Illiquid, Toxic and Not an Asset: End the ICC’s involvement in Sudan
It has been unfazed by the turmoil in US financial markets; but Sudan faces a bigger exogenous toxic threat to its stability if the demand by the International Criminal Court prosecutor to arrest Omar al-Bashir, Sudan’s president, succeeds. Supporters of the move, like Save Darfur Coalition, Amnesty International and other activist groups, argue charging President al-Bashir will not scuttle much in Darfur since, they say, there is no peace to keep there anyhow. Tossing oil on a fire is always feeble logic, and it will push even further away an end to the suffering in Darfur; the region’s fractious, estimated twenty-five, warlords will have no incentive whatsoever to commit to peace talks unreservedly.
Emboldened by an arrest warrant for Sudan’s president, more assaults on the capital, Khartoum, and spreading the war to Kordofan and other regions close to Darfur will be the predictable response by the militarily strongest rebel group, Khalil Ibrahim’s Justice and Equality Movement (which forcibly recruited, and pumped with amphetamines, 92 child soldiers, during its coup attempt in Khartoum four months ago).
It is equally wrong for activists and some Western diplomats and politicians to claim President al-Bashir will simply do nothing to settle the Darfur conflict peacefully, should the UN Security Council invoke “Article 16″ to freeze the court’s involvement in Darfur for a year – or permanently, as demanded by the feverish lobbying by the Sudanese authorities at the UN (and backed by the African Union, the Arab League amongst others). Surely, the Sudanese government has the most to gain from not sitting on its hands and settling Darfur, not least acceptance into the international mainstream and, in turn, relief on its crushing $30 billion foreign debt? That’s the real breathing space President al-Bashir and his National Congress party crave.
In fact, one of the most damaging distortions of the narrative about Darfur – and there are many – by the court’s prosecutor, Luis Moreno Ocampo, and activist groups has been casting doubt on the earnestness of the Sudanese president to bring a fair and lasting peace to Darfur, rather than on the 3000 or so remaining rebels who have done everything so far to avoid sorting out their differences – let alone sit at the negotiating table with coherent and realistic Darfur-specific demands. This prism exists in spite of the Sudanese authorities signing an internationally-brokered peace agreement for Darfur in May 2006, providing armed escorts to international humanitarian aid groups in Darfur whose convoys have been repeatedly hijacked largely by rebels or their offshoots, and accelerating cooperation with the UN “˜peacekeeping’ force in Darfur, as publicly noted by its military leader, General Martin Agwai, last week.
It has also been obscured by the focus on a possible ICC arrest warrant against Sudan’s president that the reason why the pointless war continues in Darfur is that those same rebels were allowed to walk away from the May 2006 peace agreement in full view of the international community, return to the bush, and resume war.
So, if the UN Security Council votes to permanently unbolt the court from Darfur, as it should, or, more likely, invoke Article 16 for the sake of re-invigorating the moribund political process – peace talks – long overdue emphasis and demands must be placed not on Omar al-Bashir. Instead, the international community must focus on making the rebels demonstrate their sincerity to working for political accommodation with Khartoum.
A good start here would be France ordering Abdul-Wahid al-Nour, who has most support amongst Darfuris in the internally displaced camps, to end his two-year self-imposed exile in Paris and return to Sudan (if need be with bodyguards from the French and/or US intelligence services), and start talking seriously with Khartoum to end the conflict.
Mandating the ICC’s involvement in Darfur has, in any case, always been a clear breach by the Security Council of long cherished principles of national sovereignty. Sudan never ratified the Rome Statute for joining the court. The ICC’s pursuit of cases in Darfur, however, now also runs contrary to its own charter – intervene only where there is a clear unwillingness or inability for the national judiciary to perform its role.
The Sudanese state – with support from all main political parties – has recently established special courts, which will involve lawyers appointed by the African Union and the Arab League, to re-visit cases of abuses in Darfur. These courts must be given adequate time and space by the international community to prove their worth; the ICC should not be misused by activists as an instrument for forcing regime change in Sudan. Nor should the willingness of the special courts to prosecute Omar al-Bashir or Ahmed Haroun, the infamous state humanitarian affairs minister, become a litmus test for their credibility. Due process must be followed to the letter. Prosecutions against Sudan’s president or other National Congress figures cannot take place on the basis of hearsay, insinuations and politically-manipulated testimonies that insiders say forms the bedrock of “˜evidence’ assembled by Mr Ocampo. The charge sheet facing Sudan’s president already looks exceptionally flimsy.
The Security Council rejected claims of genocide back in 2003, and no mass graves have ever been found to support Mr Ocampo’s assertion of 35,000 killed in the conflict. Even the renowned Havard academic and “˜Sudan expert’ Alex de Waal, certainly no chum of the Sudanese government, has noted that the charges against Sudan’s president make Mr Ocampo “look like any other polemicist speaking about Sudan without understanding the nature of the Sudanese state and society.”
Allegations of “˜crimes against humanity’ and “˜war crimes’, levelled by the court prosecutor against Omar al-Bashir, underline the degree of polemics that the Darfur conflict has evidently descended to. These politicised slogans can be credibly applied to all conflicts; Sri Lanka, Colombia, Kashmir, Chechnya, Palestine, Iraq, and Afghanistan, to name a few.
