Justice by Default? – Dealing with Accountability Issues in Sudan
- Side: 224-247
- Publisert på Idunn: 2013-06-10
- Publisert: 2013-06-10
This article explores the conditions that led to the referral of the crisis in Darfur to the International Criminal Court (ICC) and the arrest warrant against Sudan’s President Bashir in 2009. It is argued that a judicial reading of the situation gained prominence, both because of activist mobilisation outside Sudan and because the UN Security Council failed to agree on a more robust “responsibility to protect” approach. The externalisation of the issue of accountability for crimes in Darfur had several consequences. In addition to contributing to a lack of local ownership of justice, the recasting of complex local patterns of conflict in the moral vocabulary of a western judicial system simplified complexities on the ground. The arrest warrant was also issued at a time when international actors were pursuing a number of policy objectives in Sudan, including the implementation of the peace agreement between the government and the Sudan People’s Liberation Movement (SPLM). Combining a confrontational approach with a cooperative one has turned out to be extremely difficult, and the arrest warrant has exposed growing divisions among members of the international community, both regarding the response to atrocities in Darfur and regarding the purpose and priorities of the ICC.Keywords: Darfur, Human Rights, ICC, Peace-Building, Sudan, Transitional Justice
On 4 March 2009, the Pre-Trial Chamber of the International Criminal Court (ICC) issued a warrant of arrest against Sudanese President Omar Hassan Al Bashir, having found reasonable grounds to believe him responsible for crimes against humanity and war crimes committed in Darfur during the period 2003 – 2008.1Warrant of Arrest for Omar Ahmad Hassan Al Bashir, ICC-02/05-01/09-01 (The Hague, ICC 2009). On 12 July 2010, the Court issued a second warrant of arrest which also included charges of genocide.
A number of international human rights and advocacy organisations and several western countries welcomed the Court’s decision, describing it as a crucial step towards challenging the impunity that had worsened conflict in Darfur. However, the arrest warrant was met with criticism by the African Union (AU) and the Arab League. It was also opposed by many non-western countries, including Russia and China, and questioned by many scholars. A common argument was that the arrest warrant would make it more difficult to achieve peace in Darfur and might also jeopardise the already fragile Comprehensive Peace Agreement (CPA) concluded by the Sudan Government and the Sudan People’s Liberation Movement (SPLM) in 2005, which ended twenty-two years of war in southern Sudan. A number of African leaders also accused the Court of unfairly targeting their continent while not looking at human rights abuses elsewhere.
In Sudan, Bashir and his government took a defiant stance. The President said the judges of the ICC could “swallow” their arrest warrant and travelled to Darfur as well as abroad to mobilise support. The Court’s decision was followed by the immediate expulsion of thirteen aid agencies from Sudan. The government claimed they had violated the laws of humanitarian work in cooperating with the ‘so-called International Criminal Court’ and it was announced that Sudan would ‘nationalize’ all humanitarian work within one year.2--------, ‘Sudan Says Ejected Aid Workers are Involved in ICC Decision’ Sudan Tribune (Khartoum 5 March 2009) <http://www.sudantribune.com/spip.php?article30392> accessed 9 January 2013. In addition, several Sudanese human rights organisations were closed down by the government. This caused grave concern not only for the plight of the population in Darfur but also for people in other parts of Sudan where humanitarian assistance was sorely needed.3ODI, ‘Indicting Bashir: Sudan and the International Criminal Court’ Overseas Development Institute, 6 March 2009 <http://www.odi.org.uk/events/report.asp?id=460&title=indicting-bashir-sudan-international-criminal-court> accessed 14 October 2009. There was also fear that communities would turn against each other as resources provided by NGOs disappeared.
Elsewhere, we have argued that pursuing justice during a conflict raises a number of issues that differ from those that arise when justice is pursued after peace agreements have been made or wars have been won and a victor emerges.4Gunnar M Sørbø, ‘Pursuing Justice in Darfur’ (2009) 27 Nordic Journal for Human Rights 393. The implications for tensions between peace and justice are particularly obvious. Could indictments issued during conflict have positive effects (including deterrence) or rather prolong conflict and suffering?
In this article, we focus on the different actors and features of the environment that led to a particular framing of the crisis in Darfur and to its referral by the UN Security Council (UNSC) to the ICC. While intercommunity violence in Darfur dates back to the 1980s, it changed character and reached a peak in 2003–4 when organised rebel movements were established in response to the perceived continued economic and political marginalisation of Darfur and the extreme violence committed by mostly Arab militias against mostly non-Arab populations in the area. In 2004, the crisis attracted global concern, and Darfur became the focus of one of the largest international relief operations in recent years. While the AU and the UN focused on the security aspects (which led them to send peace-keepers) and the political crisis (which led them to engage in peace talks), a judicial reading of the situation also emerged. It included accusations of genocide, promoted by activist movements in the West, particularly in the US, and supported by influential academics and journalists.5Maria Gabrielsen Jumbert, ‘The Internationalization of the Sudanese Conflicts: from South Sudan to Darfur’ (PhD thesis, Centre d’Etudes et de Recherches Internationales (CERI) 2010). It was argued that the Sudanese government intended ‘to eliminate the collective livelihoods of Black African groups in Darfur’.6John Hagan and Joshua Kaiser, ‘The Displaced and Dispossessed of Darfur: Explaining the Sources of a Continuing State-led Genocide’ (2011) 62 The British Journal of Sociology 1.
During 2004, the judicial discourse gained increasing prominence. Failing to agree on a more robust “responsibility to protect” approach, the Security Council referred Darfur to the ICC. Not surprisingly, rebel leaders in Darfur, assisted by the Darfurian diaspora, quickly responded by adopting the same discourse in order to gain international support for their cause against the Khartoum regime.
The intervention of the ICC, driven mainly by external actors, had a number of implications beyond the problems it created for the Sudan Government, the president and others who were indicted.
First, it took issues of justice and reconciliation largely out of local hands in Darfur and ‘de-domesticated’ them.7Jerome Tubiana, ‘Darfur after Doha’ in Gunnar M Sørbø and Abdel Ghaffar M Ahmed, Sudan Separates: Continued Conflict in a Divided Land (Palgrave Macmillan forthcoming 2013). The immense attention that the crisis received in the Western public also meant that many local voices remained unheard.8Anders Hastrup, ‘Voices from Darfur: Reclaiming Sudanese History’ (PhD thesis, University of Copenhagen 2010).
Second, the simplified narrative that was built up partly by the ICC, foreign activists and the media, clearly differentiated Arab perpetrators and non-Arab victims, contributing to the exclusion of large Arab communities in Darfur from political talks.
Third, the competition between the priorities and responses proposed by different foreign actors to address the crisis in Darfur effectively diluted efforts to promote peace as well as accountability. As the international community continued to give high priority to the implementation of the peace agreement between the government and the SPLM, it became particularly problematic to combine a confrontational approach towards the Sudanese government (regarding Darfur) with a cooperative one (regarding the CPA). This was further compounded by divisions among international actors as to what policy to adopt towards Sudan.
