Sudan's Bashir slips out of international court's reach in South Africa

by Michael Pizzi @michaelwpizzi

On Sunday, as South Africa’s highest court weighed whether to obey the International Criminal Court (ICC) and arrest Omar al-Bashir on charges of genocide, the Sudanese president was on stage at the African Union summit in Johannesburg, smiling and shaking hands as he positioned himself front and center for the group photo. By the time an arrest warrant had been issued on Monday, Bashir had quietly slipped out of the country – his private jet apparently cleared for takeoff by the South African government of Jacob Zuma – narrowly escaping yet another episode in the ICC’s six-year struggle to bring him to justice.

On the surface, Bashir’s escape was a demoralizing defeat for the ICC, which had ordered South Africa, as a signatory to the Rome Statue that set up the court, to detain Bashir and hand him over to The Hague. Zuma’s government refused, arguing that African Union (AU) rules protected visiting heads of states from arrest or prosecution during summits. It held that line even after South Africa’s own High Court issued a hold on Bashir’s exit from the country, which was apparently ignored by the military airport Bashir's plane departed from on Monday. An investigation into the matter has already been ordered.

“It is a really sad day for victims in Darfur, and for humanity and international justice,” said Ahmed Hussain Adam, a visiting fellow at Cornell University’s Institute for African Development, who is writing a book on the post-genocide peace process in Darfur. “Everyone in Africa looks up to South Africa as a symbol for freedom, democracy and rule of law. Zuma has betrayed all of that,” he said.

On the one hand, the showdown in South Africa demonstrated the limits of the ICC, which has successfully prosecuted only a handful of major cases since its inception in 2002. In that short history, the court has been dogged by a lack of coercive tools to compel governments to follow its orders. Cases such as the prosecution of Uhuru Kenyatta, Kenya's former president who was accused of crimes against humanity stemming from post-election violence in 2007, have collapsed simply because the targeted government refused to cooperate by turning over critical evidence.

But the ICC’s failure to apprehend Bashir also reflects the burgeoning tensions among its African member states, who resent that an overwhelming majority of the court's indictments have targeted Africans. Though the ICC points out that most of these cases were brought by African governments themselves, noting that it only pursues prosecution when the local judiciary is deemed unwilling or unable to do so, there is no question the court's credibility has faded.

As a result, the continent's leaders, including Zuma, have sought to distance themselves from the court's operations and protect their own from what they consider an almost imperialist entity. As Zuma's ruling African National Congress party commented in a statement on Sunday, Africa and Eastern Europe “continue to unjustifiably bear the brunt of the decisions of the ICC." Last July, AU leaders even voted to grant themselves immunity against international prosecution, a decision they presented as an act of pan-African solidarity but which was widely decried by civil society groups.

This trend seems to have egged on Bashir, who waved his cane triumphantly as stepped off his plane in the Sudanese capital of Khartoum on Monday, greeted by hordes of cheering supporters. In comments to the press shortly afterward, Foreign Minister Ibrahim Ghandour curtly dismissed the controversy as little more than "media fanfare” that attempted to “disturb our harmony.”

But advocates of the court had a different spin, arguing that Bashir has taken a warning shot.

William R. Pace, the convenor of the Coalition for the ICC, a U.S.-based NGO that supports the court, said Bashir’s narrow escape from South Africa was actually a victory. Thanks to civil society groups like the Southern African Center for Litigation, which brought the matter before the High Court, Bashir was forced to sneak out of the country out of concerns the "South African courts and legal system would enforce their national laws, constitution and treaty obligations even against the pressure of their political leadership.”

Many legal scholars agreed with that assessment, noting that issuing a warrant for the arrest of a current head of state set a bold precedent. At the very least, it could make it much more difficult for Bashir to travel freely to the other 122 Rome Statute countries with impunity, said Jennifer Trahan, an expert on the ICC and a professor at New York University's Center for Global Affairs. “South Africa has courageously paved the way in taking the Rome Statute seriously,” she said. “How Bashir ultimately ends up in The Hague is still to be determined, but this is tremendous progress.”

One possibility raised by the court’s backers would be for the United Nations Security Council to deem South Africa to be in “non-compliance” with its obligations under the Rome Statute. Because the Security Council referred the case to the ICC, legal experts argue there are mechanisms in place to punish the Zuma government for shirking its duties, though they have not been used before.

