Kalyani Unkule highlights the pertinent role that India needs to play on the international platform in the sensitive question of the Sudanese President’s alleged genocide…

The recently concluded summit of African Heads of State in New Delhi has prompted much introspection on the legacy, successes and challenges of bilateral and regional ties. It is equally important however to take this opportunity to set specific issues and policy propositions in the context of India’s obligations to the wider international community. This would allow for an honest assessment of the extent to which the evolving approach is coherent or whether disparate policies and programmes are pulling in different directions or worse, cancelling each other out.

One question in particular is richly instructive in this quest: What should India’s stand be vis-à-vis Sudanese President Omar Al-Bashir? Armed conflict in the region of Darfur that unfolded under Al-Bashir’s presidency in 2003-04, has been described by some as genocide, a highly contested term.  Nonetheless, the loss of life and large scale displacement that these events entailed earned Al-Bashir an arrest warrant from the International Criminal Court’s pre-trial chamber on counts of war crimes, crimes against humanity and genocide. The ICC prosecutor has called on the Government of India to arrest Al-Bashir during his visit. Concerned nongovernmental organisations such as Human Rights Watch have brought to India’s attention the Security Council Resolution 1593 of 2005 which urges on all states to cooperate in the ICC’s investigation of the Darfur crisis. However, since India is not a signatory to the treaty establishing the International Criminal Court, the official position has been that it is fully compliant with its international legal obligations.

Tellingly, within African states themselves there is a lack of consensus on Al-Bashir’s freedom of movement in this problematic context. On previous occasions, his travel plans to ICC member states such as Kenya, Nigeria and Zambia have been cancelled. However, his recent visit to another ICC member state, South Africa, bucks this trend rather pointedly. Despite a High Court Judge’s ruling that Al-Bashir may not be permitted to leave South Africa pending a decision on his potential arrest, the President returned to Khartoum unscathed.

Thus, India is at once acting within the ambit of its international legal obligations, even if in letter rather than spirit, whilst exercising adequate diplomatic precaution not to appear to be “speaking out of turn” on a matter that even immediate regional powers have not taken a definitive stand on. In so doing however, it is important to be aware that this position places India squarely on one side of a long standing debate: Is some degree of immunity for (alleged) high level perpetrators of egregious crimes a permissible price to ensure peace and stability? Stated otherwise, does bringing certain individuals to justice take precedence over all else?

A contributor of 1,80,000 peacekeepers in 49 countries, the role of Indian peacekeepers in Sudan is well documented, including casualties and injuries sustained over the years. Fresh hostilities between Sudan and South Sudan earlier this year brought further reports of attacks on peacekeepers and served as a reminder for the need to stabilize North Africa. Considerations on the ground apart, the gains from international criminal prosecution themselves are far from assured. Based on the experience of the Tribunal for Yugoslavia, Williams and Scharf write:

While the tribunal can achieve representative justice through prosecution of a few exemplary cases, for there to be meaningful deterrence, victim catharsis and the creation of an accurate historical record, prosecutions must be more widespread. (…) Moreover, domestic war crimes prosecutions have the advantage of being able to demonstrate the willingness to be active rather than passive in the face of massive violations of human rights, fair and open trials can allow for confidence in building the idea of the rule of law itself, and they are the first step in meaningful institutional building within the legal system.

India stands to make a more lasting contribution by assisting in every way it can to support strengthening of institutions which cater to demands for justice in the domestic realm in Africa and not confuse toeing a certain line with taking a principled stand.    

Kalyani Unkule is Assistant Professor, Jindal Global Law School and Assistant Dean, International Collaborations