II. The Unfolding of the Darfur Crisis
Darfur was a Fur-dominated yet multi-ethnic sultanate until 1916 when it came under the Anglo-Egyptian Condominium until Sudan achieved independence in 1956. While prone to local conflict over resources, the region remained quite stable until the late 1980s. Its stability was based on what has been termed the ‘Darfur consensus’.9Abdul-Jabbar Abdullah Fadul and Victor Tanner, ‘Darfur after Abuja: A View from the Ground’ in Alex de Waal and Julie Flint, War in Darfur and the Search for Peace (Global Equity Initiative, Harvard University and Justice Africa 2007) 297. Land was the lynchpin of this consensus. The ethnic groups that make up a central majority bloc in Darfur (Fur, Baggara (cattle holding) Arabs, Masalit, Zaghawa and many smaller non-Arab tribescame together in enjoying access to land under particular arrangements (the dar and hakura systems) based on the native administration system of local government. The largest group that was deprived of land rights was the Abbala (camel holding) Arabs.10Ibid 298.
According to Fadul and Tanner, most Darfurians contend that the current conflict constitutes an assault on the historical Darfur consensus.11Ibid. To a large extent, the factors that pushed the region over the edge were external and include the blow-back from the Chadian wars, Libyan meddling, frequent interventions by the central government in Khartoum, and severe multi-year droughts leading to migrations. One of the primary traits of the Darfur crisis can be described as a split between those members of the population with territories or land grants (hawakir) and those without.12Jerome Tubiana, ‘Darfur: A War for Land?’ in Alex de Waal and Julie Flint, War in Darfur and the Search for Peace (Global Equity Initiative, Harvard University and Justice Africa 2007).
One of the early signs of conflict was a dramatic increase in violent incidents between farmers and herders. Cyclical droughts during the 1970s, 1980s and 1990s forced herders to encroach on the lands of farmers. While banditry based on the use of small arms began in the late 1970s, a wide-ranging conflict started in 1987–89 between the sedentary Fur and a broad coalition of both cattle- and camel-herding Arab tribes. For the first time, the majority of Arabs in Darfur came together, united by a pro-Arab ideology and supported by Libya and the government in Khartoum. It was during these conflicts that the term Janjaweed first appeared, to describe armed horsemen organised as (mostly Arab) militia groups seeking access to land.13Ibid 70.
When the first rebel groups, the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM), appeared in early 2003, widespread intercommunity violence had already spread across Darfur, much of it exacerbated by the government’s divisive policies, including manipulation of land issues and reorganisation of administrative subdivisions. The two movements made claims that aimed at transcending ethnic cleavages with demands for a more equitable distribution of power and wealth for Darfur as well as in all of Sudan. Their base was mostly non-Arab, mainly Zaghawa and Fur. In response to their early military success, Khartoum mobilised militias from local Arab populations. The violence that followed destroyed numerous non-Arab villages. It also drove non-Arab civilians to join the armed opposition.
In 2004, the violence attracted the attention of the international community. The extent of forced displacements, killings and criminal acts made Darfur one of the worst human rights disasters in the world. More than 200,000 people may have been killed, although both numbers and causes of death remain disputed.14Mahmood Mamdani, Saviors and Survivors – Darfur, Politics and the War on Terror (Verso 2009) 5–6. Nearly two million people were displaced, ie. one in three Darfurians. As the crisis developed, the war exposed and aggravated a feeling of difference between Arabs and non-Arabs, not related to skin colour, culture, livelihood or religion but based on claims to identity.15 Tubiana ‘Darfur’ (n 12) 70.
The great majority of massacres were committed between July 2003 and April 2004. Mortality from disease and hunger peaked at the end of 2004 and fell rapidly after that. The period of intense conflict lasted until January 2005. The main reason for ongoing displacement has been generalised insecurity, much of it banditry and rampant criminality. Government-armed tribal militias and rebel movements have turned on one another and on the civilian population, and Arab nomads have fought among themselves for access to land and other resources. To most people on the ground it appeared as a vicious combination of counterinsurgency by the government and intertribal fighting. Deployment of AU peacekeepers, since 2008 replaced by a hybrid UN/AU force (UNAMID), improved security in some places, but overall, there has been no peace to keep.
Since 2008, the situation in Darfur has often been referred to as a low-intensity conflict. Between January 2008 and the end of March 2009, about 2,000 violent deaths occurred in the region, one third of them civilian. For the same period, violent deaths due to conflict in South Sudan were considerably higher than casualties in Darfur. However, even a conflict that, for longer or shorter periods, involves relatively few killings may cause profound and lasting social disruptions. This is clearly the case in Darfur where the crisis caused forced displacement of large populations, disruptions of livelihoods and social changes that generally have increased insecurity and undermined dignity.
The Darfur crisis also became increasingly complex and difficult to solve. In 2003–4, some 200,000 Sudanese refugees fled across the border, and rear bases were established in eastern Chad by Darfurian rebel groups. The rebels were strengthened by their membership of cross-border ethnic groups, including the Zaghawa to which the Chadian president Idris Deby belongs. As a result, several crises became increasingly interlinked, including the long-standing conflict in Chad between the Chadian government and a divided political opposition, and the proxy war in which Chad and Sudan are engaged through rebel groups and militias.16Jerome Tubiana, ‘The Chad-Sudan Proxy War and the “Darfurization” of Chad: Myths and Reality’, Graduate Institute of International Studies, Small Arms Survey, Sudan Working Paper No 12 (Geneva 2008) 57.
A new agreement, the Doha Document for Peace in Darfur, was signed between the government and the recently established Liberation and Justice Movement (LJM) in July 2011. However, other movements were by early 2013 still fighting, and there was increasing concern with serious local conflicts in eastern Darfur where the government relied on non-Arab proxies, drawn from small minorities, to fight Zaghawa rebel groups and communities.17Claudio Gramizzi and Jerome Tubiana, ‘Forgotten Darfur: Old Tactics and New Players’, Small Arms Survey, Graduate Institute of international and Development Studies (Geneva 2012). During the last years, serious intra-Arab conflicts have also been on the rise. In addition, a humanitarian crisis has been unfolding in neighboring South Kordofan as well as in Southern Blue Nile where new war broke out after South Sudan achieved independence.
The events and developments in Darfur, then, must be understood in the context of a number of factors operating on different levels, some with primarily local, others with regional and even international dimensions, the latter becoming particularly prominent as the crisis unfolded.
III. Framing Darfur: The International Engagement
Darfur first appeared on the international agenda during 1983–85, when the region was hit hard by drought and famine and a conflict emerged between the international community and Sudan’s President Nimeiri who, like Emperor Haile Selassie in Ethiopia, denied the existence of famine and tried to prevent humanitarian assistance from reaching the victims.18Alex de Waal, Famine Crimes (James Currey Indiana University Press 1997).
Darfur was then “put on hold” as the world turned its attention to the war that was raging between the Sudan Government and the Sudan People’s Liberation Army/Movement (SPLA/M) in southern Sudan, and how to end it. Under the auspices of the Intergovernmental Authority on Development (IGAD) and assisted by a “troika” consisting of Norway, the US and the UK, talks started in Naivasha, Kenya between the government and SPLM which led to a Comprehensive Peace Agreement (CPA) on 9 January 2005.
There were several connections between the talks in Naivasha and developments in Darfur, but pointing in different directions. First, the situation in Darfur was seen by many Darfurians to being similar in nature to what was happening in South Sudan, and the first rebel movement, the Sudan Liberation Movement led by Abdul Wahid El Nur, was not only inspired by, but also received initial support from the SPLM. As it became increasingly likely that the negotiations in Kenya might succeed and produce a peace agreement that would give extensive autonomy to South Sudan, it became important to act in order to get the attention of the international community and to halt continued political and economic marginalisation in Darfur.
