[R-G] Sudan: Darfur, ICC And the New Humanitarian Order

[Anthony Fenton]

Sudan: Darfur, ICC And the New Humanitarian Order
http://allafrica.com/stories/200809190281.html
OPINION
18 September 2008
Posted to the web 19 September 2008

Mahmood Mamdani

On July 14, after much advance publicity and fanfare, the prosecutor  
of the International Criminal Court applied for an arrest warrant for  
the president of Sudan, Omar Hassan Ahmad al-Bashir, on charges that  
included genocide, crimes against humanity and war crimes. Important  
questions of fact arise from the application as presented by the  
prosecutor. But even more important is the light this case sheds on  
the politics of the "new humanitarian order."

The conflict in Darfur began as a civil war in 1987-89, before Bashir  
and his group came to power. It was marked by indiscriminate killing  
and mass slaughter on both sides. The language of genocide was first  
employed in that conflict. The Fur representative at the May 1989  
reconciliation conference in El Fasher pointed to their adversaries  
and claimed that "the aim is a total holocaust and no less than the  
complete annihilation of the Fur people and all things Fur." In  
response the Arab representative traced the origin of the conflict to  
"the end of the '70s when ... the Arabs were depicted as foreigners  
who should be evicted from this area of Dar Fur."

The ICC prosecutor, Luis Moreno-Ocampo, has uncritically taken on the  
point of view of one side in this conflict, a side that was speaking  
of a "holocaust" before Bashir came to power, and he attributes far  
too much responsibility for the killing to Bashir alone. He goes on to  
speak of "new settlers" in today's Darfur, suggesting that he has  
internalized this partisan perspective.

At the same time, the prosecutor speaks in ignorance of history: "AL  
BASHIR...promoted the idea of a polarization between tribes aligned  
with him, whom he labeled 'Arabs' and...the Fur, Masalit and  
Zaghawa...derogatory [sic] referred to as 'Zurgas' or 'Africans'." The  
racialization of identities in Darfur has its roots in the British  
colonial period. As early as the late 1920s, the British tried to  
organize two confederations in Darfur: one Arab, the other black  
(Zurga). Racialized identities were incorporated into the census and  
provided the frame for government policy. It is not out of the blue  
that the two sides in the 1987-89 civil war described themselves as  
Arab and Zurga. If anything, the evidence shows that successive  
Sudanese governments -- Bashir's included -- looked down on all  
Darfuris, non-Arab Zurga as well as Arab nomads.

Having falsely attributed to Bashir the racialization of the conflict,  
Moreno-Ocampo focuses on two consequences of the conflict in Darfur:  
ethnic cleansing through land-grabbing and atrocities in the camps. He  
attributes both to Bashir. He is again wrong. The land-grabbing has  
been a consequence of three different, if related, causes. The first  
is the colonial system, which reorganized Darfur as a series of tribal  
homelands, designating the largest for settled peasant tribes and none  
for fully nomadic tribes. The second is environmental degradation:  
according to the United Nations Environment Program, the Sahara  
expanded by 100 kilometers in four decades; this process reached a  
critical point in the mid-1980s, pushing all tribes of North Darfur,  
Arab and non-Arab, farther south, onto more fertile Fur and Masalit  
lands. This in turn led to a conflict between tribes with homelands  
and those without them. The imperative of sheer survival explains in  
part the unprecedented brutality of the violence in every successive  
war since 1987-89. The third cause came last: the brutal  
counterinsurgency unleashed by the Bashir regime in 2003-04 in  
response to an insurgency backed up by peasant tribes.

It is not just the early history of the conflict that the prosecutor  
is poorly informed about. In his eagerness to build a case, Moreno- 
Ocampo glosses over recent history as well. He charges Bashir with  
following up the mass slaughter of 2003-04 with attrition by other  
means in the camps: "He did not need bullets. He used other weapons:  
rape, hunger and fear." This claim flies in the face of evidence from  
UN sources in Darfur, quoted by Julie Flint in the London Independent,  
that the death rate in the camps came down to around 200 a month from  
early 2005, less than in South Sudan or in the poor suburbs of Khartoum.

