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.
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Alex – I think you are right in all you say above. And time is now very definitely running out. Some observations on the current situation:
Vagueness and ambiguity from the P3
At this stage, the French and British are just not clear enough where they are setting the bar for an Article 16 deferral. The usually-clear Americans are wrong-footed by their opposition to the ICC in a way that confuses everyone else involved. That now has to change. They must decide now if they will countenance an Article 16 deferral in principle. If they will, the P3 now needs to be clear on pre-conditions that have to be met before a deferral can be agreed and then on conditions that should be met once the deferral is in place. When they say Sudan must ‘engage’ with the ICC, they need to be clear what that means: is it appointing a lawyer to represent them at the court or is it handing over Harun and Kushayeb? If the latter we can forget Article 16. Each day of continuing ambiguity and contradiction weakens the modernisers and plays into the hands of the hard-liners.
P3 clarity about their own objectives
The also need to be clear that this is not some sort of appeasing favour to a murderous regime. US, France and Britain all have long-held foreign policy objectives in Sudan and the wider region (mainly peace, stability, counter-terrorism, democracy and normalisation) and these are currently in jeopardy if the ICC effectively makes the regime an outlaw state. So the use of Article 16, with conditions, is about securing their own foreign policy objectives – but they are acting as if they have no stake in the CPA, the elections, a peaceful North South coexistence, human rights and humanitarian support in Darfur and so on.
Could the General Assembly help?
South Africa could, as you say, put the Article 16 issue on the Security Council agenda. But there are other approaches. One other possibility is a referral from the General Assembly under Article 11 of the UN Charter. This may be a little long-winded compared to South Africa simply tabling it, but it offers the GA the possibility to frame the ‘peace versus justice’ issue for the Security Council, without coming to a definite agreement on what should be done (which it wont be able to do). The GA could therefore help to legitimise the debate itself which will provide some important support in those countries where public opinion about this issue presents a challenge to good policy.
Could the Secretary General help?
Another, much bolder, approach would be for the UN Secretary General to bring the issue before the Security Council (using his authority under Article 99 of the Charter). This would involve him recognising that the Security Council resolutions that define the mandates for UNMIS and UNAMID may well be in contradiction with the resolution that authorises that ICC investigation – and therefore that a proper reconciliation is required and can only be done by the Security Council. The SG should go to the Security Council with a risk assessment covering the risks to the UNMIS and UNAMID mandates if the arrest warrants proceed. The UN secretariat has an inglorious history of adopting a bystander perspective in such difficult situations. But this has not served the UN well, or done anything to further its core mission of peace and human rights. This is not a time for UNMIS and UNAMID, and their New York leadership to be timid. Of course, the SG can’t make the decision for the Security Council – but he can at least represent the risks to UN and UN/AU missions in the country.
What are the risks?
There is some feeling among commentators in Khartoum that the potential consequences may be overstated and that the disruption to CPA and UN missions will be irritating rather than fatal. The government does have incentives to paint a bleak picture and to threaten dire consequences following an arrest warrant, and we must be mindful of bluff. The trouble is, I don’t think anyone knows what will happen – probably not the even the NCP leadership – and many changes could happen simultaneously with action and reaction spiralling out of control. I think it’s a real gamble with thousands of lives to take the more sanguine view – even if that turns out to be right.
‘ORIENTAL’ DESPOT: What if ALBASHIR Fails to Recognize the ICC?
Failing to recognize the ICC jurisdiction would mean that al-Bashir will not hand over to the ICC himself, Haroun, Kushaib or any other possible names. The best case scenario and a better strategy for him, therefore, is to delegate and authorize a team of sober experts from Sudan to open dialogue with the UN Security Council, directly, in order to reach a ‘final and binding settlement’ before it is too late. Seek deferral with those who have veto power. African, Arab or non-aligned voices would turn out to be ‘public relations’ only.
In an interview with “Al-Jazeera†(August 2008), prosecutor Ocampo mentioned that the application to the ICC for issuing an arrest warrant for the President of the Sudan is directed against the person of al-Bashir rather than against the state over which he presides, the Sudan. This distinction is misleading. It is an unnecessary distinction. The prosecutor was ‘politicking’ rather than arguing his case. That statement was the ‘weak link’ in the prosecutor’s interview. Ocampo’s argument is weakened, further, as he stated also in the application that al-Bashir wields absolute power and authority over the state apparatus as a whole; i.e., a classic ‘oriental’ despot, in an absolutist state of the 21st. Century. If one concedes that this is the case, then why propose the distinction, anyway?
The implication in this situation is that the Sudanese State form, problematic and exceptional since 1989, and the person of al-Bashir are indivisible. That the prosecutor is, in fact, not only leveling legal charges against a sitting Head of State but is also instigating forthwith the ‘New World Order’ to take punitive measures under Chapter Seven for capturing al-Bashir; i.e., for ‘regime change’, if the President does not recognize the jurisdiction of the ICC to adjudicate the case referred to it by the UN Security Council (UNSC).
It is logical from the President’s ruling party (the NCP) perspective, therefore, that the state apparatus as a whole is standing behind the President. However, internal divisiveness is reflected in the contradictory stance of SPLM who share power with al-Bashir but at the same time call for engagement with the ICC and recognition of its jurisdiction. Hence, the President’s position is rendered weaker due to this internal rift. This is also an instance where the prosecutor’s assumption of absolute power is false.