Second, international actors involved in the Naivasha talks thought that a peace agreement would positively affect other marginalised regions including Darfur, and that ‘there was time to get a deal done on the South and then to address the Darfur issue’.19Hilde Frafjord Johnson, Waging Peace in Sudan: The Inside Story of the Negotiations that Ended Africa’s Longest Civil War (Sussex Academic Press 2011) 123. As a consequence, and despite serious fighting and the emergence of a humanitarian crisis, the international community was slow to react to events in Darfur.
Third, several external activist groups that were engaged in South Sudan became involved in Darfur. This applies particularly to organisations in the US, like Christian Solidarity International, the National Council of Churches and the Congressional Black Caucus.20 Jumbert (n 5) 119. Their engagement was enhanced by the image of “Black Africans” being targeted, which resonated with strong feelings about racism and discrimination.
During 2003 and the beginning of 2004, the international response to the emerging crisis was largely limited to the provision of humanitarian aid, while political efforts were focused on the negotiations between the Sudan Government and the SPLM in Kenya. In March 2004, however, Mukesh Kapila, the UN’s humanitarian coordinator for Sudan, accused Arab militia backed by the government of ‘ethnic cleansing’ and warned that if left unchecked, the humanitarian catastrophe in Darfur would be comparable to that in Rwanda.21Ibid 117. Shortly after, Jan Egeland, UN Under Secretary-General for Humanitarian Affairs, who had warned of an impending catastrophe in 2003, brought the issue of ethnic cleansing to the Security Council. He also said it was the largest humanitarian crisis in the world where ‘an organized campaign (is) being undertaken of forced depopulation of entire areas’.22Ibid 117.
From then on, the attention of activist groups and the international media rapidly increased. While the international protest over Darfur initially had been seen as jeopardising the north-south peace agreement, Washington’s view began to change when the campaign in the US to highlight genocide in Darfur started to gather strength in 2004.23David Keen, Useful Enemies: When Waging Wars is More Important than Winning them (Yale University Press 2012) 120.
In June 2004, Chad brokered negotiations in N’Djamena, leading to a Humanitarian Ceasefire Agreement between the Sudan Government, JEM and SLA. One month after, the AU began to discuss the possibility of deploying a small force to protect those who had been sent to Darfur to monitor the ceasefire. The Sudan Government accepted the force (from Rwanda and Nigeria) on the condition that their only mission was to protect the civilian monitors. A compromise, however, was found whereby the AU troops were also allowed to protect vulnerable civilians in their vicinity. All the time, the potential violation of the sovereignty of Sudan remained a key issue.
It soon turned out that the AU Mission (AMIS) was unable to deploy the 3,000 peacekeepers originally intended and remained unable to do much more than report cease-fire breaches. However, the Security Council did little to coerce the Sudan Government into compliance or to improve the effectiveness of AMIS.24Alex J Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’ (2005) 19 Ethics & International Affairs 44.
On 30 July 2004, the UNSC issued Resolution 1556 invoking Chapter VII and indicating a threat to international peace that required enforcement, further condemning human rights abuses, whilst stopping short of sanctioning or condemning the Sudanese government. It gave the government thirty days to disarm the Janjaweed and punish human rights abusers, threatening economic sanctions if it failed to do so. However, there was no support for sanctions among members.
In September 2004, US Secretary of State Colin Powell appeared before the US Senate Foreign Relations Committee and announced that genocide had occurred in Darfur and that it might still be occurring. With that announcement, the US officially accused the Sudan Government of perpetrating genocide. For his statement Powell relied on the work done a few months earlier by the State Department-sponsored Darfur Atrocities Documentation Team (ADT), a project led by two criminologists that conducted interviews with more than 1,200 Darfurian refugees along the Chad/Sudan border.25John Hagan and Wynona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge University Press 2009).
In brief, the material collected by the ADT showed that:
the Janjaweed and Sudanese military forces had committed large-scale acts of violence, including murders, rape, and physical assaults on non-Arab individuals;
the same forces had destroyed villages, foodstuffs and other means of survival;
the Sudan government and its military forces obstructed food, water, medicine, and other humanitarian aid from reaching affected populations, thereby leading to further deaths and suffering; and
the same government failed to stop the violence despite multiple warnings.
Aside from continuing to provide humanitarian aid, the only practical action the United States undertook following Powell’s statement was to refer the matter to the Security Council. On 18 September 2004, UNSC Resolution 1564 was passed. It called for an expanded AU presence, reiterated the contents of Resolution 1556 and invited the Secretary-General to form a commission of inquiry to investigate reported crimes. An International Commission of Inquiry into Darfur (ICID) was established and led by Antonio Cassese from Italy, former president of the International Criminal Tribunal for the former Yugoslavia. The five-member commission included three Africans: from Ghana, South Africa and Egypt.
The situation in Darfur deteriorated soon after Resolution 1564 was passed. There were renewed clashes between rebels and government forces and growing evidence that AMIS was unable to protect civilians. At the end of October 2004, the UN estimated that the number of people needing aid in Darfur had increased by as much as 10% in one month alone. While Jan Pronk, who was the UN Envoy to Sudan, argued in favour of more troops, the debate on possible sanctions was complicated by two interrelated debates. First, there was a debate about whether to refer the case of Darfur to the ICC. Second, the signing of the peace agreement between the Sudan Government and the SPLM initiated a debate about whether the UN force created to police the agreement (UNMIS) would be a Chapter VII mission, and whether it would also be deployed in Darfur.26 Bellamy (n 24) 48–49.
The ICID report concluded that the government did not pursue a policy of genocide in Darfur, but that Khartoum and government-sponsored Arab militias (Janjaweed) engaged in ‘widespread and systematic’ abuse that may constitute crimes against humanity. The panel further maintained that the Sudanese judiciary ‘is unable or unwilling’ to prosecute those crimes and recommended referring the case to the ICC.27-------, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (Geneva 2005) 4. This was done by the Security Council on 31 March 2005 (Resolution 1593). As Sudan is not a member of the ICC, it meant that its jurisdiction was imposed on it by the Security Council. According to a press statement by the Secretary-General, the decision was made in order to ‘provide an appropriate mechanism to lift the veil of impunity that has allowed human rights crimes in Darfur to continue unchecked’.28-------, ‘Security Council sends Darfur cases to International Criminal Court’ UN News Centre (Online 1 April 2005) <http://www.un.org/apps/news/story.asp?NewsID=13828&> accessed 18 January 2013.
The referral was led by EU states (particularly the UK and France) while the US abstained from the vote, because it does not recognise the ICC which ‘strikes at the essence of sovereignty’ and favoured setting up a special tribunal to try suspected war criminals.29 Bellamy (n 24) 49. On UNMIS, Resolution 1590 authorised a Chapter VII peace operation mandated to observe the cease-fire and protect civilians to be deployed in South Sudan while the AU was allowed by the government in Khartoum to expand its presence in Darfur.30UNSC Res 1590 (24 March 2005) UN Doc S/Res/1590.
In brief, before referring the case to the ICC, the Security Council never moved beyond a settlement approach ‘in which the terms of any peacekeeping mission would depend upon Sudanese consent and there would be no penalties for withholding it or for imposing conditions that amounted to obstruction’.31Kenneth A Rodman, ‘Darfur and the Limits of Legal Deterrence’ (2008) 30 Human Rights Quarterly 548.
