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NAIROBI, Jul 18 2008 (IPS) - The indictment of Sudanese President Omar al-Bashir on 10 counts of war crimes, crimes against humanity and genocide has greatly encouraged some Darfuri human rights activists. Other observers in Sudan fear it will provoke a backlash from the government, further worsening the situation in Darfur.
As the permanent members of the UN Security Council remain deeply divided on what, if any, action should be taken against the Sudanese president, Bashir is unlikely to face trial in the near future.
"We do not know what will happen next. But for the survivors of Darfur, the process initiated by the International Criminal Court is of immense significance in itself," says Salih Osman Mohammed, a member of the Sudanese parliament and a human rights lawyer.
He argues that against the backdrop of years of surviving in a state of utter helplessness and international neglect, Bashir's public indictment is a source of support for the Darfuris. "The parliament is dominated by Bashir's men; the judiciary is incompetent and not able to provide justice; the international community has for long turned a blind eye to Darfur. What other avenue do the people of Darfur have?" asks Salih.
"It may fail (to arrest and bring President Bashir to trial), but the fact that the international community recognises the suffering of the people of Darfur and is willing to go after those responsible for it means a lot to them, it makes them feel they have an ally somewhere in the world, who is willing to listen to their voice and support them," says Salih, winner of the 2007 Sakharov Prize, the European Union's top rights award, for his work to defend the rights of the Fur people.
He says Bashir is now a marked man, named and shamed for his crimes, as well as subject to travel and diplomatic restrictions and the threat of an impending trial under the Rome Statutes, signed by 106 countries.
A 2004 United Nations fact-finding mission described Darfur as the world's worst humanitarian crisis. The Security Council referred the case to ICC in March 2004. The prosecuting team had to work in a highly volatile and complex situation.
The Sudan is a vast country of 35 million, with the north and west of the country predominantly Muslim. (South Sudan is heavily Christian and was the theatre of a previous civil war before the Darfur crisis set in.) The faultline within the Muslim population, between those of Arab origin and black African Muslims, has been volatile for a long time. The three non-Arab groups – Massalit, Zaghawa and Fur – are mainly settled farming communities whereas the Arabs in Darfur are traditionally cattle-rearing nomads.
The former have complained of marginalisation and neglect by Khartoum for decades. Regular Arab-African conflicts over land and water escalated into a general uprising in 2003 and the government responded by sending in horse-riding militiamen called Janjaweed who have turned the vast desert region near Sudan's border with Chad into a killing field. More than 400,000 Fur, Massalit and other non-Arab ethnic groups have been killed and 2.5 million displaced over the last five years.
Luis Moreno-Ocampo, the ICC prosecutor, notes in his case against Bashir that the people of Darfur were challenging the marginalization of the province; they engaged in a rebellion. When Bashir failed to defeat the armed movements, he went after the people.
"His motives were largely political. His alibi was a 'counterinsurgency.' His intent was genocide," the prosecutor said.
But the ICC's history of pursuing war criminals in Sudan does not inspire confidence. The court has already charged two relatively minor Sudanese officials for war crimes in Darfur. Ahmed Haroon, who was the interior minister when the conflict first erupted, has been charged with coordinating attacks in 2003-2004. Following his indictment, Haroon was appointed by President Bashir to the post of the minister of humanitarian affairs, responsible for the people in the camps in Darfur.
"So, he's in charge of the same victims he displaced and he's attacking these people in the camps," ICC prosecutor Luis Moreno-Ocampo told the media in June after filing charges against Haroon and Ali Kushayb, a commander of Janjaweed before he was appointed a commander in the Popular Defense Force (PDF), the reserve force of the Sudanese Armed Forces. The ICC, however, depends on cooperation from national governments to arrest indicted criminals. Both men remain free but largely confined to the Sudan.
The prosecutor has now gone a step further and charged the president, who is also the commander-in-chief of the army.
Only France and Britain among the Security Council veto powers unequivocally support the ICC decision. The United States, which has designated the Arab-dominated Sudanese government's actions against the Fur and other African tribes in Darfur as genocide, remains reluctant to pursue a Security Council resolution for an arrest warrant as it does not recognise ICC and is not a signatory to the Rome Statutes.
China, also not a signatory and with huge economic stakes in the Sudan as the largest buyer of its oil, also opposes further action. In fact, it is seeking a UN vote to stop court proceedings against Bashir.
The United Nations itself is more worried about the safety of its peacekeeping and humanitarian operations after seven UN troops were killed in an ambush last week. Both the Arab League and the African Union (AU) have also refused to support the ICC decision against one of their members. Pro-government demonstrations in Khartoum called the ICC charges a joke.
Salih, however, does not agree that the court's decision will undermine its credibility or that with suggestions it should have opted for a sealed indictment to avoid a diplomatic row. "The indictment should be viewed separately from the politics and diplomacy that has followed. The ICC is an independent body. The prosecutor has gathered evidence after three years of painstaking effort. By filing the charges and making them public he has done his job."
Threat to peace?
The Sudan People's Liberation Movement (SPLM), which for 21 years waged a civil war in the country's Christian-dominated southern region before signing the Comprehensive Peace Accord (CPA) and joining Bashir's government of national unity in 2005, urges caution.
"We need to have a clear roadmap on how to resolve the Darfur crisis," Yassir Arman, a spokesman of the SPLM, told IPS. The SPLM urges more cooperation with the international community to resolve the Darfur crisis rather than further pursuing the ICC case aggressively.
"There is a need for the government of national unity to reach an understanding with the international community and cooperate on the legal aspects of the ICC warrants," says Arman.
He also feels that the key for stability in the Sudan is to continue the implementation of the CPA and other agreements. "It is a serious situation and it could threaten the peace and stability if it is not well-managed…the main issue is to put a quick and fair end to the Darfur crisis."
Salih, however, points out that President Bashir has never attended any Darfur peace talks, the peace process has gone nowhere and this indictment will help the international community to put more pressure on him. "There may be more room for compromise now. By publicly listing his crimes and nominating him for trial, the ICC has brought the focus on Bashir. It is time for the international community to respond now."
It would indeed be another tragedy if, amid the polarising furor caused by the ICC's action, the people of Darfur were to again become victims of misdirected political and diplomatic priorities. The ICC rhetoric of "No peace without justice," if not backed by the political will of the big powers, may end up jeopardising both.
*with additional reporting from Skye Wheeler in Juba
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