1 Assist. Prof. R. Murat ÖNOKSudan- Darfur Assist. Prof. R. Murat ÖNOK (based on the slides prepared for a conference delivered on that date)

2 Jamie A. Mathew, 18 Fla.J.Int’l L. 518 2006, at 519

3 Excerpt from the ICC Prosecutor’s Press Statement (ICC-OTP-20080714-PR341)Testimony of a victim: “When we see them, we run. Some of us succeed in getting away, and some are caught and taken to be raped -- gang-raped. Maybe around 20 men rape one woman. […] These things are normal for us here in Darfur. These things happen all the time. I have seen rapes too. It does not matter who sees them raping the women -- they don't care. They rape girls in front of their mothers and fathers”.

4 Sudan- Background

5 Sudan- Background N.B.: The following info concerns the situation as of 2009. Sudan gained its independence from the UK in On its southern borders lie the Democratic Republic of Congo and Uganda, to Sudan’s south-west lies the Central African Republic. To Sudan’s east lie Eritrea and Ethiopia, both of which are attempting to recover from decades of conflict. The most stable of its neighbours are Chad, Egypt, Libya, and Kenya. (P.S. Again, this was written in 2009!) Sudan consists of 26 states governed by an authoritarian military regime. The capital of Sudan is in Khartoum. In 2004, Sudan was 52% black and 39% Arab. Since independence, Sudan, the largest state in Africa, has witnessed a civil war between the Arab-dominated North, and the Christian and animist, black South. P.S. (28/12/2011): Southern Sudan became an independent country on 9 July 2011.

6 Sudan

7 Sudan

8 Sudan- Background There was a civil war between , followed by a peace of 10 years (although a coup attempt failed in 1976). The discovery of oil in southern Sudan in the 1970s has only served to increase tensions, since revenues have been perceived to be unequally distributed by the government. But this is not the only problem: Inter-religious relations are weak, and other geographical regions feel they have been left out economically and politically. In 1983 Shari’a was introduced into the Penal Code, a state of emergency was declared and civil war resumed. In 1989 military officers took over the government and Omar Hassan Al-Bashir became President of Sudan.

9 Darfur Coined from ‘Dar’ – one of the many tribes of Sudan – and ‘Fur’ – the homeland of the tribe – Darfur is the largest region of Sudan, the size of France and home to 6 million people. It is situated in the north-western part of Sudan. In 2003 the fighting extended to Sudan’s western region of Darfur. West Darfur has a population of approximately 1.7 million, predominantly composed of sedentary African farmers such as the Fur, Masalit, and Zaghawa tribes. The rest of the population of Darfur consists of Arab nomadic tribes.  Both the black African and the Arab tribes are Muslim, but they have a long-standing history of clashes over land, crops, and resources. The fight for scarce resources intensified when in the 70s and 80s fertile land became scarce through drought and increasing desertification.

10 Darfur The situation also developed a more political character. The non-Arab communities increasingly complained that the central Khartoum government inflamed tensions by arming and assisting the landless Arab nomadic tribes in the localized clashes that took place in the late-1980s and 1990s. Since 2003, the various tribes that have been the object of attacks and killings (chiefly the Fur, Massalit and Zaghawa tribes), and the Arab tribes supporting the central government do not appear to make up distinct ethnic groups: they speak the same language (Arabic) and embrace the same religion (Muslim). In addition, also due to the high measure of intermarriage, they can hardly be distinguished in their outward physical appearance. Apparently, the sedentary and nomadic character of the groups constitutes one of the main distinctions between them. It is also notable that members of the African tribes speak their own dialect in addition to Arabic, while members of Arab tribes only speak Arabic.