More than two years later (May 2007), the first warrant of arrest was issued against Ahmad Haroun, Minister of State for Humanitarian Affairs, and Ali Kushayb, alleged leader of Militia/Janjaweed, for crimes against humanity and war crimes committed in Darfur. The Prosecutor’s application detailed several specific crimes committed during the height of hostilities in 2003 and 2004. The Sudan Government, however, refused to hand the pair over to the Court or to start criminal proceedings against them in Khartoum.
Almost two years later, the arrest warrant against President Bashir was issued. The ICC Prosecutor also issued arrest warrants against three rebel commanders including Bahr Idriss Abu Garda, the only one to have appeared before the Court, which did not confirm the charges. Not long after, Abu Garda joined the Sudan Government as Minister of Health. In December 2011, an arrest warrant was also issued against Abdel Rahim Mohammed Hussein, who is Sudan’s Minister of Defense and former Minister of Interior Affairs.
IV. Factors behind the Referral
As suggested above, the referral of Darfur to the ICC emerged from several interrelated conditions.
The intense US attention to Darfur in 2004 was to a large extent due to the Save Darfur movement which comprised over one hundred religious (Christian and Jewish), political and human rights organisations. They held big demonstrations in Washington and other US cities and spread their message outside the US, with star-studded participation of people like George Clooney, Mia Farrow and Angelina Jolie. Darfur coincided with the widely commemorated tenth anniversary of the genocide in Rwanda and the coalition actively promoted the link: ‘Never again’ and ‘Lift the silence’ were slogans used to mobilise people as a tool of pressure on policy makers.32 Jumbert (n 5) 121–123. Save Darfur called for humanitarian intervention and international justice and supported the ICC in its indictment against President Bashir. It was argued that relying only on humanitarian aid was equivalent to a ‘band aid on a cancer’.33Ibid 335. There was intense lobbying to influence members of Congress as well as President Bush and the State Department. According to Moon, Darfur ‘provided an opportunity for the USA to redeem itself for its failure to prevent the Rwandan genocide from unfolding’.34Claire Moon, ‘The Crime of Crimes and the Crime of Criminology: Genocide, Criminology and Darfur’ (2011) 62 The British Journal of Sociology 51.
Prominent individuals like New York Times columnist Nicholas Kristof and Harvard Professor Samantha Power (who later worked for President Obama, including as staff of the National Security Council) were also important figures during this phase, as was Jan Egeland at the UN.
Key advocates of humanitarian intervention in Darfur argued that the 2003 invasion of Iraq had led not only to military overstretch on the part of the United States and the UK, but also undermined their role as ‘norm carriers’.35 Bellamy (n 24). For such reasons, it became important to seek collective action through the UN or AU in addressing the situation in Darfur. However, there was never enough political support for punitive measures against Sudan on the Security Council as particularly China and Russia were opposed to any measures that could be interpreted as an infringement of Sudan’s sovereignty. However, they did not veto the referral to the ICC. It has been suggested that China abstained because it feared negative consequences for the 2008 Olympics in Beijing, which had been termed ‘Genocide Olympics’ by the Save Darfur movement.36Victor Peskin, ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’ (2009) 4 Genocide Studies and Prevention 320.
Thus the path of the Darfur crisis to the international agenda was guided by activist mobilisation and a protracted process at the Security Council, combined with ‘the eagerness of politicians to be seen to be doing something’.37 Jumbert (n 5) 350. As Bellamy has argued, there was clear recognition of a responsibility to protect the people of Darfur on the part of western journalists, human rights organisations and some states. However, there were doubts about which organisation should bear that responsibility – the UN or AU; and several states opposed any potential infringement on Sudanese sovereignty.38 Bellamy (n 24) 43. In many ways, then, the ICC referral may be seen as a default option.
V. The Role of the ICC Prosecutor
Sudan’s minimal cooperation with the ICC ground to a halt in early 2007. An ICC delegation visiting Khartoum in 2006 was apparently invited to travel to Darfur, but this came to nothing. In the end, the Office of the Prosecutor (OPT) failed to undertake any interviews in Darfur.39Julie Flint and Alex de Waal, ‘Case Closed: A Prosecutor without Borders’, (2009) World Affairs Journal <http://www.worldaffairsjournal.org/article/case-closed-prosecutor-without-borders> accessed 10 December 2012. Instead, it relied on secondary material and on conducting interviews outside Sudan, including with refugees from Darfur. This approach was much criticised, also inside the ICC, including by two prominent peer reviewers, Antonio Cassese and Louise Arbour, the UN High Commissioner for Human Rights. Cassese had led the International Commission of Inquiry into Darfur (ICID) which conducted a number of interviews in Khartoum as well as Darfur, and he strongly advocated that the ICC should do so as well. Arbour who was the UN Commissioner for Human Rights, also called for ‘an increased visible presence of the ICC in Sudan’.40Ibid. The Prosecutor Luis Moreno Ocampo argued, however, that this would put victims at unreasonable risk.
According to Flint and de Waal who published an article which contained a scathing attack on Moreno Ocampo, there were also critical comments from inside the ICC to several other aspects of the Prosecutor’s activities: the issuing of a summons for Haroun and Kushayb rather than sealed warrants which might have offered the possibility of surprise arrests; Moreno Ocampo’s penchant for publicity; and the unreliability of some of his accounts of what had happened in Darfur, including his figures of death rates which were much higher than those published by the UN.41Ibid.
Most of the controversy was focused on the prudence of indicting a head of state in a country where international actors were actively engaged in difficult peace building efforts following the CPA in 2005. Supporters of punitive measures dismissed the value of a peace that had come at the cost of justice. Thus Justice Goldstein wrote in his memoirs that ‘peace masterminded by and in order to accommodate the concerns of vicious war criminals defiant of all fundamental international law prescriptions or norms is no such effective or enduring peace’.42Richard J Goldstone, ‘Bringing War Criminals to Justice during Ongoing War’ in Jonathan Moore (ed), Hard Choices, Moral Dilemmas in Humanitarian Interventions (Rowman & Littlefield Publishers 1998) 198. In a similar vein, Moreno Ocampo stated in February 2009: ‘Mr Bashir could not be an option for (negotiations on) Darfur, or, in fact, for the South. I believe negotiators have to learn how to adjust to the reality. The court is a reality’.43Quoted in Fabrice Weissman (2009) ‘Humanitarian Aid and the International Criminal Court: Grounds for Divorce’ African Arguments (Blog 1 July 2009) <http://africanarguments.org/2009/07/20/humanitarian-aid-and-the-international-criminal-court-grounds-for-divorce-1> accessed 19 March 2013. The underlying assumption is that the international community must refuse to negotiate with indicted war criminals while continuing to deal with persons who may also be criminals but who have not faced the formality of indictment. As Weissman has argued, the expression ‘no peace without justice’ is prescriptive, in the sense that it ‘means that only peace agreements signed by non-war criminals are worthy of being reached’.44Ibid. It implies that the ICC has the legitimacy to decide who is and who is not worthy of bringing hostilities to an end. For such reasons, it was inevitable that the Prosecutor came to be seen as a political actor in the complex Sudanese conflict landscape.
