OMAR AL-BASHIR: AS A THIEF IN THE NIGHT

By René Wadlow

In what was almost a “Pinochet moment” in South Africa, a South African nongovernmental organization (NGO), Southern African Litigation Centre, requested a South African court to serve two International Criminal Court (ICC) arrest warrants against President Omar al-Bashir of Sudan. The South African Supreme Court issued an order that al-Bashir not leave South Africa until the Supreme Court had been able to decide on the validity of the request. Al-Bashir had been in Johannesburg, South Africa, to participate in the yearly Summit of the African Union (AU). Al-Bashir left by his governmental jet on June 13 before the Supreme Court was able to meet.

The ICC arrest warrants of 2009 issued by a panel of three judges contains seven charges including crimes against humanity, murder, extermination, forcible transfer, torture, rape, attacks against civilian populations and pillaging. The through examinations of the evidence presented by the then Chief Prosecutor of the ICC confirmed the statements which NGOs, including the Association of World Citizens (AWC), had been making to the United Nations (UN) human rights bodies in Geneva since early 2004.

The charges against al-Bashir concern the conflict in Darfur which began in 2003 and not the 1982-2005 civil war between north and south Sudan which led to the creation of a separate State of South Sudan in 2011. The 1982-2005 civil war was the second half of a civil war which had started in 1954 on the eve of the independence of Sudan which was granted in 1956. The 1954-1972 war was stopped when a ceasefire largely organized by the World Council of Churches came into force. Unfortunately, the ten years of “non-war” were not used to deal with the basic issues of the structure of the State and the need for regional autonomy in light of the cultural-ethnic differences within the State. Thus in 1982 the civil war started again during which there were many violations of the laws of war (now usually called humanitarian law). The north-south civil war violations are not part of the ICC charges which concern only the Darfur conflict.

It was Baltasar Garzon, a Spanish judge, who in 1998 urged the United Kingdom to arrest Chile’s former military ruler Augusto Pinochet while he was on British soil, hoping to make him accountable for his deeds as leader of the country’s brutal military dictatorship from 1973 to 1989. Although the British government eventually allowed Pinochet to return to Chile without being prosecuted, the case did set a precedent in international law against enduring impunity for human rights violators. (C) AFP

Darfur (the home of the Fur) was always marginal to the politics of modern Sudan. In the 19th century, Darfur, about the size of France, was an independent Sultanate loosely related to the Ottoman Empire. Darfur was on a major trade route from West Africa to Egypt and so populations from what is now northern Nigeria, Niger, Mali and Chad joined the older ethnic groups of the area: the Fur, Massalits, Zaghawa, and the Birgit.

France and England left Darfur as a buffer zone between the French colonial holdings − what is now Chad − and the Anglo-Egyptian controlled Sudan. French-English rivalry in West Africa had nearly led earlier in the 1880s to a war. Thus a desert buffer area was of more use than the low agricultural and livestock production would provide to either colonial power. It was only in 1916 during the First World War when French-English colonial rivalry in Africa paled in front of the common German enemy that the English annexed Darfur to the Sudan without asking anyone in Darfur or in the Sudan if such a ‘marriage’ was desirable.

Darfur continued its existence as an environmentally fragile area of Sudan. It was marginal in economics but largely self-sufficient. Once Sudan was granted its independence in 1956, Darfur became politically as well as economically marginal. Darfur’s people have received less education, less health care, less development assistance and fewer government posts than any other region.

In 2000, Darfur’s political leadership and intellectuals met to draw up a ‘Black Book’ which detailed the region’s systematic under-representation in the national government since independence. The ‘Black Book’ marked the start of a rapprochement between the Islamists and the secular radicals of Darfur which took form three years later with the rise of the more secular Sudan Liberation Army (SLA) and the Islamist-leaning Justice and Equality Movement (JEM). However, at the level of the central government, the ‘Black Book’ led to no steps to increase the political and economic position of Darfur. This lack of reaction convinced some in Darfur that only violent action would bring about recognition and compromise as the war with the South had done.

Members of the Sudanese Liberation Army in Susuwa, north Darfur. (C) Candace Feit/Reuters

The two Darfur groups, SLA and JEM, in 2002 started to structure themselves and to gather weapons and men. Their idea was to strike in a spectacular way which they hoped would lead the government to take notice and to start wealth-sharing negotiations. Not having read the ‘Little Red Book’ of Mao, they did not envisage a long drawn-out conflict of the countryside against the towns of Darfur. By February 2003, the two groups were prepared to act, and in one night attacked and destroyed many of Sudan’s military planes based at El Fasher. The Sudan military lost in one night more planes than it has lost in 20 years of war against the South.

However, the central government’s ‘security elite’ − battle hardened from the fight against the South but knowing that the regular army was over-extended and tired of fighting − decided to use against Darfur techniques that had been used with some success against the South: to arm and to give free reign to militias and other irregular forces.

Thus the government armed and directed existing popular defense forces and tribal militias. Especially the government also started pulling together a fluid and shadowy group, now called the Janjaweed (“the evildoers on horseback”). To the extent that the make-up of the Janjaweed is known, it seems to be a collection of bandits, of Chadians who had used Darfur as a safe haven for the long-lasting insurgencies in Chad and the remains of Libya’s Islamic Forces which had once been under the control of the Libyan government but left wandering when Libyan policy changed.

A member of the murderous, death-sowing Janjaweed militia of Sudan. (C) Sudan Tribune

The Sudanese central government gave these groups guns, uniforms, equipment and indications where to attack by first bombing villages but no regular pay. Thus the Janjaweed militias had to pay themselves by looting houses, crops, livestock, by taking slaves and raping women and girls. Village after village was destroyed on the pretext that some of the villagers supported either the SLA or the JEM; crops were burned, water wells filled with sand. As many people as possible fled to Chad or to areas thought safer in Darfur. The current situation in 2015 in Darfur remains complex and will be described in a later article.

The crimes which the ICC investigated and issued the arrest warrants concern the earlier 2004-2005 period. Although the SLA and the JEM have now divided into numerous armed groups, the type of violations of the laws of war continue and are about the same. There is a certain irony that the crimes cited by the ICC were less the work of the Sudanese Army which is more or less under the command of al-Bashir than of the Janjaweed. However, al-Bashir as President is responsible for all activities in Sudan.

President al-Bashir of Sudan may have escaped arrest and prosecution in South Africa, but now he is warned: Whatever country he may visit in the near future, he is no longer guaranteed to freely fly back to Sudan and avoid answering for his crimes back home.

For the moment, the ICC has dropped active involvement in the al-Bashir case due to the impossibility of an arrest and a trial. Al-Bashir proclaimed that the recent dropping of the case was the same as being declared “innocent” but it is not. He had no doubt checked with the South African government what its policy would be in practice if he went there for the AU Summit. He must have been told that all the police in South Africa have a blind eye and would not see him coming or going. The government did not expect an NGO action or the Supreme Court order. But the South African police all do have a blind eye, and as a thief in the night, al-Bashir returned to Sudan.

Prof. René Wadlow is President and Chief Representative to the United Nations Office at Geneva of the Association of World Citizens.