The request on 14 July 2008 to the International Criminal Court (ICC) to indict Sudan's president, Omar Hassan al-Bashir, on ten charges of war crimes and genocide has unleashed intense polemics that - three months on - show no sign of diminishing. The main lines of argument were formed immediately after the announcement - indeed it may equally be said that they formed long before it, and that the request (made by the ICC president, Luis Moreno-Ocampo) merely gave them a pretext for more voluble expression. In any event, opposition and support of the decision fall into two camps:
Gérard Prunier is research professor at the University of Paris. He is the author of The Rwanda Crisis: History of a Genocide (C Hurst, 1998), Darfur: The Ambiguous Genocide (C Hurst, revised edition, 2007), and From Genocide to Continental War: The Congolese Conflict and the Crisis of Contemporary Africa (C Hurst, 2008)
Among Gérard Prunier's articles in openDemocracy:
"Darfur's Sudan problem" (15 September 2006),
"The DR Congo's political opportunity" (14 March 2007),
"Chad, the CAR and Darfur: dynamics of conflict" (18 April 2007),
"Chad's tragedy" (7 September 2007),
"Sudan between war and peace" (1 November 2007),
"Khartoum's calculated fever" (5 December 2007),
"Kenya: roots of crisis" (7 January 2008),
"Sudan in a fix" (26 June 2008)▪ the "realists" - who hold that al-Bashir's indictment would "compromise the Darfur peace process" and even possibly lead Sudan into a state of anarchy
▪ the "legalists/moralists" - who contend that not indicting al-Bashir would both deal a heavy blow to the credibility of the young ICC and lend encouragement to those seeking to tolerate or indulge crimes against humanity.
This article looks at the issues surrounding the historic indictment of Omar al-Bashir through the lens of this vigorous argument.
The political-moral debate
The context of the indictment is what has happened in Sudan's western region of Darfur since conflict began there in February 2003, and the "Darfur peace process" which has consumed so many words, summits and missions in the effort to end it. Any consideration of this "peace process" is at its heart retrospective, because after the signing in Abuja of the Darfur peace agreement (DPA) in May 2006 there has been next to nothing in the field of solid achievement.
There are many ways to register the failure. The provincial assemblies which under the agreement's provisions were designed to guarantee the Darfuris some measure of political control over their own fate were packed with supporters of the Khartoum regime; the killer janjaweed militias were never disarmed, and kept killing; the money supposed to be paid into an economic-development and stability fund for Darfur (DCPSF) was never made available; even the pitiful amount of compensation pledged to the internally-displaced ($18 per person) was not disbursed.
The political environment around the agreement made its prospects even worse. Just one of the guerrilla factions in Darfur - the Sudan Liberation Army (SLA) group led by Minni Arcua Minnawi - was prepared to sign, even in face of the pressures the international community exerted on Darfuri rebel groups to comply. After the DPA was reached, Minni tried to enforce compliance from the non-signatories by attacking them and killing their civilian supporters. He failed on two counts, for his own men quickly grew disgusted by the Khartoum government's betrayal of its own commitments, and the SLA went back to war.
Minni resolved a hard choice by leaving Khartoum and going back into the bush in Darfur in July 2008; though it is now reported that he is again succumbing to al-Bashir's blandishments (see "Darfur Minnawi returns to Sudanese capital this week", Sudan Tribune, 14 October 2008). The other guerrilla factions were confirmed in their rejection of the DPA, and - a handful of unrepresentative government stooges apart - no other rebels were prepared to discuss anything with Khartoum.
All this leaves an obvious question: when the "realist" camp uses the "Darfur peace process" as an argument against Omar al-Bashir's indictment, what exactly is being referred to? For such a process, active or even latent, does not exist.
A possible response is that at least the internally-displaced people (IDPs) in the camps might support letting the Sudanese president remain free of charge - on the pragmatic grounds that they stand to suffer even more in the event that al-Bashir responds to his indictment by venting his anger on them. There is no indication that this is so: indeed, their continued support for refusenik SLA leader Abdel-Wahid Mohamed an-Nur is a clear indication that they stand ready to shoulder the possibly terrible consequences of their choice. This desperate courage comes from 2.4 million people who have lost everything, from their loved ones to their houses and their means of economic subsistence. But this is precisely what makes it so understandable - for they often feel that their terrible sacrifices would be meaningless if their persecutor was allowed to escape any legal sanction.
A further claim of the "realist" school is that an al-Bashir indictment would have the effect of destabilising the regime and pushing Sudan into anarchy. This is extremely doubtful, and in fact the opposite case is more plausible. The present regime in Khartoum has lied repeatedly and has never honoured any of the documents it has signed - whether the comprehensive peace agreement (CPA) with the south, the DPA, or eastern peace agreement (EPA, signed in October 2006 with the eastern-front guerrillas).