The point of the prosecutor's case is to connect all consequences in  
Darfur to a single cause: Bashir. Moreno-Ocampo told journalists in  
The Hague, "What happened in Darfur is a consequence of Bashir's  
will." The prosecution of Bashir comes across as politicized justice.  
As such, it will undermine the legitimacy of the ICC and almost  
certainly will not help solve the crisis in Darfur. It is perhaps  
understandable that a prosecutor in a rush would gloss over all  
evidence that might undermine his case. But we must not. A workable  
solution to the conflict requires that all its causes be understood in  
their full complexity.

Darfur was the site of mass deaths in 2003-04. World Health  
Organization sources--still the most reliable available information on  
mortality levels then--trace these deaths to two major causes: roughly  
80 percent to drought-related diarrhoea and 20 per cent to direct  
violence. There is no doubt that the perpetrators of violence should  
be held accountable, but when and how are political decisions that  
cannot belong to the ICC prosecutor. More than the innocence or guilt  
of the president of Sudan, it is the relationship between law and  
politics--including the politicization of the ICC--that poses a wider  
issue, one of greatest concern to African governments and peoples.

When World War II broke out, the international order could be divided  
into two unequal parts: one privileged, the other subjugated; one a  
system of sovereign states in the Western Hemisphere, the other a  
colonial system in most of Africa, Asia and the Middle East. Post-war  
decolonization recognized former colonies as states, thereby expanding  
state sovereignty as a global principle of relations between states.  
The end of the cold war has led to another basic shift, heralding an  
international humanitarian order that promises to hold state  
sovereignty accountable to an international human rights standard.  
Many believe that we are in the throes of a systemic transition in  
international relations.

The standard of responsibility is no longer international law; it has  
shifted, fatefully, from law to rights. As the Bush Administration  
made patently clear at the time of the invasion of Iraq, humanitarian  
intervention does not need to abide by the law. Indeed, its defining  
characteristic is that it is beyond the law. It is this feature that  
makes humanitarian intervention the twin of the "war on terror."

This new humanitarian order, officially adopted at the UN's 2005 World  
Summit, claims responsibility for the protection of vulnerable  
populations. That responsibility is said to belong to "the  
international community," to be exercised in practice by the UN, and  
in particular by the Security Council, whose permanent members are the  
great powers. This new order is sanctioned in a language that departs  
markedly from the older language of law and citizenship. It describes  
as "human" the populations to be protected and as "humanitarian" the  
crisis they suffer from, the intervention that promises to rescue them  
and the agencies that seek to carry out intervention. Whereas the  
language of sovereignty is profoundly political, that of humanitarian  
intervention is profoundly apolitical, and sometimes even anti- 
political. Looked at closely and critically, what we are witnessing is  
not a global but a partial transition. The transition from the old  
system of sovereignty to a new humanitarian order is confined to those  
states defined as "failed" or "rogue" states. The result is once again  
a bifurcated system, whereby state sovereignty obtains in large parts  
of the world but is suspended in more and more countries in Africa and  
the Middle East.

The Westphalian coin of state sovereignty is still the effective  
currency in the international system. It is worth looking at both  
sides of this coin: sovereignty and citizenship. If "sovereignty"  
remains the password to enter the passageway of international  
relations, "citizenship" still confers membership in the sovereign  
national political (state) community. Sovereignty and citizenship are  
not opposites; they go together. The state, after all, embodies the  
key political right of citizens: the right of collective self- 
determination.

