Thursday, April 16, 2009

Another controversial article by Mamdani

article is reposted from

Beware of human rights fundamentalism

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 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) 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 the riverine north, who have tended to identify with power, the Arabs of Darfur are the most marginalised group in a marginalised province.

The largest of the Arab tribes in Darfur, the cattle nomads of the south, were never involved in the government-organised counterinsurgency. Those involved – the camel nomads of the north and refugees from Chad – were from among the poorest of the poor. The idea that the Arabs of Darfur were part of a single cohesive 'Arab' bloc facing 'black Africans' is a recent invention driven mainly by an external media, and now by the ICC. Its main effect has been to demonise 'Arabs' and to obscure the real causes of the conflict.

Who, then, has been fighting whom in Darfur, and why? The short answer is that this has been a conflict over land, triggered by four different but related causes: the land system, environmental degradation, the spillover of the four decade-long civil war in Chad and the brutal counterinsurgency waged by the al-Bashir government in 2003 and 2004.

The deep cause was the colonial system, which reorganised Darfur as a discriminatory patchwork of tribal homeland where settled peasant tribes were granted large homelands in which they were considered natives. In contrast, camel nomads with no settled villages found themselves without a homeland and so were not acknowledged as natives anywhere. When it came to granting access to land, participating in local administration and the resolution of local disputes, homeland administrations favoured so-called native over non-native tribes.

The second cause of the conflict was desertification. Studies from the United Nations Environment Programme show that the Sahara expanded by 100km in four decades, and that this process reached its high point in the mid-1980s, pushing all tribes of North Darfur to more fertile lands further south. The resulting land conflict was not between races, Arab and Zurga, but between tribes with homelands and those without. Contemporary observers such as the Darfuri anthropologist Sharif Harir traced the unprecedented brutality of the violence in the 1987–1989 war to the fact that sheer survival was at stake.

The third was the Cold War, with its two sides – the tripartite alliance of Reaganite United States, France and Israel on the one hand, and Libya backed up by the Soviet Union on the other – arming different factions in neighbouring Chad. As successive armed groups took turns ruling Chad, opposition groups took shelter in Darfur, where they mobilised and armed. The easy availability of arms rapidly militarised the inter-tribal conflict in Darfur. Regional and international powers got involved in the Darfur conflict long before the Khartoum government did, but no one reading the prosecutor's application would be aware of this fact.

The final cause that aggravated the land conflict in Darfur was the brutal counterinsurgency unleashed by the al-Bashir regime in 2003 to 2004 in response to an insurgency led by three major tribes in the region: the Fur, the Masalit and the Zaghawa.


The prosecutor's application makes four erroneous assumptions, all of them so he can pin the full blame of the violence on al-Bashir. This is how the prosecutor put it to journalists at The Hague: 'What happened in Darfur is a consequence of al-Bashir's will.'

The first error is to identify the duration of the conflict in Darfur with the presidency of al-Bashir. Yet, the conflict in Darfur began as a civil war in 1987, before al-Bashir and his group came to power, and long before the cycle of insurgency and counterinsurgency that began in 2003. The civil war has become entangled with the counterinsurgency, though they have separate causes. Whereas the insurgency was a rebel challenge to power in Khartoum, the civil war was triggered by the effects of drought and desertification, and intensified by two factors, one internal, the other external, one the failure to reform the system of tribal homelands and the other an effect of the ongoing civil war in Chad.

The second error is to assume that excess deaths in Darfur are the result of a single cause: violence. But the fact is that there have been two separate if interconnected causes, drought and desertification on the one hand, and direct violence on the other. World Health Organisation sources – considered the most reliable source of mortality statistics by the US Government Accountability Office in its 2006 evaluation – trace these deaths to two major causes: about 70 to 80 per cent to drought-related diarrhoea and 20 to 30 per cent to direct violence.

The third error is to assume a single author of violent deaths and rape. In his eagerness to make the prosecution's case, Moreno-Ocampo not only obscured the origins of the violence in Darfur, he also went on to portray life in the internally displaced persons camps in Darfur as a contemporary version of life in Nazi concentration camps in Europe, with al-Bashir cast in the role of the Führer. At the press conference announcing the case against the president of Sudan, the prosecutor said: 'Al-Bashir organised the destitution, insecurity and harassment of the survivors. He did not need bullets. He used other weapons: rape, hunger and fear. As efficient, but silent.'

To be sure, there were ongoing incidents of rape in Darfur, as there are indeed in most conflict situations where armed young men confront unarmed young women. This much was recognised by the US special envoy to Sudan, Andrew S. Natsios, in his testimony before the Senate Foreign Relations Committee on 11 April 2007: 'The government has lost control of large parts of the province now. And some of the rapes, by the way, that are going on are by rebels raping women in their own tribes. We know in one of the refugee camps, it's now controlled by the rebels, formally. There have been terrible atrocities committed by the rebels against the people in the camps.'