Among openDemocracy's article on Sudan and international justice:
Nick Grono & David Mozersky, "Sudan and the ICC: a question of accountability" (31 January 2007)
Nick Grono, "The International Criminal Court: success or failure?" (9 June 2008)
Alex de Waal, "Sudan and the International Criminal Court: a guide to the controversy" (14 July 2008)
Victor Peskin, "The Omar al-Bashir indictment: the ICC and the Darfur crisis" (15 July 2008)
Marlies Glasius, "What is global justice and who is it for? The ICC's first five years" (21 July 2008)This record, along with the regime's shamelessness, makes it less than likely that the election in Sudan scheduled for 2009 will be free and fair; or that the self-determination referendum for the south due in 2011 will be held on time and carried out honestly (especially since the south produces 80% of Sudan's oil and that a vote for independence would deprive Khartoum of all those revenues). This would mean that the probable result of the continuation of the present regime in Khartoum will be more war sometime during the next three years - not only in Darfur, but all over the country (see "Sudan between war and peace", 1 November 2007).
If this is so, then why should the international community protect Sudan's regime from the consequences of its own greed and cruelty?
There are three possible answers:
▪ the ultra-conservative nature of the international community: the Sudanese regime exists and - so runs the way of thinking - should not be tampered with simply because it exists
▪ the collaboration that Sudan's secret services are reported to have given the CIA in the United States's "war on terror". This project has become a mantra in Washington and anything that can remotely be seized on as evidence of its "success" has become sacrosanct - even when (as in this case) hard results have completely failed to justify the policy
▪ the US's reluctance, after the giant blunder of Iraq, to get into a conflict with another Muslim country (Iran is a special case). Thus American miscalculations in the middle east protect the rogue regime in Khartoum.
In these circumstances, the extended domination of the ruling order in Khartoum, far from being a condition of notional "stability", is practically a guarantee of further violence in the 2008-11 period. This makes it difficult to justify not indicting President Omar el-Bashir on the "realist" grounds of political stability.
The ground-level politics
In the three months since the 14 July 2008 announcement, Khartoum has engaged in frantic diplomatic activity to try to rally its potential supporters behind a single objective: invoking Article 16 of the Rome statute of 1998 (the founding document of the International Criminal Court), which allows for a one-year deferment of an indictment in response to a demand by the United Nations.
Khartoum can count for support in its delaying tactics on the African Union, the Arab League, the Organisation of Islamic Conference (OIC), Russia, China and - conditionally - France. The French position is particularly ambiguous. Paris was at the heart of the small coalition which had managed to push through Resolution 1593 (2005), referring the Darfur situation to the ICC; but now it says that it might support a recourse to Article 16 if Khartoum does four things:
▪ transfers two previously indicted Sudanese officials - former janjaweed militia leader Ali Kushayb, and Sudan's humanitarian-affairs minister Ahmed Haroun - to the ICC
▪ stops hindering the deployment of the UN mission in Darfur (Unamid)
▪ recommits to the "Darfur peace process"
▪ stops interfering in Chad's internal affairs.
Nicolas Sarkozy, when he visited New York for the United Nations annual meeting on 23 September 2008, even said that Khartoum's only obligation was to ensure that the two indicted men would "stop being ministers" (a bizarre demand since one of them, Ali Kushayb, has never held such office) and they be judged "by a Sudanese court". This was followed on 6 October by a high-level bilateral meeting between France and Sudan in Paris (see "Sudan delegation meets French officials", Daily Nation [Nairobi], 6 October 2008).
The African Union, China and possibly France will push on for the use of Article 16, while Washington will veto any recourse to that process. Khartoum is well aware of its constrained room for manoeuvre, and intent on giving the impression of movement. On 13 October, it announced the arrest of Ali Kushayb (also known as Ali Mohamed Ali Abdul-Rehman), with justice minister Abdul-Basit Sabdarat declaring that he would be tried by a Sudanese court; on 16 October, the president is launching another rhetorical initiative on Darfur (see "Sudan president calls for national solution to Darfur crisis", Sudan Tribune, 14 October 2008).
But on the ground, Khartoum seems intent on solving the problem by force - whatever the humanitarian cost. Omar al-Bashir's brazen and tightly controlled visit to Darfur in response to the indictment request on 14 July was followed by a major military offensive against guerrilla strongholds in Darfur; the aim was to cut off the lines of military supply from Chad to both the SLA and the Justice & Equality Movement (JEM) - Ndjamena itself being still engaged in a war to the finish with Khartoum. Why this sudden urgency? Because Khalil Ibrahim, the JEM leader who attacked Khartoum and Omdurman in the daring raid of 10 May 2007, preferred to remain in the strategic centre of Kordofan rather than return to Darfur.
Khalil Ibrahim may be planning a new attack on the Sudanese capital, while showing polite interest in the Qatar-mediated peace talks that are attempting to draw in the leading factions in the conflict. If such an attack were combined with an ICC indictment of President al-Bashir, this could tip the scales and lead to a military coup (Khalil himself, after all, is a former Muslim Brother and regime activist, who still has many contacts in regime circles). The Sudanese regime is fully aware of the danger; when it conjures the spectre of "anarchy", its true meaning is: "this ICC indictment could change the balance of power inside the Sudan and lead to our downfall".
Will Khartoum's attempted blackmail succeed? At this point it is impossible to tell. The guerrilla movements are very uneasy about the persistently pro-al-Bashir stance of the African Union (whose forces are the military mainstay of the joint AU/United Nations military mission [Unamid]). The threats are clear: while Khartoum hints that it could call on al-Qaida's aid, the insurgents say they could hit the AU/UN force if the indictment is deferred. The Sudanese timebomb is ticking.
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