The international humanitarian order, in contrast, does not  
acknowledge citizenship. Instead, it turns citizens into wards. The  
language of humanitarian intervention has cut its ties with the  
language of citizen rights. To the extent the global humanitarian  
order claims to stand for rights, these are residual rights of the  
human and not the full range of rights of the citizen. If the rights  
of the citizen are pointedly political, the rights of the human  
pertain to sheer survival; they are summed up in one word: protection.  
The new language refers to its subjects not as bearers of rights--and  
thus active agents in their emancipation--but as passive beneficiaries  
of an external "responsibility to protect." Rather than rights-bearing  
citizens, beneficiaries of the humanitarian order are akin to  
recipients of charity. Humanitarianism does not claim to reinforce  
agency, only to sustain bare life. If anything, its tendency is to  
promote dependence. Humanitarianism heralds a system of trusteeship.

It takes no great intellectual effort to recognize that the  
responsibility to protect has always been the sovereign's obligation.  
It is not that a new principle has been introduced; rather, its terms  
have been radically altered. To grasp this shift, we need to ask: who  
has the responsibility to protect whom, under what conditions and  
toward what end?

The era of the international humanitarian order is not entirely new.  
It draws on the history of modern Western colonialism. At the outset  
of colonial expansion in the eighteenth and nineteenth centuries,  
leading Western powers -- Britain, France, Russia -- claimed to  
protect "vulnerable groups." When it came to countries controlled by  
rival powers, such as the Ottoman Empire, Western powers claimed to  
protect populations they considered vulnerable, mainly religious  
minorities like specific Christian denominations and Jews. In lands  
not yet colonized by any power, like South Asia and large parts of  
Africa, they highlighted local atrocities -- such as female  
infanticide and suttee in India, and slavery in Africa -- and pledged  
to protect victims from their rulers.

 From this history was born the international regime of trusteeship  
exercised under the League of Nations. The League's trust territories  
were mainly in Africa and the Middle East. They were created at the  
end of World War I, when colonies of defeated imperial powers (the  
Ottoman Empire, Germany and Italy) were handed over to the victorious  
powers, who pledged to administer them as guardians would administer  
wards, under the watchful eye of the League of Nations.

One of these trust territories was Rwanda, administered as a trust of  
Belgium until the 1959 Hutu Revolution. It was under the benevolent  
eye of the League of Nations that Belgium hardened Hutu and Tutsi into  
racialized identities, using the force of law to institutionalize an  
official system of discrimination between them. Thereby, Belgian  
colonialism laid the institutional groundwork for the genocide that  
followed half a century later. The Western powers that constituted the  
League of Nations could not hold Belgium accountable for the way it  
exercised an international trust, for one simple reason: to do so  
would have been to hold a mirror up to their own colonial record.  
Belgian rule in Rwanda was but a harder version of the indirect rule  
practiced to one degree or another by all Western powers in Africa.  
This system did not simply deny sovereignty to its colonies; it  
redesigned the administrative and political life of colonies by  
bringing each under a regime of group identity and rights. Belgian  
rule in Rwanda may have been an extreme version of colonialism, but it  
certainly was not exceptional.

Given the record of the League of Nations, it is worth asking how the  
new international regime of trusteeship would differ from the old one.  
What are the likely implications of the absence of citizenship rights  
at the core of this new system? Why would a regime of trusteeship not  
degenerate yet again into one of lack of accountability and  
responsibility?

On the face of it, these two systems -- one defined by sovereignty and  
citizenship, the other by trusteeship and wardship -- would seem to be  
contradictory rather than complementary. In practice, however, they  
are two parts of a bifurcated international system. One may ask how  
this bifurcated order is reproduced without the contradiction being  
flagrantly obvious, without it appearing like a contemporary version  
of the old colonial system of trusteeship. A part of the explanation  
lies in how power has managed to subvert the language of violence and  
war to serve its own claims.

SUBVERTING THE LANGUAGE OF GENOCIDE

War has long ceased to be a direct confrontation between the armed  
forces of two states. As became clear during the confrontation between  
the Allied and the Axis powers in World War II, in America's Indochina  
War in the 1960s and '70s, its Gulf War in 1991 and then again in its  
2003 invasion of Iraq, states do not just target the armed forces of  
adversary states; they target society itself: war-related industry and  
infrastructure, economy and work force, and sometimes, as in the  
aerial bombardment of cities, the civilian population in general. The  
trend is for war to become generalized and indiscriminate. Modern war  
is total war.

