Genocide Charge Against Bashir? The Good, Bad, and What Needs to Happen

PHOTO: Sudanese President Omar al-Bashir. Bashir is wanted by the International Criminal Court for war crimes committed in Sudan’s war-ravaged Darfur region. (Asbarez)

There is no doubt that justice is key to any lasting peace, especially in the complicated crisis of Sudan.While it is clear that punishing mass murderers is the morally right thing to do, it is also the logical approach to promoting the security needed in post-genocide nations and recovery efforts.

However, just because justice is an important part does not mean that it is the only piece of the recovery puzzle. Taking a swing for justice at the wrong time or before key international players are willing to act to bring to justice genocidaires, or those who have committed genocide, can do more harm than good. Such may be the case of a potential history-in-the-making moment at the International Criminal Court (ICC,) where an added charge of genocide may be added onto the already standing indictment of war crimes against Sudanese President Omar al-Bashir.

A Political Nightmare

While the pursuit of justice through the proper channels is underway and remains a good thing, the timing may be exceptionally bad, and it is not necessarily the ICC’s fault either. While the ICC does need to add genocide to the charges against Bashir, doing so without the full support and knowledge that the international community will back it can do more harm than good.

Adding the charge of genocide may be perceived by the regime as an empty threat, or worse, lead to action by the regime similar to the expulsion of the 13 aid organizations when the original indictment was issued. Seeing the poor response of the international community to the expulsions (aid still has not fully been restored and peacekeepers are still delivering aid instead of focusing on tackling serious security issues) it is safe to assume the United States, United Nations, African Union, and other key international players are not willing to back the arrest warrant, even if the charge of genocide is added to the crimes Bashir has committed.

The Good: ICC on the Right Path

Taking into account the broader picture, the ICC is doing the right thing by reconsidering adding genocide to the list of current crimes Bashir has committed. The Appeals chamber at the court made it clear yesterday that the ICC needs to reconsider this touchy topic because the standard of proof the court used to reject the genocide charge last March “was higher and more demanding than what is required.” Lawyer, author, and Sudan follower Bec Hamilton makes the importance of this “lowering of the bar” clear:

“The Prosecution would have had to prove genocide beyond a reasonable doubt just to get an arrest warrant – making it unlikely that an arrest warrant would ever be issued for genocide in any future case.”

In short, the original ruling was setting a precedent that if anyone committed genocide, there would have to be 100% undeniable proof and evidence before they could even be indicted. This would make the entire point of the ICC invalid because there would be no need for a trial if all of the evidence, which could not be proven wrong, was already known to the court. In even simpler terms, the fairness of court proceedings at the ICC would be non-existent because judges would have already made up their minds during the release of an arrest warrant for genocide.

By reconsidering and “lowering the bar,” the ICC is proving it’s fairness as an international court while simultaneously creating a standard that allows for arrest warrants to be issued for possible genocidaires if there are reasonable grounds. The Enough Project speaks to this truth from their website:

“Today’s decision finds that the Pre-Trial Chamber used too high of a standard to evaluate the genocide charge. The decision recognizes that the Prosecutor wasn’t asking the judges to say whether Bashir was guilty of genocide beyond a reasonable doubt; he was arguing that there were reasonable grounds for the Court to issue an arrest warrant for Bashir and have him face a trial that would establish if the genocide charge had been proved beyond reasonable doubt.

For anti-genocide activists, today’s ruling should be viewed positively for both its impact on international legal precedent and the case against Sudan’s President Bashir.”

The Bad: International Community Lacks Political Will to Arrest Bashir or Use the Warrant as a Leverage Point

The lack of political will within the international community to arrest Bashir over the last 8 months since the indictment was originally issued shows that the world still is most likely to simply respond to the current regime’s tactics and actions that will come on the heels of whatever the ICC decides.

When the original arrest warrant was issued by the ICC 8 months ago, the immediate response from the regime under Bashir was to expel over 13 of the most powerful aid organizations on the ground in Darfur. An unprepared international community responded for the first time in what appears to have been a united, yet unplanned, powerful way, demanding the return of aid workers and the full deployment of UN peacekeeping troops. Under a withering diplomatic onslaught led by the United States and Britain and threats of additional sanctions, aid workers were allowed to return over time. To this day though, aid has yet to be fully restored, and peacekeepers are being forced to do the job of aid workers, keeping UN troops from combatting the rampant instability and banditry that now plagues the region.

Afterwards, the political efforts to bring an end to the Sudanese crisis began to slack again despite the appointment of a US Special Envoy to Sudan Scott Gration. The Comprehensive Peace Agreement (CPA) between north and south that formally ended one of the longest running civil wars in modern history still has not been fully implemented, keeping open the possibility of a deadly renewed civil war and, according to US Director of National Intelligence Dennis Blair, ”a new mass killing or genocide” in Sudan.