11 Darfur Even so, those tribes in Darfur who support rebels have increasingly come to be identified as “African” and those supporting the government as the “Arabs”, although not all “African” tribes support the rebels and not all “Arab” tribes support the Government. In any case, those directly affected by the conflict, have come to perceive themselves as either “African” or “Arab”. In many cases militias attacking “African” villages tend to use derogatory language, such as “slaves”, “blacks”, “Nuba”, or “Zurga” that might imply a perception of the victims as members of a distinct group. As for the victims, they often refer to their attackers as Janjaweed, a derogatory term that normally designates “an (evil) man with a gun on a horse/camel.” However, in this case the term Janjaweed clearly refers to “militias of Arab tribes on horseback or on camelback.” In other words, the victims perceive the attackers as persons belonging to another and hostile group.

12 History of the Conflict in Darfur

13 History of the Conflict in DarfurThe alleged crimes have been committed during an internal armed conflict between the Sudanese government and two armed resistance groups, the Sudanese Liberation Movement/Army (SLA- led by Mini Minawi) and the Justice and Equality Movement (JEM- Khalil Ebrahim). The SLA and the JEM accused the Arab-ruled Sudanese government of oppressing black Africans in favor of Arabs. This is the ground on which they took arms and attacked government installations. More precisely, they demanded from the central government of Khartoum that it would end the chronic socio-economic and political marginalization of Darfur and its people. Both rebel groups, which are mainly composed of members of the Fur, Masalit and Zaghawa tribes, sought power-sharing within the Arab-dominated Sudanese State and requested government action to end the abuses of the Arab pastoralists and their armed militias.

14 History of the Conflict in DarfurEarly on in the Darfur conflict, the SLM and JEM achieved a number of victories against the government, which became concerned that it could not counter the SLM and JEM alone. Its response to these early SLM/JEM gains was accurately summarized by the acting UN High Commissioner of Human Rights, Bertrand Ramcharan: “The government of Sudan appears to have sponsored a militia composed of a loose collection of fighters, apparently of Arab background, mainly from Darfur, known as the ‘Janjaweed’. In other words, and worryingly, what appears to have been an ethnically based rebellion has been met with an ethnically based response, building in large part on long-standing, but largely hitherto contained, tribal rivalries. In certain areas of Darfur, the Janjaweed have supported the regular armed forces in attacking and targeting civilian populations suspected of supporting the rebellion, while in other locations, it appears that the Janjaweed have played the primary role in such attacks with the military in support.”

15 History of the Conflict in DarfurThe conflict erupted in full-scale in approximately August 2002 with government attempts to control the insurgency through deployment of the Sudanese Armed Forces. The government launched air attacks against civilian populations from which the rebels were drawn.  The aerial bombings were followed by ground attacks by militiamen recruited among the Arab tribes, known as the Janjaweed. These were really ex-convicts and outlaws. In fact, janjaweed is a traditional Darfurian term denoting an armed bandit or outlaw on a horse or camel. There is evidence that Janjaweed attacks are supported and aided by the Sudanese military, although the Sudanese Government denies it. The government of Sudan accepts that violations of human rights and humanitarian law have occurred, but asserts “that such violations represented individual excesses rather than state policy, and that they were the natural, or inevitable, consequences of an armed conflict which would end with the end of conflict”.

16 History of the Conflict in DarfurIn reality, it might be said that the Sudanese Government, in a bid to destroy the bases of rebel support and supply in Darfur, sponsored the Janjaweed, to assist Sudanese troops in targeting and attacking civilians perceived to be helping and harbouring the rebels. Sudanese troops and their militia demolished suspected towns and villages in Darfur as a collective punishment to their people for aiding the rebels: “First aircraft would come over a village, as if smelling the target, and then return to release their bombs. The raids were carried out by Russian-built four-engine Antonov An-12s, which are not bombers but transports. They have no bomb bays or aiming mechanisms and the bombs they dropped were old oil drums stuffed with a mixture of explosives and metallic debris. These were rolled on the floor of the transport and dropped out of the rear ramp which was kept open during the flight. The result was primitive free-falling cluster bombs, which were completely useless from a military point of view since they could not be aimed but had a deadly efficiency against civilian targets After the Antonovs had finished their grisly job, combat helicopters and/or MiG fighter-bombers would come, machine gunning and firing rockets at any large targets such as a school of warehouse which might still be standing...”

