genocidal orders against their own kin. The first two Sudanese officials to be indicted were themselves of African, not Arab, descent. The war was very nasty and atrocities were committed on both sides, but the ICC’s claim of a planned extermination on the Nazi model was simply very wide of the mark. Most of what the ICC said and much of the Save Darfur Coalition’s propaganda were just that – propaganda. In bringing attention to the crisis it did prompt massive humanitarian aid, which did save many lives. Overall, however, external intervention prolonged and exacerbated the war – a lesson learned throughout the continent.
Omar Al-Bashir and Africa's Longest War Page 26