VI. Views on Justice in Darfur
In 2007, it was reported that the ICC struggled to reach out to Darfurians. According to research being done by the Institute of War and Peace Reporting, justice was not uppermost in the minds of most people who struggled to survive in a harsh environment where food, clean water and security were in short supply. As academics and activists continued to debate how best to achieve justice for the victims of Darfur, the voices of those most affected by the atrocities were largely absent, and local NGOs found it too dangerous to spread the word about the ICC or to discuss accountability issues more generally.45Katy Glassborne et al, ‘ICC Struggles to Reach Out to Darfurians’ Sudan Tribune (The Hague/London 17 October 2007) <http://www.sudantribune.com/spip.php?article24302> accessed 5 December 2012.
Local actors in Darfur were not passive recipients, however, but acted in ways that modified and transformed the inputs coming from outside. In this way, the Darfur crisis was “made” both internally and abroad. There are several aspects to this.
First, the rebel movements tried to reach out to their own diaspora as well as to the Chadian government and the SPLM at an early stage in order to get support for their cause. In fact, some of the rebel leaders belong themselves to the diaspora. This includes since 2006 the head of the SLA Abdulwahid El Nur who has been living in Paris. Others have tended to move between different locations outside Sudan. The use of modern communication technology, including satellite phones, greatly facilitated contact between the diaspora and Darfur.
Jumbert quotes Jean-Francois Bayart who writes about the strategy of extraversion, meaning that terms like “democracy”, “rule of law” and “human rights” become passwords to western political support, actively used by those who know them when dealing with potential external supporters.46Jean-Francois Bayart, ‘Africa in the World: A History of Extraversion’ (2000) 99 African Affairs 217. This was also the case in Darfur, particularly among the leaders of rebel movements. Darfurians, however, did not connect to the judicial discourse and did not start talking about genocide before they had heard that the US Congress had publicly used this term in a resolution on 24 June 2004.47 Jumbert (n 5) 182. After this, Abdulwahid El Nur, the head of the SLA, even went as far as comparing Darfur with the holocaust and described the IDP camps as ‘concentration camps’.48Ibid 181.
Second, being categorised in certain ways and subject to investigations by outsiders affected the awareness of many people in Darfur. As Hastrup has argued, collecting evidence for use in the ICC in The Hague was ‘an exercise of translating local events in Darfur to an international vocabulary of judgment and justice’.49Anders Hastrup, ‘Violating Darfur: The Emergent Truth of Categories’ (2008) 13 Mediterranean Politics 195. And when non-Arab populations in Darfur were defined as having been victims of genocide or as IDPs, they were not only labelled in language, but also as recipients of humanitarian aid and thus ‘aware of the privileged status attached to a specific outside categorization that comes with the international community’s involvement’.50Ibid 210.
Victims usually have diverse views on forms of justice. While among rebel movements and large parts of the population in Darfur, it is likely that the arrest warrant was strongly supported, the interests of victims in Darfur were also served by maintaining humanitarian assistance and continuing peace negotiations. There were also divisions among Darfurians abroad. While the diaspora in the US tended to join Save Darfur and put accountability issues on the top of their agenda, their counterparts elsewhere, such as in Qatar, rallied behind reparation and reconciliation and objected to language that fuelled hatred and vengeance.51Rogaia Mustafa Abusharaf, ‘Debating Darfur in the World’ (2010) 632 The ANNALS of the American Academy of Political and Social Science 67.
According to Mohammed, who has been acting head of Political Affairs for UNAMID, whenever people in Darfur were asked questions about justice, ‘the answer has not come back in terms of privileging trials and punitive accountability, but in terms of dealing with inequities in development and political representation, overcoming marginalisation and restoring livelihoods, and establishing the rule of law and the presence of the state and its services. Only in that context and in that order do Darfurians speak about punitive accountability’.52Abdul Mohammed, ‘Bringing The Politics Back In’ African Arguments (Blog 4 July 2009) <http://africanarguments.org/2009/07/04/bringing-the-politics-back-in//> accessed 19 March 2013.
There are clearly tensions between the traditional Darfurian conflict-resolution mechanisms and the precepts of justice represented by the ICC. Traditional mechanisms imply forgiveness or amnesty, with compensation paid not only to make up for tangible losses but also to symbolise the recognition of guilt.53Jerome Tubiana, Victor Tanner and Musa Adam Abdul-Jalil, ‘Traditional Authorities’ Peacemaking Role in Darfur’ (United States Institute of Peace 2012) 86. This includes:
Diya refers to blood money and ceremonies take place to compensate victims by requiring perpetrators of crimes to pay for the harm suffered by giving cattle to the victim or by performing an act of community service that benefits the victim. The peace conference is a community-wide mechanism which has been used to resolve tribal disputes for centuries. The judiya system is considered one of the most successful traditional institutions for administering justice and is deeply rooted in the culture of all communities in Darfur. Judiya proceedings have been used to settle disputes between individuals as well as between social groups, including clans or tribes. Highly respected individuals known as ajaweed are informally selected by their communities to lead the proceedings. While rulings are not legally binding, the system offers a means of achieving reconciliation, ie. through convincing the parties to agree to proposed solutions. 54For more information, see California International Law Center and Robert F Kennedy Center for Justice & Human Rights, Toward Peace with Justice in Darfur: A Framework for Accountability (CILC and RFK Center March 2010).
The political nature and scale of the war and conflicts in Darfur, however, have largely undermined the effectiveness of such local mechanisms. In several cases, government officials act as ajaweed rather than local elders and peace conferences have often been hijacked and undermined by the government through divide-and-rule policies.
As Tubiana et al argue, while the ICC may be pushing Arabs to negotiate, the displaced and the refugees have lost the possibility of offering amnesty, forgiveness and compensation in exchange for peace. Groups that committed crimes are unwilling to negotiate with their victims, or disarm, because the sword of the ICC hangs over their heads. When negotiations do occur, discussions about the past are avoided allowing for practical measures to be put in place in the meantime, such as opening markets, protecting livestock and allowing freedom of movement, whilst forgiveness or genuine reconciliation are not touched upon. Local agreements between communities may offer a form of amnesty, but not forgiveness. In essence, then, the process of reconciliation is put on hold for a better future.55 Tubiana et al (n 53) 87.
According to Tubiana, most government officials and Janjaweed members will not tell the truth about their crimes as long as they believe it could be used against them in a court which they see as a tool of the West against Sudan. If truth were the priority in Darfur, rather than high-level prosecutions, many believe that ex-combatants would come forward. Therefore, while community-level peace might be the best hope for avoiding another regression into violence, ‘the inability to arrange for a pragmatic swap of truth and reconciliation for amnesty leads to limited and fragile pacts’.56Jerome Tubiana, ‘Legal Limbo: How the International Criminal Court is Freezing the Conflict in Darfur’ Foreign Policy (Birak, Chad 23 February 2011).
VII. Responses in Khartoum
In June 2005, one day after the ICC first announced it would investigate Darfur, Khartoum set up the Special Criminal Court on the Events in Darfur. While the court detained the alleged Janjaweed leader Kushayb for some time, it was commonly seen as a tactical move, to try criminals and opponents of the government rather than those guilty of atrocities.
