Never again’ really mean what it says? Prof Steven Freeland, School of Law, University of Western Sydney Introduction



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The Genocide in Darfur – when will

never again’ really mean what it says?


Prof Steven Freeland, School of Law, University of Western Sydney

Introduction

On 7 June 2007, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, presented his fifth report to the United Nations Security Council in relation to the situation in the western Sudanese province of Darfur. This report was submitted in accordance with paragraph 8 of Security Council Resolution 1593 (passed on 31 March 2005), which had referred the situation in Darfur since 1 July 2002 to the Prosecutor for investigation, pursuant to Article 16 of the 1998 Rome Statute of the International Criminal Court. In his report, the Prosecutor urged the Security Council, the members of the United Nations, the parties to the Rome Statute, the African Union and the League of Arab States to take all necessary steps to arrest the two Sudanese nationals for whom arrest warrants had been issued by the Court in late April.


The United Nations has been monitoring events in Darfur for several years. In January 2005, a United Nations Commission of Inquiry, comprised of a highly regarded former judge and several United Nations and Non-Governmental Organisation officials, confirmed the scale of the horrors that were occurring and concluded that serious violations of international human rights and humanitarian law amounting to crimes under international law had taken place. Yet, even then, the Commission found that although some individuals, including Sudanese Government officials, may have acted with ‘genocidal intent’, it was unable to conclude that the Government of Sudan was pursuing a policy of genocide in Darfur. Without a finding that genocide had taken place, many countries will have felt that they were under no obligation to devote political and tangible capital to the plight of the civilians in Darfur, even though acts amounting to crimes against humanity and war crimes were taking place. While the international community argued about the niceties of whether this was genocide or ‘just’ genocidal intent, thousands were being killed.
In this light, the referral of the situation to the International Criminal Court was a highly welcome, and quite unexpected, diplomatic and legal breakthrough. Despite the publicly stated opposition of the United States to the Court - it has frequently expressed fears that the Court could embark on ‘politically motivated’ prosecutions – the world’s leading superpower was persuaded to abstain from voting on the Resolution (as opposed to exercising its power of veto). Many hailed this as a great step forward not only for international justice, but also for the people of Darfur. Certainly, the Resolution was intended to ratchet up the pressure on the Sudanese Government to take firm and decisive action to stop the murder, rape and torture, destruction of villages and forced displacement being perpetrated against the so-called ‘black African’ communities in the region by the Government and the Janjaweed militia.
Yet, despite the fact that it has been almost two and a half years since Resolution 1593 was passed, and notwithstanding the work of the International Criminal Court Prosecutor during that time, the suffering of the people of Darfur has continued virtually unabated. Although there have been some steps taken in the right direction, they have thus far been ineffectual, as well as too late for the millions of people who have suffered at the hands of the Janjaweed militia. Much of the international reaction to the incontrovertible evidence of gross violations of human rights in Darfur has been couched in diplomatic rhetoric and based on the pragmatism of realpolitik. It is as if the world has not learnt from the horrors of the past.
Genocide Convention
At the end of the Second World War, when the true extent of the ‘final solution’ and its implementation became known, the world said ‘never again’ – never can we allow such atrocities and mass killings to take place. We saw the establishment of the Nuremberg War Trials which, although flawed by way of comparison with the procedures that exist in modern-day international criminal tribunals, clearly demonstrated the value of a transparent trial process to deal with gross violations of human rights. In 1948, the Genocide Convention came into force and with it a definition of the crime of genocide and the elaboration of clear responsibilities on all States to prevent acts of genocide. Indeed, these responsibilities have recently been affirmed by the International Court of Justice in the Genocide Case between Serbia and Bosnia- Herzegovina.
Yet, almost immediately after the Genocide Convention came into force, the prevailing ‘cold-war’ geopolitical climate meant that, over the next forty years, the death of approximately 180 million people in conflict would take place with virtual impunity at the international level. Only when the Berlin Wall came down in 1990 was the United Nations Security Council able to become more proactive and turn its attention for the first time to human rights issues. Even then, it failed to act effectively in the case of the Balkans and Rwanda, preferring instead to set up ad hoc Tribunals after the fact, rather than taking decisive action to stem the carnage as it was taking place in both of those conflicts.
In similar vein, it is almost incredulous to think that the United Nations has only recently been able to reach agreement with the Cambodian Government in relation to the prosecution of those responsible for the ‘killing fields’ in that country some thirty years ago. The genocide carried out by the Khmer Rouge regime represents one of the most cataclysmic events the Asian region has ever experienced. By most estimates, almost two million people, representing over twenty percent of the total population at the time, died directly as a result of the four-year reign of terror. It remains to be seen whether anyone will ever be brought to account in a court of law

for those actions.


