When former South African president Thabo Mbeki makes the African case for a postponement of the International Criminal Court’s (ICC) indictment of President Omar al-Bashir of Sudan, what can he say with dignity and foresight?
To begin with, he should remind his audience that nowhere in the world have rights existed outside an enabling political context. No democracy enforces a fixed standard of rights regardless of the country’s political context. Few can forget how the Bush administration diluted the Bill of Rights in the interest of pursuing Homeland Security. In the relation between law and politics, politics is always paramount. Precisely because the struggle for rights is a political struggle, enforcers of rights — and not just its violators — need to be held politically accountable lest they turn rights enforcement into a private vendetta.
Mbeki can then share with his audience the lessons Africans have learned in the struggle for peace and justice over the past several decades. Contrary to what many think, this lesson is not that there needs to be a trade-off between peace and justice. The real trade-off is between different forms of justice.This became evident with the settlement to end apartheid. That settlement was possible because the political leadership of the anti-apartheid struggle prioritised political justice over criminal justice. The rationale was simple: where there was no victor, one would need the cooperation of the very leaders who would otherwise be charged with war crimes to end the fighting and initiate political reforms. The essence of Kempton Park can be summed up in a single phrase: forgive but do not forget. Forgive all past crimes — in plain words, immunity from prosecution — provided both sides agree to change the rules to assure political justice for the living.
The South African lesson has guided African practice in other difficult situations. In Mozambique Renamo sits in Parliament instead of in jail or in the dock. In South Sudan, too, there would have been neither peace nor a reform of the political system without an agreement not to pursue criminal justice.Why not in Darfur?
Mbeki would also be well advised to keep in mind that in the court of public opinion — unlike in a court of law — the accused is considered guilty until proven innocent.
The public needs to be reminded that when the justices of the ICC granted the prosecutor’s application for a warrant to arrest the president of Sudan, they were not issuing a verdict of guilty. The justices were not meant to assess the facts put before them by the prosecutor, but to ask a different question: if those facts were assumed to be true, would the president of Sudan have a case to answer? Unlike court, which took the facts for granted at the pre-trial stage, we need to ask: to what extent are these facts true? And, to the extent they are true, are they the whole truth?
The prosecutor’s case
The prosecutor’s application charged President al-Bashir with (a) polarising Darfuri tribes into two races (Arab and Zurga or Black), (b) waging a violent conflict (2003-2005) leading to the ethnic cleansing of Zurga ethnic groups from their traditional tribal lands, and (c) and planning the malnutrition, rape and torture of internally displaced persons (IDPs) so as to “slow death” in the camps — a process that the prosecutor claimed went on from 2003 to the time the application was submitted in 2008.
The racialisation of identities in Darfur had its roots in the British colonial period. As early as the late 1920s, the British tried to organise two confederations in Darfur: one “Arab”, the other “Zurga” or black. Racialised identities were incorporated in the census and provided the frame for government policy and administration. In spite of official policy, Arabs never constituted a single racial group. Contemporary scholarship has shown that the Arab tribes of Sudan were not migrants from the Middle East but indigenous groups that became Arabs starting in the 18th century. This is why there can be no single history of Arab tribes of Sudan. Little unites privileged sedentary tribes of riverine Sudan and impoverished nomads of Western Sudan. Unlike the Arabs of riverine north, who have tended to identify with power, the Arabs of Darfur are the most marginalised group in a marginalised province.