Later, the government also took legal steps to incorporate the international crimes of genocide, crimes against humanity and war crimes into Sudan’s criminal and military codes. Thus the Armed Forces Act 2007 contains provisions on these crimes within a whole chapter on international humanitarian law, and the Criminal Law was also amended in 2009. However, many gaps remain. The Criminal Act does not recognise criminal liability on the grounds of having positions of command or superior responsibility, and the Armed Forces Act also shields superior army officers from criminal responsibility for acts committed by their subordinates. In addition, there are several immunity provisions with similar implications in terms of accountability, and the laws do not recognise rights to reparation or remedy for victims of international crimes.57Mohamed Abdelsalam Babiker, ‘The Prosecution of International Crimes under Sudan’s Criminal and Military Laws: Developments, Gaps and Limitations’ in Lutz Oette (ed), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (Ashgate 2011). Such deficiencies are bound to hamper the effective prosecution of international crimes in Sudan.
The Interim National Constitution that was adopted as part of the CPA (2005) also contains a Bill of Rights, which gave rise to a number of committees tasked with law reform in order to harmonise Sudanese law with international human rights standards. While civil society tried to use this opportunity to promote legislative reforms in several areas, the impact has been lessened by the dominance of the ruling National Congress Party, political repression and the limited attention given by international actors.58Abdelsalam Hassan Abdelsalam and Amin M Medani, ‘Criminal Law Reform and Human Rights in African and Muslim Countries with Particular Reference to Sudan’ in L Oette (ed), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (Ashgate 2011).
The CPA was silent on the issue of accountability for what had happened during the longest war in Africa. The government and the SPLM opted for a process of national reconciliation and healing, but without specifying any mechanisms or ways in which this should take place. Rather, it was envisioned that the CPA would provide a framework for a political transition (including a new national unity government, elections and a referendum) as well as the transformation of the legal and institutional set-up so as to strengthen human rights protection and rule of law.59For a discussion, see Oette (n 58). Yet Khartoum had no desire to embark on genuine reforms, and after the untimely death of SPLM’s leader and South Sudan’s President, John Garang, the government in Juba became preoccupied with preparing for elections and the referendum to achieve independence.
It is perhaps therefore not surprising that when the first Darfur Peace Agreement (DPA) was signed between the government and one of the rebel movements in 2006, it did not provide an opening for legal reform and transitional justice initiatives, nor did it take into account the rights of victims to redress. According to de Waal, the issue of accountability was set aside because the ICC was dealing with the issue.60Alex de Waal, ‘What Happened to Justice in the Darfur Peace Agreement?’ African Arguments (Blog 25 June 2008) <http://africanarguments.org/2008/06/25/what-happened-to-justice-in-the-darfur-peace-agreement/> accessed 19 March 2013. As one consequence, the DPA did not require the government to conduct criminal inquiries and prosecutions for those who were responsible for atrocities in Darfur.
VIII. The Role of the African Union
In March 2009, the AU formed a high level Panel on Darfur (AUPD) led by former South African President Thabo Mbeki. The panel conducted a number of public hearings across Darfur to examine the root causes of conflict, determine how best to end it, and expedite the peace process so as to create conditions conducive to promote justice, healing and reconciliation. The Mbeki report was released on 29 October 2009. It emphasised that ‘the roots of Darfur’s crisis lie in the neglect of the Sudanese peripheries by the centre of power and wealth in Khartoum’,61-------, ‘Recommendations of the AU Panel on Darfur’ Sudan Tribune (Washington 22 October 2009) <http://www.sudantribune.com/spip.php?article32880> accessed 26 October 2009, Sudan Tribune released a copy of the report before its publication in Abuja. and that it is a political crisis that can only be solved by political means and not by war and violence.
Concerning justice, the Panel argued that the people of Darfur understand “justice” broadly to encompass processes of achieving equality, obtaining compensation and restitution, establishing the rule of law, as well as criminal justice. The AUPD held the government of Sudan responsible for providing justice to its citizens and recommended far reaching reform measures of the country’s justice system to restore the lost trust and prevent impunity for serious crimes. The Panel also proposed the formation of hybrid courts for Darfur. It recommended that foreign judges be appointed to work alongside Sudanese peers to prosecute war crimes suspects accused of committing atrocities in the region. As a prerequisite for adjudicating these cases, the report also calls for significant changes to Sudan’s laws and judiciary.62-------, ‘Legal Expert Downplays Darfur Hybrid Proposal’ Sudan Tribune (Washington 25 October 2009) <http://www.sudantribune.com/spip.php?article32913> accessed 9 January 2013.
The AU endorsed these recommendations and established an AU High Implementation Panel (AUHIP), also chaired by Mbeki to assist in their implementation. However, its mandate included facilitating the implementation of the CPA. Mbeki has come to play a key role in this regard, and when South Sudan gained its independence in July 2011, before agreements had been reached about the terms of divorce (ie. borders, wealth sharing, citizenship), Mbeki and the AU had to devote their full attention to the serious conflict between Sudan and South Sudan, with much less time to spend on Darfur.
The Arab League also requested the incorporation of provisions from the Rome Statute in Sudanese laws to resolve the standoff that included conducting national judicial proceedings and changes to criminal law. However, Khartoum has expressed reservations to parts of the proposal, particularly the establishment of hybrid courts with African and Arab justices.63-------, ‘Sudan Rejects Arab Proposal to Establish Hybrid Courts for Darfur Crimes: Report’ Sudan Tribune (Cairo 2 April 2009) <http://www.sudantribune.com/spip.php?article30742> accessed 9 January 2013. The Sudan government has stood firm on this point and has not allowed foreigners to be part of the judiciary. Generally, there has been a lack of political will to address the issues.
In May 2010, Sudan’s international partners in the CPA implementation decided to pursue a dual track for Darfur. Parallel with the Doha talks between the government and rebel movements, which were meant to achieve a ceasefire and political compromises, UNAMID would be responsible for a broader process involving all stakeholders and addressing the root causes of the conflict, including reconciliation and accountability. The government was quick to seize on the opportunities offered by the dual track and produced a document titled: ‘Darfur: Towards a New Strategy to Achieve Comprehensive Peace’.64Suliman Baldo, ‘The Role of the AU in Transitional Justice in Africa – Sudan Case Study’ Unpublished paper, New York (International Center for Transitional Justice 2012) 18–19. The strategy provides an argument for “domesticating” the peace process, but fails to respond to calls for strong and credible accountability measures. The document makes no reference to accountability for serious crimes and the lifting of immunities that shield perpetrators from justice. It commits the government to compensate victims and to guarantee their return, but stops short of mentioning the standards that would guide the compensation and makes no reference to return of the IDPs and refugees to their original lands.65Ibid.
As we have seen, the question of accountability for crimes in Darfur was primarily externalised through the ICC. It took a long time to insert transitional justice provisions and accountability issues into peace talks, because:
The ICC referral came to be seen as a matter between Khartoum and the international community;
The government objected to including such provisions;
Political repression had not only weakened Sudanese civil society, but the arrest warrant against the president made it even more difficult to raise justice issues in the country.
In fact, amendments made to the Criminal Procedure Act in 2009 prohibit anyone in Sudan from assisting in the extradition of any Sudanese for the prosecution of international crimes. These amendments are supposed to act as a legal deterrent for any individual or group contemplating cooperation with the ICC.66 Babiker (n 57) 177.
In addition, the international focus on implementing the CPA took attention away from transitional justice issues, including to some extent the arrest warrant against President Bashir. The CPA envisaged power-sharing as well as major constitutional, legislative and institutional reforms. From the start, there was mutual mistrust between the parties that signed and serious problems of implementation. As implementation proceeded, it became a major aim of the international community to secure the right of the South Sudanese to hold a referendum to decide on the continued unity or separation of the country. The prevailing power structure favoured the status quo, and there was only a limited desire in Khartoum to embark on genuine reforms.
