The Economist - USA (2020-02-15)

44 Middle East & Africa The EconomistFebruary 15th 2020

F

or more than a decade, Omar al-Bashir

gaily thumbed his nose at the Interna-

tional Criminal Court (icc). After he was in-

dicted for war crimes, crimes against hu-

manity and genocide in the country’s

western region of Darfur, his defiance bad-

ly damaged the young court’s credibility.

On February 11th, however, Sudan’s former

dictator was pushed a step closer to justice,

as the new Sudanese government agreed

that he would appear before the icc.

Where, and when, that might happen re-

mains unresolved. But if it happens, it will

chip away at the culture of impunity that

emboldens despots everywhere.

Mr Bashir, who seized power in 1989,

now languishes in a Sudanese prison after

being swept from office last April in a pop-

ular uprising. The decision to let him ap-

pear before the iccwas taken by the coun-

try’s new joint military and civilian council

during talks with Darfuri rebel groups in

Juba, the capital of South Sudan. Handing

Mr Bashir over to the icchas been one of

the rebels’ long-standing demands.

Violence in the region continues. In

January for instance, the United Nations

reported that at least 54 people had been

killed and another 40,000 or so displaced

in a fresh bout of intercommunal fighting.

In all, since the Darfur conflict erupted in

2003, perhaps 300,000 people have died,

mostly of war-induced hunger and disease.

More than 2m have been made homeless.

The bulk of the blame rests with the Arab-

dominated Sudanese army and its mass-

raping mounted militia, the janjaweed. Mr

Bashir’s government claimed that it ran a

limited campaign to crush a rebellion. In

fact, it is accused of a widespread campaign

of ethnic cleansing targeting black-African

groups such as the Masalit, Fur and Zagh-

awa. Hence the genocide charges: Mr Ba-

shir, in the words of the icc, deliberately

inflicted on each target group “conditions

of life calculated to bring about the group’s

physical destruction”.

But how exactly Mr Bashir and those in-

dicted with him are to appear before the icc

has yet to be worked out. The transitional

government is sensitive to the national hu-

miliation some Sudanese would feel if Mr

Bashir were sent to The Hague, where the

iccsits. That looks unlikely to happen. In-

stead, officials are exploring ways in which

Mr Bashir and the others could appear in

front of icc judges, or perhaps a hybrid

court, in Sudan itself. It will be up to the icc

to decide whether such a court in Sudan

would be sturdy enough.

The possible transfer of Mr Bashir will

reignite controversy about the icc’s role in

Africa, where many countries accuse it of

bias, pointing out that most of the cases,

and all the indictments, have been against

Africans. The indictment in 2009 of Mr Ba-

shir caused particular anger; he was a sit-

ting head of state and Sudan is not a mem-

ber of the icc. President Yoweri Museveni

of Uganda, a member country, went so far

as to call the court “a bunch of useless peo-

ple”. Some have simply ignored the court’s

demands. Member states have an obliga-

tion to arrest those who are charged but,

before the revolution in Sudan, Mr Bashir

roamed icc member countries in Africa

untroubled, sometimes even at the invita-

tion of host governments. In 2010, a month

after he was indicted for genocide, he

joined the celebrations in Nairobi for Ken-

ya’s new constitution.

African defendants, African victims

African criticisms of the court came to a

head in 2016 when South Africa, Burundi

and the Gambia announced plans to with-

draw. Burundi was upset by the opening of

an investigation into crimes in Burundi.

South Africa was miffed when the court

reprimanded it for failing to arrest Mr Ba-

shir when he visited in 2015. Fears grew of

an exodus of African states, co-ordinated

by the African Union. Yet the court’s legiti-

macy in Africa is not as shaky as it seems.

Though Burundi has left, South Africa has

not followed through; the Gambia changed

government and rapidly changed its mind.

Other African countries came to the court’s

defence. Nigeria, the most populous, vo-

cally supports it. The new Sudanese gov-

ernment’s co-operation with the iccwould

be a remarkable further step.

It helps that the icc’schief prosecutor,

Fatou Bensouda, is a Gambian, trained in

Nigeria. She points out that most of the

cases against Africans were referred by Af-

rican governments themselves. They were

often willing to co-operate as long as the

court investigated political opponents or

rebels, but got jumpy when the court

turned to crimes by state armed forces.

Mr Bashir’s fate suggests a novel path to

the icc; a revolution followed by the new

government calling in the court to help

prosecute former leaders. That might wor-

ry Saif al-Islam Qaddafi, the son of Libya’s

former despot, indicted for crimes against

humanity by the icc(see table).

Yet Sudan’s willingness to bring in the

iccwill not alone fix the court’s troubles in

Africa. Paradoxically, the likelihood of

stronger co-operation by African govern-

ments rests more on the icc’s ability to pur-

sue cases outside of Africa. The icchas

moved that way, opening preliminary in-

vestigations into abuses by British forces

in Iraq and pushing for an investigation

into all sides in Israel-Palestine.

The fight against impunity in Africa

faces other problems, too. The iccin prac-

tice is only able to try political losers, not

those in power. It risks being used as a tool

by the mighty to remove rivals while re-

maining untouched themselves. One les-

son some leaders will take, says Phil Clark

of the School of Oriental and African Stud-

ies in London, is “don’t lose power.”

The prosecution of Mr Bashir might de-

ter other despots from slaughtering incon-

venient ethnic groups. But only if it suc-

ceeds. The court has had more cases

collapse before or during trial than it has

completed. The kind of people it goes after

are the kind who terrify witnesses. For

years, Mr Bashir did everything he could to

hinder the work of the icc.And even now,

to have a chance of a successful trial, the

court first needs to get its hands on him.^7

Sudan’s deposed president, Omar al-Bashir, may finally face justice

The International Criminal Court

A day of reckoning nears

The bumpy road to justice

SelectedcasesattheInternationalCriminalCourt

Sources:ICC;TheEconomist

Country Known for Status

Omar al-Bashir Sudan His regime recruited a mounted militia In Sudanese custody;

to commit genocide in Darfur likely to face the ICC

Jean-Pierre Bemba Congo Served ten years for war crimes, released Craves political comeback

Thomas Lubanga Congo Conscripting child soldiers Convicted

Saif al-Islam Qaddafi Libya Son of late despot, accused of murder Pre-trial

Laurent Gbagbo Ivory Coast Ethnic massacres during his presidency Acquitted

Uhuru Kenyatta Kenya Blamed for ethnic killing during election Won vote; charges dropped

Joseph Kony Uganda Conscripting children into homicidal Hiding somewhere,

religious cult probably in rainforest