Siren voices calling for the ICC to issue the arrest warrant because it will act as a powerful deterrent to other current and future heads of states also miss one key point. The ICC would have closed shop after its first case if that were true. Proceeding with a warrant will, moreover, be especially meaningless: there is no way for enforcement.
Omar al-Bashir will never go to The Hague, and neither of the two UN missions in Sudan (one in Darfur, the other in the south) will jeopardise their critical humanitarian and peacekeeping operations by trying to arrest Sudan’s president. Nor will his colleagues in the National Congress, as has been suggested by some external commentators, hand him over. Mr Ocampo’s adoption of a “˜joint criminal enterprise’ theory as the underlying driver of his charges levelled at the president has seen to that; the charge sheet would logically cascade downwards through the ranks of the National Congress. In other words, going ahead with an arrest warrant against Omar al-Bashir will advance neither peace nor justice for Darfur.
The stark choice facing Sudan and the international community is not, in any case, peace versus justice or vice versa, as has been framed by Mr Ocampo and activists. For one, justice for Darfur can take many forms. The lowest – and most enriching and sustainable – hanging fruit would be a comprehensive peace settlement and utilising traditional financial compensation mechanisms, allowing displaced Darfuris, whose status should take precedence over the dead, to return to their homesteads in security and steadily re-incorporate themselves back into the civic mainstream of Sudanese life. For that to happen, though, the US government (outgoing and incoming) must finally face down Save Darfur Coalition and other activist groups that it has given succour, courage, and ceded excessive policy ground on Darfur to, and create the necessary wiggle room to make the right policy choice for Darfuris and other Sudanese – and not the US electoral colleges.
Indeed, the US government (and to a similar degree the UK and France) ending its – public – support for the ICC process of issuing an arrest warrant against Omar al-Bashir is now the final missing piece of the jigsaw for the future of Darfur and Sudan as a whole. If these three permanent members of the Security Council do not wield their devastating veto against suspending the ICC’s involvement in Sudan and, concurrently, go full-throttle towards finding a comprehensive political settlement to the Darfur conflict, then an end to the misery in Darfur would surely be in sight. Focusing mainly on humanitarian and external peacekeeping interventions, while easier and more alluring to domestic audiences in the West, can only ever be a transitory response.
In contrast, wielding their vetoes in the Council against suspending the court’s work in Sudan will trap Washington, London, and Paris (and implicitly the rest of the Western world) into a cul-de-sac in dealing with the dominant party of the Sudanese state – the National Congress – from which they would not be able to emerge. Failure to halt the ICC’s likely criminalisation of Sudan’s head of state (the panel of judges have thus far never turned down warrant requests by the court’s prosecutor) would make it morally impossible or hypocritical for any Western nation to help with implementation of the anchor of Western re-engagement with Sudan – the Comprehensive Peace Agreement between north and south Sudan. The CPA ended Africa’s longest and bloodiest conflict, which marked the structural fault line running through the Sudanese state since even before independence in 1956.
As the president of the National Congress, the signatory party to the CPA and Sudan’s other peace agreements in the east and west of the country, an arrest warrant for Omar al-Bashir would make continuing “˜business as usual’ morally impossible for Western nations and their agencies. How could they even justify sitting down with a member of the National Congress if its leader has been issued with an ICC arrest warrant, not to mention the “˜Joint Criminal Enterprise’ premise? American and other Western technical assistance to the joint integrated units, the nucleus of Sudan’s post-CPA national army, already highly constrained by existing sanctions, would have to grind to halt because Omar al-Bashir is the commander-in-chief. The same goes for technical assistance to advance political and economic federal capacity building across Sudan.
The timing of forced disengagement from Sudan would also be highly unfortunate for the American and other Western governments – and not only because it would dim chances of peace for Darfur. Sudan is nearing two critical milestones, which the US and UK governments in particular have invested a lot of capital to achieve. Democratic national elections, which Omar al-Bashir has already said he will contest, are around the corner (due by July 2009), and a referendum is slated in 2011 for southern Sudanese to determine if they want to stay within a unified country.
Put simply, failure by the US, UK, and France to lend their support to freezing the ICC’s process against Omar al-Bashir will not only undermine the search for peace and justice for Darfur in practical terms. It will also qualitatively undermine delivery of a greater and far more valuable and durable justice to all Sudanese – the CPA.
Sacrificing the CPA, which Sudan still needs much time and support to help grow into (reconfiguring a state is never easy – just ask Germany), and supporting an ICC arrest warrant for Omar al-Bashir to placate noisy, yet under-informed, Darfuri activist groups, would be like investing in US mortgage-backed securities; good on paper and giving a feeling of worth, but with an underlying asset of zero value. Unlike the current mess in the US financial system, however, cleaning up the debris in Sudan created by the ICC if it proceeds with issuing an arrest warrant against Omar al-Bashir will even be beyond America’s wisest men.
Dr. Hassan Haj-Ali is a lecturer at the University of Khartoum, Department of Political Science. Ibrahim Adam is an independent country risk consultant from and based in El Fasher, North Darfur, Sudan.