Rebels, like government soldiers and the paramilitary Janjaweed, have authored both rape and the killing of civilians. Take figures newly released by the United Nations-African Union Mission in Darfur (UNAMID) in Khartoum. UNAMID, which keeps a count of each individual death, including its circumstance, calculates the total number of conflict-related civilian deaths in the year 2008 at 1,520. Of these, 600 are said to be the result of conflicts over grazing lands among Arab tribes. When it comes to the remaining 920, UNAMID says that more civilians were killed by rebel movements than by government-organised counterinsurgency forces.

The fourth erroneous assumption is that the situation has not changed in Darfur since the onset of the counterinsurgency in 2003. In Moreno-Ocampo's own words: 'In April 2008, the United Nations estimated the total number of deaths since 2003 at 300,000.' This estimate came from John Holmes, UN under-secretary general for humanitarian affairs. This is how Holmes put it in the first place: 'A study in 2006 suggested that 200,000 had lost their lives from the combined effect of the conflict. That figure must be much higher now, perhaps half as much again.' There are two qualifications here, and Moreno-Ocampo glossed over both. The first was that these mortality figures were said to be the result of 'a combined effect', referring to direct violence and drought. The second qualification was explained by Reuters: 'United Nations cautioned reporters that the number was not a scientific estimate but a "reasonable extrapolation".' The assumption underlying the extrapolation – that the level of mortality has not changed in Darfur from 2003 on – was contradicted by the UN's own technical staff in Sudan. As Julie Flint explained in the New York Times of 6 July 2007 and the Independent (London) of 31 July 2007, UN sources spoke of a sharp drop in mortality rates in Darfur from early 2005, so much so that these sources report that mortality estimates had dipped to as low as below 200 per month, lower than the number that would constitute an emergency.

That the ICC has politicised the issue of justice is no reason to sidestep the question of accountability. The kernel of truth in the prosecutor's application concerns 2003–04, when Darfur was the site of mass deaths. This was mass murder, but not genocide. Its authors were several, not just the government of Sudan. There is no doubt that the perpetrators of violence should be held accountable, but when and how is a political decision 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 an issue of greater concern to Africa.

The debate has hitherto focused on the need to have the same rules for all war criminals, regardless of national origin or political orientation. Only then can the rules claim to be just, so that justice may act as deterrence. If, however, justice masquerades as selective punishment, only to those who dare transgress American power, critics have pointed out that the exercise will not be a deterrent to potential war criminals, but only to those who dare challenge American power.

I have suggested that the more important question is that of the larger political consequences of a fundamentalist pursuit of criminal justice by those determined to enforce it regardless of its political context or consequence. Take one example. If the ICC were to have the political will and courage to try war criminals in the US war on terror, we can say with confidence that the American political system would be strong enough to contain its political fallout. There is little chance of 'red states' going to war against 'blue states'. But can one say with any confidence that the price of single-mindedly pursuing criminal justice in Sudan will not be a renewed civil war? Such a fundamentalist pursuit should be named vengeance, not justice. This is why we need to subordinate criminal accountability to a larger pursuit, that of political reform.

* This article was originally published by the Mail & Guardian.
* Mahmood Mamdani is the Herbert Lehman Professor of Government Columbia University. Mamdani's latest book, Saviors and Survivors: Darfur, Politics, and the War on Terror, is published by Pantheon Books.
* Please send comments to or comment online at

Saturday, April 4, 2009

A Leftist Reporter on Darfur


March 16, 2009
Uncertainty in Sudan
What will the International Criminal Court’s indictment of President Bashir mean for the future of Sudan?
By Steven Fake and Kevin Funk

KHARTOUM, Sudan—Along a dusty side street in downtown Khartoum, amid shadows of the imposing U.S. embassy and the clamor of the building boom that is remaking the Sudanese capital, sits one of the city’s many unpretentious eateries. This particular shop features a banner with a smiling picture of President Barack Obama on the corner of the sign out front. In thick black letters, it reads “Opama.”
The restaurant owner laments over the misspelling with a chuckle. The company he hired to make the banner made a mistake, he says, refusing to accept payment for two bottles of soda as a gesture of Sudanese hospitality toward foreigners.
He expressed hope that Obama would make substantive changes in U.S. foreign policy, and toward Sudan more specifically.

