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THE International Criminal Court has hurled its noose yet again, this time over a sitting head of state, Sudan’s Omar Hassan al-Bashir. It has split the world into two camps, with big players such as China, the Arab League and the African Union laboring to delay the arrest and the rest of the world slapping accusations on them for loosening the reins of justice. Whatever their (vested) interests may be, has the distinction between right and wrong been so clearly drawn? How credible is the ICC, its prosecutions and its style of justice? Most importantly, what will be the consequences of this indictment on the civilians in Darfur and in Sudan as a whole?
   
   Global justice in question
   THE establishment of the ICC in 1998 came as a massive breakthrough for criminal justice. Its legal mandate captured heinous crimes such as genocide, crimes against humanity, war crimes and crimes of aggression. Unlike other ad-hoc tribunals such as in Rwanda and Yugoslavia, the ICC was a permanent tribunal. As such it provided a platform to root out the culture of impunity and deter future crimes.
   Yet with an Orwellian twist, the world’s biggest and mightiest exempted their actions from the scrutiny of the ICC. The US, China, Russia, India, Pakistan and Israel to name a few have either not signed or ratified the instrument making a mockery out of global justice. Since the ICC’s jurisdiction extends only to territories or nationals of states that have acceded to the ICC statute, the bigwigs remain out of its radar despite their records of violence around the globe. On the contrary, ICC prosecutions have targeted weak and dysfunctional states, mostly concentrated in Africa. This is no less than selective justice.
   
   Contextualising the conflict in Darfur
   When justice rears its head, there is a temptation to simplify good and evil; to expedite the process and secure quick results. The ICC’s assessment of the conflict in Darfur has been seen in a similar light, devoid of historical and political context. A well-respected professor of Columbia University, Mahmood Mamdani has revealed several factual inaccuracies in the evidence presented by the ICC prosecutor Luis Moreno-Ocampo. For example the prosecutor accuses al-Bashir of promoting a racialisation of identities between the Arabs and the non-Arab ‘Zurgas’ or ‘Africans’. History is witness that this racialisation in fact had its roots in the British colonial period and provided the frame for government policy.
   Similarly Ocampo accuses al-Bashir of ethnic cleansing through land grabbing. Mamdani again refutes this claim by showing that land grabbing was a consequence of historical events beginning from the colonial designation of land to rapid desertification during the mid-80s and finally the counterinsurgency that the Bashir regime unleashed in 2003-04 as a response to the insurgency backed by peasant tribes. These arguments do not exonerate al-Bashir of his crimes. Rather they necessitate that the punishment be proportionate to the crime committed. As it stands now, the ICC’s take on justice seems to be politicised which will almost certainly undermine its legitimacy.
   
   
   Moral and ethical dilemmas
   Bashir’s defiant reaction to the ICC decision was to tell his supporters to ‘immerse it in water and drink it.’ On a more serious note, he expelled 13 major international aid agencies along with a few local ones, some from Darfur and some from the country altogether. These agencies provided much of the food, water and medicine to the 2.75 million refugees who live in temporary camps in Darfur. The Sudanese government has no contingency plan to replace these essential services.
   This should have been anticipated, for peace and justice in Africa has often been perceived as mutually exclusive. Human rights workers and humanitarian actors perpetually face moral and ethical dilemmas, as denouncing human rights abuses risks endangering crucial access to victims of a conflict. That is precisely what has happened in Sudan. The ICC indictment has unleashed a humanitarian crisis and peace seems beyond the horizon.
   
   Alternative justice?
   To reiterate, these arguments are not to stifle the quest for justice but to make a careful assessment of the credibility and consequences of it that will ultimately be borne by the victims of the Darfur conflict. Prosecutions by international tribunals may actually create stumbling blocks for more politically realistic alternatives to address past grievances, including amnesty, exile or lustration.
   Africa has seen its share of peace deals that have been achieved without retribution, such as in Mozambique and Sierra Leone where the RENAMO and RUF respectively were incorporated into government and are now the official opposition. Similarly for the leaders of the ANC in South Africa, the choice to forego prosecutions against the former leaders of apartheid was considered crucial for a peaceful and workable transition.
   These are not generalisable to every conflict ridden state in Africa. But these difficult choices were made to avoid a far greater humanitarian and political crisis. Whether the current situation in Darfur warrants a similar choice is a question that should be answered immediately. That would do more for securing justice for the victims and survivors of this conflict.
   Munyema Hasan is a research associate at the Institute of Governance Studies, BRAC University.

