The International Criminal Court (ICC) will on 27 February 2007 issue its first indictments for war crimes and crimes against humanity in Darfur. The news is welcome as far as it goes: but unless the international community changes course in the next few months, the true poverty of the world's response to the mass killings in the western Sudanese province will be exposed and the ICC will be undermined.
Who will be indicted?
The court's chief prosecutor, Luis Moreno-Ocampo, has hinted that the indictments will include senior figures in Sudan's government and military. An ICC press statement in December 2006 says: "Evidence in this emerging first case points to specific individuals who appear to bear the greatest responsibility for war crimes and crimes against humanity, including persecution, torture, murder, and rape ... The prosecutor's first case focuses on a series of incidents in 2003 and 2004, when the most serious crimes occurred in large numbers. Perhaps most significant, the evidence reveals the underlying operational system that enabled the commission of these massive crimes."
The original United Nations inquiry into the killings pointed the finger at fifty-one people: ten high-ranking central government officials, seventeen officials operating at the local government level in Darfur, fourteen members of the janjaweed militias, seven members of various rebel groups and three foreign soldiers.
Nick Donovan is head of policy and research at the Aegis Trust
Despite speculation in the news media, it is unlikely that Sudan's president, Omar al-Bashir, or vice-president Ali Osman Taha will be named in this first wave of indictments. The lesson of the international criminal tribunals for Rwanda and ex-Yugoslavia is that to build up enough evidence to prosecute presidents and prime ministers takes three elements: time, the presence of high-ranking turncoats within the regime, and a prior succession of minor cases.
However, the evidence already published by NGOs and the sanctions list published by the United Nations suggest that the international community could expect to see indictments issued to military commanders such as Abdul Wahid Said Ali Said, a lieutenant-colonel in the Sudanese army; rebel leaders such as Adam Yacub Shant; and janjaweed leaders such as Musa Hilal. For his role near the pinnacle of the chain of command, the indictments may also include Salah Gosh, Sudan's security and intelligence director.
As well as exposing the direct involvement of the Sudanese security forces in the killings in Darfur - estimated at 200,000-400,000 - the indictments and eventual trials will reveal a web of connections between the governing elite in Khartoum, shadowy front companies, and the recruitment and paying of the janjaweed militias.
What will the effect be?
Khartoum has characterised the ICC as a western imperialist plot to undermine Sudanese sovereignty, and its reaction to the indictments is likely to be in this vein. It may conduct a few more show-trials of minor, expendable individuals to bolster its claim to be dealing with the problem in its own courts. In addition, it will use the indictments as a further tool in its long-running campaign to delay the deployment of UN forces, all the while seeking to rely on a continued infusion of petrodollars from state-owned Chinese, Indian and Malaysian oil companies.
This makes the response of the international community even more of a test. The well-intentioned diplomats of the African Union and the European Union may offer little more than platitudes about balancing the competing demands of peace and justice. The United States, distracted by Iraq and Iran, may use the opportunity to introduce its "Plan B" (including a tightening of economic pressure on the Khartoum government); the imposition of a no-fly zone is unlikely, but Washington or other western powers may use any well-documented atrocity by the Sudanese air force as an opportunity to destroy Sudanese air assets.
The immediate prospects offer less optimism than the outlook over the longer term. The experience of the international tribunal for the former Yugoslavia is that the ICC indictments represent an opportunity, not a threat. The experience of the international tribunal for the former Yugoslavia shows that at the heart of progress is the use of ICC indictments to slowly isolate the criminal-politicians of the governing elite and create political spaces in which other power bases can emerge. The key tools are the threat of international isolation, the rewarding of opposition leaders and the use of economic pressure.
Also on Sudan and the Darfur crisis in openDemocracy:
Fred Halliday, "Sudan between war and politics"
(14 April 2005)
Simon Roughneen, "Darfur: between peace and delivery"
(26 June 2006)
Gérard Prunier, "Darfur's Sudan problem"
(15 September 2006)
Alex de Waal, "Darfur peace agreement: so near, so far"
(29 September 2006)
Simon Roughneen, "Peace in peril: Sudan, two years on"
(17 January 2007)
Nick Grono & David Mozersky, "Sudan and the ICC: a question of accountability"
(31 January 2007)
This longer perspective suggests that the short-term goals of the international community should include a clear political signal by a like-minded coalition of states that the ICC's arrest warrants will be enforced. This entails: setting up an international reward fund for information leading to the arrest of war criminals; targeted UN sanctions (travel bans and assets seizure) against all suspects; political agreement among the 139 ICC signatories, reaffirming their commitment to arrest and extradite any suspected war criminals found in their jurisdictions; and a declaration that war criminals should not be taking a direct part in any future peace negotiations.
After the UN force enters Darfur, its mandate should be expanded to require the arrest of any war criminals within its zone of operations. Economic pressure could be increased by working towards an international convention outlawing trade with entities owned by indicted war criminals. Coupled with an oil trust fund for development projects and for the use of the largely autonomous government of South Sudan, this would have the effect of reducing the Sudanese criminal elite's access to patronage.
So far, the Sudanese government in Khartoum has won. The insurgency is contained. The international humanitarian response has saved lives, but has inadvertently created several thousand hostages whose presence inhibits any more robust action. And the petrodollars flowing in from Asia allow the regime to buy off opposition and to rearm. It has also won because the debacle in Iraq divided the international community and made many people reluctant to recognise the criminal nature of many individuals in the Sudanese regime.
In the context of Khartoum's success and the world's failure, the ICC indictments on 27 February will present the international community with the chance to begin to create a long-term strategy which enables the Sudanese people to choose both a sustainable peace and justice.