Darfur – genocide again
Now, in an all-too-familiar pattern, we are witnessing from a distance the tragedy of Darfur - the first genocide of the twenty first century. The call of ‘never again’ has again rung hollow. What action has been initiated in response to the crimes being committed has been measured and ineffective in halting the strategy of the Sudanese Government and its supporters. It has been estimated by various human rights groups that the actions of the Government-backed Janjaweed have already resulted in the deaths of more than 250,000 people and the internal displacement of a further two million. The various crimes so far detailed by the Prosecutor of the International Criminal Court give us an indication of the scale and horror of the actions taking place almost on a daily basis. In addition, there are approximately four million people currently in need of humanitarian assistance in the region, representing approximately two-thirds of the population of Darfur. This represents a problem of catastrophic proportions, and those non-governmental organisations trying to distribute aid in the region are simply overwhelmed by the task at hand, a situation made even worse by the fact that aid workers have themselves also become targets of the Janjaweed militia.
Moreover, the conflict has significant international ramifications and threatens to draw other countries into an ever-growing spiral of violence, instability and despair. This possibility had been foreseen by the Security Council, which passed Resolution 1593 under Chapter VII of the United Nations Charter, having determined that the situation in Darfur ‘continues to constitute a threat to international peace and security’.
This has been reflected on the ground. The flood of refugees fleeing the ongoing violence has necessitated the establishment of massive refugee camps both within, and outside of Darfur, several of which are located in neighbouring Chad, the eastern part of which has a similar ethnic makeup to Darfur. The dangers of this already tragic conflict expanding even further have been demonstrated by the escalating tension and violence now taking place between Chad and Sudan, involving incursions into each other’s territory by militia supported by the respective Governments. Fighting has also taken place in the Central African Republic, which borders both Sudan and Chad.
The conflict in the arid region of Darfur began in 2003, when rebel groups formed by disaffected black Africans began to attack government targets. These groups, the largest of which were the Sudanese Liberation Army (SLA) and the Justice and Equality Movement (JEM), argued that the Government was ignoring their plight and, instead, was implementing policies designed to favour Arab groups also living in the region. At the heart of the conflict was a lack of natural resources necessary to sustain the lives and livelihoods of those living in Darfur, which had for many years seen increasing tension between the nomadic Arabs and the farming black Africans as they competed for ever-dwindling arable land. This lack of arable land in the region led to growing despair and impoverishment among the black Massaleet, Zagawa and Fur - Darfur means ‘land of the Fur’ - communities.
This has been exacerbated by the discriminatory policies initiated by Khartoum, leading to desperate attempts by those communities to regain control over their lives. Left with little option, they instigated raids on Government assets and attacked officials charged with the responsibility of implementing official Government policy. The response of the Sudanese Government to these

attacks has been swift, merciless and overwhelming. Despite continually denying any links to the Janjaweed, the Government has worked closely with the militia in a carefully orchestrated campaign of reprisal and terror against civilian populations, designed to drive the black African communities away from the region – a clear example of what we now refer to as ‘ethnic cleansing’.


