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HRW’s Richard Dicker and Scholar, Mediator Alex de Waal Debate International Criminal Court Indictment of Sudanese President for Mass Killings in Darfur

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The International Criminal Court has indicted Sudanese President Omar Hassan al-Bashir for war crimes and crimes against humanity in Sudan’s Darfur region, the first time an arrest warrant has been issued for a sitting head of state. We host a discussion between Richard Dicker, director of Human Rights Watch’s International Justice Program, and Harvard scholar Alex de Waal, a former adviser to the African Union mediation team for the Darfur conflict and author of Darfur: A New History of a Long War. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: For the first time, the International Criminal Court has issued an arrest warrant for a sitting head of state. On Wednesday, the ICC indicted Sudanese President Omar Hassan al-Bashir on seven counts of war crimes and crimes against humanity, which included murder, rape and torture in Sudan’s Darfur region. The three-judge panel said it had insufficient grounds for charges of genocide.

Many Western human rights groups praised the arrest warrant, but the African Union and China warned the indictment could jeopardize the peace process in Darfur. Sudan has dismissed the charges and vowed not to cooperate with the world court.

Since the warrant was issued, Sudan has revoked the licenses of thirteen foreign aid organizations, including Oxfam, CARE International, Doctors Without Borders and Save the Children. The UN says Sudan’s expulsion order removes 40 percent of the aid workers in Darfur.

AMY GOODMAN: To discuss the indictment of the Sudanese president, Omar Hassan al-Bashir, we’re joined by two guests. Richard Dicker is with us in our firehouse studio, director of Human Rights Watch’s International Justice Program. He led the Human Rights Watch multi-year campaign to establish the International Criminal Court. Alex de Waal joins us in Boston. He’s program director of the Social Science Research Council, senior fellow at the Harvard Humanitarian Initiative. In 2006, he served as adviser to the African Union mediation team for the Darfur conflict. He is author of several books on Sudan, including Darfur: A New History of a Long War.

Richard Dicker, let’s begin with you. Why do you think this is so important what the ICC has done, the issuing of indictments against the Sudanese president?

RICHARD DICKER: Well, over the last five, six years of the conflict in Darfur, hundreds of thousands of innocent civilians have been slaughtered, have been subject to rape as a weapon of war and terror, and we have seen forcible displacement of whole populations. These are the most serious crimes. And for them, as part of ending the conflict and honoring those who have suffered, justice needs to be done, and the impunity that has been associated with these crimes needs to be brought to an end. The ICC decision of the other day is an important step in that direction.

JUAN GONZALEZ: Alex de Waal, you’re skeptical about that decision. Tell us why.

ALEX DE WAAL: I think there seems to be a bit of a gap in the argument here. On the one hand, as Richard Dicker says, the Sudan government is responsible for some of the most heinous crimes against humanity on the books. On the other hand, the assumption seems to have been, among the ICC and its supporters, that the moment an arrest warrant was issued, this same government would come along tamely, would submit. And there is a very serious downside risk to indicting a sitting head of state, in fact, basically indicting an entire government structure, when there are no measures in place, no mechanisms, actually to protect the people in whose name this is being issued.

And what have we seen over the last couple of days? We’ve seen a very predictable adverse response from that same Sudan government. Now, yes, we all support justice, but can justice be pursued at the expense of withdrawing essential humanitarian support that keep millions of people alive? And I think that’s a very, very real dilemma. And so, my question is not should there be accountability, but should accountability, in its timing, in its process, be weighed against other considerations?

And I’d like to add that the rationale put forward by the prosecutor, Moreno-Ocampo, for rushing through this indictment at this process was, he said there is an ongoing genocide. Now, the judges found that there wasn’t; there was no charge to answer on that case. And I think there’s good reason for that. The horrendous crimes were committed 2003, 2004, and they’re not being remedied. But the UN data, the data from Genocide Intervention Network, etc., indicates about 150 people are being killed every month in Darfur. And that’s bad. Perhaps half of them are being killed by the government and its forces. But that does not amount to an ongoing genocide. And I think that wouldn’t be a surprise to Richard Dicker, because his organization, Human Rights Watch, has never said there’s genocide in Darfur. So, why the urgency of rushing this thing through at this moment, when a huge humanitarian operation is actually providing life-giving assistance, and we are imperiling that?

AMY GOODMAN: Richard Dicker?

RICHARD DICKER: Well, I think Alex makes some important and good points. And there are some of those points that I would agree with, in that there can indeed be a tension between peace and justice. I don’t think any good comes from denying the tension of bringing about both peace and justice. And I also think Alex is correct when he flags for us the uncertainty. We don’t know what’s going to happen, and no one is a clairvoyant here who can predict results one way or the other.

But what I do take strong exception to in what Alex has just said is, first, his use of the term “rush.” My gosh, these killings in Darfur have been going on for six years. The Security Council asked the ICC prosecutor to begin an investigation and possibly charge individuals four years ago. It was back in July of 2008 that the prosecutor announced his request for a warrant, and only now, eight or nine months later, that the judges have rendered a decision. I think Alex’s term “rush” is ill-advised from the perspective of those who remain victims and have been victims.