Since the genocide in Darfur began in 2003, the international policy towards dealing with the crisis has been to respond to whatever Bashir and his regime does instead of taking a proactive stance and dealing with those responsible for the mass murder, forced starvation, and death by disease of not only 500,000 individual civilians in Darfur, but also some 2.5 million who were murdered in the north-south civil war. Over time, this reactive stance has allowed Bashir and his regime to finish driving large swaths of Darfur into refugee camps and begin a destabilization campaign in the south, allowing for the implementation of an unfair national census that has positioned the government to win upcoming national elections.

On a positive note, the past few months has shown that the United States and other world powers are moving away from the “reactive stance” and moving closer towards a “proactive stance.” Rhetoric from the Obama administration has had a change of tone since Special Envoy Gration was first appointed. Additional talk of heavy concerns and implementing pressures on the regime to ensure the CPA survives and the peace process in Darfur be jumpstarted has become more frequent, yet little if no solid action has been taken.

Either way, the international community as a whole still seems to be on the more reactive side things. Seeing how this has played out in the past when it comes to justice in Sudan by going after Bashir, one could easily assume that the international community is politically unmotivated, and therefore unprepared, to either arrest Bashir or use the potential of an added charge of genocide by the ICC as an unique opportunity to expedite the peace process.

In all fairness, one cannot say with absolutely certainty that if the ICC adds on the charge of genocide to the war crimes charges already arrayed against Bashir that the international community will not be proactive in playing off of it. However, by looking at the past several failed years in Sudan by the key players of the world stage, one can assume that despite some change on the political side of dealing with this matter, the reactivity of international response will still be the core of whatever action is taken.

Regardless of Impending ICC Decision, the International Community Must Become Proactive

The implementation of the CPA, jumpstarting of peace talks in Darfur, action taken by the international community and the decision now before the ICC are all linked together and will play a major deciding factor in Sudan’s increasingly gloomy future. Currently, it appears as if Sudan is headed down the slippery slope leading to war and yet another genocide.

However, there is still time to head down another path. Key international players, most importantly the United States, have more leverage on the regime now than ever before. This added decision by the International Criminal Court to reconsider adding genocide to the list of indictments against Bashir is just one more leverage point that can be used to either arrest the war criminal or to ensure a peaceful solution in Darfur and southern Sudan.

One of the main leverage points the United States currently has is that $100 million in American taxes are being used to fund the upcoming national election. Seeing that the electoral process is far from fair and free, the U.S. would do well to threaten to withdraw all funding if the manipulation continues, and then most importantly follow through if it does. This will ensure that if elections do go on even without US funding, the international community will have avoided directly supporting an indicted war criminal and further legitimizing his power.

Also, the Obama administration has yet to release the full contingency plan on what the US will do if war and genocide resumes. The time to tell Bashir and his regime that if violence does resume due to manipulation of elections that there will be severe consequences, and then as a nation the US must follow through with implementing those consequences. Within those consequences must be a wide range of hard hitting items that shake the regime to it’s very core.

Economic sanctions are good but have done little to stop the killings in Sudan over the past several years, and once again, time is running out. The US must begin to consider harsher options such as enforcing a renewed arms embargo that strictly prohibits the regime from getting any kind of weaponry at all. (The current arms embargo on Sudan allows the regime to purchase weapons as long as they are not shipped into the southern provinces or Darfur.)

Perhaps it is even time for the US to begin threatening military action, whether it be establishing no-fly zones over Darfur, bombing government military installations, or by putting troops directly on the ground to protect civilians. However, if the Obama administration goes as far as threatening use of deadly force it must be prepared to follow through if mass violence breaks out. Otherwise, this would turn out to be just one more empty threat that would continue to embolden Bashir and his regime. Using military force should also only be an option when there is no other left on the table.

All together, the point remains clear that whatever action is taken by the key players of the international community, it must stop being strictly reactive and become proactive. President Obama and Special Envoy Gration have stated time and time again that “failure is not an option,” yet the reality remains that failure is an option rather we chose to recognize it or not. If failure truly is not an option, and it should by no means be an option, the time for proactive involvement is now. There are many different routes to take and the majority, if not all of them, are better than continuing to be reactive towards genocide, crimes against humanity, and war crimes.

This decision by the ICC to reevaluate bringing charges of genocide against Bashir may be one of the last remaining opportunities to keep Sudan from sliding into another round of mass murder. The time to act is now while the United States and international partners still have leverage.

Write your Senators and the White House. Tell them what you expect them to do to ensure a climate of peace, justice, and security are built in Sudan that will lead to a lasting peace.