17 History of the Conflict in DarfurWhen the air attacks were over, the Janjaweed would arrive, either by themselves or in the company of regular Army units... They would surround the village and what followed would vary. In the ‘hard’ pattern they would cordon off the place, loot personal belongings, rape the girls and women, steal the cattle and kill the donkeys. They would then burn the houses and shoot all those who could not run away. Small children, being light, were often tossed back into the burning houses. In the ‘soft’ pattern the militiamen would beat up people, loot, shoot a few recalcitrant men, rape the females, often scarring them or branding them with a hot iron so that they would become recognizable as ‘spoilt’ women in the future.” (See Alex de Waal, Famine that Kills: Darfur, Sudan (OUP Oxford 2005) xiv; and Gérard Prunier Darfur: The Ambiguous Genocide (C Hurst and Co London 2005), pp )

18 History of the Conflict in DarfurAccording to Human Rights Watch, the Armed Forces and Janjaweed murdered and raped thousands of civilians, destroyed hundreds of villages, stole millions of livestock, and forcibly displaced more than 2,000,000 Darfurians during the conflict. According to the U.N. Office for the Coordination of Humanitarian Affairs, about 2.2 million civilians are in urgent need of food, medicine and shelter.  The humanitarian consequences of the conflict have been further aggravated by the Sudanese government's refusal to allow unrestricted humanitarian access to Darfur. The vast majority of victims have been forced to flee their homes and many have lost livestock and all other assets. Some of them have fled across the border into neighbouring Chad. However, most of the victims remain trapped in Darfur. The majority took refuge in refugee camps where they are exposed to appalling conditions and that are not safe from the attacks of the Janjaweed and government troops.

19 History of the Conflict in Darfur“It has been alleged that during the Sudanese conflict, since 1983, troops and Janjaweed used systematic crimes of ethnic cleansing, atrocities, and slavery to force the southern native black Africans to abandon their way of life. The government officials, troops, and Janjaweed prevented the flow of food and humanitarian aid from reaching the displaced Darfurians as a means to effect their flight for survival. Since 2003, the militia’s land attacks and the Sudanese army’s air raids have killed thousands of Darfurian civilians. In the course of mobilising its offensive against the black African civilians, the Janjaweed committed crimes and human rights abuses indiscriminately, including massacres; rape and other sexual violence; pillage, leaving villages razed, crops burned and water sources destroyed; forced evictions; caused disappearances and employed systematic persecution. The terrorised survivors of these attacks fled their homes in search of safety, which caused massive displacement”. Excerpt from:

20 Reaction of the International Community

21 Reaction of the international communityIn May 2004, a report of the U.N. High Commissioner for Human Rights on the situation of human rights in Darfur "identified disturbing patterns of massive human rights violations in Darfur perpetrated by the Government of Sudan and its proxy militia, many of which may constitute war crimes and/or crimes against humanity." Moreover, the rebel groups may also be responsible for a significant number of war crimes, including attacks on civilians and humanitarian workers and summary execution of captured Armed Forces and Janjaweed soldiers.

22 Reaction of the international communityOn July 22, 2004, the U.S. Senate and House of Representatives passed a resolution declaring the attacks on the African villagers to be "genocide."  On August 9, a European Union fact-finding mission found that there was "widespread, silent and slow killing going on, and village burning of a fairly large scale," but rejected use of the term "genocide”.

