HRW’s Myths and Realities
Human Rights Watch recently posted seven “˜myths’ (arguments) about the ICC indictment, each followed by a confidently-named “˜reality’ (response). Much of what they say is commendable, and can be found here. Three points perhaps merit discussion:
1. Myth: The International Criminal Court has put people at risk by issuing an arrest warrant for the Sudanese president because international aid groups have been expelled from Sudan as a result.
Reality: It is the Sudanese government, not the International Criminal Court, that is creating catastrophic consequences for the people of Darfur by ousting humanitarian assistance… This step compounds the responsibility of the top Sudanese leadership for the gravest crimes committed in Darfur, and highlights the risks of allowing those allegedly responsible for these crimes to escape accountability.
Comment: Flagging the undoubted primary responsibility of the Sudanese governments for the expulsions does not address the argument of “˜myth one’. If a parole board releases someone despite suspecting he is dangerous, they surely bear some moral responsibility for his subsequent crimes. Andrew Natsios, among others, argues that the expulsions were “˜a predictable response’, citing Sudan’s retaliation against 2007 sanctions. HRW themselves must recognise that multiple actors can be held morally responsible for the same consequences. Indeed, al-Bashir’s indictment relates to his role in atrocities carried out by others (and not only his direct subordinates). Perhaps a better argument would be that the Court should follow its mandate, and let others worry about consequences. But this still leaves open the possibility of a Security Council deferral, the current subject of debate. And their mandate is to promote international peace and security — apportioning blame for the expulsions doesn’t come into it.
Second, it is important to distinguish between arguments for deferral and complete rejections of accountability. HRW is of course right to point out that criminals can be dangerous if left unchecked. The argument being made by Alex de Waal and others is simply that an outstanding arrest warrant at this time, given its extremely low chance of enforcement, buys mere symbolic condemnation at great humanitarian cost.
Third, it is only fair that those who lament the consequences of the warrant appraise realistically those of deferral. The international justice project would be discredited in the eyes of many. There is no mechanism for the warrant to be permanently expunged by the Security Council – renewals would have to occur annually, with all the accompanying diplomatic activity and potential reruns of threats and bargaining on the ground. Still, deferral may be the best of bad options, though the political risks to states such as the USA of being seen as soft on Darfur make it an unlikely one. Noticing both the risks and remoteness of this move draws attention back to the original referral of Darfur to the ICC. That is when the juggernaut was put in motion, and the last time the ignominy of indictment and potential reactions could really be avoided. The fact Khartoum initially called for deferral but now rejects the warrant outright is a case in point. Perhaps the last chance for those with concerns about peace is before the juggernaut leaves the station.
3. Myth: Since the ICC lacks the means to arrest al-Bashir, the warrant just creates difficulties without helping the people of Darfur.
Reality: The International Criminal Court does not have its own police force and relies on cooperation by states to execute its warrants. Security Council Resolution 1593 — which referred Darfur to the court — obligates Sudan to cooperate with the court, including making arrests in response to ICC warrants. The ICC’s statute also requires that states that are parties to the court cooperate with it, and Resolution 1593 urges non-states parties to cooperate with the ICC on Darfur.
However, even if al-Bashir is not arrested promptly, the warrant can produce real and immediate positive benefits. As has happened before when an international court issues an arrest warrant for a senior figure — Charles Taylor of Liberia, for example, or Slobodan Milosevic of what was then Yugoslavia — al-Bashir is now stigmatized as an accused war criminal and fugitive from justice. The warrant can marginalize al-Bashir and loosen his grip on power, which could help prevent further crimes.
Comment: It is a sad reflection of reality that HRW’s best response to the asserted unlikelihood of al-Bashir’s arrest is to quote some international legal obligations and urgings. For Sudan’s part, they are of course ignoring them. Other States have the issue of immunity to deal with, which is not just a legal problem — though there is interesting debate over whether it is an escapable one — but also a political issue. States — not least the USA and UK, given their alleged conduct during the “˜war’ on terror — will be wary to take action that could jeopardise their own immunities.
Mentioned next is the stigma now surrounding al-Bashir as a result of the warrant. It is unclear whether HRW sees such stigma as a positive effect in itself, or only in so far as it contributes to marginalising the President. If the former, it would be overly simplistic to assume that stigmatization strategies are always effective. For instance, a number of studies draw on psychology to warn that feelings of guilt and shame are more often than not counter-productive to the resolution of conflict. Perhaps the human rights mantra of the “˜mobilization of shame’ requires more case-by-case analysis.
HRW’s core argument however points to the warrant’s potentially marginalising effects, even if it is practically unenforceable. It is interesting to note them here using the type of consequentialist argument they shunned in response to “˜myth one’. Once this realm is entered, it surely becomes legitimate to weigh possible negative effects on al-Bashir with other consequences of the warrant — such as the humanitarian expulsions. If this is the correct approach, then we must consider the likelihood and benefits of al-Bashir’s marginalisation.
