Bringing Omar al-Bashir to justice
Omar Hassan Ahmad al-Bashir is wanted by the International Criminal Court (ICC). The court’s prosecutor alleges that al-Bashir has “criminal responsibility for the crime of genocide … killing members of the Fur, Masalit and Zaghawa ethnic groups … causing serious bodily or mental harm to members of those groups, and deliberately inflicting on those groups conditions of life calculated to bring about their physical destruction in part”.
As this article is published, al-Bashir appears to be in South Africa. Proceedings in the Pretoria High Court over the next few hours and perhaps days might determine if he will face justice.
On 29 June 1989 al-Bashir was a colonel in the Sudanese army. The next day he became president of Sudan via a coup. He has held that position since then, bringing misery to the Sudanese people on a grand scale in the following 26 years.
In 2005 the United Nations Security Council requested the prosecutor of the International Criminal Court, Luis Moreno‐Ocampo, to investigate whether genocide had taken place in Darfur in the west of Sudan from July 2002. On 14 July 2008 the prosecutor applied for a warrant of arrest for al-Bashir.
A press release by the prosecutor’s office said:
For over 5 years, armed forces and the Militia/Janjaweed, on [al-Bashir’s] orders, have attacked and destroyed villages. They then pursued the survivors in the desert. Those who reached the camps for the displaced people were subjected to conditions calculated to bring about their destruction. [Al-Bashir] obstructs international assistance. His forces surround the camps. One victim said: ‘When we see them, we run. Some of us succeed in getting away, and some are caught and taken to be raped — gang-raped. Maybe around 20 men rape one woman. … These things are normal for us here in Darfur. These things happen all the time. I have seen rapes too. It does not matter who sees them raping the women — they don’t care. They rape girls in front of their mothers and fathers’. …. millions of civilians have been uprooted from lands they occupied for centuries, all their means of survival destroyed, their land spoliated and inhabited by new settlers.
The prosecutor said, “In the camps al-Bashir’s forces kill the men and rape the women. He wants to end the history of the Fur, Masalit and Zaghawa people. I don’t have the luxury to look away. I have evidence.”
Importantly, the prosecutor found that while al-Bashir did not himself actually go to Darfur and kill people directly, he “masterminded and implemented a plan” to carry out the destruction of the Fur, Masalit and Zaghawa people.
The prosecutor’s evidence consists of testimonies of survivors and members of the Sudanese government, as well as Sudanese government and United Nations documents.
The number of people killed in the Darfur genocide is disputed but it likely numbers several hundred thousand.
On 4 March 2009, the ICC issued a warrant of arrest for al-Bashir. On 12 July 2010 it issued a second warrant. He is wanted by the court on five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. These are not arbitrarily defined crimes; they have precise meanings in terms of the Rome Statute which governs the ICC, and came into force on 1 July 2002.
South Africa and the ICC
The ICC began its official existence in April 2002. Tom Wheeler of the South African Institute of International Affairs explains that South Africa actively participated in the negotiations that led to the court. The text of the Rome Statute was adopted in 1998, with only China, Iraq, Israel, Libya, Qatar, United States, and Yemen opposing. South Africa voted in favour of the Rome Statute in 1998 and ratified it on 27 November 2000. South African jurors, such as Navi Pillay, have sat on the court. Wheeler notes that citizens of Mali, Uganda, Kenya, Ghana, and Botswana have also been judges.
Events in the past few days
The 25th African Union summit was held in Johannesburg from 7 to 15 June. At some point during this time Al-Bashir arrived in South Africa for the meeting. On Sunday 14 June the Southern African Litigation Centre (SALC) brought an urgent application to the Pretoria High Court. SALC wants the South African government to execute the arrest warrants against al-Bashir and hand him over to the ICC. The application has been set down for Monday 15 June (the time of writing this article), with Judge Fabricius making an interim order preventing the Sudanese president from leaving the country. The legal details are explained by Michael Power on the African Legal Centre’s website.
In the late afternoon of 14 June there were rumours that al-Bashir had slipped out the country, but at the time of writing, it appears he is still here. As Power explains, countries that have ratified the Rome Statute are legally obligated to co-operate with the ICC. Power notes, “in terms of Article 59, a ‘State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question’. And, in terms of Article 89, “States Parties shall … comply with requests for arrest and surrender.’”
Power writes, that the Constitutional Court “unambiguously stated that the Rome Statute and the ICC Act can effectively be implemented in South Africa.” This was in a unanimous decision last year dealing with the obligation of the South African police to investigate torture in Zimbabwe.
Editor’s comment
Whatever the outcome of the current litigation concerning al-Bashir, the just action for the South African government would be to arrest him and hand him over to the ICC for prosecution. If al-Bashir is innocent of the crimes with which he is charged, which is extremely unlikely, he can plead his case at the ICC. The fact is that this man has very likely been responsible for genocide. (Some will respond that we must presume al-Bashir is innocent until proven guilty. The ICC certainly must, but we, ordinary members of the public concerned with justice, do not have to presume his innocence, just as we do not presume it for Hitler, Stalin, Pol Pot, Verwoed, Mao Zedong, Nixon, Kim Jong-il, Netanyahu and many of the other grave human rights abusers of the past 100 years.)
The argument by some African politicians, and by quite a number of people on Twitter and Facebook, that the ICC is biased against Africa is not a reason to let al-Bashir go free.
First, as explained above, African countries have participated in the ICC’s proceedings. South Africa actively supported it, perhaps at a time when we imagined ourselves to be a very different player on the international stage to the one we’ve become. By contrast, the United States refused to ratify the ICC. To argue that the ICC is predominantly an instrument of imperial power instead of justice is to misunderstand its history, and has the potential to become a self-fulfilling prophecy if this attitude results in African countries ignoring their ICC obligations.
Second, it does not further Africa’s interests to protect despots who commit mass murder against the people of this continent; it only protects the despots themselves at the expense of Africa’s future. It does not serve the people of Darfur to let al-Bashir go; it serves al-Bashir. We need to create disincentives to prevent genocide, and prosecution is one way to do that.
The argument is made why is Tony Blair not facing justice for the British government’s activities in relation to the invasion of Iraq. We could add, why isn’t Billy Clinton facing justice for bombing a Sudanese medicine factory in 1998 (an event that occurred before the ICC’s jurisdiction)? The answer is that dealing with the imbalance in justice across the world is not served by refusing to act against those we have the power to bring to justice. And if African countries, particularly South Africa, begin to act consistently with respect to international human rights, it can only improve our ability to influence matters of justice across the world.
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