This strategy is premised on the false assumption that all of the Massaleet, Zagawa and Fur communities support, or are at least sympathetic to the rebel groups. In the period August 2003 to March 2004, for example, the Prosecutor of the International Criminal Court has detailed the violent attacks that took place in the villages of Kodom, Bindisi, Mukjar and Arawala. These attacks were typical of the brutality of the campaign, which has seen mass murder, mass rape of civilians and the forced displacement of whole communities. Many similar attacks have since taken place throughout the region. A peace agreement was brokered in May 2006, but this was rejected by a significant proportion of the SLA and JEM forces, who feared that under the guise of the agreement, the discriminatory policies of the Government would continue with impunity. Instead, they have vowed to continue their struggle against the Government and the Janjaweed forces, even in the face of overwhelming odds.
It has only been relatively recently that more tangible international action has been agreed. In June 2007, after years of protracted negotiations and delaying tactics on the part of the Sudanese Government, agreement was reached for a ‘hybrid’ African Union (AU) and United Nations peacekeeping force to be sent to Darfur. It is to be hoped that this force of approximately 19,000 troops will be able to provide real protection to the innocent civilians in the region – something that an undermanned and ill-equipped AU force has been unable to do. Even then, this new force will not be deployed until next year at the earliest.
The diplomatic pressure is also increasing, although, as always, this is tempered by political realities. In late May 2007, United States President Bush announced that he was imposing further unilateral sanctions directed against the Sudan, in response to what he called the ‘genocide’ taking place in Darfur. While such declarations are to be welcomed, there is a strong sense that these sanctions have been watered down in response to the Sudanese Government’s previous assistance given to the United States in the so-called ‘war on terror’. Moreover, powerful countries such as China oppose stringent economic or military action against Sudan, largely because they are reliant on that country for oil and other natural resources.
Additionally, there is increasing pressure being brought to bear by civil society. Movie stars, sporting heroes and other well-known people are calling for real action to be instigated to stop the slaughter in Darfur. Non-governmental organisations are distributing more detailed reports of what is taking place on the ground, implementing as much as possible their traditional policy of ‘naming and shaming’, in an attempt to increase the pressure on those individuals suspected of playing a leading part in the crimes being perpetrated.
Even more significantly, the International Criminal Court has issued international arrest warrants for Ahmad Muhammad Harun, currently (and perversely) the Minister of State for Humanitarian Affairs in the Sudanese Government, and Ali Muhammad Al Abd-Al- Rahman (also know as Ali Kushayb), a Janjaweed militia leader. The Court has determined that there are reasonable grounds to believe that both men are criminally responsible for 51 counts of crimes against humanity (including persecution, murder, rape and other forms of sexual violence, torture, cruel treatment, unlawful imprisonment, pillaging and forcible transfer of civilians) and war crimes (rape, intentionally attacking civilians and pillaging) perpetrated against the people of Darfur. These arrest warrants are available publicly on the website of the Court and provide graphic detail of the Government-sponsored campaign of terror in the region.
The International Criminal Court has no ‘police force’ and is entirely reliant on the international community to affect the arrest of these individuals so that they can be brought before the Court to face trial. Sudan, not unexpectedly, has vehemently opposed any calls for their arrest. Whilst in the immediate aftermath of the issuance of the arrest warrants, the actions of the Janjaweed were scaled back, the atrocities have once again resumed. The longer it is before these men are brought to justice, the worse the position will become.
Of course, prosecuting the perpetrators of these crimes represents only half of the picture. To prevent acts of genocide and live up to our worthy ideals takes more than the establishment of a legal regime that can deal with the crimes effectively once the killing has stopped. That is an important element in the matrix of international criminal justice but is based on an assumption that such acts will take place. What is required is sincere and determined political will on the part of all countries of the world to listen to the calls of those under threat and to ensure that crimes such as this do not in fact occur.
One further element in the Darfur tragedy that should be noted is that it represents yet another conflict arising from the struggle for scarce natural resources. Conflicts in Somalia, the Democratic Republic of the Congo, Haiti, the Philippines, Pakistan and between Israel and some of its Arab neighbours have also been triggered by a need for natural resources. There is clearly a close link between environmental security and human security. The degradation of the natural environment can lead to devastating consequences and conflict. Unfortunately this trend will become increasingly common as the ongoing effects of climate change take hold. In a recent editorial published in the Washington Post, United Nations Secretary-General Ban Ki-moon said that climate change is partly to blame for the conflict in Darfur. This is but one further tragic lesson that must be heeded if we are ever to be loyal to those cries of ‘never again’ that rang so loudly some fifty years ago.


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