Global Policy Forum

By Mahmood Mamdani

When former South African President Thabo Mbeki makes the African case for a postponement of the International Criminal Court's (ICC) indictment of President Omar al-Bashir of Sudan, what can he say with dignity and foresight? To begin with, he should remind his audience that nowhere in the world have rights existed outside an enabling political context. No democracy enforces a fixed standard of rights regardless of the country's political context. Few can forget how the Bush administration diluted the Bill of Rights in the interest of pursuing Homeland Security. In the relation between law and politics, politics is always paramount. Precisely because the struggle for rights is a political struggle, enforcers of rights – and not just its violators – need to be held politically accountable lest they turn rights enforcement into a private vendetta.

Mbeki can then share with his audience the lessons Africans have learned in the struggle for peace and justice over the past several decades. Contrary to what many think, this lesson is not that there needs to be a trade-off between peace and justice. The real trade-off is between different forms of justice. This became evident with the settlement to end apartheid. That settlement was possible because the political leadership of the anti-apartheid struggle prioritised political justice over criminal justice. The rationale was simple: where there was no victor, one would need the cooperation of the very leaders who would otherwise be charged with war crimes to end the fighting and initiate political reforms. The essence of Kempton Park can be summed up in a single phrase: forgive but do not forget. Forgive all past crimes – in plain words, immunity from prosecution – provided both sides agree to change the rules to assure political justice for the living.

The South African lesson has guided African practice in other difficult situations. In Mozambique Renamo sits in parliament instead of in jail or in the dock. In South Sudan, too, there would have been neither peace nor a reform of the political system without an agreement not to pursue criminal justice. Why not in Darfur? Mbeki would also be well advised to keep in mind that in the court of public opinion – unlike in a court of law – the accused is considered guilty until proven innocent. The public needs to be reminded that when the justices of the ICC granted the prosecutor's application for a warrant to arrest the president of Sudan, they were not issuing a verdict of guilty. The justices were not meant to assess the facts put before them by the prosecutor, but to ask a different question: if those facts were assumed to be true, would the president of Sudan have a case to answer? Unlike court, which took the facts for granted at the pre-trial stage, we need to ask: to what extent are these facts true? And, to the extent they are true, are they the whole truth?

The Prosecutor's Case

The prosecutor's application charged President al-Bashir with: a) polarising Darfuri tribes into two races (Arab and Zurga or Black); b) waging a violent conflict (2003–2005) leading to the ethnic cleansing of Zurga ethnic groups from their traditional tribal lands; and c) planning the malnutrition, rape and torture of internally displaced persons (IDPs) so as to 'slow death' in the camps, a process that the prosecutor claimed went on from 2003 to the time the application was submitted in 2008. The racialisation of identities in Darfur had its roots in the British colonial period. As early as the late 1920s, the British tried to organise two confederations in Darfur: one 'Arab', the other 'Zurga' or black. Racialised identities were incorporated in the census and provided the frame for government policy and administration. In spite of official policy, Arabs never constituted a single racial group. Contemporary scholarship has shown that the Arab tribes of Sudan were not migrants from the Middle East but indigenous groups that became Arabs starting in the 18th century. This is why there can be no single history of Arab tribes of Sudan. Little unites privileged sedentary tribes of riverine Sudan and impoverished nomads of Western Sudan. Unlike the Arabs of the riverine north, who have tended to identify with power, the Arabs of Darfur are the most marginalised group in a marginalised province. The largest of the Arab tribes in Darfur, the cattle nomads of the south, were never involved in the government-organised counterinsurgency. Those involved – the camel nomads of the north and refugees from Chad – were from among the poorest of the poor. The idea that the Arabs of Darfur were part of a single cohesive 'Arab' bloc facing 'black Africans' is a recent invention driven mainly by an external media, and now by the ICC. Its main effect has been to demonise 'Arabs' and to obscure the real causes of the conflict.

Who, then, has been fighting whom in Darfur, and why? The short answer is that this has been a conflict over land, triggered by four different but related causes: the land system, environmental degradation, the spillover of the four decade-long civil war in Chad and the brutal counterinsurgency waged by the al-Bashir government in 2003 and 2004. The deep cause was the colonial system, which reorganised Darfur as a discriminatory patchwork of tribal homeland where settled peasant tribes were granted large homelands in which they were considered natives. In contrast, camel nomads with no settled villages found themselves without a homeland and so were not acknowledged as natives anywhere. When it came to granting access to land, participating in local administration and the resolution of local disputes, homeland administrations favoured so-called native over non-native tribes. The second cause of the conflict was desertification. Studies from the United Nations Environment Programme show that the Sahara expanded by 100km in four decades, and that this process reached its high point in the mid-1980s, pushing all tribes of North Darfur to more fertile lands further south. The resulting land conflict was not between races, Arab and Zurga, but between tribes with homelands and those without. Contemporary observers such as the Darfuri anthropologist Sharif Harir traced the unprecedented brutality of the violence in the 1987–1989 war to the fact that sheer survival was at stake.

The third was the Cold War, with its two sides – the tripartite alliance of Reaganite United States, France and Israel on the one hand, and Libya backed up by the Soviet Union on the other – arming different factions in neighbouring Chad. As successive armed groups took turns ruling Chad, opposition groups took shelter in Darfur, where they mobilised and armed. The easy availability of arms rapidly militarised the inter-tribal conflict in Darfur. Regional and international powers got involved in the Darfur conflict long before the Khartoum government did, but no one reading the prosecutor's application would be aware of this fact. The final cause that aggravated the land conflict in Darfur was the brutal counterinsurgency unleashed by the al-Bashir regime in 2003 to 2004 in response to an insurgency led by three major tribes in the region: the Fur, the Masalit and the Zaghawa.

