Legal Limbo

How the International Criminal Court is freezing the conflict in Darfur.

Marco Di Lauro/Getty Images
Marco Di Lauro/Getty Images

BIRAK, Chad — With his white turban and gray jellabiya robe, Zakaria Ad-Dush would have looked like any civilian wandering through the Chadian market town of Birak, a few kilometers from the border with Sudan, were it not for one thing: the Thuraya satellite phone, telltale sign of a rebel commander, sticking out of his pocket. Under his robe, he was hiding a revolver, wrapped in cloth, which he showed me later as we sat in his tent. The mat we were sitting on was uncomfortably bumpy; when I looked underneath, I found rounds of ammunition.

Ad-Dush is a man with a story to tell. Now a Darfuri rebel leader, he was once a warlord fighting for the janjaweed, as the mostly Arab militias supported by the Sudanese government in Darfur have been nicknamed. Back in 2004, during his janjaweed days, the troops he commanded razed villages, killing everyone who lived there on at least one occasion. He doesn’t hide his past, and he says that he would testify about his crimes — if he were given amnesty.

During my travels in Darfur and Chad, I have heard countless calls for a pragmatic swap of truth and reconciliation for amnesty — a trade that would bring more stories like Ad-Dush’s out into the open and could help communities in conflict learn to live together once again. Instead, however, the International Criminal Court (ICC) prosecutor, Luis Moreno-Ocampo, has presented the conflict in purely racial terms as a genocide of "black Africans" by an "Arab" government and its militias — hardening attitudes on both sides. Even more alarming to ex-combatants is the warrant out for Sudanese President Omar Hassan al-Bashir.

Most government officials and janjaweed members won’t tell the truth about their crimes as long as they believe they could be implicated in court — and worse, a court that they consider a Western tool against Sudan. Yet until these men speak up about the past, normal life in Darfur cannot resume. Communities here are in desperate need of reconciliation, and the combatants need a clear path to rejoin society. Most men like Ad-Dush won’t start talking — and won’t disarm — as long as they believe that punishment matters more than peace.

The issue couldn’t be more pressing. As Southern Sudan prepares to become an independent country, the international spotlight is off Darfur — a window of distraction that many fear Khartoum will exploit. The Darfur peace process has been in a rut for years, tempting the Sudanese government to finish off the Darfur rebels militarily. As international pressure fades, community-level peace might be Darfur’s best hope of avoiding another regression into violence.

I met Ad-Dush for the first time in April 2010 in the dusty borderland between Sudan and Chad, a familiar spot for so many refugees and rebels over the last decade. Here, nobody can say who is Chadian and who is Sudanese. Most people have relatives on both sides of the border and hold the passports of both countries. Until early 2010, Darfur rebels like Ad-Dush, who is a commander for the Justice and Equality Movement (JEM), could drive freely in Chadian territory on their gun-loaded pickup trucks. When N’Djamena and Khartoum began a rapprochement in 2009, however, a five-year battle fought through proxy rebel groups mostly came to an end. These days, Darfur rebels have to ask the Chadian Army for permission to come to Birak, dressed as civilians.

Ad-Dush became a Darfur rebel in a roundabout way. Born Zakaria Musa in Misteriha in North Darfur, he grew up with the chief of his own Arab Mahamid tribe, Musa Hilal, who would one day become the most notorious janjaweed leader. Ad-Dush never went to school; instead he became a renowned agid or traditional war chief. In 1996, he jumped on an army vehicle and seized a Doushka machine-gun, earning the nickname of "Ad-Doushka," or "Ad-Dush." Hilal picked him to lead his troops in 2003.

From that post, Ad-Dush became an officer of Haras-al-Hodud, which means the "Border Guard" in Arabic. This corps has nothing to do with the border. It is a paramilitary force formed in 2003 by Khartoum to recruit thousands of mostly Arab proxy militias, the janjaweed, to fight the Darfur rebels.

"I was commanding 3,000 of the 8,000 men under Musa Hilal," Ad-Dush tells me. Among his tasks was paying troops and coordinating arms and ammunition. He takes pride in the fact that his soldiers were paid about 300,000 Sudanese pounds ($120) a month under his watch. Ad-Dush himself, having attained the rank of captain, was receiving a monthly salary of 1 million pounds ($400).

"What I did [under Hilal], there are things that must stay between God and myself," he says. But there are also some he wishes to tell: "In early 2004, Musa Hilal ordered me to kill all villagers from Sura, in Western Darfur. All: men, women, children. Some were armed. They were traditional militias, not even rebels." Ad-Dush says that he urged Hilal to negotiate with the villagers to extract the few militiamen Hilal was really after. "He replied: Let’s not waste our time; we must burn them all," Ad-Dush remembers. "We had 50 to 60 cars, horses, camels, 600 to 700 fighters. We killed all, child and mother, old and young, civilian and combatant. It was the end of Sura. We had killed 364 persons. To bury them would have taken much time, so we gathered the bodies, we threw fuel on them, and we burned them."