23 Reaction of the international communityOn July 30, 2004, the United Nations Security Council adopted Resolution 1556 by a vote of 13 in favor, with China and Pakistan abstaining.  The US-drafted resolution was co-sponsored by Britain, France, Germany, Chile, Spain and Romania.  The Resolution 1556 was adopted under Chapter VII of the U.N. Charter.  Chapter VII authorizes the Security Council to determine the existence of a threat to the peace, breach of the peace or act of aggression, and to take measures to maintain or restore international peace and security.  The Security Council expressed its intention "to consider further actions" if the Sudanese government fails to disarm and prosecute the Arab militias known as Janjaweed, who have forced black Africans off their land in the Darfur region of western Sudan through a campaign of killing, rape, and pillage.

24 Reaction of the international communityOn August 4, 2004 the Sudanese government finalized an agreement with the U.N. Secretary General Special Representative Jan Pronk, which contains detailed steps and policy measures to be taken within the next 30 days to begin to disarm the Janjaweed. But there was no follow-up by the Sudanese government. Security Council Resolution 1564 was adopted on 18 September 2004: 7. Reiterates its call for the Government of Sudan to end the climate of impunity in Darfur by identifying and bringing to justice all those responsible, including members of popular defense forces and Janjaweed militias, for the widespread human rights abuses and violations of international humanitarian law, and insists that the Government of Sudan take all appropriate steps to stop all violence and atrocities; 12. Requests that the Secretary-General rapidly establish an international commission of inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable....”

25 The Report of the International Commission of Inquiry on Darfur

26 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (January 2005) The Commission has found that Sudanese government forces and militias have conducted indiscriminate attacks in Darfur, including mass killings, torture, rapes and forced displacement of civilians: “Based on a thorough analysis of the information gathered in the course of its investigations, the Commission established that the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law. In particular, the Commission found that Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity.”

27 Report of the International Commission of Inquiry on Darfur“In their discussions with the Commission, Government of the Sudan officials stated that any attacks carried out by Government armed forces in Darfur were for counter insurgency purposes and were conducted on the basis of military imperatives. However, it is clear from the Commission’s findings that most attacks were deliberately and indiscriminately directed against civilians. Moreover even if rebels, or persons supporting rebels, were present in some of the villages – which the Commission considers likely in only a very small number of instances - the attackers did not take precautions to enable civilians to leave the villages or otherwise be shielded from attack.”

28 Report of the International Commission of Inquiry on Darfur“While the Commission did not find a systematic or a widespread pattern to these violations, it found credible evidence that rebel forces, namely members of the SLA and JEM, also are responsible for serious violations of international human rights and humanitarian law which may amount to war crimes. In particular, these violations include cases of murder of civilians and pillage.”

29 Report of the International Commission of Inquiry on DarfurThe Commission, however, concluded that the government of Sudan did not pursue a policy of genocide: “However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.” “The Commission does recognise that in some instances individuals, including Government officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case by case basis.”

30 Report of the International Commission of Inquiry on Darfur- why not genocide?DEFINITION OF GENOCIDE: [Genocide is] any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

31 The crime of genocide The victim must belong to a specific national, ethnical, racial, or religious group. The victim community must be targeted as a group. In other words, although certain acts are committed against individuals, the real target of the attack is the group to which the individual belongs. So, the victims must be targeted by reason of their membership in a group. Most important, the crime of genocide can only be committed with a specific intent (özel kast). That is to say, the prohibited must be committed with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Therefore, the intention of the perpetrator is decisive. The victim is not targeted on account of his or her individual qualities or characteristics, but only because of the membership to a group. The Commission could not find conclusive evidence of such an intent. That is why it did not label the acts as “genocide”.

32 Report of the International Commission of Inquiry on DarfurHowever, the Commission stressed the seriousness of the crimes that have been committed in Darfur: “The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide. This is exactly what happened in Darfur, where massive atrocities were perpetrated on a very large scale, and have so far gone unpunished”. The Commission recommended that the U.N. Security Council immediately refer the situation to the International Criminal Court for investigation and possible prosecution of the persons suspected of committing those crimes.

33 The situation in Darfur and the ICC

34 Referral by the UN SC Sudan is not a party to the Rome Statute.Nevertheless, the U.N. Security Council had the power, under the Rome Statute, to refer the Darfur situation to the Court. This is what happened with UN Security Council Res (2005), adopted on 31 March 2005.

