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Darfur and the ICC: Myths versus Reality

The expulsion of international aid agencies from Darfur and the International Criminal Court arrest warrant for President Omar al-Bashir

On March 4, 2009, the International Criminal Court (ICC) issued an arrest warrant for President Omar al-Bashir of Sudan on charges of war crimes and crimes against humanity. On March 5 the government of Sudan sought to divert attention from al-Bashir's alleged responsibility for widespread atrocities by announcing its intention to expel aid agencies from Darfur and blaming the ICC. The intense public controversy generated by these events includes a number of myths, which are not borne out by reality:

1.    Myth: The International Criminal Court has put people at risk by issuing an arrest warrant for the Sudanese president because international aid groups have been expelled from Sudan as a result.

Reality: It is the Sudanese government, not the International Criminal Court, that is creating catastrophic consequences for the people of Darfur by ousting humanitarian assistance. Expelling aid groups further victimizes those already made victim by atrocities al-Bashir is accused of committing in Darfur. This step compounds the responsibility of the top Sudanese leadership for the gravest crimes committed in Darfur, and highlights the risks of allowing those allegedly responsible for these crimes to escape accountability.

Sudan has an obligation under international humanitarian law to ensure that relief aid reaches people in need in conflict situations. According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), the agencies that have been expelled provided roughly half of the total humanitarian assistance for all of Darfur. The number of people who are affected by lack of water, food, sanitation and medical care is in the millions. For example, OCHA has described the situation for the Kalma camp-one of the largest camps for displaced people in Darfur-as dire. In addition to having provided medical care and other essential assistance, the agencies that were expelled were responsible for Kalma's water supply.

2.    Myth: Sudan's expulsion of humanitarian assistance organizations is not a big problem since only 13 international organizations were expelled and dozens of other international organizations and hundreds of Sudanese organizations are still in Darfur. The remaining organizations can take over the work, and the government of Sudan also said that it will help.

Reality: The 13 international organizations expelled employed 40 percent of all humanitarian staff working in Darfur. The United Nations estimates that they were supplying food and water to 1.1 million people and medical care to 1.5 million people in a complex, insecure, and physically challenging environment. Non-governmental organizations and UN agencies that have been allowed to remain are doing what they can to fill in the gaps, but they do not have the necessary capacity to take over all of the programs affected by the expulsions. Even if they did, the manner in which the government closed the programs makes effective handover impossible. Organizations were given no advance notice, and government officials removed their property, including computers, communications equipment, and vehicles. Government officials also ordered organizations to dismiss national staff, many of whom have now returned to their homes elsewhere in Sudan. Handing over large-scale and complex programs is a process that in the best of circumstances takes months and cannot be achieved in a matter of hours, particularly without essential information and equipment.

A United Nations-Government of Sudan assessment report of March 21, 2009, two weeks after the 13 organizations were forced to cease operating, highlights that as the situation currently stands:

  • The UN World Food Program currently has no partners to carry out its next food distribution, due in May, for over a million people. While the UN agency supplies food, it relies on non-governmental organizations to distribute it.
  • 32 health facilities and 28 therapeutic feeding centers for severely malnourished children have either closed or suspended a significant part of their services, with the result that 650,000 people now have very limited or no access to health care. 
  • Some 700,000 people who would have been served will not receive distributions of urgently needed non-food items and emergency shelter prior to the rainy season.
  • In many locations sanitation and hygiene activities have completely stopped, greatly increasing the threat of disease.
  • The current stop-gap measures to maintain water supplies in many camps can only last another 2 to 4 weeks, after which water supplies will begin to run dry. This could affect over a million people and greatly heighten the risk of disease outbreaks.

If the Sudanese government were willing and able to provide aid to the affected populations, humanitarian organizations would not have been working so extensively in Darfur. The notion that the government can somehow step in effectively to address a massive void created by the expulsions is not at all realistic. Some of the organizations expelled also ran programs in other parts of Sudan, including East Sudan and Southern Kordofan. In many of these areas, there are few other organizations and very limited government capacity to provide any assistance at all so people there may be at even greater risk than those in Darfur.

3.   Myth: Since the ICC lacks the means to arrest al-Bashir, the warrant just creates difficulties without helping the people of Darfur.

Reality: The International Criminal Court does not have its own police force and relies on cooperation by states to execute its warrants. Security Council Resolution 1593-which referred Darfur to the court-obligates Sudan to cooperate with the court, including making arrests in response to ICC warrants. The ICC's statute also requires that states that are parties to the court cooperate with it, and Resolution 1593 urges non-states parties to cooperate with the ICC on Darfur.

However, even if al-Bashir is not arrested promptly, the warrant can produce real and immediate positive benefits. As has happened before when an international court issues an arrest warrant for a senior figure-Charles Taylor of Liberia, for example, or Slobodan Milosevic of what was then Yugoslavia-al-Bashir is now stigmatized as an accused war criminal and fugitive from justice. The warrant can marginalize al-Bashir and loosen his grip on power, which could help prevent further crimes.

4.    Myth: Issuing the arrest warrant threatens the peace process to end the conflict in Darfur.

Reality: No real peace process is currently under way because of a lack of adequate political will by both the government and rebel forces to end the conflict in Darfur. The peace process has long been stalled. Although one rebel group, JEM, and the government signed a "declaration of intent" in February, this did not include a commitment to a ceasefire. None of the parties appear committed to finding a solution through peace talks. This failure is wholly unrelated to the ICC.

5.   Myth: The International Criminal Court is unjustly targeting African leaders.

Reality: While the ICC's current investigations are entirely in Africa, three out of the court's four investigations were referred voluntarily by the governments where the crimes were committed. The fourth situation, Darfur, was referred by the UN Security Council.

The court makes decisions about its investigations based on a variety of factors, including whether it has jurisdiction over the crimes and their gravity. The court's authority extends primarily to crimes committed in states that are parties to the ICC treaty unless the Security Council refers a situation to the court or a state that is not a party to the court voluntarily accepts its authority. Some of the worst crimes perpetrated since 2002 have been committed in states that are not parties to the court and are thus outside the court's jurisdiction, including in Sri Lanka, Myanmar, and Iraq.

Admittedly, the landscape in which international justice is applied has been uneven. Leaders of powerful states are less likely to be prosecuted by international courts when they are associated with serious crimes. Nevertheless, justice should not be denied where it can be achieved simply because it is politically impossible to ensure justice for all. Rather, the reach of accountability should be extended to wherever serious crimes occur. This can be done in part by expanding participation in the ICC.

6.    Myth: The International Criminal Court is a new form of Western imperialism in Africa.

Reality: African states have been some of the most important supporters of the establishment and effective functioning of the ICC. African states played an active role at the negotiations on the statute in Rome, and 22 African countries were among the founding ratifiers of the court's statute, the Rome Treaty. Of the ICC's 108 states parties, 30 are in Africa. In the most recent judicial elections for the ICC, African governments nominated 11 candidates. Africans are among the highest-level officials and staff at the ICC.

7.   Myth: The warrant is not that serious because the judges did not approve charges of genocide.

Reality: The ICC's warrant for the Sudanese president is for massive atrocities in Darfur over a period of years, not insignificant crimes. Under the warrant, Omar al-Bashir is accused of war crimes and crimes against humanity. The specific counts include widespread or systematic murder, extermination, rape, torture and forcible transfer of large numbers of civilians. They also include pillaging and intentional attacks against the civilian population. These are obviously horrific crimes of the utmost gravity.

Originally posted on March 9, 2009

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