If you listen to all the hype since the International Criminal Court (ICC) prosecutor called for charges against Sudan's President al-Bashir, then you might believe that any real chance of stability in the war-torn region of Darfur is now lost forever. Prosecutor Luis Moreno Ocampo's recent dramatic announcement that he is seeking an arrest warrant for genocide, crimes against humanity and war crimes for Bashir, the sitting head of state, has become a lightning rod for Court-bashing and panic-mongering that such justice would be at the expense of peace in Darfur.
Has the prosecutor, as many have argued, made a misstep, acted beyond his competences, misjudged the situation and destroyed the chances for peace? Hardly. In this case, the prosecutor's authority to act was bestowed upon his office by the United Nations Security Council (UNSC) who by resolution 1593 enabled his office to investigate past and present crimes and bring about an end to impunity in Darfur, while demanding full compliance by the Government of Sudan (GOS). The Council's action came after a 2005 Commission of Inquiry found widespread and systematic crimes and urged the Council to refer the Darfur case to the Court, because it would be "conducive, or contribute to, peace and stability in Darfur by removing serious obstacles to national reconciliation and the restoration of peaceful relations." The prosecutor's decision to move to the top of the food chain with his indictment of Bashir was taken only after his first set of indictments of two ‘middle men': Ali Kushaby, a Janjawid colonel, who was accused of leading the attacks against four villages, but was subsequently released by GOS for ‘lack of evidence;' and Ahmad Harun, former Minister of the State for the Interior, later promoted to Minister of State for Humanitarian Affairs - a position meant to provide assistance to the Darfuri people - who was indicted for rape, torture and murder.
In seeking Bashir's arrest, the prosecutor addressed the mass of evidence that he and his team had gained from a variety of sources since 2003, which document atrocities that Bashir allegedly committed when he was the commander of the Sudan's civil and military apparatus. Specifically, they point to his role in masterminding a plan to eradicate Fur, Masalit and Zaghawa ethnic groups. Acting on the pretext of counterinsurgency, Bashir caused millions of civilians to be uprooted from their lands, destroyed their means of survival and condemned them to certain death in the desert or in the overcrowded camps. As if this wasn't enough, Bashir employed what Ocampo asserts was control of the state apparatus in order to subject the survivors living in displacement camps to rape, hunger and even more attacks - and therefore eventually bring about their physical destruction.
Some have argued that the prosecutor has misjudged the situation, which arguably now looks very different from the way it did between 2003 and 2005, when a scorched earth policy, intended to eradicate these ethnic groups, resulted in massive numbers of deaths. The linchpin of these arguments is that a post-2005 Darfur cannot be described as experiencing genocide but instead resembles a messier complex emergency. Even if this is true, the fact that genocidal acts may have been commissioned by the head of state at any time between 2003 and 2008 - the dates covered by the indictment - justifies Ocampo in making his case to the three judges of the Pre-Trial Chamber which will validate the charges.
In the delicate matter of managing peace and security, timing is an important factor. This prompts the simple question of whether this really is the right time to go after Bashir. Ocampo's view is that as the prosecutor, with such evidence in his hand, he has a duty to act and he does not have "the luxury to look away." Not to mention that the longer you wait to prosecute, the harder it is to prove your case - witnesses move away, survivors die and evidence dries up. Ocampo, who also believes that he has a duty to contribute to the prevention of crime, has pointed out that every day when Bashir remains free enables him to engage in the further commission of hostilities and abuses.
The flip side of this equation is that seeking such a prosecution now, while Bashir remains at the helm of the Sudanese state, will put the people of Darfur at further risk and will inspire retaliation. While it is true that one senior Sudanese official has issued a thinly veiled threat to the AU-UN peacekeepers operating in the country, this threat has not been carried out. Nor were the peacekeepers safe before the Prosecutor's indictment. On July 8th, for example, seven African peacekeepers were killed and others critically wounded, while another was shot dead a few days later. These events were extremely unfortunate, but threats to peacekeepers are neither new nor solely caused by the threat of ICC prosecution. Many fear that indictment would limit the possibility of humanitarian assistance , however, this is something Bashir accomplished long ago by placing an indicted war criminal, Ahmad Harun, in charge of humanitarian affairs.
Sudan's UN ambassador has charged that the ICC will have "disastrous consequences" on the peace process in Darfur. This could only be true if there was evidence of a real and substantive peace process in the first place. In reality, however, the Darfur Peace Agreement (DPA) languishes without judicial provisions and two alleged abusers are the sole signatories-President Bashir's government and the rebel leader Minni Minawi, now a conspirator of Bashir, who has been accused of heinous crimes himself.
Holding Bashir accountable for his acts may be the only way to achieve real and substantive peace in Darfur. That is why the United States, which says it wants the ICC work on Darfur to succeed, as well as its fellow Security Council members, must not suspend the prosecution of Bashir as a threat to international peace and security under Article 16 of the ICC's Rome Treaty.
Ariela Blätter, a human rights lawyer, is the Director of the Crisis Prevention and Response Center at Amnesty International (AI). She serves on the US Genocide Prevention Task Force and launched AI's acclaimed project "Eyes on Darfur," using satellite technology to monitor human rights violations. The views expressed here are her own.
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