This development in the nature of modern war has tended to follow an  
earlier development of counterinsurgency in colonial contexts. Faced  
with insurgent guerrillas who were simply armed civilians, colonial  
powers targeted the populations of occupied territories. When Mao  
Zedong wrote that guerrillas must be as fish in water, American  
counterinsurgency theorist Samuel Huntington, writing during the  
Vietnam War, responded that the object of counterinsurgency must be to  
drain the water and isolate the fish. But the practice is older than  
post-World War II counterinsurgency. It dates back to the earliest  
days of modernity, to settler-colonial wars against American Indians  
in the decades and centuries that followed 1492. Settler America  
pioneered the practice of interning civilian populations in what  
Americans called "reservations" and the British called "reserves," a  
technology the Nazis would later develop into an extreme form called  
concentration camps. Often thought of as a British innovation put into  
effect during the late-nineteenth-century Boer War in South Africa,  
the practice of concentrating and interning populations in colonial  
wars was in origin an American settler contribution to the development  
of modern war.

The regime identified with the international humanitarian order makes  
a sharp distinction between genocide and other kinds of mass violence.  
The tendency is to be permissive of insurgency (liberation war),  
counterinsurgency (suppression of civil war or of rebel/revolutionary  
movements) and inter-state war as integral to the exercise of national  
sovereignty. Increasingly, they are taken as an inevitable if  
regrettable part of defending or asserting national sovereignty,  
domestically or internationally -- but not genocide.

What, then, is the distinguishing feature of genocide? It is clearly  
not extreme violence against civilians, for that is very much a  
feature of both counterinsurgency and interstate war in these times.  
Only when extreme violence targets for annihilation a civilian  
population that is marked off as different "on grounds of race,  
ethnicity or religion" is that violence termed genocide. It is this  
aspect of the legal definition that has allowed "genocide" to be  
instrumentalized by big powers so as to target those newly independent  
states that they find unruly and want to discipline. More and more,  
universal condemnation is reserved for only one form of mass violence  
-- genocide -- as the ultimate crime, so much so that  
counterinsurgency and war appear to be normal developments. It is  
genocide that is said to be violence run amok, amoral, evil. The  
former is depicted as normal violence, and the latter as bad violence.  
Thus the tendency to call for "humanitarian intervention" only where  
mass slaughter is named "genocide."

Given that the nature of twentieth-century "indirect rule" colonialism  
in Africa shaped the nature of administrative power along "tribal" (or  
ethnic) lines, it is not surprising that the exercise of power and  
responses to it tend to take "tribal" forms in newly independent  
states. From this point of view, there is little to distinguish  
between mass violence unleashed against civilians in Congo, northern  
Uganda, Mozambique, Angola, Darfur, Sierra Leone, Liberia, Ivory Coast  
and so on. So which ones are to be named "genocide" and which ones are  
not? Most important, who decides?

There is nothing new in legal concepts being used to serve the  
expedience of great powers. What is new about the "war on terror" is  
that action against certain forms of violence is simultaneously being  
moralized and legally deregulated. Is it then surprising that these  
very developments have led to violence run amok, as in Iraq after 2003  
or, indeed, in Bashir's own little war on terror in Darfur in 2003-04?  
As the new humanitarian order does away with legal limits to pre- 
emptive war--thus, to the global war on terror--it should not be  
surprising that counterinsurgency defines itself as a local war on  
terror.