THE denouement was suitably dramatic, capped by a prime ministerial address to the nation shortly before the crack of dawn on Monday. The timing was unprecedented, but any further delay would have cost the nation dearly. Keeping an eye on the events that led up to Yousuf Raza Gilani’s conciliatory speech was an experience comparable to watching a train wreck in slow motion. You kept hoping someone would have the good sense to pull the chain in time.
   And someone did, albeit not without a great deal of assistance. The crucial tug seems to have been delivered by a foreign hand. In the circumstances, even those of us wary of external interference in domestic affairs ought to be grateful.
   There isn’t much cause for pride in the fact that Hillary Clinton, David Miliband and their representatives in Islamabad had to bang heads together in order to curtail a dangerous demonstration of juvenile delinquency. However, the extra-parliamentary opposition mobilised on the streets of Karachi and Lahore played a decisive role in concentrating minds. On its own, Clinton’s clout might not have sufficed.
   No one could have missed the significance of the fact that it was Gilani rather than Asif Zardari who made the crucial announcement. The prime minister was able to convey the impression that he was comfortable with the decision to restore Iftikhar Chaudhry and all other judges deposed by Pakistan’s most recent military dictator. It is unlikely that the president, who has made no secret of his personal antipathy towards Chaudhry, could have endured the ordeal with a straight face.
   Although Gilani was handpicked by Zardari, and was considered relatively powerless long before the latter owned up to his presidential ambitions, there have lately been reports of increasingly tense relations between the two of them. Among many other things, it remains to be seen whether this week’s events will significantly shift the balance of power.
   Following his inauguration last year, Zardari made a big deal of his avowed intention to clip his own wings by curbing presidential powers. He has not so far been witnessed wielding a pair of shears – which is of a piece with his by now well-established reputation for making promises he has no intention of keeping. However, even before Monday’s climb-down, there was growing evidence of his authority being undermined.
   Raza Rabbani, a senior member of the Pakistan People’s Party, resigned from his cabinet post after being overlooked for the coveted post of Senate chairman. Sherry Rehman’s exit last week was even more significant: she quit as information minister after the government, without bothering to consult her, attempted to block the private Geo News television channel, evidently on account of its live coverage of the lawyers’ movement. Rehman appears to be an instinctive liberal who has occasionally given the impression of being something of a misfit in an authoritarian environment. Her action, ostensibly on a matter of principle – although personal dignity must surely also have been a consideration – establishes a healthy precedent.
   The fiasco in Punjab – where Zardari’s point man Salman Taseer, a brazenly opportunistic PPP veteran appointed as governor by Pervez Musharraf, has thus far been miserably unsuccessful in his efforts to establish a coalition between the PPP and erstwhile Musharraf loyalists after the Shahbaz Sharif administration was unceremoniously bundled out of power – has also discredited the president.
   The extent to which the despicable terrorist attack targeting the Sri Lankan cricket team in Lahore earlier this month was facilitated by the provincial regime change and the ensuing chaos among local police ranks is open to conjecture. But indications of police rebellion in the province at the weekend, which is likely to have contributed to the administration’s inability to enforce house-arrest orders against Nawaz Sharif, increase the untenability of Taseer’s position. Let’s not forget, meanwhile, that in the wake of the Liberty roundabout tragedy, the governor deemed it opportune to declare that he knew exactly who the perpetrators were and they would shortly be apprehended, while an investigation would be completed within 24 hours and its report made public. It is hardly reassuring that, a couple of dozen 24-hour periods later, there’s not a terrorist in custody and not a report in sight.
   Chances of the Shahbaz administration’s restoration have brightened in the light of the federal government’s declared pursuit of a judicial review – a promise that will be difficult, in the circumstances, to breach. In the interim, as a goodwill gesture, it would be wise to appoint a less adversarial governor (Aitzaz Ahsan would be an excellent choice). In fact, Zardari would be doing the nation a considerable favour were he to relegate not only Taseer but also Rehman Malik – whose technically advisory post barely disguises the breadth of his influence – to posts where their capacity to do harm is severely constrained.
   The scenes of jubilation on the streets of Pakistan have offered a welcome respite from confrontational demonstrations. But we shouldn’t get carried away. The conditions under which Chaudhry, Bhagwan Das and the other judges will be reappointed by executive order next Saturday remain unclear: the scale of the popular triumph will obviously be diminished if it turns out to be little more than a token gesture. Let us also not forget that the innumerable other, more significant problems plaguing the country – from the dire state of the economy to the jihadist menace – have not gone away.
   A reality check is also advisable for those who, enthused by Nawaz Sharif’s success in hitching his wagon to the lawyers’ movement, are beginning to perceive him as some sort of saviour. It is all very well for him to decry Zardari’s ‘democratic dictatorship’ and to champion the cause of judicial independence, but his political antecedents and past conduct ought not to be overlooked.
   He is not a democrat by birth: as a political entity, he emerged fully formed from the bowels of Pakistan’s most toxic military dictatorship. On at least one infamous occasion, his party goons displayed considerable disrespect towards the Supreme Court. And he demonstrated an alarming level of autocracy during his second stint in power, while flirting openly with Islamists of the Shariah-wielding variety. In the absence of a clear-cut and comprehensive mea culpa, there is no assurance that, given the opportunity, he won’t repeat his follies.
   At the moment, there are no palatable alternatives to compromise and political accommodation. It may well be possible eventually to look back on this week’s developments as a crucial turning point. But it’s too soon to make that judgement. It’s undoubtedly a victory, but what good will come from it only time shall tell.
   Znet, March 18.

Premature talks

I think talks about disbanding BDR or re-branding this paramilitary force and further talks of the future of the BDR members whether they will be taken in the proposed re-branded force are all premature. We should all concentrate now on the investigation and trial of the criminals and perpetrators. I believe what is important now is the rebuilding of the force with present organisation structure and the chain of command. Later on we will have many options to think about and talk about.
   MH Khan
   Via e-mail

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