"To those who say there is no peace without justice, I reply, as a Brit, with two words: Northern Ireland." - Julie Flint

Julie Flint, one of my favourite journalists, is back reporting on Darfur.  It's made my day to see her latest commentary published today at Alex de Waal's blog Making Sense of Darfur.  Now the piece has got me wondering:  why did the ICC's arrest warrant have to be now? What was the hurry?  Where did the ICC get the figure of 5,000 deaths per month? More on this later, if and when I can come up with an answer.  Hey ICC:  if you are reading this, can you please let us know your answer by leaking it to Sudan Tribune or NYT, thanks.  

From Alex de Waal's blog Making Sense of Darfur
Justice and Hunger
By Julie Flint
Friday, March 6th, 2009

The expulsions of humanitarians are a catastrophe for the victims of the Darfur war, a fact upon which Luis Moreno Ocampo might well reflect given the requirement of the Rome Statute that prosecutions be in the interests of victims. If he wanted to indict President Bashir–a reversal, by the way, of his initial thinking–why did it have to be now? What was the hurry? UNAMID is not yet at full strength and its protection capacity is modest. The biggest NGOs in Darfur, whose mere presence has at times served the war-displaced well, are now gone–and with them the witness they were able to bear as well as the food and medicines and water they provided. What can be more unjust than further, unnecessary suffering for Darfurians? The Sudan government is constantly looking for pretexts to cripple humanitarian work, seeing all around it a conspiracy to aid and abet the ICC, and Moreno Ocampo’s retributive justice has played right into its hands. He calls Bashir a genocidal dictator (language that does not encourage cooperation or moderation in Khartoum). Did he really think he would submit tamely when threatened with life imprisonment in The Hague?

With at least 13 organisations expelled, 60% of all humanitarian assistance in Darfur will disappear in a matter of days. All international actors are gone from Kalma camp, with its population of 90,000, many of whom have been displaced multiple times. If the government makes another attempt to break the camp up, who will protect the IDPs from militias as they go, wherever they go?

Worse, with their assets seized and their infrastructure dismantled, the humanitarian organisations have no capacity to restart their work or even to hand it over.

All this in the name of what Prof. Antonio Cassese, who led the UN Commission of Inquiry into Darfur, calls ‘impossible justice’. Writing in La Repubblica newspaper on 5 March, Cassese said: ‘[The ICC’s] warrant can be carried out only if Bashir himself orders his guards to arrest him. Outside Sudan, the warrant has virtually no legal weight.’ Cassese argues that since Sudan has not signed the statue of the Court, Bashir can claim immunity. A controversial argument, no doubt, even among lawyers, but one that would add to the furor that would result in many parts of the world if Bashir was apprehended by force.

Cassese cannot be accused of being soft on the Sudan government. The UN Commission of Inquiry he led named 51 people it believes are responsible for crimes committed in Darfur. The list reportedly includes senior government figures whom Moreno Ocampo was initially reluctant to investigate. Cassese kept the 51 names secret, believing this was the best way eventually to detain anyone. Why Moreno Ocampo decided to name his suspects - and then to give away his game plan by announcing he might take them off planes - is best known to him. His decision to use public applications rather than sealed warrants was widely opposed with the Court itself. But listening to and calmly weighing criticism is not one of the Prosecutor’s strongest points.

It is noticeable that 11 of the 13 NGOs expelled come from P3 countries—the U.S., Britain and France. The Sudan government claims that all 13 NGOs all passed information to the ICC—and quite possibly believes it—but the expulsions are clearly a warning, too, to the three governments and their nationals serving in the UN. How they act and speak in the coming days will help determine Khartoum’s next step. It reportedly has a ‘B list’ of organisations it wants out.

Justice must be one of the components of a lasting peace in Darfur/Sudan. But the ICC is a blunt sword—there are other, less risky forms of justice, including reparations, truth and reconciliation processes etc.,—and the timing of the move against Bashir could hardly be worse. Asked in July why he felt the need to go after the president now, with the CPA so fragile and national elections promised, Moreno Ocampo replied that there was no time to lose, because of ‘ongoing genocide’—even while admitting it might take twenty years before he comes to court.

The ICC judges have now rejected the argument even for genocide, ongoing or not, by a majority of two to one. We don’t know if they accepted Moreno Ocampo’s repeated public assertions that 5,000 people are dying a month. If his were true, there might be a case for dramatic and urgent action. But is it true? Can the prosecutor break down these figures, with precise and rigorous sourcing? UN statistics show 150 deaths, through violence, on average last year. The Genocide Intervention Network has a similar figure. That’s a total of between 1600 and 1900—down from 4,470 in 2006 and 2,000 in 2007. The remaining 4,850 The Prosecutor claims in 2008 must therefore be indirect deaths, from disease and hunger etc. Let us see the evidence.

It is true that there is a meningitis epidemic in Darfur at the moment, the worst since 1998. But the epidemic is not war-related and there are no other medical emergencies, according to one of the medical NGOs that have been expelled. The nutritional situation in the displaced camps is said to be ‘pretty good’. A breakdown of patients attending MSF France’s medical clinic in Nyertiti last year shows that 30% of them were from outside Nyertiti. The year before it was only 5-7%. People were moving again. Security was improving. (The requisite proviso, for those who would take this as a denial of the awfulness of Darfur and the wickedness of the government: it’s still not good, and sometimes it’s very bad, and yes, the government is sometimes, but not always, responsible.)

The immediate future for Darfurians is a sharp decline in the remarkable humanitarian work that has reduced mortality rates to near-normal levels in the aftermath of the massacre years of 2003-04. Where’s the justice in that? I’ve spent three years of my life working in war zones. To those who say there is no peace without justice, I reply, as a Brit, with two words: Northern Ireland. Human life is more precious than mantras.

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Noteworthy Quote

"To those who say there is no peace without justice, I reply, as a Brit, with two words: Northern Ireland." - Julie Flint