This sentiment of hope is common among the Sudanese people, whose country has seen more than six years of violent conflict in the western region of Darfur. What began as a rebellion against marginalization of the underdeveloped periphery quickly transformed into a lethal conflict as the government responded by bombing villages and unleashing militias that raped and killed indiscriminately, forcing millions of people to flee their homeland.
Some Sudanese even celebrate Obama as one of their own, affirming that his father’s Kenyan tribe has its origins in Sudan.
But the policy positions staked out by key figures in the Obama administration have largely escaped careful scrutiny. As then-chairman of the Senate Foreign Relations Committee, Vice President Joseph Biden made a call to “use American force now” in Sudan. And Susan Rice, U.S. Ambassador to the United Nations, has advocated for support for a “humanitarian intervention” in the country. But little has been said about what an Obama administration plans to do in the days ahead.

Misplaced sanctions?
In 1997, the Clinton administration implemented sanctions against Sudan, accusing the country of sponsoring terrorism. As a result, no trade exists between the two countries, nor are U.S. companies permitted to invest in Sudan—including in its booming oil industry.
While the Sudanese government’s reprehensible arming of militias to carry out mass killings in Darfur has led to broad support for these sanctions among U.S. progressives, the measure is having harmful effects on the people, according to many Sudanese.

Mohamed Elgadi, 56, a Sudanese activist now living in the United States, is critical of Khartoum, but he says the sanctions are working “against the oppressed not the oppressors.” A member of the Western Massachusetts Darfur Coalition, Elgadi says he recalls the impact the U.S. sanctions had against Iraq, weakening opposition to the regime while “Saddam and his gang continued to enjoy the same luxurious life,” he says.
To more accurately target the government, Elgadi proposes scrapping Darfur Plan B, which the Bush administration implemented in May 2007 to deny an additional 31 Khartoum-affiliated companies access to the U.S. financial system and freeze the assets of three individuals implicated in the conflict. But this approach did not focus on such key officials and U.S. allies like Sudanese intelligence head Salah Gosh.
Instead, Elgadi suggests the U.S. government “freeze the economic assets of all the regime’s leaders and their families, including those of both Islamist parties…[and] ban travel visas to the regime’s leaders.”

This plan could allay the concerns of those who support sanctions as a means of registering their disgust with Khartoum. In a Cairo café, we spoke with Fareed (not his real name), 30, a former aid worker from South Darfur who currently lives in Egypt. He says the sanctions should continue and asserts that the majority of Darfuris support the measure so long as people are unable to return to their homes or have access to adequate education and healthcare.
If the United States ended sanctions, Fareed says, “The government of Sudan [would] think that they are strong and…won the battle” against Washington.
A plan such as the one Elgadi proposes could not only be more effective in changing Khartoum’s policies, but could also enjoy strong backing from many Sudanese, including many Darfuris.

