On December 14, Chief Prosecutor of the International Criminal Court (ICC) Fatou Bensouda, announced the shelving of the Sudan case, and instead urged the United Nations to do more to address the situation in Sudan. The decision to suspend this case comes after a decade of ineffective investigations in Darfur and a fruitless pursuit of top Sudanese leaders, including current President Omar al-Bashir. It could mean a shift towards a more promising future for the ICC, particularly given the dearth of prosecutions in its short history. However, for those in Sudan being violently oppressed by al-Bashir’s regime, it promises little.
Chief Prosecutor Bensouda declared the suspension decision in a damning speech to the UN Security Council, criticizing the UN for their paralysis in the face of escalating violence in Darfur, and their failure to assist the ICC in their pursuit of indicted criminals. Bensouda deplored such inaction, asserting, “Victims of rape are asking themselves how many more women should be brutally attacked for this Council to appreciate the magnitude of their plight.” She continued, “We find ourselves in a stalemate that can only embolden perpetrators to continue their brutality.” With increasing reports of mass rape and violence emerging from areas within Darfur, a change of tact needs to be seen from the international community. Yet, with the ICC passing their baton of responsibility back to a hitherto ineffective UN, the short-term future is lacking of hope.
The Case in Sudan
Violence in Darfur erupted in 2003 when rebel groups, most prominently the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM), launched attacks on the Sudanese government, accusing it of discrimination against Sudanese black Africans. Though the conflict has far more embedded and complex roots, the rebel movement was against a system of great social and economic inequality, which on the whole, tended to favor Sudanese Arabs, with the Arabs dominating government since Sudan’s independence in 1956. In response to the rebel attacks, the government launched a counter-insurgency campaign in cooperation with the Janjaweed (an Arab militia funded by the government) against the rebels. The government and Janjaweed attacks were aimed at removing supposed rebel supporters from great expanses of land, particularly in Darfur.
In 2005, after reports of mass killings, enslavement, rape and displacement, the UN Security Council referred the case to the ICC. Following four years of investigations, the court issued warrants for the arrest of six top Sudanese leaders, including President al-Bashir, on charges of genocide, crimes against humanity and war crimes.
Since 2009, the ICC has been unable to detain al-Bashir or the five other leaders, exposing a fundamental weakness of the court. Sudan is not party to the ICC, and as a result the Court cannot interfere in Sudan, and must rely on national governments to arrest those indicted. However, despite extensive international travel, most recently to Saudi Arabia, Qatar and Ethiopia, al-Bashir has not been arrested, as his allies continue to disregard the Court’s calls for arrest. Though the warrants still stand, Bensouda’s decision to suspend investigations in Darfur highlight the ICC’s growing frustration with the lack of cooperation from the international community.
Passing the Baton of Responsibility
There is a significant presence of international organizations and aid agencies in Sudan, and yet, they have instigated little change. The UN Mission in Sudan began with the deployment of peacekeepers in early 2005. They aimed to maintain the newfound “peace” of a recent ceasefire agreement, and to foster future peace negotiations. However, since 2005, stability has not been attained. In 2010, the UN participated in negotiations for a renewed ceasefire agreement between the government and rebel groups, and assisted in the consequent creation of South Sudan. Still, reports of violence continue to emerge from Sudan, particularly from the Darfur region, and al-Bashir and the 5 other indicted leaders remain in positions of power in Sudan. The UN Security Council has done little to change the situation in Sudan or to assist the pursuit of the top leaders.
A principal reason for paralysis within the Security Council is China, which consistently vetoes proposals and resolutions on Sudan, having long seen itself as “Khartoum’s protector.” Bensouda’s speech to the Security Council can be seen as a last ditch attempt to provoke action after a decade of ineffectiveness. However, despite her emphatic call to action, the Chinese representative Cai Weiming declared, “China has not changed its position on the ICC in regard to Darfur.” Chinese veto power makes a truly effective Security Council decision unlikely.
Moreover, in response to the ICC decision to shelve the Sudan case, the UN Security Council instead criticized the Sudanese government for not cooperating with the ICC. This cyclical game of scapegoating responsibility occurs whilst reports of violence and accusations of mass rape continue to emerge from Darfur. Most recently, in October 2014, reports emerged that the Sudanese soldiers had raped over 200 women in the Darfur town of Tabit. Yet, the violent attack elicited little response from the UN.
Contributing to the international bureaucratic games is the African Union, which has renewed efforts to close the Sudan case at the ICC, with some AU members labeling the Court a tool for “colonialism.” This comes during an era of increasing disillusionment with the ICC among African leaders.
In 1998, when the Rome Statute that established the ICC was written, African leaders were prominent supporters of the court, with many hailing it as a new era for international justice. It was to “create an African voice on the International Scene” and came at an important point in Sub-Saharan African history in their emergence from conflicts and increasing democratization. The joining of the ICC was to signal a new era for Africa internationally, as well as the forging of a new identity within national systems. However, in the years after its establishment in 2002, many African states have begun to lose faith in the Court due to its limited geographical scope: the Court has brought 21 cases in 8 countries, all of which have been in sub-Saharan Africa, making leaders of the region feel particularly persecuted.
The shelving of the Sudan case came only months after the ICC’s decision to suspend their case against Kenyatta and his deputy in Kenya. By suspending both these cases, Chief Prosecutor Bensouda signaled a change in approach, and a reorientation to other potential projects outside of sub-Saharan Africa, including in Palestine. However, underlying reasons most likely include maintaining the legitimacy of the ICC in the face of mounting criticism for ineffectiveness, particularly from African states, and calls for the court to shift its field of focus.
In Sudan, with a lack of UN action and support on the one side, an ever-more antithetical African Union on the other, and the government in the center refusing to cooperate, the International Criminal Court found itself in a paralyzing predicament. In shelving the case, the organization has made a decision against squandering more vital funds on fruitless pursuits of criminal leaders that are more symbolic of institutional ineptitude than justice. By suspending the Sudan case, the ICC may just have taken a turn in the right direction.
Potential Change, Absent Hope
However, the suspension of investigations means little for the people of Sudan whose voices have largely been silenced in international discourse. As al-Bashir rejoices in his newfound impunity and international organizations continue to point fingers, the Sudanese government continues a campaign of violence and destruction in Darfur. The number of displaced persons continues to rise as refugee camps surpass capacity levels, and the Sudanese government looks only set to continue its destructive campaigns, having recently restrained international aid and international press access to regions in Darfur. Many in Sudan have been told to place their hopes in the hands of the international community, long promising peace and stability, but little has been delivered. Now, international condemnations of violence fall on deaf ears.
Although the ICC may be taking a step in the right direction for its own future, it is turning its back on the Sudanese people, for whom it promised major change. The arrest warrants for al-Bashir and the other five men are still valid, but mean nothing without deep institutional changes on the part of the UN, the ICC and their respective relations with national governments, particularly in Africa. These institutional changes do not look set to materialize in the near future, and until such changes are initiated, men accused of genocide, crimes against humanity and war crimes are free to continue to lead a reign of terror in Sudan.