It had been hoped to include this Debates piece in ROAPE 120, Conflict & Peace in the Horn of Africa. While Mamdani's overall argument about the West's use of the ‘humanitarian intervention’ justification is still germane, obviously the specific context of the Sudan and the process of the International Criminal Court's issuing a warrant against President Omar Hassan Al-Bashir has moved on. When this version of his piece was first published in 2008 in The Nation in the USA, the ICC Prosecutor had merely stated an intention to apply for a warrant. Since then, the African Union (AU) and the regional body, the Intergovernmental Authority on Development (IGAD) had suggested the process should be delayed whilst the prospect of a negotiated peace over Darfur was being sought. Eventually, however, the ICC's Pre-Trial Chamber 1 did issue a warrant against Bashir and two other Sudanese on counts of alleged war crimes and crimes against humanity, although it concluded there was insufficient evidence to sustain the count of ‘genocide’ requested by Prosecutor Luis Moreno-Ocampo. After much argument the AU Summit in July 2009 decided not to cooperate with ICC in serving the warrant, over protests by Botswana, South Africa and a few other countries. The Arab League also engaged with the issue, asking the UN Security Council to delay operationalising the warrant. Thus the issues of justice versus peace, and of intervention and African nations' sovereignty have been dramatically joined in the last few months.
The New Humanitarian Order1
On 14 July, after much advance publicity and fanfare, the prosecutor of the International Criminal Court (ICC) 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 internalised 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 racialisation of identities in Darfur has 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 black (Zurga). Racialised 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 the racialisation of the conflict to Bashir, 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 reorganised 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 Programme, the Sahara expanded by 100 kilometres 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 newspaper, 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 politicised 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 Organisation sources – still the most reliable available information on mortality levels of that time – trace these deaths to two major causes: approximately 80 per cent 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 politicisation of the ICC – that poses a wider issue, one of greatest concern to African governments and peoples.
The new humanitarian order
When the Second World War 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 decolonisation recognised 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 that 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 recognise 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 colonised by any power, such as 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 the First World War, 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 racialised identities, using the force of law to institutionalise 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 in practice 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 the Second World War, in America's Indochina War in the 1960s and 1970s, 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 political violence to become generalised 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-Second World War 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 types 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 instrumentalised by big powers so as to target those newly independent states that they find unruly and want to discipline. Increasingly, 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 violence run amok, amoral, evil. The former are normal violence, but the latter is 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 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, Côte d'Ivoire 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 moralised 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 the violence in Iraq, the United States, branding an adversary state, Sudan, the one that has perpetrated genocidal violence in Darfur. Even more astonishing, we had 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 criticising 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 27 countries, starting with Sierra Leone, a site of massive atrocities.
The Bush administration's next move was accommodation, made possible by the type of pragmatism practised 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 charted 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 does not oppose, such as 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 UN 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 politicisation 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 US 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 brutalise their populations into silence. The realisation 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 politicised 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, post-apartheid and post-colonial – 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 fully open secret police and Communist Party files or to do so at a snail's pace. Societies torn apart by civil war, such as post-Franco Spain, have chosen amnesia over truth, for the simple reason that they have prioritised 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 post-war Bretton Woods institutions began to pioneer an international regime of economic dependence in the 1980s and 1990s. 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.
Survivors' justice
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 post-apartheid 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 post-apartheid 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.