The China-Sudan alliance
With development projects springing up in the capital, many Sudanese sound baffled when asked about sanctions. The economic boom has mainly been a result of the strong partnership between Sudan and China, an alliance that has undermined whatever effectiveness the U.S. sanctions might have had on Khartoum.
Though Beijing mostly keeps a low profile in Sudan, the China National Petroleum Corporation’s headquarters is in downtown Khartoum, along a privileged stretch of the Blue Nile and a short distance away from government buildings. A few blocks down the street sits the Chinese-built Friendship Hall, an expansive convention center.
While many Western commentators are critical of the China-Sudan alliance, those on the ground—even those critical of the Sudanese government—express a wider range of viewpoints.
One such critic, a retired Sudanese ambassador and opponent of the governing Omar Hassan al-Bashir regime, begrudgingly accepts China’s role in Sudan, saying the “relationship remains a cornerstone for Sudan’s survival, economically and diplomatically, under the current circumstances.”
However, the Sudanese left is not convinced of the benefits of Khartoum’s close relationship with Beijing.
“China is seen as the new colonizer in Sudan and the whole [of] Africa,” says Elgadi. “I see them as no different from [the] Reagan administration when it sided with the former [Sudanese] dictator [Jaafar] Nimeiri.”
Nimeiri was responsible for provoking the renewal of the civil war with the south that claimed as many as 2 million lives from 1983 to 2005. During this conflict, he armed militias to attack tribes identified with the southern rebels, resulting in atrocities and a counterinsurgency that now repeat themselves in Darfur. Back then, U.S. aid poured into Sudan, leading one Sudanese official to speak of an “air bridge” of weaponry from Washington to Khartoum, used to violently suppress the rebellion.
Elgadi says China has been backing President Bashir’s regime since 1989. Most notably, China has a flourishing arms trade with Sudan, and currently buys an estimated 60 percent of Khartoum’s substantial oil exports.
“It did not protest any of the massacres committed by the regime in the south or the Nuba Mountains,” says Elgadi, referring to the region in central Sudan where the government waged a genocidal campaign against its people in 1992. “Not to mention Darfur. The worst thing [is that] most of the oil revenue went back to [China through] weapons deals,” he says.
ICC showdown
Although China has extended diplomatic cover to Khartoum, it has not been able to protect the Bashir government from the International Criminal Court (ICC). On March 4, the ICC issued an arrest warrant for Bashir for war crimes and crimes against humanity for his role in directing the government counterinsurgency campaign that lead to the atrocities in Darfur. It marks the first time the ICC has brought criminal charges against a sitting head of state.
The impact of the indictment—as well as the many come-and-gone deadlines for issuing it—has left Khartoum in a tense, expectant atmosphere for months. Some, like the retired ambassador, warn the arrest could provoke violence.
“It could jeopardize the [2005 Comprehensive Peace Agreement signed between the north and south] and the prospects for peace in Darfur,” he says. By contrast, many Darfuris say they plan to celebrate such an event, not surprising given Khartoum’s brutality against the people of this region.
Speaking before the indictment was handed down, Mohamed Ali Saeed, 70, a journalist formerly with Agence France-Presse, predicted that Khartoum “will certainly witness huge demonstrations” if the arrest warrant is issued, but says he doubts that the government “would dare confront and antagonize the entire international community” by expelling peacekeepers, as it has hinted it would do. Khartoum did, however, expel 10 humanitarian organizations on the day of the ICC ruling.
Saeed notes that “for survival of the regime, some people speculate that senior Islamists—possibly including Vice President Ali Osman Taha, within the ruling NCP [National Congress Party]—might somehow get rid of Bashir.”
Moneim Howeris, 52, a Sudanese consultant and activist living in Scotland, says that after the initial furor passes, “everything [will] calm down, leaving the regime exposed to mounting pressures from the West to give real concessions in return [for] freezing the arrest warrant.”
Some, such as Elgadi, say that in such a case, Bashir will be either choose to go into exile, or will be overthrown in a military coup. “He’s finished,” Elgadi declares.
Life after Bashir
The use of an ICC arrest warrant to pressure Khartoum is complicated by the fact that outside of Darfur, Sudanese opposition movements are weak. As a result, the outcome of the national elections slated for later this year is far from obvious, despite the ruling party’s unpopularity.
“The main rival parties—like the Umma and the Democratic Union—have split into several factions and it is unlikely that they would pose a formidable challenge to the Islamist NCP,” says Saeed. “The leftist parties, including the Communists…have been totally inactive during the last two decades. The Communist Party was able to hold its general conference only last month,” its first since 1967.
This stands in contrast to Sudan’s proud history of strong labor and leftist movements, particularly in their heyday four decades ago. In fact, Sudan was once home to one of the strongest communist parties in the world before Nimeiri’s 1971 campaign of repression.
The prospects for peace in Darfur are “gloomy,” according to Saeed. “The difficulty of reaching an end to the conflict is made harder by the multiplicity of the rebel groups,” he says, “which have turned down attempts [at unification] by regional leaders.”
In fact, there are now an estimated 30 rebel groups in Darfur. But forging unified positions among them has made the possibility for a peace agreement in Darfur more difficult. Elgadi calls for trying the criminal perpetrators of Darfur and for compensating the victims.
“Justice is a very important element of ending the conflict,” Fareed says, “because the [victims] want to see the criminals in jail.”
A role for Western activists
The retired ambassador says activists across the world must push their governments to lobby for “all movements in Darfur [to] participate in the peace talks,” using as a model the generally successful 2005 Comprehensive Peace Agreement (CPA) between north and south Sudan.
That agreement was concluded after neighboring countries and key foreign powers—notably the United States—made a push for peace and facilitated negotiations. The resulting accord granted the south a percentage of the oil revenues and scheduled a referendum on autonomy for 2011. The CPA “would have not been achieved without such concerted Western pressure on both sides,” says the ambassador.
The West ought to be “joining hands with Sudanese civic societies inside the country who are working under difficult conditions,” says Howeris, the Scotland-based consultant. He suggests taking their lead—particularly the lead of Sudanese leftist and opposition movements—instead of imposing so-called solutions from outside.
As Elgadi says: “How on earth do you take a position on a country without consulting with comrades in that country?”
Steve Fake grew up in eastern Pennsylvania and graduated from the University of Pittsburgh. He became interested in radical politics after seeing Good Will Hunting, where he first heard of Howard Zinn and Noam Chomsky. He lives and works in Boston.
Kevin Funk, a native of York, Pa., graduated from the University of Pittsburgh with degrees in political science and journalism. He is currently based in Chile. Fake and Funk co-authored Scramble For Africa: Darfur-Intervention and the USA. Their commentaries can be found at information about Steven Fake and Kevin Funk