The way the CPA implementation process played out, including the role of international actors, had consequences for the Darfur question. For a start, political attention continued to be diverted away from Darfur despite the humanitarian crisis there. Thus, when the AU Panel on Darfur submitted its report which addressed transitional justice issues, most parties concerned with Sudan were focusing rather on elections and the referendum that were milestones laid down in the CPA timetable. As Oette has suggested, the international community may have conveyed the impression to the government that law reform and accountability were not international priorities and the focus on unity versus separation undermined the impetus for genuine legislative and institutional changes.67 Oette (n 58) 28.
The externalisation of the issue of accountability had several consequences. In addition to contributing to a lack of local ownership of justice, arguably the most significant repercussion was the recasting of complex local patterns of conflict into the moral vocabulary of a western judicial system that simplified complexities on the ground. The conflict was framed as a struggle between Arabs and Africans, despite the fact that large Arab populations, including the largest Baggara group (Rizeigat), had tried hard to keep away from the violence, while some Janjaweed were actually non-Arabs. In addition, changing alliances between ethnic groups as well as individuals and households changing their ethnic identity have been features of the socio-cultural landscape in Darfur.
The simplistic discourse had significant implications. In Darfur, it was adopted by the increasingly politicised inhabitants of refugee camps as well as the rebels, which ‘may have produced irreversible changes of political consciousness among Darfuris’.68Jerome Tubiana, ‘The War in the West’ in John Ryle et al (eds), The Sudan Handbook (James Currey 2011) 143. In the international media, “Arabs” became a stigmatised category and important tribal leaders and groups were largely sidelined from peace talks.
Overall, the role of international actors in Sudan has been characterised by numerous policy objectives, growing divisions and mixed messages.
The arrest warrant against President Bashir was issued at a time when members of the international community were pursuing a number of policy objectives in Sudan. For most of them, such as those pursuing protection and security in Darfur or the implementation of the CPA, cooperation with the government was relied upon. In the Security Council, it turned out to be impossible to agree on interventions that did not have the consent of the Sudan government. At the same time, the UN and most western powers simply could not ignore “genocide” as a description of what had happened in Darfur. As Jumbert argues, attempts to nuance or provide alternative narratives were seen as attempts to deny the reality and helping the international community to escape from its responsibilities. Critics argued that a peace agreement was not worth anything if it did not bring a just peace, restore the rule of law and punish war criminals.69 Jumbert (n 5) 344.
What happened was that the pressure generated largely through activist mobilisation towards and within the US government, the UN and the western donor community contributed to a policy that activated several channels of international responses at the same time in order to maximise the chances of success. The result, however, was in a sense a competition between the priorities and the responses proposed, and, as perceived by many, a conflict between the ‘peace’ approach and the ‘justice’ approach.70 Sørbø (n 4).
There is an inherent tension in simultaneously pursuing a judicial strategy that subjects a government to criminal scrutiny and an impartial, non-coercive mediating strategy that tries to elicit its cooperation. As Rodman writes, if one is committed to criminal justice, several parties are not legitimate interlocutors.71 Rodman (n 30) 549. Combining a confrontational approach with a cooperative one turned out to be extremely difficult in Sudan.72See also Oette (n 58). Thus while the ICC prosecutor appointed in late 2011, Fatou Bensouda, has criticised the Security Council for not executing the arrests, others, including the International Crisis Group, have argued that President Bashir must be offered incentives to bring about a peaceful political transition in Sudan, including secure retirement at home or asylum in a friendly country.73-------,‘ICC Prosecutor Criticizes UNSC on Darfur Warrants’ Sudan Tribune (Khartoum 13 December 2013) <http://sudantribune.com/spip.php?article44862> accessed 15 December 2012; International Crisis Group, ‘Sudan: Major Reform or More War’, Africa Report No 194 (29 November 2012).
The arrest warrant also exposed growing divisions in the UN system over Darfur. The divisions run deep among the permanent members of the Security Council where they have hindered a unified response to the atrocities committed in Darfur and encouraged disagreement with the purpose and priorities of the ICC.
Despite such divisions, which Khartoum has cleverly exploited, the ICC arrest warrant has created much trouble for the president and his government. For example, it has proved impossible for Sudan to join the Cotonu Agreement, which is the most comprehensive partnership agreement between the EU and developing countries. The arrest warrant also causes continuous embarrassment for both the president and the government by restricting travel and the conduct of diplomatic relations.
More basically, the Darfur case shows that transitional justice initiatives will almost always be entangled in fields of politics and power, ranging from the authority of the United Nations and its members to dynamics on the local level. They often fail to attend to critical on-the-ground realities which are often both messy and complex. Consequently, while there is often a need for credible accountability mechanisms and punitive measures, the expectations for transitional justice initiatives promoted from outside should perhaps be more modest, and allow for a good measure of unintended consequences.74For elaboration of this point, see Alex L Hinton, ‘Introduction: Toward an Anthropology of Transitional Justice’ in Alex L Hinton (ed), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Rutgers University Press 2010).
|1||Warrant of Arrest for Omar Ahmad Hassan Al Bashir, ICC-02/05-01/09-01 (The Hague, ICC 2009).|
|2||--------, ‘Sudan Says Ejected Aid Workers are Involved in ICC Decision’ Sudan Tribune (Khartoum 5 March 2009) <http://www.sudantribune.com/spip.php?article30392> accessed 9 January 2013.|
|3||ODI, ‘Indicting Bashir: Sudan and the International Criminal Court’ Overseas Development Institute, 6 March 2009 <http://www.odi.org.uk/events/report.asp?id=460&title=indicting-bashir-sudan-international-criminal-court> accessed 14 October 2009.|
|4||Gunnar M Sørbø, ‘Pursuing Justice in Darfur’ (2009) 27 Nordic Journal for Human Rights 393.|
|5||Maria Gabrielsen Jumbert, ‘The Internationalization of the Sudanese Conflicts: from South Sudan to Darfur’ (PhD thesis, Centre d’Etudes et de Recherches Internationales (CERI) 2010).|
