Since 2003, Darfur has been the scene of horrors committed by Sudanese President Al-Bashir, the Janjaweed militia and military forces. These massacres have been qualified as “intertribal collisions” or “actions led by autonomous criminal militia” with the pretext that this was part of a “conflict strategy against insurgence”: this is how Al-Bashir has been legitimizing the actions of his militia against civil populations.
On 4 March 2009, the ICC issued an arrest warrant for Al Bashir for war crimes and crimes against humanity in Darfur–a decision welcomed by all human rights defenders as a step forward in the fight against impunity.
Meanwhile, the uproar over this decision from the African Union and those heads of state who refuse to cooperate with the Court is scandalous. The African Union supports Sudan in its challenge to the legality of the arrest warrant, arguing that a head of state has immunity according to article 27 of the Rome Statute, which has been ratified by 30 member states of the AU. The decision not to cooperate with the ICC which was made in Sirte was guided by political considerations and is incompatible with the Rome Statute’s obligation to cooperate. The African Union and its members states should have been the first ones to intervene and cooperate in order to deliver justice, all the more that these tragic events are happening on our continent. Furthermore, Botswana and South Africa have led the way by reaffirming their engagement to cooperate with the Court. The deafening silence of other member states is no longer tolerable. Justice and human rights have to take precedence over any solidarity with Bashir and his co-accused.
In addition, the fact that Sudan is not a State Party to the Rome Statute does not exclude the Court’s jurisdiction when a case is referred by the UN Security Council. As a result, all UN member states have a duty to cooperate with the Court. The argument that the arrest warrant for Al-Bashir is going to destabilize the country and worsen the situation in Darfur is baseless when you examine realities on the ground. All reports show that assassinations, rapes and the destruction of villages have decreased in Darfur since March 2009. Justice and the search for peace can go hand in hand and reinforce each other.
Although it is true that most situations before the ICC have a connection with Africa (with the exception of Darfur), these situations have been referred to the ICC by African states themselves: Central African Republic, Democratic Republic of Congo and Uganda. In fact, in the last two decades, Africa has witnessed the worst conflicts characterized by massive violations of human rights and international humanitarian laws.
Most African States have ratified the Rome Statute, vowing to punish crimes of concern to humanity and to lend support to the ICC in its fight against impunity. In order to be credible, they have to show their people and the rest of the world that their fight against impunity is not selective and that any individual who is accused of crimes under international law should face justice irrespective of their position.
Ndiémé DIENG is a law student at the Lille 2 University, France and an intern with the Senegalese Section of Amnesty International.
I am pleased to know that African men and women are lining up to defend the rights of victims from ignobable acts that are perpetrated by “men of the State.” The same men who are meant to defend the most vulnerable segments of their populations. Impunity cannot continue. We need to put a stop to it before it becomes the rule– above all in Africa where jurisdictions are at the mercy of the powerful, clans and criminal organizations that use their power for personal gains. Denouncing the situation has proven to be an unfruitful enterprise. We must support the ICC in order to get rid of runaway impunity once and for all.
Translation from the French is informal and provided by CICC Secretariat.