It’s possible that not all of those who were thrown into the fire were dead. Today, if you pass close to Sura, locals will say that you can still hear voices screaming "Allahu akbar!" — "God is great!" — the prayers of some 80 old people and children who took refuge in the mosque and were burned alive in the building.

There were more attacks too. In March 2004, the U.N. Darfur task force reported that more than 100 women were raped in an attack on the town of Tawila by Hilal’s militias. "We killed many people, [and] then there were rapes," Ad-Dush says of the charges. "In Tawila, we did everything. To kill a man, we’re used to it in Darfur, but the rapes were new. I was there when the soldiers raped women, I can witness."

Ad-Dush is ready to testify about what happened — even to the International Criminal Court, on condition of amnesty. His allegiance to Khartoum is now dead. In 2009, Ad-Dush realized that he was fighting "in the losing camp," so he defected along with several hundred of his men to join the Darfur rebels he had once targeted. When I interviewed JEM chairman Khalil Ibrahim that year, he told me that he had more than 200 ex-janjaweed in his ranks who would be ready to stand as witnesses in front of the ICC — again, in exchange for amnesty.

For now, however, those stories will go untold. The ICC’s arrival took amnesty — perhaps the most important political card that local negotiators had — entirely off the table. In countries as diverse as South Africa, Chile, Liberia, and Rwanda, truth-telling has been traded for safety — and the ability to reintegrate into scarred communities without fear of prosecution. So long as the court is investigating, that swap won’t be possible. Many ex-combatants in Darfur don’t understand the ICC’s role or its mission; they worry that speaking at all to anyone, foreigner or neighbor, would land them on trial.

Ad-Dush is one of the few who does not seem afraid to talk. "If the ICC makes a little effort to find me, I will tell them who I received orders from," he told me. "If the court wants the truth, it should proceed step by step, starting with the bottom, the simple soldiers, until it reaches the top." So far, Ad-Dush and his peers perceive that the opposite is taking place, that the ICC is focusing on the big fish, leaving the rest of the militias — and the story of their crimes — in a sort of awkward limbo.

Indeed, even if the investigators never come to Darfur, their very presence in Sudanese politics is clouding perpetrators’ ability to testify. If truth were the priority in Darfur, rather than high-level prosecutions, Ad-Dush believes that many ex-combatants would come forward. Of course, some may be more interested in amnesty than in reconciliation. But in many ways, it’s impossible to distinguish between the two. Confessions and amnesty allow former fighters to return to a normal existence; the truth allows victims to move on.

The limits of any peace — short of reconciliation — are exemplified by Khidir Ali, a man who has tried to build local justice but has been hindered by combatants’ and communities’ mutual distrust. A traditional Darfuri leader, Khidir was captured by Hilal during an attack on his village in 2004. During the year that he was imprisoned in the town of Misteriha, he witnessed Sudanese army helicopters "bringing money, arms, and ammunitions [to the janjaweed] every week," he told me. He saw how the militias stole land and forced the local women into slavery, cooking and serving them.

After he escaped from the janjaweed and took refuge in the rebel stronghold of the Jebel Marra mountains, Khidir worked as head of a "committee of the tribes" that aimed to rebuild relations between non-Arab communities of the rebel area and Arabs living all around. Since 2006, Khidir has multiplied negotiations with them, sealed with oaths of peace on the Qoran, opened joint markets, and returned livestock that was looted in the heat of conflict. In short, he brokered a cease-fire

But though he was able to arrange a careful détente, he could never fully reconcile with the Arab tribes. "After what I lived through, it’s difficult to negotiate with the Arabs," Khidir told me. "When I was a prisoner, they were rough with us; they were beating us, treating us as slaves." This is far from the peace and reconciliation that the community needed. "We can’t forgive them unless they give us back all what they have looted and pay for those they killed," Khidir adds.

What he describes are the principles of traditional justice: Victims forgive in exchange for confession and compensation. Local accords allow communities to coexist, but there is neither truth-telling nor blood money, thus no forgiveness and genuine reconciliation. "The janjaweeds come [back] because we don’t talk about the past," Mujib al-Rahman, Khidir’s deputy, claims.

Khidir’s pacts are limited and fragile — and will remain that way so long as the state and the international community cannot get behind the idea of trading truth for amnesty. "Some among us complain, they don’t want to make peace with criminals," Mujib admits. "We reply to them: Forget your personal grievances; think of the general interest."

Jérôme Tubiana is a researcher and journalist who has covered conflicts in Chad and Sudan for more than 20 years and the author of Guantánamo Kid: The True Story of Mohammed El-Gharani.

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