Eric Reeves •
The impending International Criminal Court (ICC) warrant charging Khartoum’s President Omar al-Bashir with atrocity crimes gives critical force to a central question: does ending the Darfur conflict really demand that we make a ghastly choice between peace and justice? How we conceive this choice will determine a great deal about how we confront other decisions amidst ongoing genocidal destruction in Darfur. For if we put “peace” before justice, if ICC prosecution is delayed, then we are giving priority to al-Bashir’s putative role in vaguely possible peace negotiations, conveniently convening in Arab League member Qatar, even as he is responsible for so much of Darfur’s ethnically-targeted human destruction. In choosing “peace” over justice we are obliged to ignore the fact that this massive destruction continues apace precisely because of an environment of almost total impunity. The choice of “peace” on any terms will cripple the pursuit of justice and efforts to end impunity in Darfur.
Impunity sustains human destruction in Darfur, and has from the beginning of conflict going back to the 1990s. Efforts to end this impunity cannot simply be sacrificed in order to encourage deeply flawed peace negotiations with a regime that human rights organizations have conclusively demonstrated is the party responsible for creating this climate of impunity— and for orchestrating human destruction defined all too fully by the 1948 UN Convention on the Prevention and Punishment of Genocide. Were the Security Council to suspend for a year ICC action against al-Bashir, it would be with the bizarre hope that yet further impunity in Darfur will finally yield peace. We are being asked by the proponents of a “peace process,” however flawed, to believe in the good faith of a brutal security cabal that has, in 20 years of power, never honored any agreement made with another Sudanese party. We are being asked to believe that this time a deal with these canny survivalists—who wrested power from an elected government by military coup—will be different.
But there is not a shred of evidence that a choice of “peace” over justice on these terms will produce a fundamental change in behavior by Khartoum in the Darfur region. On the contrary, if the UN Security Council suspends prosecution of al-Bashir by invoking Chapter 16 of the Rome Statute, this may actually embolden the regime. Conditions for millions of conflict-affected civilians and thousands of embattled humanitarians might deteriorate yet further as the regime becomes further convinced of its impunity. For example, facing no sanction or judicial pressure Khartoum is likely to continue with its deliberate and immensely destructive aerial bombardment of civilian targets, prohibited by international law and specifically by Security Council Resolution 1591 (March 2005). What is indisputable is that for almost five years the regime has flagrantly violated, without consequence, numerous UN Security Council resolutions. This lack of consequences for even the most conspicuous violation of UN “demands” (e.g., that the Janjaweed militias be disarmed, that all military flights over Darfur be halted) has only encouraged the regime in its intransigence.
Unsurprisingly, Khartoum has also attempted to frame resolution of the Darfur conflict as a choice between peace and justice. The regime assumes that its threats of reprisals and the embarrassing weakness of the UN/African Union peacekeeping force (UNAMID) on the ground will compel the international community to opt for “peace.” For this reason, the regime also argues that its participation in a fledgling and deeply unpromising initiative hosted by Qatar nonetheless shows sufficient commitment to peace—and has implicitly declared that this commitment will be fatally undermined if a warrant for al-Bashir is issued. To make their point more emphatically, senior members of the National Islamic Front regime have issued a series of threats against UN and nongovernmental humanitarian personnel, against UNAMID, and even against the north/south “Comprehensive Peace Agreement” (CPA) which tenuously keeps war from exploding again throughout Sudan. Such threats—and those against the UN are without historical precedent—have been issued with sufficient equivocation, even contradiction, that we cannot know what is real, what is for effect.
Nonetheless the regime’s threats of reprisals must be taken seriously, and should even now be galvanizing the Security Council to make clear robust consequences if these threats are carried out. But we must also see that the divided and irresolute response of the international community currently in evidence is simply a reprise of the past five years. Khartoum has overseen the systematic destruction of hundreds of thousands of non-Arab Darfuris; has displaced 3 million from their homes; and has left, according to UN estimates, 4.7 million civilians conflict-affected and in need of humanitarian assistance. And we have watched it occur before our very eyes. Precisely five years ago in The Washington Post (February 25, 2004) I warned:
“Khartoum has so far refused to rein in its Arab militias; has refused to enter into meaningful peace talks with the insurgency groups; and, most disturbingly, has refused to grant unrestricted humanitarian access. The international community has been slow to react to Darfur’s catastrophe and has yet to move with sufficient urgency and commitment. A credible peace forum must be rapidly created. Immediate plans for humanitarian intervention should begin. The alternative is to allow tens of thousands of civilians to die in the weeks and months ahead in what will be continuing genocidal destruction.”