The year 2003 saw the unfolding of two counterinsurgencies. One was in  
Iraq, and it grew out of foreign invasion. The other was in Darfur,  
and it grew as a response to an internal insurgency. The former  
involved a liberation war against a foreign occupation; the latter, a  
civil war in an independent state. True, if you were an Iraqi or a  
Darfuri, there was little difference between the brutality of the  
violence unleashed in either instance. Yet much energy has been  
invested in how to define the brutality in each instance: whether as  
counterinsurgency or as genocide. We have the astonishing spectacle of  
the state that has perpetrated extreme violence in Iraq, the United  
States, branding an adversary state, Sudan, as one that has  
perpetrated genocidal violence in Darfur. Even more astonishing, we  
have a citizens' movement in America calling for a humanitarian  
intervention in Darfur while keeping mum about the violence in Iraq.

THE INTERNATIONAL CRIMINAL COURT

The emphasis on big powers as the protectors of rights internationally  
is increasingly being twinned with an emphasis on big powers as  
enforcers of justice internationally. This much is clear from a  
critical look at the short history of the International Criminal  
Court. The ICC was set up by treaty in Rome in 1998 to try the world's  
most heinous crimes: mass murder and other systematic abuses. The  
relationship between the ICC and successive US administrations is  
instructive: it began with Washington criticizing the ICC and then  
turning it into a useful tool. The effort has been bipartisan: the  
first attempts to weaken the ICC and to create US exemptions from an  
emerging regime of international justice were made by leading  
Democrats during the Clinton Administration.

Washington's concerns were spelled out in detail by a subsequent  
Republican ambassador to the UN, John Bolton: "Our main concern should  
be for our country's top civilian and military leaders, those  
responsible for our defense and foreign policy." Bolton went on to  
ask" whether the United States was guilty of war crimes for its aerial  
bombing campaigns over Germany and Japan in World War II" and answered  
in the affirmative: "Indeed, if anything, a straightforward reading of  
the language probably indicates that the court would find the United  
States guilty. A fortiori, these provisions seem to imply that the  
United States would have been guilty of a war crime for dropping  
atomic bombs on Hiroshima and Nagasaki. This is intolerable and  
unacceptable." He also aired the concerns of America's principal ally  
in the Middle East, Israel: "Thus, Israel justifiably feared in Rome  
that its pre-emptive strike in the Six-Day War almost certainly would  
have provoked a proceeding against top Israeli officials. Moreover,  
there is no doubt that Israel will be the target of a complaint  
concerning conditions and practices by the Israeli military in the  
West Bank and Gaza."

When it came to signing the treaty, Washington balked. Once it was  
clear that it would not be able to keep the ICC from becoming a  
reality, the Bush Administration changed tactics and began signing  
bilateral agreements with countries whereby both signatories would  
pledge not to hand over each other's nationals -- even those accused  
of crimes against humanity -- to the ICC. By mid-June 2003, the United  
States had signed such agreements with thirty-seven countries,  
starting with Sierra Leone, a site of massive atrocities.

The Bush Administration's next move was accommodation, made possible  
by the kind of pragmatism practiced by the ICC's leadership. The fact  
of mutual accommodation between the world's only superpower and an  
international institution struggling to find its feet on the ground is  
clear if we take into account the four countries where the ICC has  
launched its investigations: Sudan, Uganda, Central African Republic  
and Congo. All are places where the United States has no major  
objection to the course chartered by ICC investigations. Its name  
notwithstanding, the ICC is rapidly turning into a Western court to  
try African crimes against humanity. It has targeted governments that  
are US adversaries and ignored actions the United States doesn't  
oppose, like those of Uganda and Rwanda in eastern Congo, effectively  
conferring impunity on them.

If the ICC is accountable, it is to the Security Council, not the  
General Assembly. It is this relationship that India objected to when  
it--like the United States, China and Sudan--refused to sign the Rome  
Statute. India's primary objection was summed up by "The Hindu",  
India's leading political daily, which argued that "granting powers to  
the Security Council to refer cases to the ICC, or to block them, was  
unacceptable, especially if its members were not all signatories to  
the treaty," for it "provided escape routes for those accused of  
serious crimes but with clout in the U.N. body." At the same time,  
"giving the Security Council power to refer cases from a non-signatory  
country to the ICC was against the Law of Treaties under which no  
country can be bound by the provisions of a treaty it has not signed."