35 UN SC Res. 1593 (2005), adopted on 31 March 2005The Security Council, (...) Determining that the situation in Sudan continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court; 2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

36 Is there a duty to cooperate with the ICC?Does Turkey have to cooperate with the ICC in arresting El-Beşir? “2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully”.

37 Is there a duty to cooperate with the ICC?1. view: YES, Turkey must cooperate. Art. 25 UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” 2. view (majority opinion): NO, States not parties to the Rome Statute do not have to cooperate. The UN SC resolution urges States that are not a party to the Rome Statute to cooperate, however it uses non-obligatory language (işbirliği yapmaya davet ediyor, ama zorundasın demiyor). This is also the view of the ICC (non-states parties are not required to cooperate). Absent future resolutions imposing a binding obligation to cooperate, there is therefore no obligation on a non-state party to arrest and surrender President Bashir to the ICC.

38 Darfur Investigation by the ICCThe Prosecutor formally initiated an investigation into the Darfur situation on June 1, 2005. On 2 May 2007, it was made public that the judges of Pre-Trial Chamber I issued arrest warrants on 27 April 2007 for Ahmad Muhammad Harun (former Minister of State for the Interior of the Government of Sudan) and Ali Muhammad Al Abd-Al-Rahman (a Militia leader also known as Ali Kushayb). The Chamber held that there are reasonable grounds to believe that the two suspects bear criminal responsibility for crimes against humanity and war crimes committed in Darfur in 2003 and The two arrest warrants list 51 counts respectively, including persecution, murder and attacks against civilians, forcible transfer, rape, pillaging, destruction of property, inhumane acts, imprisonment, and torture.

39 Darfur Investigation by the ICCIn July 2008 the ICC Prosecutor made an Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir by stating that there are reasonable grounds to believe that Al Bashir bears criminal responsibility for genocide, crimes against humanity and war crimes. The Prosecution alleged that Al Bashir committed these crimes indirectly through the army and the Militia/Janjaweed, claiming that Bashir was the "mastermind behind the alleged crimes" that were committed by forces over which he had "absolute control" in the Darfur region of Sudan. On 4 March 2009 an arrest warrant for crimes against humanity and war crimes was issued for Sudanese President Omar Hassan Ahmad al-Bashir. On 12 July 2010, ICC Pre-Trial Chamber I issued a second arrest warrant for Sudanese President Omar Hassan Ahmad Al Bashir for three counts of genocide committed against the Fur, Masalit and Zaghawa ethnic groups. It is the first arrest warrant issued by the ICC for counts of genocide

40 Hasan El Beşir Arrest Warrant – Prosecutor’s viewThe Prosecution asserted that Al Bashir intends to destroy in substantial part the Fur, Masalit, and Zaghawa ethnic groups whom Bashir portrayed as "Africans", as opposed to "Arab" tribes supportive of the government. Forces that Al-Bashir controlled attacked civilians and killed, raped, tortured, forced the displacement of a large segment of the population, and deliberately inflicted on a substantial part of those groups conditions designed to bring about their physical destruction. The Prosecutor emphasizes that thousands of women and children as young as five have been gang-raped and that the crime of rape is a key part of the Government of Sudan's pattern of destruction of targeted groups. The Prosecutor did not seem to dispute the UN Commission's previous factual findings, but rather finds that the best evidence of Bashir's genocidal intent are the attacks against the civilian population of the targeted ethnic groups in refugee camps that happened after the Commission issued its report and which could have no other purpose but the destruction of the civilian population.