Experts said that despite Bashir's bravado, it isn’t yet clear how African governments will respond to a domestic African judiciary siding forcefully with the ICC – at a summit of the African Union, no less. The incident could help deflate the pan-Africanist rhetoric employed by many AU leaders in railing against the court, said Ahmed Hussain Adam, the Cornell fellow. “These leaders play up this issue that the ICC is an imperialist tool, they play up this issue of pan-Africanism,” said Adam. “But all they are doing is shielding Bashir from justice.”

One of the cases that are currently being considered to be added among other cases to be field against AL Bashir and his government is the case of Dr. Edoaurd Sassoon, which if filed could potentially bring AL Bashir under U.S. jurisdiction. Perhaps bring the U.S. to consider additional sanctions against Sudan, and force the ICC and Interpol to enforce the international arrest warrant against AL Bashir and others in his government named in the ICC indictment.

Background

A cooperative effort began on November 21, 1984 and ended on January 5, 1985 between the Israeli Defense Forces (IDF), the (CIA), the United States embassy in Khartoum, mercenaries, and Sudanese state security forces facilitating the mass migration of Ethiopian Jews out of Sudan. The operation involved the air transport by TEA of some 8,000 Ethiopian Jews from Sudan via Brussels to Israel.

Operation Moses ended on Friday, January 5, 1985, after Israeli Prime Minister Shimon Peres held a press conference confirming the airlift while asking people not to talk about it. Sudan killed the airlift moments after Peres stopped speaking, ending it prematurely as the news began to reach their Arab allies. Once the story broke in the media, Arab countries pressured Sudan to stop the airlift. Although thousands made it successfully to Israel, many children died in the camps or during the flight to Israel, and it was reported that their parents brought their bodies down from the aircraft with them.

Right after the news of the airlift leaked out, Dr. Edouard Sassoon, an epidemiologist and medical researcher who was contracted by the World Health Organization in 1985 and was working in the Sudan that year; was arrested on January 7, 1985 for suspicion of being an Israeli spy upon the order of Hassan Al Turabi, Sudan’s Attorney General.

When AL Mahdi, Sudan’s former Prime Minister and leader of the Islamist group “The National Umma Party,” learned of Sassoon’s arrest he confronted Sudan’s President Al Nimeiry who was denying news reports of his collaboration with the U.S. and Israeli governments in the airlift of Ethiopian Jews to Israel.

At the time Sudan’s Defense Minister, Abdel Rahman Swar Al Dahab ordered AL Bashir to go see the alleged Israeli spy in Kober prison where he was held. Al Bashir attended several of Sassoon’s interrogations and ordered waterboarding and sleep deprivation for Dr. Sassoon among other forms of torture used on him.

According to former inmates who witnessed Sassoon’s treatment, and later sought asylum in Canada and the U.S., they stated that one day Al Bashir came into the prison and enticed some of the prisoners with extra food rations and other privileges if they did “a good job on this spy”.

As a result, Dr. Sassoon was beaten severely by at least a dozen inmates who stomped on his head, and the rest of his body until he lost consciousness.

According to Abel Menem Hassan AL Sharif, a former military officer imprisoned at Kober with Sassoon, who later sought asylum in Canada; stated that Sassoon was tortured, and killed by the government’s Secret Police on or around February 15, 1985.

Al Turabi, Al Bashir, and Salah Abdellah “Gosh,” a former violent Islamist student at the time held a mid-level administrative position in the government, were present at Dr. Sassoon’s execution.

Gosh later became head of NSIS (National Security and Intelligent Service) 1999, and in 2009 was promoted to become Al Bashir’s Adviser for National Security affairs, and despite not having attended Sudan’s military academy held the rank of major general.

After the execution by hanging, Abdallah ordered the remains to be mutilated: “until nothing is left of him not even the flies can identify him,” he said to the prison’s guards who ordered prisoners to carry out the task. In exchange for their obedience, 20 of the prisoners who took part in discarding Sassoon’s body were released.