Four Wrong Assumptions

The prosecutor's application makes four erroneous assumptions, all of them so he can pin the full blame of the violence on al-Bashir. This is how the prosecutor put it to journalists at The Hague: 'What happened in Darfur is a consequence of al-Bashir's will.' The first error is to identify the duration of the conflict in Darfur with the presidency of al-Bashir. Yet, the conflict in Darfur began as a civil war in 1987, before al-Bashir and his group came to power, and long before the cycle of insurgency and counterinsurgency that began in 2003. The civil war has become entangled with the counterinsurgency, though they have separate causes. Whereas the insurgency was a rebel challenge to power in Khartoum, the civil war was triggered by the effects of drought and desertification, and intensified by two factors, one internal, the other external, one the failure to reform the system of tribal homelands and the other an effect of the ongoing civil war in Chad.

The second error is to assume that excess deaths in Darfur are the result of a single cause: violence. But the fact is that there have been two separate if interconnected causes, drought and desertification on the one hand, and direct violence on the other. World Health Organisation sources – considered the most reliable source of mortality statistics by the US Government Accountability Office in its 2006 evaluation – trace these deaths to two major causes: about 70 to 80 per cent to drought-related diarrhoea and 20 to 30 per cent to direct violence.

The third error is to assume a single author of violent deaths and rape. In his eagerness to make the prosecution's case, Moreno-Ocampo not only obscured the origins of the violence in Darfur, he also went on to portray life in the internally displaced persons camps in Darfur as a contemporary version of life in Nazi concentration camps in Europe, with al-Bashir cast in the role of the Führer. At the press conference announcing the case against the president of Sudan, the prosecutor said: 'Al-Bashir organised the destitution, insecurity and harassment of the survivors. He did not need bullets. He used other weapons: rape, hunger and fear. As efficient, but silent.' To be sure, there were ongoing incidents of rape in Darfur, as there are indeed in most conflict situations where armed young men confront unarmed young women. This much was recognised by the US special envoy to Sudan, Andrew S. Natsios, in his testimony before the Senate Foreign Relations Committee on 11 April 2007: 'The government has lost control of large parts of the province now. And some of the rapes, by the way, that are going on are by rebels raping women in their own tribes. We know in one of the refugee camps, it's now controlled by the rebels, formally. There have been terrible atrocities committed by the rebels against the people in the camps.' Rebels, like government soldiers and the paramilitary Janjaweed, have authored both rape and the killing of civilians. Take figures newly released by the United Nations-African Union Mission in Darfur (UNAMID) in Khartoum. UNAMID, which keeps a count of each individual death, including its circumstance, calculates the total number of conflict-related civilian deaths in the year 2008 at 1,520. Of these, 600 are said to be the result of conflicts over grazing lands among Arab tribes. When it comes to the remaining 920, UNAMID says that more civilians were killed by rebel movements than by government-organised counterinsurgency forces.

The fourth erroneous assumption is that the situation has not changed in Darfur since the onset of the counterinsurgency in 2003. In Moreno-Ocampo's own words: 'In April 2008, the United Nations estimated the total number of deaths since 2003 at 300,000.' This estimate came from John Holmes, UN under-secretary general for humanitarian affairs. This is how Holmes put it in the first place: 'A study in 2006 suggested that 200,000 had lost their lives from the combined effect of the conflict. That figure must be much higher now, perhaps half as much again.' There are two qualifications here, and Moreno-Ocampo glossed over both. The first was that these mortality figures were said to be the result of 'a combined effect', referring to direct violence and drought. The second qualification was explained by Reuters: 'United Nations cautioned reporters that the number was not a scientific estimate but a "reasonable extrapolation".' The assumption underlying the extrapolation – that the level of mortality has not changed in Darfur from 2003 on – was contradicted by the UN's own technical staff in Sudan. As Julie Flint explained in the New York Times of 6 July 2007 and the Independent (London) of 31 July 2007, UN sources spoke of a sharp drop in mortality rates in Darfur from early 2005, so much so that these sources report that mortality estimates had dipped to as low as below 200 per month, lower than the number that would constitute an emergency.

That the ICC has politicised the issue of justice is no reason to sidestep the question of accountability. The kernel of truth in the prosecutor's application concerns 2003–04, when Darfur was the site of mass deaths. This was mass murder, but not genocide. Its authors were several, not just the government of Sudan. There is no doubt that the perpetrators of violence should be held accountable, but when and how is a political decision that cannot belong to the ICC prosecutor. More than the innocence or guilt of the president of Sudan, it is the relationship between law and politics – including the politicisation of the ICC – that poses an issue of greater concern to Africa. The debate has hitherto focused on the need to have the same rules for all war criminals, regardless of national origin or political orientation. Only then can the rules claim to be just, so that justice may act as deterrence. If, however, justice masquerades as selective punishment, only to those who dare transgress American power, critics have pointed out that the exercise will not be a deterrent to potential war criminals, but only to those who dare challenge American power.

I have suggested that the more important question is that of the larger political consequences of a fundamentalist pursuit of criminal justice by those determined to enforce it regardless of its political context or consequence. Take one example. If the ICC were to have the political will and courage to try war criminals in the US war on terror, we can say with confidence that the American political system would be strong enough to contain its political fallout. There is little chance of 'red states' going to war against 'blue states'. But can one say with any confidence that the price of single-mindedly pursuing criminal justice in Sudan will not be a renewed civil war? Such a fundamentalist pursuit should be named vengeance, not justice. This is why we need to subordinate criminal accountability to a larger pursuit, that of political reform.