Khartoum Should Not Count On an Article 16 Deferral of the ICC
Sudan should not count on an Article 16 deferral at the UN Security Council. The diplomatic maneuvers and rumors do not add up to a coherent plan to stop the ICC indictment of President Omar al Bashir from going ahead.
Last week, the text of the ICC Prosecutor’s public application for an arrest warrant against President Bashir was released. It can be found here. The text is heavily redacted in places, where the prosecution does not want to make its sources public. As the Lubanga trial has shown, if the case ever comes to court, prosecution evidence will have to be shared with the defence.
At the moment, there is no clear indication of when the ICC’s Pre-Trial Chamber will finish its examination of the application. Two months ago, a date of September was mooted. Now, as late as December is a possibility.
It is important to recall that the judges need only to ascertain whether there is a case for Bashir to answer before proceeding to issue the warrant. This is not a trial in which guilt needs to be proven. So any shortcomings of evidence or jurisprudence count only insofar as they fall short of meeting this low bar. Given that the Court has already issued arrest warrants against Ahmed Haroun and Ali Kushayb for their alleged role in the Wadi Saleh massacres of late 2003 and early 2004, and part of the public application focuses on President Bashir’s alleged role in instructing these massacres, approving that part of the application is little more than a formality. The genocide charges are much more complex and controversial and there is a distinct possibility that the judges will delay in issuing the warrant while they scrutinize those charges and perhaps call in the Prosecutor for some more detailed explanations. There is a small chance that the judges will not accept the genocide charges at all. But the charges of crimes against humanity and war crimes will surely go ahead.
The judges are required only to examine the application in the narrowest legal manner. The considerations that inform the Prosecutor””the interests of justice and the interests of the victims””play no part in their deliberations. Speculation that the Sudan government could cut a bargain with the ICC by handing over the two men already indicted in return for dropping the charges against Bashir is ill-founded. The proceedings against Bashir cannot be stopped except by a decision by the three judges of the Pre-Trial Chamber that there is no case to answer. The scope for the Sudan government or its friends to intervene with the Court is almost nonexistent.
Next week, Vice President Ali Osman Taha leads a large Sudanese government delegation to the UN General Assembly. The strategy is undoubtedly to try to get a UNGA resolution condemning the ICC. Sudan has the support of the African Union (whose Peace and Security Council will also pass a resolution on the issue next week) and the League of Arab States. Sending Ali Osman Taha not only makes the delegation head more senior than the normal foreign minister-led delegation, but overcomes the problem that Sudan’s foreign minister, Deng Alor, is an SPLM member whose views on the ICC don’t coincide with his President’s.
A vote at the UN General Assembly carries symbolic weight. But it’s only the UN Security Council that has the power to defer a prosecution under Article 16 of the Rome Statute. It is important to recall the procedure here. To prevail, Sudan needs a Security Council member to introduce a resolution, which will need the votes of at least nine of the fifteen members, and which must not be vetoed by any one of the five veto-wielding members. Sudan has strong support from the African and Asian blocs in the Security Council. It probably has seven assured votes including China and Russia. South Africa is the most likely sponsor of a resolution, as an African state and a state party to the ICC, which opposes the indictment of Bashir.
Sudan’s challenge is to win at least two more votes and to ensure that none of the U.S., Britain or France uses its veto. All three of these governments have been engaged in discussions with the Sudan government over what would be required for them to support an Article 16 deferral.
The U.S. launched a new initiative at the beginning of the year when Ambassador Richard Williamson became Special Envoy. Because the U.S. does not support the ICC in principle, America hasn’t introduced ICC-related conditions to this dialogue, which remains focused on Sudanese actions in Darfur in return for steps towards normalizing relations. To date, the Sudan government is far from meeting the conditions laid down. In fact, Khartoum’s actions in Kalma camp and its military offensives in North Darfur have set back the process.
President Bush is alone among world leaders in having labeled Darfur as “genocide.” He has now been joined by Luis Moreno Ocampo. It would be extraordinarily difficult for the U.S. government, with no concrete gains to demonstrate to the American public, to block an effort to indict the Sudanese president for the crime of genocide. American officials remain opposed to the ICC on principle and uncomfortable with the way in which the indictment is complicating their other priorities in Sudan, such as the CPA, peacekeeping and counter-terrorism, but a president in his last days of office will be more concerned with his legacy than with tactical maneuvering with a government in Khartoum that is a notoriously unreliable diplomatic partner. Without very major, verifiable and irreversible steps towards meeting American conditions, an American veto is near certain.
Britain and France began their discussions with Khartoum later in the day and both of them demand that the Sudan government engage with the ICC. It is most unlikely that Khartoum will take any step that implies accepting the legitimacy of the ICC. President Bashir will not hand over the two indicted men for several reasons. He doesn’t want to concede the ICC’s jurisdiction. He enjoys a strong reputation for loyalty””he doesn’t sacrifice his colleagues in government””which he will not easily repudiate. And if he handed them over it wouldn’t make any difference to the intentions of the ICC prosecutor.
Both France and Britain have hinted that they might accept softer conditionalities than the Americans for supporting””or not vetoing””an Article 16 deferral. France has aligned itself with the Qatar initiative for a Darfur peace process. While the Sarkozy government seems to be refusing to make any formal link between the Qatar process and the ICC, other than the observation that a credible peace process is a good thing for Sudan and its standing, there is speculation that a deal may be cooking. France also has its specific concerns on Chad. The British government has dropped similar hints about a softer line””Foreign Office minister Lord Malloch-Brown said as much in a recent interview.
But the Sudan government should not read too much into these statements. It is one thing to gather the ingredients of a recipe and put them in a pot, another to actually cook the meal. Sudanese diplomats are expert at creating new recipes but Sudanese politicians are terrible at cooking them to the point where they can actually be served and eaten. As with the Americans, Khartoum needs to make a lot of demonstrable progress before Britain or France decide not to veto an Article 16 deferral. And the meal is still uncooked.
The fundamental problem between Khartoum and the three western capitals is a lack of trust. The P3 of Washington, London and Paris wants to see verifiable and irreversible progress, albeit in slightly different configurations. Powerful Sudanese leaders suspect that there is a regime change agenda lurking and that any concessions they give will be swallowed up and followed by more demands. So Khartoum’s kitchen always contains another cook with another recipe bubbling away””military options to protect national security. They also fear that an Article 16 deferral would be used as a rolling deadline for imposing ever harsher conditions””each time it comes up for renewal the western governments would demand more concessions. So the incentives for complying with P3 conditions are less than they might appear. The mutual distrust and multiple agendas will not change within the time horizons needed to resolve the ICC conundrum.
In private conversation, there are few diplomats who believe that an ICC arrest warrant against President Bashir is a good idea. But the mechanism for stopping it is very unlikely to work in the time available. The most probable scenario for the next few months is that an Article 16 resolution is introduced to the UN Security Council and vetoed by one or all of the U.S., Britain and France, and then the ICC’s Pre-Trial Chamber will issue the arrest warrant.