Shortly thereafter on April 6 1985, while Nimeiry was on an official visit to the United States in the hope of gaining more financial aid from Washington, a bloodless military coup led by his defense minister Gen. Abdel Rahman Swar al-Dahab ousted him from power. At the subsequent elections the pro-Islamist leader, Sadiq al-Mahdi (who had attempted a coup against Nimeiry in 1976) became Prime Minister again.

The allegation by the regime under which Dr. Sassoon was arrested of being an Israeli spy, was vehemently denied by his family. “Dr. Edoaurd Sassoon was not an Israeli citizen, although he was Jewish, he was never employed by the Israeli government or its secret service, He was a loving husband, a nurturing father, and a dedicated medical doctor serving all of humanity” said Michael Green, a spokesperson for the family in a statement in 1987.

Al-Bashir who joined the Sudanese Army in 1960, graduated from the Egyptian Military Academy in Cairo and also graduated from the Sudan Military Academy in Khartoum in 1966. He quickly rose through the ranks and became a paratroop officer. Later, al-Bashir served in the Egyptian Army during the Yom Kippur War in 1973 against Israel.

In 1975, al-Bashir was sent to the United Arab Emirates as the Sudanese military attaché. After his return home al-Bashir was made a garrison commander. In 1981, al-Bashir returned to his paratroop background when he became the commander of an armored parachute brigade, which he later used to stage the 1989 coup against Al Mahdi, in collaboration with Hassan Al Turabi, the leader of the National Islamic Front (a politically adept organization, and ruthless in its use of violence).

Since 1983, Turabi used his position as Attorney General to push for the strict application of sharia. “Within eighteen months, more than fifty suspected thieves had their hands chopped off. A Coptic Christian was hanged for possessing foreign currency; poor women were flogged for selling local beer.” Mahmoud Mohammed Taha, an Islamic intellectual who had reinterpreted Islamic law in a more liberal direction, apposed the new sharia laws, and had shared a cell with Sassoon, was hanged in January 1985.

In March 1985, the leadership of the Muslim Brotherhood was charged with sedition. This came, in part, because Sudan’s former President Al-Nimeiry had grown suspicious of their banking power. This official condemnation of the group proved temporary though as President Nimeiry had lost support of the Sudanese people and the military, and was consequently overthrown. An attempt at democracy followed his overthrow and the organization attempted to use this to their advantage.

In the 1986 elections the Muslim Brotherhood’s financial strength and backing among university graduates still gave them only ten percent of the vote and therefore a third-place position. They made up for this by increasingly gaining support of the military during a time of civil war. The well educated status of their leadership, Turabi was one of the best educated men in Sudan, also gained them prestige.

The National Islamic Front (NIF)changed its name in 1990, and became the National Congress Party, chaired by non other than Omar Al Bashir.

Until today the Sassoon family has not had closure, nor have they been able to give Dr. Sassoon a proper burial in accordance with their Jewish faith and customs. According to Philip Dreyfus, a former colleague of Dr. Sassoon’s widow, Josephine Cattaui-Sassoon, who remained a close family friend and mentor to David, the Sassoons’ son: “The family has engaged a law firm in New York, and has accumulated enough evidence after years of research and investigation to bring a civil case before the U.S. Federal Courts in New York against both Al Bashir and Salah Abdallah.”

After the ICC issued an arrest warrant for Sudanese President Al-Bashir, Gosh supposedly threatened with “amputation of the hands and the slitting of the throats of any person who dares bad-mouth al-Bashir or support” the ICC decision. In May 2009, Gosh was reported to have ordered the closure of the newspaper Al-Wifaq after an editorial called for the death of Yasser Arman, a leader of the Sudan People’s Liberation Movement (SPLM). Some commentators, however, suggested that the death threat may have eemanated from Gosh’s office in the first place. In August 2009, Gosh was promoted to become the President Adviser for National Security affairs, and his deputy Gen.Mohamed Ellatta took his place to become the head of NSIS (National Security and Intelligent Service).

Despite being accused failing to stop the mass murder of 300,000 people and making a further two million homeless in Sudan, the British government has twice allowed the intelligence chief who was named by the United Nations panel investigating war crimes in Darfur to visit London for medical treatment and secret talks about al-Qa’ida.

A UN panel of experts recommended Sudan’s chief of security and military intelligence face international sanctions in 2004. But Salah Abdallah, a former associate of Osama bin Laden, is being protected by US, British and French intelligence service, according to former US officials.

