Serbia's Slobodan Milosevic and Liberia's Charles Taylor were charged with crimes against humanity and war crimes while still in power but not genocide. It is likely that the panel of judges will take two months to weigh the evidence and then grant the arrest warrant as they have the 11 requests made to date.
In reading the news, I had a touch of "I told you so" and disappointment that the voices of non-governmental representatives do not carry the same weight as that of official government-created bodies, such as the ICC. Shortly after the armed conflict began in Darfur and on the basis of UN staff I knew in Darfur, I began speaking in the United Nations human rights bodies of the danger of genocide and the need to apply the provisions of the 1948 Genocide Convention. (1).
In a written statement of July 9, 2004 to the Sub-Commission on the Promotion and Protection of Human Rights (E/CN.4/Sub/2004/NGO/24) - the first NGO presentation on the issue, I wrote quoting our Appeal of April 13, 2004 "Darfur, Sudan: Non-impunity and Prosecutions for Genocide" where we had stressed the systematic nature of the violence against the Fur, Massaleit, Zayhawa and related peoples such as the Birgit. I set out " the four aspects of the Darfur situation which demand prompt and concerted action: by the United Nations system, the African Union, the Organization of the Islamic Conference, the Arab League and the Non-Governmental Organization community:
a. disarmament and disbanding of the Janjaweed militias who are prime agents of the genocidal violence;
b. unhindered relief, the return of refugees and internally displaced persons to their homes;
c. a start of ecologically-sound development for the area based on the complementary relations between agriculturalists and pastoralists;
d. an end to impunity and a structuring of prosecution for crimes against humanity and genocide."
I recalled the provisions of the Convention for the Prevention and Punishment of the
Crime of Genocide presented on December 9, 1948, the day prior to the Universal Declaration of Human Rights.
"The Genocide Convention in its Article III states that the following acts shall be punishable:
b. Conspiracy to commit genocide;
c. Direct and public incitement to commit genocide;
d. Attempt to commit genocide;
e. Complicity in genocide."
Article IV states that "Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Article VIII of the Convention states "Any Contracting Party may call upon the competent organs of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III."
After citing the evidence from public UN staff reports, I wrote "The evidence of systematic actions - to quote from Article II of the Genocide Convention committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such - is clear. What is less clear is the determination of the Member States of the United Nations to act to end this violence. Until now, the efforts of governments in Darfur have been inadequate as reliable reports indicate that human rights violations have grown worse. The Genocide Convention provides an adequate framework for urgent action. Only one State needs to call on the United Nations to act under Article VIII. We need political will for rapid UN action to strop genocide in Darfur now - and not after it is all over, when that cry will go up, as in the past 'Never Again!'
A month after our April 13, 2004 Appeal, the Acting High Commissioner for Human Rights, Dr Bertrand Ramcharan, firmly stressed the Darfur situation in its harshest light "First, there is a reign of terror in this area: second, there is a scorched-earth policy; third, there is repeated war crimes and crimes against humanity; and fourth, this is taking place under our eyes." (2)
However, governments were able to avert their eyes, and no government invoked the Genocide Convention. Basically, the argument given in private was that there were not enough people killed to be able to call it genocide. It is true that more people have been killed and died from war-related famine and disease in the eastern areas of the Democratic Republic of Congo. However, there may not be a genocidal intent in the Congo, though some of the killing there is a spill-over related to the genocidal intent in Rwanda and Burundi. As I tried to point out, it is not the number of people who are killed that counts for it to be genocide but rather if those killed or who die endanger the existence of the group as a separate people. The destruction of a people comes when the culture cannot be passed on from one generation to the next. In the Darfur-Sahel societies, culture is passed on from one generation to the next by those who hold the knowledge of clanic lore - of history, legal codes and relations between clans. Little, if any, of this is written. It is passed on from one generation to the next by chiefs and clan heads, and by those initiated into secret societies. It is the older persons who know the special rituals linked to agriculture and cycle of life events - as birth, marriage, and death. Yet it is often the elders who are deliberately killed first, or die of malnutrition and disease. As Amadou-Hampate Ba, a philosopher from the Sahel said "An old man who dies is a library which burns." Thus, the Darfur tribal societies are in real danger of extinction, not only because of the large number of people being killed and displaced but because those who can pass on the culture are the most fragile.
Governments have often been unwilling to use the international legal structures which they themselves have created. In the face of the unwillingness of any State to invoke the Genocide Convention, I looked for other possibilities, in particular the urgent procedures mechanisms of the Committee for the Elimination of Racial Discrimination. (3)
In 2005, the UN Commission of Human Rights in its resolution on Sudan underlined the importance of the UN Security Council's March 31, 2005 decision to send to the International Criminal Court the Darfur situation. It is on the basis of this resolution that the ICC began collecting evidence that led to Luis Moreno-Ocampo's charge against al-Bashir.