On likelihood, things are not looking promising so far. Despite the hopeful predictions of marginalisation by activist groups such as HRW, the International Crisis Group and the Enough Project; current developments point in the opposite direction. The President’s decision to travel to Doha for the annual Arab League Summit, in spite of domestic pressure not to attend, demonstrates his determination to avoid political isolation in the Arab world. The Qatari government’s protection of al-Bashir sets a precedent for non-signatories of the Rome Statute to ignore the Security Council’s urgings for co-operation with the ICC. Recent visits to Eritrea, Egypt, Libya and Saudi Arabia are clear statements both domestically and to regional powers that his position as President is neither restricted nor under threat. Noting the rallying of the African Union and Arab League, Natsios observes that “˜Two years ago, Bashir and his party were being increasingly isolated; now he has a legion of supporters who have come to dislike the ICC more than they dislike him.’ It remains to be seen, of course, whether al-Bashir will dare to test the legal debate mentioned above by visiting a State Party or indeed travelling further afield over less friendly airspace. For the time being though, it seems that he will be content to keep up his profile by making visits to co-operative neighbouring states and those where the firmest of assurances have been offered regarding his safety.
Domestically, indications thus far are that the political forces within the NCP are rallying around the President. What is certain is that al-Bashir now has little choice but to contest, and ensure that he wins, the forthcoming national elections — defeat would severely jeopardise the immunity and protection he currently seems to possess.
Far from marginalising the President, the indictment’s aftermath has strengthened his grip on power in less obvious, but no less significant ways. The warrant has served to further restrict the already narrow space for political dissent and activism by opposition parties and civil society groups. It is not only the international NGOs that are facing harassment and closure but also Sudanese civil society groups working in important areas such as human rights, gender equality and — particularly pertinent right now — raising awareness on electoral issues. Natsios concludes that “˜So long as the threat of the order loomed, it probably did help to restrain the Sudanese government. With the threat now realized, the regime has far less to lose.’
But what about Messrs. Taylor and MiloÅ¡eviÄ‡, asks HRW? Both were indicted as serving leaders, both ended up in international cells. There have been no convincing responses to an earlier post on this blog, arguing that both were in far weaker positions near the end of their rule, running “˜one-man dictatorships which crumbled when they were removed’. Al-Bashir is instead a front-man for a rotten and entrenched regime.
Thus contrary to the hopes of HRW and others, it would seem that the arrest warrant and the associated increased restrictions on civil activism make it more, not less, likely that the government will be in a position to commit crimes with impunity in the future.
However if al-Bashir were to be marginalised any time soon, the potential benefits are not clear cut; and are certainly less so than the severe damage to humanitarian and potentially peace efforts that this outcome must be weighed against. Salah “˜Gosh’, head of the National Security and Intelligence Services, is thought by some to hold the most influence within the NCP and is suggested by advocates of regime change as a possible candidate for the Presidency. Yet the advantage of his apparent willingness to co-operate with the West (he is reported to have acted as a liaison with American and British intelligence agencies) would seem to be outweighed by his human rights record and his recent inflammatory statements about a return to Islamic extremism. Thus, de Waal argues that any likely replacements from the ruling party would have hands just as dirty as al-Bashir, if not more so. And as for an outright coup, leading oppositionist Hassan al-Turabi (the Islamist who invited Bin Laden to Sudan) may lead an even more radical government, and one that doesn’t feel constrained by the CPA, not having signed it. Perhaps any replacement will behave better so as not to curtail potential holiday plans through another warrant, but don’t count on it.
4. Myth: Issuing the arrest warrant threatens the peace process to end the conflict in Darfur.
Reality: No real peace process is currently under way because of a lack of adequate political will by both the government and rebel forces to end the conflict in Darfur. The peace process has long been stalled. Although one rebel group, JEM, and the government signed a “declaration of intent” in February, this did not include a commitment to a ceasefire. None of the parties appear committed to finding a solution through peace talks. This failure is wholly unrelated to the ICC.
Comment: First, it bears mentioning this supposed myth’s close twin. Many are equally if not more concerned about the North-South Comprehensive Peace Agreement (CPA), which is at a critical junction. This process needs every bit of support it can get — including from international actors — if Sudan is to avoid relapse into one of the bloodiest conflicts since WWII. Thus Khartoum’s recent hardening against international involvement and the diplomatic awkwardness of dealing with an indicted war criminal both come at an unfortunate time.
Moving back to Darfur, most analysis up until now focuses on how the government is reacting or is likely to react to the warrant, so it is encouraging to see HRW addressing the impact upon the rebel movements as well. They are correct to point out that the peace process has so far been slow and faltering, but their implication that the warrant will have no bearing on the parties’ attitudes is misguided. In their negotiations thus far, the rebels have been the inferior party with little leverage over their government counterparts. While no effective peace deal has yet been signed, with greater patience and diplomacy from the mediators in Abuja, the non-signatory rebel movements could have been convinced of the weakness of their position and deterred from further intransigence over the terms of the Darfur Peace Agreement (DPA). The issuing of the arrest warrant has changed the game in favour of the rebels and is likely to embolden their stance. JEM’s recent withdrawal from the “˜goodwill’ agreement signed in Doha in February is an indication that rather than seek compromise in the name of peace, the rebel movements are looking to take advantage of al-Bashir’s predicament and push for further gains. But with the government firmly on the defensive and apparently not in the mood for co-operation, the prospects for peace in Darfur appear as distant as ever.
Lee Solomons has a BA in Law (Jurisprudence) from the University of Oxford and is currently reading for the LLM in International Human Rights Law at the University of Essex. Patrick Mair has a BA in History and an MSc in African Studies from the University of Oxford, and is currently interning with the Sudan Programme of Justice Africa in Khartoum.