|6||John Hagan and Joshua Kaiser, ‘The Displaced and Dispossessed of Darfur: Explaining the Sources of a Continuing State-led Genocide’ (2011) 62 The British Journal of Sociology 1.|
|7||Jerome Tubiana, ‘Darfur after Doha’ in Gunnar M Sørbø and Abdel Ghaffar M Ahmed, Sudan Separates: Continued Conflict in a Divided Land (Palgrave Macmillan forthcoming 2013).|
|8||Anders Hastrup, ‘Voices from Darfur: Reclaiming Sudanese History’ (PhD thesis, University of Copenhagen 2010).|
|9||Abdul-Jabbar Abdullah Fadul and Victor Tanner, ‘Darfur after Abuja: A View from the Ground’ in Alex de Waal and Julie Flint, War in Darfur and the Search for Peace (Global Equity Initiative, Harvard University and Justice Africa 2007) 297.|
|12||Jerome Tubiana, ‘Darfur: A War for Land?’ in Alex de Waal and Julie Flint, War in Darfur and the Search for Peace (Global Equity Initiative, Harvard University and Justice Africa 2007).|
|14||Mahmood Mamdani, Saviors and Survivors – Darfur, Politics and the War on Terror (Verso 2009) 5–6.|
|15||Tubiana ‘Darfur’ (n 12) 70.|
|16||Jerome Tubiana, ‘The Chad-Sudan Proxy War and the “Darfurization” of Chad: Myths and Reality’, Graduate Institute of International Studies, Small Arms Survey, Sudan Working Paper No 12 (Geneva 2008) 57.|
|17||Claudio Gramizzi and Jerome Tubiana, ‘Forgotten Darfur: Old Tactics and New Players’, Small Arms Survey, Graduate Institute of international and Development Studies (Geneva 2012).|
|18||Alex de Waal, Famine Crimes (James Currey Indiana University Press 1997).|
|19||Hilde Frafjord Johnson, Waging Peace in Sudan: The Inside Story of the Negotiations that Ended Africa’s Longest Civil War (Sussex Academic Press 2011) 123.|
|20||Jumbert (n 5) 119.|
|23||David Keen, Useful Enemies: When Waging Wars is More Important than Winning them (Yale University Press 2012) 120.|
|24||Alex J Bellamy, ‘Responsibility to Protect or Trojan Horse? The Crisis in Darfur and Humanitarian Intervention after Iraq’ (2005) 19 Ethics & International Affairs 44.|
|25||John Hagan and Wynona Rymond-Richmond, Darfur and the Crime of Genocide (Cambridge University Press 2009).|
|26||Bellamy (n 24) 48–49.|
|27||-------, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (Geneva 2005) 4.|
|28||-------, ‘Security Council sends Darfur cases to International Criminal Court’ UN News Centre (Online 1 April 2005) <http://www.un.org/apps/news/story.asp?NewsID=13828&> accessed 18 January 2013.|
|29||Bellamy (n 24) 49.|
|30||UNSC Res 1590 (24 March 2005) UN Doc S/Res/1590.|
|31||Kenneth A Rodman, ‘Darfur and the Limits of Legal Deterrence’ (2008) 30 Human Rights Quarterly 548.|
|32||Jumbert (n 5) 121–123.|
|34||Claire Moon, ‘The Crime of Crimes and the Crime of Criminology: Genocide, Criminology and Darfur’ (2011) 62 The British Journal of Sociology 51.|
|35||Bellamy (n 24).|
|36||Victor Peskin, ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’ (2009) 4 Genocide Studies and Prevention 320.|
|37||Jumbert (n 5) 350.|
|38||Bellamy (n 24) 43.|
|39||Julie Flint and Alex de Waal, ‘Case Closed: A Prosecutor without Borders’, (2009) World Affairs Journal <http://www.worldaffairsjournal.org/article/case-closed-prosecutor-without-borders> accessed 10 December 2012.|
|42||Richard J Goldstone, ‘Bringing War Criminals to Justice during Ongoing War’ in Jonathan Moore (ed), Hard Choices, Moral Dilemmas in Humanitarian Interventions (Rowman & Littlefield Publishers 1998) 198.|
|43||Quoted in Fabrice Weissman (2009) ‘Humanitarian Aid and the International Criminal Court: Grounds for Divorce’ African Arguments (Blog 1 July 2009) <http://africanarguments.org/2009/07/20/humanitarian-aid-and-the-international-criminal-court-grounds-for-divorce-1> accessed 19 March 2013.|
|45||Katy Glassborne et al, ‘ICC Struggles to Reach Out to Darfurians’ Sudan Tribune (The Hague/London 17 October 2007) <http://www.sudantribune.com/spip.php?article24302> accessed 5 December 2012.|
|46||Jean-Francois Bayart, ‘Africa in the World: A History of Extraversion’ (2000) 99 African Affairs 217.|
|47||Jumbert (n 5) 182.|
|49||Anders Hastrup, ‘Violating Darfur: The Emergent Truth of Categories’ (2008) 13 Mediterranean Politics 195.|
|51||Rogaia Mustafa Abusharaf, ‘Debating Darfur in the World’ (2010) 632 The ANNALS of the American Academy of Political and Social Science 67.|
|52||Abdul Mohammed, ‘Bringing The Politics Back In’ African Arguments (Blog 4 July 2009) <http://africanarguments.org/2009/07/04/bringing-the-politics-back-in//> accessed 19 March 2013.|
|53||Jerome Tubiana, Victor Tanner and Musa Adam Abdul-Jalil, ‘Traditional Authorities’ Peacemaking Role in Darfur’ (United States Institute of Peace 2012) 86.|
|54||For more information, see California International Law Center and Robert F Kennedy Center for Justice & Human Rights, Toward Peace with Justice in Darfur: A Framework for Accountability (CILC and RFK Center March 2010).|
|55||Tubiana et al (n 53) 87.|
|56||Jerome Tubiana, ‘Legal Limbo: How the International Criminal Court is Freezing the Conflict in Darfur’ Foreign Policy (Birak, Chad 23 February 2011).|
|57||Mohamed Abdelsalam Babiker, ‘The Prosecution of International Crimes under Sudan’s Criminal and Military Laws: Developments, Gaps and Limitations’ in Lutz Oette (ed), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (Ashgate 2011).|
|58||Abdelsalam Hassan Abdelsalam and Amin M Medani, ‘Criminal Law Reform and Human Rights in African and Muslim Countries with Particular Reference to Sudan’ in L Oette (ed), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (Ashgate 2011).|
|59||For a discussion, see Oette (n 58).|
|60||Alex de Waal, ‘What Happened to Justice in the Darfur Peace Agreement?’ African Arguments (Blog 25 June 2008) <http://africanarguments.org/2008/06/25/what-happened-to-justice-in-the-darfur-peace-agreement/> accessed 19 March 2013.|
|61||-------, ‘Recommendations of the AU Panel on Darfur’ Sudan Tribune (Washington 22 October 2009) <http://www.sudantribune.com/spip.php?article32880> accessed 26 October 2009, Sudan Tribune released a copy of the report before its publication in Abuja.|
|62||-------, ‘Legal Expert Downplays Darfur Hybrid Proposal’ Sudan Tribune (Washington 25 October 2009) <http://www.sudantribune.com/spip.php?article32913> accessed 9 January 2013.|
|63||-------, ‘Sudan Rejects Arab Proposal to Establish Hybrid Courts for Darfur Crimes: Report’ Sudan Tribune (Cairo 2 April 2009) <http://www.sudantribune.com/spip.php?article30742> accessed 9 January 2013.|
|64||Suliman Baldo, ‘The Role of the AU in Transitional Justice in Africa – Sudan Case Study’ Unpublished paper, New York (International Center for Transitional Justice 2012) 18–19.|
|66||Babiker (n 57) 177.|
|67||Oette (n 58) 28.|
|68||Jerome Tubiana, ‘The War in the West’ in John Ryle et al (eds), The Sudan Handbook (James Currey 2011) 143.|
|69||Jumbert (n 5) 344.|
|70||Sørbø (n 4).|
|71||Rodman (n 30) 549.|
|72||See also Oette (n 58).|
|73||-------,‘ICC Prosecutor Criticizes UNSC on Darfur Warrants’ Sudan Tribune (Khartoum 13 December 2013) <http://sudantribune.com/spip.php?article44862> accessed 15 December 2012; International Crisis Group, ‘Sudan: Major Reform or More War’, Africa Report No 194 (29 November 2012).|
|74||For elaboration of this point, see Alex L Hinton, ‘Introduction: Toward an Anthropology of Transitional Justice’ in Alex L Hinton (ed), Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (Rutgers University Press 2010).|