What if Ocampo Indicts Bashir? The Worst-Case Scenario
This is what could happen if ICC prosecutor Luis Moreno-Ocampo indicts President Bashir, erring on the side of ‘worst case’… this should be seen as a scenario rather than a prediction, but I hope it will help us consider the risks in the weeks ahead.
Violence and unrest will follow
In the immediate aftermath, the regime will react with great anger. We might expect pro-government protests and considerable unrest, with the regime inciting violence against UN, European and North American people and property. Recall that the government mobilised large protests over Danish cartoons and the naming of a teddy bear: this would be several orders of magnitude more incendiary to the ruling elite. It could make a national hero of Bashir and mobilise Sudanese public support for him for reasons of patriotism and wounded national pride.
The NCP will hunker down
It is unlikely that the NCP will sacrifice Bashir and carry on as they were with a new leader. The wording of Ocampo’s June 5th statement puts the entire leadership cadre under suspicion. Bashir’s testimony to the court would not necessarily spare them future indictments as he tried to deflect blame downwards. A much more likely reaction is that the NCP would adopt a bunker mind-set, with the hardliners and security state in the ascendant.
The Government of National Unity will fail
How can the SPLM participate in a presidency with a counterpart for whom there is an arrest warrant and an indictment for war crimes? The SPLM already has to swallow hard to sit down with the NCP after years of bloodshed and atrocities, but it will be even more difficult to do that with Ocampo’s denunciations ringing in the air and probably echoed by governments, many NGOs and the world’s media.
The CPA will collapse and civil war may resume
The NCP will see the indictment as the international community reneging on its commitment to an inclusive peace process that started in good faith in 2005 (after the main period of atrocities in Darfur). The NCP will no longer see the benefit of a multi-year process of democratization and normalization in which they cede power and wealth to the South and marginalised groups in Sudan in return for gradual acceptance back into the international community. The delicate balances in Abyei, Nuba Mountains and elsewhere will no longer hold as the regime will see force as its guarantee of security and liberty. The NCP will adopt a much shorter term view of its survival, and a process to 2011 and beyond will be beyond its horizon. In a situation that is already highly combustible, the prosecutor may be “putting out the fire with gasoline”.
Some or all of the UN, diplomats and other foreigners will be expelled
The NCP and Sudanese public opinion will see the ICC as a creature of the UN and the Security Council, which has the power to stall the ICC if it chooses to do so. The government could expel the some of all of UN mission, end co-operation with UNAMID and break off diplomatic relations with Security Council members. Foreign embassies in Khartoum may break off diplomatic relations and withdraw their ambassadors and staff. It is possible that all foreign organisations would be seen as hostile to the regime and told to leave. A major evacuation may occur of several thousand diplomats, officials, aid-workers and contractors.
A humanitarian crisis will follow
Large-scale expulsions of foreigners from Sudan on the grounds that they may be part of a regime-change conspiracy will destroy or compromise the humanitarian mission. Even a short interruption or limits on movements will be sufficient to cause a humanitarian crisis, especially given the current high vulnerability. The regime will blame the international community for causing the crisis. Thousands of lives are at risk.
Coup plotters will be emboldened
Chad and Libya, and their proxies, may see this as their moment for a coup d’état, perhaps using the cover of the ICC to justify invasion on the grounds of apprehending and detaining an international fugitive and believing they have had a green light for regime change from the international community. Darfur rebel groups may opportunistically coalesce, and Eastern rebels and Eritrea will see opportunities in adversity. A successful coup could be bloody and install an even more austere Islamist state.
The SPLM will enter crisis as its “˜unity’ strategy is torn up by outsiders
The separatists in the SPLM will be strengthened and fault-lines in the SPLM and its strategy will immediately be exposed. Separatists could be take over and be sufficiently emboldened to press for UDI, reasoning that the CPA is dead and the 2011 referendum with it. The functioning of the oil-driven economy and government would be in doubt as it requires North-South co-operation, though this is one reason why calmer heads may prevail. On the other hand the NCP may see this as the moment to secure the oil lifeline to its regime and create facts on the ground. The Lord’s Resistance Army may find common cause with Khartoum and be strengthened.
A new legal minefield will have been laid
It will create a country with a head of state that cannot leave his country and represent it internationally or attend the UN without fear of arrest. No-one will know how to deal with Sudan if its head of state is an international legal pariah.
The Security Council members will eventually be blamed
When terrible things have happened as a result of this, people will look around for whom to blame. In the long run, it won’t be Ocampo, who will be seen as a man determined to serve justice. It will be the Security Council and UN who are empowered to take a wider perspective and delay the prosecutor while the wider interest is assessed. Admittedly, that is difficult for governments to do in the face of public opinion that will cheer on the prosecutor. However, in ducking the tough political choices, they will have afforded greater priority to their domestic public opinion than the welfare of Sudan and its people.
The ICC will be finished or reformed
Its actions will be seen by many as an attempt at “regime change by the UN” (even if that is not the case) and many of its members, who fear the same, will walk away. The Security Council will come to doubt the judgement of the prosecutor to act in the interests of the victims. If this is compounded by weaknesses in any case against Bashir, then the haemorrhage of confidence may be dramatic. At the very least, the split of responsibility between the prosecutor and Security Council for assessing the wider interest will be laid bare and exposed as a major design flaw. If the ICC survives, the rules will be changed to ensure that the prosecutor has narrow but unencumbered responsibility to prosecute regardless of the consequences. The Security Council will have unambiguous responsibility for assessing the wider interests and interests of victims – and restraining the ICC if necessary.
This is a worst-case scenario rather than a prediction, but can anyone confidently say that some or all of the terrible developments listed above will not happen?
Michael Davis works for an international organisation in Sudan.