On the genocide count, I think Alex is correct. Human Rights Watch, on the facts that it gathered, has not found genocide. But I would remind Alex that widespread or systematic murder, torture or rape doesn’t amount to a parking violations. Let’s get real. These are the most serious crimes under law. So I wouldn’t make too much of the fact that while the prosecutor wanted genocide charges, the court has found crimes against humanity, which are, again, torture, murder, rape, on a widespread basis, committed as part of a plan.

JUAN GONZALEZ: Practically speaking, what would this indictment mean in terms of actually bringing al-Bashir into a courtroom? Either, obviously, he would have to be arrested by — in international travel or there has to be a change of government there for him to be actually brought to justice, no?

RICHARD DICKER: Well, I think, Juan, you have touched on, and Alex referred to, what is the well-known Achilles’ heel of all of these international courts. None of them, unlike the court right around the corner here, has its own police force to enforce its arrest warrants and judicial orders.

Nonetheless, we have seen, in many diverse situations, ranging from Slobodan Milosevic, Charles Taylor, Radovan Karadzic, the apprehension of individuals. I mention those examples not to simplify and suggest that the situation in Serbia or Liberia is exactly the same as the one in Sudan, and I think Alex has made in his writings important distinctions. But nonetheless, all of these individuals have ultimately been apprehended. I think that will occur with Omar al-Bashir, and possibly we will see — and I say “possibly”; I’m not clairvoyant — a process of marginalization politically for Omar al-Bashir.

AMY GOODMAN: Professor Alex de Waal?

ALEX DE WAAL: Ultimately, yes, very likely President Bashir will face some process of justice. But there is no mechanism. And an internal coup d’etat in the Sudanese government, I don’t think would be a very good idea, not least because the people who might mount it are themselves cut from exactly the same cloth and have been involved in precisely the same sorts of activities as the president over recent years. Any other form of change in government by the military opposition would unleash a new war. So there is no mechanism for apprehending this fellow now.

Meanwhile, there is a very complex negotiated transition to a democratic system in Sudan. There is a comprehensive peace agreement between the government in the north, headed by Omar al-Bashir, and the former southern rebels who have been brought into a government of national unity, ending more than twenty years of war. It’s a very fragile, very difficult process. And that process requires cooperation between the existing government, its partners in government — the former rebels from the south, the SPLM — and the international community. And it’s very unclear to me how the very difficult negotiated transitions, elections, etc., can proceed under these circumstances.

There is, I think, also a very serious downside risk to the prospects of democratization and peace in Sudan as a whole, for the prospect of, as Richard says, ultimately bringing this one individual to court. So that’s why I think the timing is poor. I think that this man is not going to be facing justice now. This is really a symbolic action. And why not postpone this until such time as the immediate crises have passed and the prospects of renewed war, of a reversion to dictatorship, etc., have been dealt with, have been put aside?

JUAN GONZALEZ: And Alex de Waal, what about the criticism raised by some that these international tribunals seem always to target weak or marginalized governments and don’t go after, for example, the Indonesian atrocities in Timor or the American atrocities in the Iraq war and its war on terror?

ALEX DE WAAL: Well, I think this is something that the International Criminal Court needs to be very careful about, because in the initial days when it was set up, African governments, African peoples were great enthusiasts for the ICC, and more than half of the nations that became the first signatories to the Rome Statute that set up the court were from Africa. Three of the first four cases were referred by Africans.

But Africa is now beginning to have serious second thoughts about the court, and the African Union is strongly objecting to this arrest warrant. And, of course, a lot of this comes down to sheer self-interest. They don’t want the court looking too closely at what they, themselves, are doing. But part of it is a sense that the court is — has double standards and that there’s a neocolonial enterprise afoot. Personally, I don’t see much evidence for that, but the perception of it, I think, is very important. And I think that if the court is really to have credibility, and particularly in Africa, it needs to do a lot more work to work to support local national processes of justice and to be much more sensitive to the demands of Africans, that it works with them rather than being seen as some sort of alien imposition from outside.

AMY GOODMAN: Let’s end on that point with Richard Dicker, as well. David Crane, the former prosecutor in the special tribunal that indicted Liberian President Charles Taylor, says the same principles that led to Bashir’s indictment could be used against Bush on the issue of torture.

RICHARD DICKER: Well, I think that really what is happening here is an extension of the reach of law. What applies for Bashir needs to apply for the leaders of the most powerful governments when they are implicated in these same kinds of crimes and when, as has been the case in Sudan, the national courts, whose job it is, first and foremost, as Alex is rightly suggesting, have failed to do that investigation and prosecution. And I think where we’re going with this whole international justice enterprise is towards a point in which it’s not only African leaders or Serbian leaders. And I will agree with Alex, and I think he accurately flags the danger of perception, but where we need to move this ball down the field is that the Putins and the Bushes, for example, are just as much at risk for these kinds of international prosecutions as the leaders in Sudan or Liberia, etc.

AMY GOODMAN: We’re going to leave it there. I want to thank you, Richard Dicker, very much for being with us, of Human Rights Watch, as well, Alex de Waal at Harvard University, among his books, Darfur: A New History of a Long War.

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