The absence of formal political accountability has led to the informal  
politicization of the ICC. No one should be surprised that the United  
States used its position as the leading power in the Security Council  
to advance its bid to capture the ICC. This is how The Hindu summed up  
the US relationship to the court: "The wheeling-dealing by which the  
U.S. has managed to maintain its exceptionalism to the ICC while  
assisting 'to end the climate of impunity in Sudan' makes a complete  
mockery of the ideals that informed the setting up of a permanent  
international criminal court to try perpetrators of the gravest of  
crimes against humanity."

LAW AND POLITICS IN TRANSITIONAL SOCIETIES

Human rights fundamentalists argue for an international legal standard  
regardless of the political context of the country in question. Their  
point of view is bolstered by the widespread and understandable  
popular outrage, not just in the West but also throughout Africa,  
against the impunity with which a growing number of regimes have been  
resorting to slaughter to brutalize their populations into silence.  
The realization that the ICC has tended to focus only on African  
crimes, and mainly on crimes committed by adversaries of the United  
States, has introduced a note of sobriety into the African discussion,  
raising concerns about a politicized justice and wider questions about  
the relationship between law and politics.

In no country is the distinction between legal and political issues  
self-evident. In a democracy, the domain of the legal is defined  
through the political process. What would happen if we privileged the  
legal over the political, regardless of context? The experience of a  
range of transitional societies -- post-Soviet, postapartheid and  
postcolonial -- suggests that such a fundamentalism would call into  
question their political existence. Several post-Soviet societies of  
Eastern Europe with a history of extensive informing, spying and  
compromising have decided either not to open fully secret police and  
Communist Party files or to do so at a snail's pace. Societies torn  
apart by civil war, like post-Franco Spain, have chosen amnesia over  
truth, for the simple reason that they have prioritized the need to  
forge a future over agreeing on the past. The contrast is provided by  
Bosnia and Rwanda, where the administration of justice became an  
international responsibility and the decision to detach war crimes  
from the underlying political reality has turned justice into a regime  
for settling scores.

Those who face human rights as the language of an externally driven  
"humanitarian intervention" have to contend with a legal regime where  
the content of human rights law is defined outside a political  
process--whether democratic or not--that includes them as formal  
participants. Particularly for those in Africa, the ICC heralds a  
regime of legal and political dependence, much as the postwar Bretton  
Woods institutions began to pioneer an international regime of  
economic dependence in the 1980s and '90s. The real danger of  
detaching the legal from the political regime and handing it over to  
human rights fundamentalists is that it will turn the pursuit of  
justice into revenge-seeking, thereby obstructing the search for  
reconciliation and a durable peace. Does that mean that the very  
notion of justice must be postponed as disruptive of peace? No.

If peace and justice are to be complementary rather than conflicting  
objectives, we must distinguish victors' justice from survivors'  
justice: if one insists on distinguishing right from wrong, the other  
seeks to reconcile different rights. In a situation where there is no  
winner and thus no possibility of victors' justice, survivors' justice  
may indeed be the only form of justice possible. If Nuremberg is the  
paradigm for victors' justice, South Africa's postapartheid transition  
is the paradigm for survivors' justice. The end of apartheid was  
driven by a key principle: forgive but do not forget. The first part  
of the compact was that the new power will forgive all past  
transgressions so long as they are publicly acknowledged as wrongs.  
There will be no prosecutions. The second was that there will be no  
forgetting and that henceforth rules of conduct must change, thereby  
ensuring a transition to a postapartheid order. It was South Africa's  
good fortune that its transition was in the main internally driven.  
South Africa is not a solitary example but a prototype for conflicts  
raging across Africa about the shape of postcolonial political  
communities and the definition of membership in them. The agreement  
that ended the South Sudan war combined impunity for all participants  
with political reform. The same was true of the settlement ending  
Mozambique's civil war. Had the ICC been involved in these conflicts  
in the way it is now in Darfur, it is doubtful there would be peace in  
either place.