The International Criminal Court's case against the president of Sudan: a critical look.

• Author: Mamdani, Mahmood
• Position: Omar Hassan Ahmad al-Bashir - Report

On 14 July 2008, after much advance publicity and fanfare, the prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, applied for a warrant of arrest against the president of Sudan, Omar Hassan Ahmad al-Bashir, on charges that included conspiracy to commit genocide along with other war crimes. (1)

The application charges President al-Bashir with the polarization of ethnic groups into two broadly racialized groups (Arab and Zurga or black), followed by a violent conflict from 2003 to 2005, leading to the ethnic cleansing of Zurga ethnic groups (in particular, the Fur, the Masalit and the Zaghawa) from their traditional tribal lands or dars, and a deceptively non-violent process whereby those forcibly expelled were left to die, either in the desert or from malnutrition, rape or torture, leading to "slow deaths" in the internally displaced persons (IDP) camps. The prosecutor argues that this process has gone on for five years, from 2003 to the time of the publication of the application in 2008.

I will seek to place the prosecutor's account of these atrocities within a historical and regional context. Such an account raises important questions of fact and interpretation with reference to each of the three charges contained in the prosecutor's application: racialized polarization, dispossession of land and atrocities in the camps.

This is how the prosecutor describes President al-Bashir's responsibility for the racialized polarization of the conflict in Darfur:

In Darfur, AL BASHIR promoted the idea of a polarization between tribes aligned with him, whom he called 'Arabs,' and the Fur, Masalit and Zaghawa, whom he called 'Zurgas' or 'Africans.' The image is only one of many used by AL BASHIR to disguise crimes. Both, victims and perpetrators are in fact 'Africans,' and speak 'Arabic.' (2) The racialization of identities in Darfur has its roots in the British colonial period. As early as the late 1920s, the British tried to organize two confederations in Darfur: one "Arab" the other "Zurga" or black. Racialized identities were incorporated in the census and provided the frame for government policy and administration. Despite official British policy, Arab was never a singular identity: Whereas the sedentary Arab tribes of riverain Sudan were identified with power, the nomadic tribes of western Sudan, in particular Darfur, were the most marginalized groups in a marginal province. If anything, the evidence shows that whereas successive Sudanese governments--al-Bashir's included--looked down on all Darfuris, non-Arab Zurga and Arab nomads, it is the Save Darfur Coalition, with the media in tow, that drove the portrayal of the conflict in Darfur as one between "Arabs" and "black Africans."

The conflict over land is also more complex than the prosecutor's application describes. The spiral of land conflict and dispossession has been a consequence of four different if 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 from 2003 to 2004.

The application submitted by the prosecutor is silent about the discriminatory nature of the colonial system that reorganized Darfur as a patchwork of tribal homelands, with several consequences. First, whereas peasant tribes were guaranteed a dar in the lands where they had historically settled, the camel pastoralists of northern Darfur with no settled villages were left without any dar. Second, a system of so-called native administration systematically distinguished between the supposedly native tribe and non-native tribes in each dar, privileging the former and discriminating against the latter when it came to access to land, participation in local administration and the resolution of local disputes. The prosecutor's application sanitizes this colonial legacy as traditional:

The traditional division of the land into homelands called dar--which essentially are areas to which individual tribes can be said to have a historical claim--is crucial in the local self-perception of the population. The division of land between individual tribes in existence in 2003 dates back to the beginning of the 20th century when the last sultan of Darfur, Sultan Ali Dinar, decreed this division, which was accepted by all tribes. Each group established a 'native administration' of paramount importance for Darfurian society and recognized by the Government. (3) The second cause of intense land conflict is more contemporary: extreme environmental...