41 Hasan El Beşir Arrest Warrant – Statement by the ICC Prosecutor“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”. AL BASHIR assessed that the Fur, Masalit and Zaghawa constituted a threat to his power: members of the three groups engaged in armed rebellions. AL BASHIR’s motive was control of power. His pretext was a ‘counterinsurgency’. His intent was genocide. In March 2003, AL BASHIR decided and set out to destroy in part the target groups, on account of their ethnicity. He publicly instructed the army to quell the rebellion and not to bring back any prisoners or wounded. There is an armed conflict in Darfur. The Government of Sudan is engaged in a military campaign against two rebel armed movements. Both rebel groups mainly recruit from the target groups. The Government has the right to use force to control its territory, but it cannot use genocide as a means to do so. Since 2003, AL BASHIR’s forces purposefully targeted civilians who were not participants in any conflict.”

42 Reactions to the Arrest Warrants

43 Reactions to the arrest warrantThe decision triggered anger from Sudan, and opposition from other African and Arab countries, China and Russia; their main concern (as reported in the media) being that ‘the warrant will destabilise the whole region, bring even more conflict in Darfur’ and in the country generally. It also prompted the expulsion from Sudan of 13 humanitarian organisations immediately following the issue of the warrant. The support of mainly western states has added to the concerns of the African Union that the ICC is exercising double standards due to its focus on African states. The Sudanese government had made clear that it has no intention of cooperating with the ICC regarding Harun and Kushayb. Indeed, its Interior Minister, Al-Zubayr Bashir Taha, has publicly threatened to behead anyone who attempts to arrest a Sudanese official on behalf of the Court. Obviously, the same stance applies for the arrest warrant regarding President El Beşir. None of the three outstanding arrest warrants have been executed as the Sudanese government has openly defied and consistently refused to cooperate with the Court and the international community

44 Why is it so important to label it genocide, instead of crimes against humanity or war crimes?

45 Why insist on labelling it genocide?There remains a popular perception that genocide is the ‘crime of crimes’, and any description that falls short of genocide amounts to betrayal of the victims. Describing acts as genocide has the consequence of stigmatization to an extent that simply does not work in the same way with respect to crimes against humanity. So, in order to draw the world’s attention to Sudan, stop the killing and prosecute those responsible, labelling the events as genocide was more convenient. Furthermore, the Genocide Convention would (allegedly) oblige party States to interfere. Looking at the way the int’l. press responded to the UN Commission’s report which stated that there was no conclusive evidence of genocidal intent, we can better understand this insistence.

46 Why insist on labelling it genocide?

47 Why insist on labelling it genocide?Under Article I of the Genocide Convention all states parties have on obligation to prevent genocide. As interpreted by the International Court of Justice in the Bosnian Genocide case, the obligation to prevent genocide is not limited to the state's own territory. So, if the crimes are labelled genocide, the int’l. community would have to react in order to stop the commission of such acts. On the other hand, there might also be political implications. There is an important school of thought within the US government that considers a finding of genocide to authorize ‘humanitarian intervention’, even in the absence of Security Council authorization. So, if it is labelled genocide, it can be argued that other States have to intervene. Why would this be important for the US? See next slide!

48 Why insist on labelling it genocide?

49 Why insist on labelling it genocide?With regard to the stance of the USA, there might be another political implication: “For Colin Powell and the Bush administration, it is surely an appealing proposition to tarnish Sudan, which must be on its short list for the vacant Iraqi seat as a member of the ‘axis of evil’, with the odium of ‘genocide’. Fundamentalist evangelical Christians in the United States who see Sudan as a contemporary battleground for the crusade against Islam are without doubtmaking their influence felt on US policy too.” (Schabas W., Genocide, Crimes Against Humanity, and Darfur: The Commission of Inquiry’s Findings on Genocide, Cardozo Law Review, Vol. 27:4, 2006, pp ).

