Darfur may get justice, and ICC may regain footing, with Bashir case

Fifteen years ago, I stood in front of a group of West Africans who had been brutalized by the government of President Charles Taylor of Liberia. These ruined survivors of terror had traveled for miles to talk to me in a town hall-style meeting.

A young man of about 12 years stood and confessed, “I killed people. I am sorry. I did not mean it.” This sad, former child soldier fell against me and began to weep. I looked round. A young woman, holding an infant, was missing half her face. She pleaded through cracked lips, “Seek justice for us.” 

I was the chief prosecutor of the international war crimes tribunal in West Africa, called the Special Court for Sierra Leone, and my mandate was to prosecute those accused of committing international crimes in this war-torn part of the world. That we did. One of the things I told the people of West Africa was that the law is fair — no one is above the law, and the rule of law is more powerful than the rule of the gun. 

In summer of 2003, Charles Taylor became the first sitting African head of state to be indicted for war crimes and crimes against humanity, as the central figure in the sordid “Blood Diamond” story that destroyed over a million people.

Not long after, my colleagues at the newly formed International Criminal Court (ICC) began investigating the sitting head of Sudan, President Omar al Bashir, for genocide and other violations of international humanitarian law in the Darfur region of his country. After a badly timed indictment a few years later, and because of poor political calculations by the court, Bashir’s handover to the ICC for a fair and open trial was not likely to happen. As a result, he flaunted the ICC indictment and arrest warrant, embarrassing the ICC and bringing discredit upon the institution. 

A year or so ago, a deposed Bashir was arrested and convicted of corruption by Sudanese authorities under domestic law. Initially they refused to hand him over to the ICC on the international indictment. That changed this week, and Bashir now may be given to the ICC for trial. Negotiators in Sudanese peace talks have agreed that he should be held accountable for his alleged crimes.

The people of Darfur may receive some justice for the genocide perpetrated upon them during his tenure. It is ironic that the negotiators in Sudan may have handed a lifeline to a faltering ICC that so badly managed the initial investigation. This possible handover could give new relevance to the court, which was wavering in an age in which strongmen elected on nationalistic political platforms have turned away from international accountability developed in the 1990s. Many advances made over the past 20 years in international accountability have been rolled back.

For that reason, Bashir’s accusers will see his possible handover to the ICC as not only an important legal victory, but as a symbolic statement that heads of state who are accused of feeding upon their citizens can be held accountable. 

The promise that I made to the people of West Africa — that no one is above the law — still rings true. As Justice Robert Jackson, chief American prosecutor at the International Military Tribunal at Nuremberg, stated:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

David M. Crane is a retired member of the Senior Executive Service who supervised Department of Defense intelligence agencies on behalf of the secretary of Defense and the intelligence committees of Congress from 1996-2002. He was founding chief prosecutor of the Special Court for Sierra Leone (2002-2005) and is founder of the Global Accountability Initiative.