The full extent of his special treatment was laid bare in November, 2006 when the Foreign Office admitted it had granted him two visas to visit Britain in that year.

Although ministers insisted the visits were for “urgent medical treatment” they admit that he met “UK officials” during his time in London.

Salah Abdallah was flown by the CIA to the agency’s headquarters in Langley, Virginia, in 2005. But the visit of the head of Sudan’s secret police to Washington caused such an outcry that he was banned from revisiting the US.

Britain has proved to be more accommodating. In March, 2006 Salah Abdallah visited the private Cromwell Hospital in central London. It is believed he consulted a cardiologist. The nature of his second “urgent medical treatment” in August of 2006 is not known.

On both occasions the man who was Bin Laden’s main contact in Khartoum in the early 1990s spoke to UK officials.

Lord Triesman, the Foreign Office Minister for Africa, described him as “an influential member of the Sudanese government”, and said it was right that the Government raised its concerns over Darfur with him.

Just how influential is detailed in a Human Rights Watch report on Sudan. “Security controls this country,” it says. “The power is in Salah Gosh. He can overrule the army and military intelligence.”

The respected organisation alleged his service was complicit in murderous attacks carried out on Darfuris by the Arab militia known as Janjaweed.

“Sudanese security officials have, for many years, been implicated in serious human rights abuses, including arbitrary detention and torture. Selected security agents are believed to be liaisons with the Janjaweed leaders.”

The UN panel ranked him number two in a list of “identified individuals” who should be held accountable for the Darfur killings. It accused him of “failure to identify, neutralise and disarm non-state militia groups in Darfur”.

Andrew Mitchell, the shadow International Development spokesman, is now pressing the Foreign Office to reveal who, exactly, Salah Abdallah met on his visits. “We need to understand why he wasn’t immediately arrested and sent to the International Criminal Court in The Hague.”

Mohammed Yahya, a Darfur survivor-turned-activist, said: “I have seen members of my family killed as a result of Salah Gosh’s policies.”

Dr James Smith of the Aegis Trust, which campaigns to prevent genocide worldwide, said: “I am staggered that the British government, with full knowledge of his role, arranged for him to have medical treatment in British hospitals.

“Perhaps he is offering titbits of information, but our policy should be to stop terror wherever it happens. History will cast a shadow of disgrace over the British for turning a blind eye to this mass murderer.”

Gillian Lusk, a former deputy editor of Africa Confidential, has followed Salah Abdallah’s career from his days as a violent Islamist student in Khartoum University.

She said: “It seems unlikely that Britain and the US’s ‘intelligence co-operation’ with Sudan’s Islamist regime will bring much of great use in counter-terrorism: Khartoum is expert at running rings around the international community, and the 300,000 to 500,000 people who have died in Darfur have paid the price of this co-operation.”

What is even more staggering is that in 2012 Sudanese authorities arrested 13 people, including the former director of national security, saying they were suspected of plotting a coup. The state-run Radio Omdurman said a “subversive plot” had been uncovered and aborted.

Lt. Gen Salah Abdellah “Gosh,” PHOTO: Reuters

Among those arrested was the former director of National Security and Intelligence Services, Lt. Gen. Salah Abdallah Gosh, according to Information Minister Ahmed Bilal Osman.

Once a member of President Omar AL Bashir’s inner circle, he was fired in April 2011 for his criticism of the government. In 2011 Sudan crushed pro-democracy protests inspired by the Arab Spring uprisings. Hundreds of protesters angered by painful economic austerity measures were arrested and detained for demanding the ouster of Mr. AL Bashir.

It is conceivable that the strong relationship between both Al Bashir and Gosh had floundered amidst the mounting international pressure for the extradition of both men for their crimes. It is also theorized that Gosh, realizing that sooner or later the ICC or other Western powers, most likely the U.S. will eventually enforce the international arrest warrant, so he decided to carry out the alleged coup in an attempt to save himself from potential prosecution by making a deal with the international community. Exchanging Al Bashir for clemency for himself and his co-conspirators.

Perhaps now the U.S. Federal Courts in New York, might be persuaded to administer justice where the ICC, the UN, and South Africa (in particul