Mutatis mutandis, every word is as true today as it was five long years ago.
As early as December 2003 a senior UN humanitarian official was speaking of deliberate efforts to deny humanitarian assistance to non-Arab peoples: “Delivery of humanitarian assistance to populations in need is hampered mostly by systematically denied access.” The only “system” was ethnic classification of civilians, primarily the Fur, Massaleit, and Zaghawa, who predominated within the rebel groups. Despite signing a cease-fire agreement in April 2004 and a Memorandum of Understanding concerning humanitarian access in July 2004, Khartoum has never been constrained in any meaningful way by either of these agreements. Humanitarian access is still “systematically” denied, though insecurity has grown so desperate in Darfur that most of the region is simply too dangerous for humanitarians to reach. Much of this insecurity is deliberately engineered by Khartoum, according to humanitarian workers with first-hand experience. For their part, these workers are subject to abuse, assault, harassment, obstruction, and bureaucratic stifling that continue to require inordinate amounts of time and wear fiercely on morale.
At the same time Khartoum twice mounted serious attacks on UNAMID peacekeeping convoys in 2008. In early July, through its Arab militia allies, Khartoum directed a carefully planned attack against a large UNAMID convoy; using advanced weaponry not previously seen in theater, the attack left seven peacekeepers dead and more than twenty wounded, several critically. The effect of this and other attacks has been to make UNAMID exceedingly cautious in fulfilling its protection mandate; indeed, the force faces failure without substantially reinvigorated international support.
Civilians, as always, have fared the worst. Most recently, the area around the town of Muhajeria in South Darfur has experienced terrible violence as Khartoum has clashed with one of the rebel groups. Civilians have been the primary victims of massive, indiscriminate aerial bombardment, and some 100,000 people have fled the area. They are, right now, in desperate need of humanitarian assistance. Ten days after the first of four urgent pleas from the UN and nongovernmental humanitarians, access for food, shelter, and medical care is still being denied by Khartoum’s officials; given the distressed condition of many who took flight from Muhajeria and surrounding villages, human mortality will soon become significant. The international community seems determined to forget that denial of humanitarian access is a genocidal tactic that goes back to Khartoum’s conduct of the north/south civil war (1983-2005).
Let us be clear here: such actions by Khartoum—against peacekeepers, humanitarians, and civilians—were fully in evidence throughout Darfur before Security Council Resolution 1564 (September 2004). This resolution authorized an International Commission of Inquiry (COI) to investigate violations of international law in Darfur; the COI would provide overwhelming evidence that the regime was responsible for massive atrocity crimes throughout Darfur. These and other crimes were also fully in evidence before the COI report prompted the Security Council to refer these crimes to the ICC (Resolution 1593, March 2005). And they remained conspicuously in evidence well before the ICC Prosecutor announced in July 2008 that he was seeking a warrant for the arrest of al-Bashir on charges of war crimes, crimes against humanity, and genocide—a warrant that will be issued by the Court any day. Blaming the ICC for current or prospective violence in Darfur, and at the same time failing to acknowledge that an emboldened Khartoum has been unconstrained by any Security Council action on Darfur to date, is a dangerously tendentious reading of recent history in Darfur.
The question of “peace or justice” is too abstract to have more than an equally abstract answer. Unless posed in a way that takes full account of the claims of each, and informed by an appropriately historical context, the question will yield only polemics. One critical part of this context, too often ignored entirely, is the wishes of Darfuris themselves—in displaced persons camps, in refugee camps in Eastern Chad (where people can speak more openly), and in the diaspora. It should hardly be surprising that report after report makes clear they overwhelmingly support the actions of the ICC. Their voices, and their suffering, have counted for too little in the debate, which is one reason it persists.
February 16, 2009