As with the change of name from the Organization of African Unity to the African Union, so the name of the UN Commission on Human Rights was changed in 2006 to the Human Rights Council without producing radical changes in operation. The UN Human Rights Council, with 47 members, held a two-day Special Session devoted to Darfur on December 12-13 2006. A Special Session is the 'highest profile' event which UN human rights bodies can organize, and in the Commission on Human Rights' 61-year history, there were very few. The Special Sessions on former Yugoslavia and Rwanda were outstanding events. The transition from the Commission to the Human Rights Council at the start of 2006 required writing new rules of procedure. The holding of Special Sessions was made easier by lowering the number of States needed to sign a request to hold a Special Session.
At the end of the two-day Special Session on Darfur, the Human Rights Council established a High Level Mission of five persons to assess the situation and to make recommendations. The High Level Mission worked for one month from 5 February to 5 March 2007 in Geneva, in Addis Ababa for meetings with African Union officials, and in the refugee camps in eastern Chad. The UN High Level Mission, despite frequent requests, was not given visas to enter Sudan. The leader of the mission was Professor Jody Williams, the 1997 Nobel Peace Laureate for her work on a ban on the use of landmines. A key member was Dr Bertrand Ramcharan, former Acting High Commissioner for Human Rights and a leading specialist on UN human rights procedures.
Concerning the situation in Darfur, the High Level Mission confirmed what was already well known from other UN reports and from humanitarian aid agencies. There is a high level of destruction, millions of people are displaced and a large number of people have been killed. There is a refugee flow to Chad and a danger of the conflict spreading to Chad and the Central African Republic. The High Level Mission also indicated that the responses of the Sudanese government are inadequate. Their report stated that "Mechanisms of justice and accountability, where they exist, are under-resourced, politically compromised and ineffective. The region is heavily armed, further undercutting the rule of law, and meaningful disarmament and demobilization of the Janjawiid, other militias and rebel movements is yet to occur. Darfur suffers from longstanding economic marginalizatin and underdevelopment, and the conflict has resulted in further impoverishment."
Unfortunately, the report of the High Level Mission received a minimum of follow up. Action was blocked by a coalition of African and Arab States members of the Human Rights Council.
We will have to watch closely the next steps following Luis Moreno-Ocampo's request. There are those critics who say that the arrest warrants will harm the mixed African Union-UN peacekeeping force in Darfur and may put in greater danger the work of the humanitarian relief organizations. However, the effectiveness of the peacekeepers is very limited. I believe that if governments and NGOs act early in a conflict situation, there is a greater possibility for constructive action. In 2004, I thought that there were real possibilities for a compromise settlement in Darfur based on power and revenue sharing. Today, I see only a trend to greater disintegration, of violence and counter violence.
Darfur will be a key test for the effectiveness of the ICC and its possibility of arresting a Head of State. In the other two cases of warrants against Heads of State, the power base of the leader was divided. There was always an opposition to Slobodan Milosevic and after he was served with an arrest warrant by the International Criminal Tribunal for former Yugoslavia in 1999, the opposition gained in confidence until Milosevic was forced from power. Charles Taylor was still president of Liberia when the Tribunal on Sierra Leone called for his arrest, but Taylor had no political base. He governed through creating allies with money and business opportunities and a palace guard. It is difficult to know what sort of power base al-Bashir has. Al-Bashir came to power in a military coup in 1989 as a front man for Hassan al-Turabi and his National Islamic Front. Turabi had developed his ideology and had placed his followers over many years in many key positions.
However, in 2001, there was a break between al-Turabi and al-Bashir. Turabi was placed under house arrest, and many of his close associates were put into prison. It is not clear to what extent al-Bashir has been able to build his own power base since 2001. There are a number of possibilities in the near future, but two stand out. The first is that al-Bashir has a political base and that he is able to play a nationalist card 'All the world is against us, so you must stand by me'. The second possibility is that he has a weak base and that the military thinks he is more trouble than he is worth. In which case, the military will push him out. Sudan merits close watching in the weeks ahead.
1. See William A. Schabas Genocide in International Law (Cambridge:Cambridge University Press, 2000, 624pp.)
2. Associated Press report, 8 May 2004
3. For an earlier proposal to use this mechanism see E/CN/1999/NGO/4 .
Also see Chad: Crossing the Chari by Rene Wadlow.
Rene Wadlow, Representative to the United Nations, Geneva, Association of World Citizens and editor of the on-line journal of world politics and culture: www.transnational-perspectives.org