Voices from political opposition leaders, divided as they are, and the cries coming from DPA signatories and non-signatories who are carrying arms in Darfur – also divided as they are – fail to reflect the views of the silent majority of the Sudanese People. Only the privileged minority of the NCP governing elite in the echelons of the state apparatus do know what the state is doing to relieve al-Bashir of his predicament. The NCP governing elite has so far succeeded in insulating the ICC issue from the general public, limiting oration and demonstrations for popular condemnation to short-lived mob action by NCP cadres. The majority of the Sudanese people do not know what is happening, except from newspaper columns.
What is really amazing is the fact that L. Moreno-Ocampo has become the unelected leader of the mighty West. What is at stake in Sudan is not a purely Sudanese matter.The International Community (led by Western countries) has nvested a great deal of energy, time and funds in achieving peace in Sudan in 05. President Bashir’s government has been a reliable partner. The desire to destabilise the government of national unity out of a vendetta-like motivation is not recognisable as great diplomacy or statesmanship . I think of a cartoon depicting L. Moreno-Ocampo holding the arm of the West and pointing it at president Bashir .The gun will have to pierce the body of Sudan first and carry on to harm the president. The prosecutor seems to think that logical and reasonable. Many would see in it the confusion and indecision of great democracies which replace well-cooked (to quote Alex) and long term policies with the boiled egg simplifications of Mr Moreno-Ocampo.
Moreover; the Sudan is unfairly accused of reneging on promises. Here we have an example of the West turning its back to a project which it helped to shape. The predicament is not President Bashir’s. It is the predicament of the UN which allows spin and manoeuvres to bestow so much power on an individual (whose credentials of wisdom are suspect as the ruling of the International Labour Organisation’s tribunal against the ICC on 9 July has implied).
The first poisonous fruits of the prosecutor’s indiscretion are already apparent. The rebels — who seem to have forgotten their dream as J. Flint suspects — have been emboldened and clearly intend to resist any meaningful negotiations and wait for their def acto ally (the ICC) to deliver!
The approach of the UK is especially difficult to read, but a recent newspaper article triggered speculation that UK would support an Article 16 deferral – that was followed by a denial in a later interview, but an ambiguous denial. Details below.
The newspaper article was published in The Observer on 14th September [read] suggesting UK and France are open to the idea, and quoted junior foreign minister, Mark Malloch-Brown, to back the story up.
A few days later Mark Malloch-Brown was interviewed at length by journalists at a press club in London and he clarified his position. As you would expect from him, the interview is considered and interesting – and can be viewed here. The comments on the ICC & Sudan start at 1:34:52.
In the interview he claims the newspaper article misrepresents the UK position, which he says strongly supports the ICC and the judicial process, and that he does not believe there should be ‘horse-trading’ over a deferral. So that sounds like he is against an Article 16 deferral.
However, he goes on to say that the Security Council attitude to a deferral would shift if there was evidence of fundamental change in Sudan – including dealing with the two existing suspects wanted by the ICC, properly facilitating UNAMID deployment and having a meaningful peace process for Darfur (these are not the exact words). He then compared the transformation needed in Sudan’s international relations to that made by Libya over the last few years.
It appears from this that the UK is open to supporting an Article 16 deferral, but will only do this if there is evidence of a fundamental change. The problem is that, as with Libya, fundamental change will take a few years to become apparent, verifiable and permanent – but the decision on Article 16 and the ICC needs to be taken over the next couple of months.
So the problem with Malloch-Brown’s approach (at least as described in this interview) is that it looks to a long-term transformation, but without visualising the short- and medium-term pathway to reach it. The question for the British therefore remains: what does the NCP have to do in the short-term as precondition for support for an Article 16 deferral, and what would be expected of the NCP in the 12 months following a deferral? If the UK had some clear ideas about that, there would at least would be a basis for some tough talking with Sudan’s ruling elite.
Malloch Brown is a highly skilled and credible diplomat – and I hope he is given a clear mandate to negotiate the UK’s approach to this difficult issue, with a simple brief: taking everything into account, do the best you can for the long-term welfare of the people of Sudan.
An underlying problem here is the practice, diligently pursued by western governments, of trying to micromanage Sudan’s internal affairs. All evidence indicates that this approach fails. In particular it fails when three particulars exist, namely (a) unrealistically tight deadlines, (b) lack of clarity in objectives by western governments or worse, disagreement among them, and (c) absence of a unified position within the Sudan government. In the case of U.S., British and French attempts to demand conditionalities for an ICC deferral, all three particulars exist, which indicates that efforts are likely to fail. Serious attempts to resolve the Sudanese crisis will need to be more patient, more in tune with the dynamics of dissension and cohesion within Sudanese politics, and averse to micromanagement.
An ICC arrest warrant against President Bashir spells the end of the ICC in Africa. On the day that the ICC takes this step, we can be 100% sure that no single African country will refer another case to the ICC and no African country will cooperate with ICC efforts to arrest indicted individuals. The leaders of this rebellion against the ICC range from South Africa (both the outgoing and the incoming leaderships) to Uganda, including such countries as Ghana, Tanzania and Rwanda. Even Senegal, under Abdoulaye Wade the strongest supporter of the principle of universal jurisdiction, will not resist the new African consensus. Africa, which was until recently the strongest supporter of the ICC, is about to become its most determined adversary. This reversal is not an abandonment of the principle of justice but a rejection of the ill-judged way in which it is being handled by the current Prosecutor.