Originally published on the CGS blog on June 24, 2015.
In what was almost a “Pinochet moment” in South Africa, the 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 Bashir not leave the country until the court decided on the validity of the request. The president had been in Johannesburg, South Africa, to participate in the yearly Summit of the African Union (AU). He left on his governmental jet on June 13 before the Supreme Court was able to meet.
The ICC arrest warrants of 2009 contain seven charges, including crimes against humanity, murder, extermination, forcible transfer, torture, rape, attacks against civilian populations, and pillaging. The thorough examinations of the evidence presented by the then Chief Prosecutor of the ICC confirmed the statements, which NGOs, including the Association of World Citizens, had been making to the UN human rights bodies in Geneva since early 2004.
The charges against Bashir concern the conflict in Darfur which began in 2003, not the 1982-2005 civil war that led to the separation of South Sudan in 2011. This civil war was the second half of a conflict from 1954-1972, which ended with a ceasefire largely organized by the World Council of Churches.
Unfortunately, the 10 years of “non-war” were not used to deal with basic issues of state structure and the need for regional autonomy in light of cultural-ethnic differences. Thus in 1982, the civil war started up 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 only in 1916 during the First World War the English annexed Darfur to Sudan without asking either party if this union was desirable. When Sudan was granted 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. 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, the “Black Book” led to no steps by the central government to increase the political and economic position of Darfur. This convinced some in Darfur that only violent action would bring about recognition and compromise as the war with the South had done.
After gathering weapons and soldiers, the SLA and JEM attacked and destroyed many of Sudan’s military planes based at El Fasher one night in 2003. 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” 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, including the Janjaweed—a collection of bandits, Chadian refugees, and remains of Libya’s Islamic Forces.
The Sudanese government gave these groups guns, uniforms, equipment and attack locations, but no regular pay. Thus the Janjaweed militias paid themselves by looting houses, crops, and livestock; 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. Anyone who could fled to Chad or to areas thought safer in Darfur. The current situation in Darfur remains complex and will be described in a later article.
The crimes the ICC investigated and issued the arrest warrants for concern the earlier 2004-2005 period. Although the SLA and the JEM have now divided into numerous armed groups, the violations of humanitarian law continue. 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 Bashir—than the Janjaweed. However, as President, Bashir is responsible for all activities in Sudan.
For now, the ICC has dropped active involvement in the Bashir case due to the impossibility of an arrest and trial. This is not, as Bashir claimed, the same as being declared innocent. 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 the police in South Africa would look the other way. The government did not expect NGO action or the Supreme Court order. But the South African police did turn a blind eye, and, like a thief in the night, Bashir returned to Sudan.