50 TURKEY’S STANCE

51 22 Ocak 2008, Salı: Savaş Suçlularını Koruyan Sudan Başkanı El Beşir Türkiye'deDarfur'da hükümet destekli milislerin "savaş suçu"ndan mahkum olan liderlerini teslim etmeyen Sudan'ın devlet başkanı Abdullah Gül'lü ziyaret etti. Darfur'da 2003'ten bu yana 200 binden fazla sivil öldürüldü. Sudan Devlet Başkanı Ömer El Beşir Türkiye'ye resmi bir ziyaret gerçekleştirdi. El Beşir dün Anıtkabir'i ziyaret etti. Akşam da Gül, Çankaya'da El Beşir ve eşi için yemek düzenledi. Başbakan Recep Tayyip Erdoğan ve bazıbakanlar da yemeğe katıldı. Gül, El Beşir'le görüşmesinde "Darfur'da yaşanan insanlık dramına kayıtsız kalamayız" dedi. El Beşir de "soykırım" suçlamalarını reddetti.

52 5 Kasım 2009: Tehlikeli konuk yine Türkiye'deUluslararası Ceza Mahkemesi'nin hakkında tutuklama kararı aldığı Sudan Cumhurbaşkanı Ömer El Beşir Türkiye'yi ziyaret edecek. Sudanlı yetkililer, Beşir'in İstanbul'da yapılacak İslam Konferansı Örgütü toplantısı için gelecek hafta Türkiye'ye gideceğini duyurdu. 9 Kasım 2009: Uluslararası Ceza Mahkemesi'nin hakkında tutuklama emri çıkarttığı Sudan lideri Ömer El Beşir, Türkiye'deki İSEDAK toplantısına katılmayacağını açıkladı. Sudanlı yetkililer, El Beşir'in gelmemesinin temel sebebinin ülke içi nedenler olduğunu bildirdi.

53 6 Kasım 2009: Türkiye, İsrail'e 'Hayır' El Beşir'e 'Evet' diyorWall Street Journal, Türkiye'nin, savaş suçları nedeniyle Uluslararası Ceza Mahkemesince yakalama emri çıkartılan Sudan Devlet Başkanı El Beşir'i gözaltına alınmayacağını bildirdiğine dikkat çekerken Türkiye'nin, El Beşir'in ziyaret edebildiği "en Batılı" ülke olacağı yorumunu yaptı.

54 R.T.Erdoğan on Darfur (!) Erdoğan, “Gazze olayı ile Darfur’u birbirine karıştırmamak lazım. Orada böyle bir ifade edildiği gibi soykırım tespitini biz yapamadık” dedi. TRT1’de yayımlanan “Politik Açılım” programına katılan Erdoğan, “Türkiye’nin İsrail’in insanlık suçu, savaş suçu işlemesi konusunda takipçi olduğu, benzer isnatlarla karşı karşıya olan Sudan Devlet Başkanı Ömer El Beşir ile ilgili olarak AB ve dünya kamuoyunun Türkiye’nin tutumundan rahatsız olduğu açık. İkisi arasında bir çelişki var mı? Nasıl bakıyorsunuz bu konuya” sorusu üzerine şunları kaydetti: “Buranın davet sahibi biz değiliz. İKÖ davet sahibi. Gazze olayı ile Darfur’u birbirine karıştırmamak lazım. Ben Darfur’a bu olaylar üzerine gitmiş bir Başbakanım ve onu yerinde inceledim ama kimse Darfur’a girme demedi. Ve orada böyle bir ifade edildiği gibi soykırım tespitini biz yapamadık.” Afrika ülkelerinin de böyle bir görüşe katılmadıklarını ifade eden Erdoğan, “Şu anda BM’nin de Türkiye’ye yönelik bir yazısı, tavrı da olmuş değil. Bunlar medyada çok farklı şekilde yer alıyor. Ama İsrail olayına gelince Gazze’nin durumu çok farklı” dedi (...)

