When I saw news reports that the government of Sudan had “arrested” a militia leader indicted by the International Criminal Court over a year ago, I confess that I was at first optimistic — perhaps this was a sign that Khartoum, not wanting to give up its president, was actually considering real concessions. Fortunately, I also read Opinio Juris, where Kevin Jon Heller has helpfully exposed what turned out to be some rather lazy journalism on the part of the BBC and The New York Times. The wanted man, known as Ali Kushayb, may or may not be “in custody,” as the headlines proclaim; what the reports neglect to mention is that Sudan has been trumpeting Kushayb’s detainment for over two years now.
To be fair, the usually reliable Jeffrey Gettleman did include — albeit buried near the end of the article — a quotation from a Darfur analyst skeptical that this “news” amounted to anything more than “another ploy by Khartoum to buy some time.” However, Gettleman should have expounded more on his Sudanese government source’s reiterated refusal to hand Kushayb over to the ICC, as well as his revealing comment that Sudan was still “investigating [Kushayb] to see if he has committed crimes in Darfur or not.” Without an actual intention to relinquish Kushayb, Sudan’s judicial processes are simply operating as usual, meaning that little has changed, and there is no real “arrest” to report.
The British — whom some have criticized, along with the French, as possibly overly willing to suspend ICC jurisdiction in Sudan — have recently specified quite vigorously that any suspension would require Sudan to issue not “just nice words…[but] a whole set of really bold actions.” Announcing the arrest of an indicted war criminal who may or may not have been in custody for over two years does not exactly amount to a “bold action.”