Justice and its discontents
THE International Criminal Court (ICC) has hurled its noose yet again, this time over a sitting head of state, Sudan's Omar Hassan al-Bashir. It has split the world into two camps, with big players such as China, the Arab League and the African Union trying to delay the arrest and the others slapping accusations on them for loosening the reins of justice.
Whatever their (vested) interests may be, has the distinction between right and wrong been so clearly drawn? How credible is the ICC's style of justice? Most importantly, what will be the consequences of this indictment on the civilians in Darfur and in Sudan?
The ICC establishment in 1998 came as a massive breakthrough for criminal justice. Its legal mandate covered heinous crimes. Unlike other ad-hoc tribunals, such as in Rwanda and Yugoslavia, the ICC was a permanent tribunal. It provided a platform to root out the culture of impunity and deter future crimes.
Yet, with an Orwellian twist, the world's biggest and mightiest exempted their actions from the scrutiny of the ICC. The US, China, Russia, India, Pakistan and Israel among others have either not signed or not ratified the instrument, making a mockery out of global justice.
Since the ICC's jurisdiction extends only to territories or nationals of states that have acceded to the ICC Statute, the bigwigs remain out of its radar despite their records of violence. On the contrary, ICC prosecutions have targeted weak and dysfunctional states, mostly concentrated in Africa. This is no less than selective justice.
When justice rears its head, there is a temptation to simplify good and evil; to expedite the process and secure quick results. The ICC's assessment of the conflict in Darfur has been seen in a similar light, devoid of historical and political context. A professor of Columbia University, Mahmood Mamdani, has revealed several factual inaccuracies in the evidence presented by the ICC prosecutor Luis Moreno-Ocampo.
He accuses al-Bashir for promoting a racialisation of identities between the Arabs and the non-Arab Zurgas or Africans. History is witness that this racialisation had its roots in the British colonial period and provided the frame for government policy.
Similarly Ocampo accuses al-Bashir of ethnic cleansing through land grabbing. Mamdani again refutes this claim by showing that land grabbing was a consequence of historical events beginning from the colonial designation of land to rapid desertification during the mid-'80s, and finally the counterinsurgency that the Bashir regime unleashed in 2003-04 as a response to the insurgency backed by peasant tribes.
These arguments do not exonerate al-Bashir of his crimes. Rather they necessitate that the punishment be proportionate to the crime committed. As it stands now, the ICC's take on justice seems to be politicised, which will almost certainly undermine its legitimacy.
Bashir's defiant reaction to the ICC decision was to tell his supporters to "immerse it in water and drink it." He expelled 13 major international aid agencies along with a few local ones. These agencies provided much of the food, water and medicine to the 2.75 million refugees who live in temporary camps in Darfur. The Sudanese government has no contingency plan to replace these essential services.
This should have been anticipated, for peace and justice in Africa have often been perceived as mutually exclusive. Human rights workers and humanitarian actors perpetually face moral and ethical dilemmas, as denouncing human rights abuses risks endangering crucial access to victims of a conflict. That is precisely what has happened in Sudan. The ICC indictment has unleashed a humanitarian crisis and peace seems beyond the horizon.
These arguments are not to stifle the quest for justice but to make a careful assessment of the credibility and consequences of it, which will ultimately be borne by the victims of the Darfur conflict. Prosecutions by international tribunals may actually create stumbling blocks for more politically realistic alternatives to address past grievances, including amnesty, exile or lustration.
Africa has seen its share of peace deals that have been achieved without retribution, such as in Mozambique and Sierra Leone where the RENAMO and RUF respectively were incorporated into government and are now the official opposition. Similarly, for the leaders of the ANC in South Africa, the choice to forego prosecutions against the former leaders of apartheid was considered crucial for a peaceful and workable transition.
These are not generalisable to every conflict ridden state in Africa. But these difficult choices were made to avoid a far greater humanitarian and political crisis. Whether the current situation in Darfur warrants a similar choice is a question that should be answered immediately. That would do more for securing justice for the victims and survivors of this conflict.