55 R.T.Erdoğan on Darfur (!) El Beşir ile kendisinin çok rahat konuştuğunu dile getiren Erdoğan, sözlerini şöşyle sürdürdü: “Ben Netanyahu ile o kadar rahat konuşamam ama Beşir ile rahatlıkla konuşurum. Rahatlıkla, ‘bu yaptığınız yanlıştır’ derim. Ve yüzüne derim. Niye? Bir Müslüman böyle bir şey yapamaz ki. Bir Müslüman soykırım yapamaz. Varsa böyle bir şey bunu rahat söyleriz. Türkiye’nin böyle bir rahatlığı var. Bu konudaki rahatlığımızı ben Ban Ki-mun’a da açıkladım.” Erdoğan, Danışma Kurulu toplantısında da şöyle konuştu: “Bizzat Darfur’a gitmiş, sorunlarının hafiflemesi için somut adımlara öncülük etmiş bir Başbakanım. Acaba Sudan’la ilgili konuşan liderlerden kaçı Darfur’a gitmiş. Sayın Beşir’e söylenecek birşey varsa, bunların söyleyemediğini biz çok rahat söyleriz. Onlar raporlar üzerinden açıklama yapıyor. Mensubu olduğumuz İslam dinine teslim olan bir insanın soykırım yapması asla mümkün değildir.” (9 Kasım 2009)

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57 Cenap Çakmak: Uluslararası Ceza Mahkemesi’nin (UCM) hakkında Darfur’da işlenen savaş suçları ve insanlığa karşı suçlarla ilişkili olarak tutuklama kararı çıkardığı Sudan Devlet Başkanı Ömer El-Beşir, İslam Konferansı Örgütü (İKÖ) toplantısına katılmak için Türkiye’ye gelme ihtimali gündemi işgal etti bir süre; gelseydi şayet bu El-Beşir’in Türkiye’ye ilk gelişi olmayacaktı. Ancak bu sefer El-Beşir’in Türkiye’de ağırlanması ihtimali ciddi tartışmaları da beraberinde getirdi; zira El-Beşir bu sefer, UCM tarafından aranan bir zanlı sıfatı ile Türk topraklarına ayak basıyor olacaktı. Bir önceki ziyareti bile ciddi eleştiri ve tepkilere neden olmuşken, ciddi suçlarla bağlantılı olarak aranan El-Beşir’in Türkiye’de yeniden ağırlanacak olması ciddi sorunlara neden olabilecekti. Nitekim başlangıçtaki tutumundan vazgeçen Türkiye, Sudan liderine uygun bir dille Türkiye’ye gelmemesi gerektiğini izah etti. Pragmatik bir lider olan El-Beşir de Batı dünyasında kendisini savunma ihtimali olan tek ülkeyi zor durumda bırakmamak için, İKÖ toplantısına bir iç meseleden ötürü gelemeyeceğini ifade etti.

58 27 Aralık 2011:Soykırımla suçlanan El Beşir’le anlaşma!TBMM’de komisyonda bulunan, Türkiye ile Sudan askeri anlaşması onaylanırsa soykırımla suçlanan Ömer el Beşir’in askerleri Türkiye’de eğitilecek, istihbarat işbirliği de yapılacak. Anlaşma onaylanırsa, Uluslararası Ceza Mahkemesi tarafından soykırım suçunu işlediği gerekçesiyle hakkında tutuklama kararı bulunan Ömer el Beşir’in Sudan silahlı kuvvetlerine, Türkiye’de eğitim verilecek, Sudanlı subaylar mesleki kurslara katılabilecek. Anlaşma 10 Mayıs’ta imzalandı.

59 Conclusion- the need for accountabilityThere is no doubt that atrocities have been committed. The only debate amongst experts is whether the acts should be qualified as genocide or crimes against humanity. So what has to be still decided is whether he committed the worst crime in the world, or the second worst one: “The crimes perpetrated by Al Bashir’s regime are proven facts. Serious disagreement remains, however, as to whether Al Bashir and the Sudanese government intended actually to destroy, in part, the Fur, Masalit and Zaghawa peoples of Darfur.” (http://jicj.oxfordjournals.org/content/6/5/829.full?ck=nck)