The Case for a Deferment Under Article 16
Something is definitely happening – and there may even be reasons to be faintly optimistic about it. Having presented a “˜worst case scenario’ earlier in this discussion, perhaps it is worth setting out a “˜best case scenario’, looking at the situation from this point on.
First, I do believe the worst case remains a serious possibility. It is just that the decisive moment is not the prosecutor’s announcement, but will be the decision of the judges to grant arrest warrants: the point where President Bashir’s legal status changes from “˜free’ to “˜fugitive’. Alternatively, another potentially decisive moment would be a clear signal from the Security Council that it is not going to intervene, or that it decides to invoke Article 16 of the Rome Statute and impose a 12 month deferment of the case.
Between now and those possible decisive moments, the government’s strategy is clear – it is mounting a charm-offensive, and showing itself to be an agent of peace. The first visible sign of the strategy has been the relatively muted demonstrations, and, on the very evening of the indictments, a large gathering at Friendship Hall to sign the new Electoral Law. Bashir, Taha and Kiir shared the stage and many ambassadors and UN officials looked on in support. It was a great show of unity and support for the CPA. The NCP, and its counterpart in the CPA, the SPLM, are making a display of their commitment to the peace process. Despite the force of the prosecutor’s case, the rhetoric has been mild, foreigners have been protected not expelled and Khartoum feels fairly safe.
At the same time, the NCP is gathering support from the AU, Arab League and its ally on the Security Council, China. This looks like a well-crafted campaign that is aiming to build a coalition to bring an “˜Article 16″² deferment to the Security Council. In the best case scenario, this campaign will succeed, but with the NCP making substantial concessions to win Security Council backing. The concessions are integral to the NCP’s case, because they will not convince the major players on the Security Council to back a deferment unless they can show hostile and sceptical public opinion that they have paid a high price.
The case for a deferment has four elements…
1. Avoiding a defensive-aggressive reaction by the NCP, which may jeopardise peace and stability in Sudan, with a high cost in lives and welfare
2. Allowing time for a wider assessment of the interests of the victims and rest of Sudan to be made and considered properly – a kind of counterweight to the power and speed of the prosecutor
3. The holding of the government on “˜probation’ – a constant pressure to co-operate with the UN/UNAMID, respect human rights, provide security in Darfur and stop all violence against civilians, with the means to not renew deferment as a the sanction. Bashir would never be truly free of the charges against him.
4. The extraction of substantive concessions by the NCP through a deal with the Security Council’s main players. The prospect of a deferral provides real leverage.
Though some will argue that this is justice denied, the potential concessions could even further the cause of justice, as well as peace – for example, by requiring Ahmad Harun to be handed over to the ICC. Bashir has said he will never do that, but if doing so deferred the case against him, maybe he would see it differently?
Other concessions might relate to repairing damage in Darfur – for example establishing a “˜Government of Western Sudan’ covering the three Darfur states, compensation (difficult) or wealth sharing (better), deployment of SAF forces to improve security and some sort process of justice and reconciliation in Darfur. I don’t know what the right concessions would be, but there is at least the possibility to make things better in Darfur and make some progress on justice by exploiting Bashir’s vulnerable position. I hope that the Security Council carefully examines the value of an Article 16 deferral and weighs up what it can get from the NCP in return – because there is potential to do good here, beyond the symbolic victories for justice and accountability.
A further possibility, is that the NCP or military will see President Bashir as damaged goods, and will depose him in a palace coup and possibly hand him over to the ICC – thus clearing Sudan’s obligation to the ICC, should arrest warrants be issued. Perhaps this is what the prosecutor intended by only indicting Bashir. But this is a high-risk assumption – other NCP officials may see themselves as vulnerable to indictments, the turmoil of a palace coup may embolden rebels for a bigger and more dangerous upheaval, and Bashir has been adept at hanging on to power and seeing off such threats. But it is a possibility – with or, more likely, without an Article 16 deferment.