Beyond ICC v. Omar al-Bashir

By now everyone has taken note (first noted on ET here [h/t to Migeru]) of the ICC arrest warrent issued against Omar al-Bashir for:

  1. intentionally directing attacks against the civilian population as
    such or against individual civilians not taking direct part in
    hostilities as a war crime within the meaning of article 8(2)(e)(i) of
    the Statute;
  2. pillage as a war crime within the meaning of article 8(2)(e)(v) of the
    Statute;
  3. murder as a crime against humanity within the meaning of article
    7(l)(a) of the Statute;
  4. extermination as a crime against humanity within the meaning of
    article 7(l)(b) of the Statute;
  5. rape as a crime against humanity within the meaning of article
    7(l)(g) of the Statute;
  6. torture as a crime against humanity within the meaning of article
    7(1 )(f) of the Statute;
  7. forcible transfer as a crime against humanity within the meaning of
    article 7(l)(d) of the Statute

Support and opposition for the ICC decision falls along predictable lines. The Government of Sudan’s (GoS) traditional enablers, the Arab League, China, and the African Union (AU) have all voiced opposition to the move. China has already called for a suspension of the warrant, and the AU is expected to place an appeal before the UN Security Council for a one year deferment on enforcement. Russia, even though a special envoy to Sudan was named, has remained curiously quiet, though if one can infer official position through what the Kremlin controlled press is saying, Russia is in opposition. A brisk arms-for-oil-trade between Russia and Khartoum (here) is in direct contravention to the CPA, and though Russia is not a signatory, Bashir is. Russia desperately needs the business these days, so it would probably be fruitless to ask Moscow to desist. The west, on the other hand, generally favors the warrant. According to some, Britain and France can be expected to support the warrants rather than undermine the integrity of the ICC. However, even the US, not a signatory to the ICC, has officially expressed its support.


In a recent Senate Foreign Relations Committee roundtable discussion on US policy toward Sudan, Michael Gerson expresses the American viewpoint:

“Can a hunted war criminal be a partner in the peace process? While in government, I was very much for additional pressure on the Sudanese regime, and I was very skeptical of ICC indictments of this type. They’re a blunt diplomatic instrument. Once imposed, they are almost impossible to exchange – to negotiate in exchange for concessions – they would kind of leave a thug in a corner and that can be dangerous. But I’ve changed my mind in the case of Bashir. The traditional carrots and sticks of diplomacy have failed in Darfur. For decades, the Sudanese regime has been masterful at using minor concessions and delaying tactics, playing allies who want oil and critics with short attention spans to achieve genocidal ends. I think Bashir would like nothing better than to play another round of the game he has played for a long time. The ICC warrants provide an opportunity to change the rules.”

They come at a critical time. In an enormous diplomatic effort, a coalition of European and African countries, along with American participation, succeeded in bringing Khartoum and the Sudan People’s Liberation Movement (SPLM) together and in May 2003, the Comprehensive Peace Agreement (CPA) was signed in Naivasha, Kenya. In July of this year, the CPA stipulates that elections are to be held for national office, and both sides have been jockeying for advantage. However on both sides there has been dissention within the party ranks. Some in Bashir’s own National Congress Party (NCP) take the position that the CPA gives away too much, and Bashir either allows or instigates actions at various levels to frustrate the CPA. At the diplomatic level, the tactic is to delay meeting CPA objectives. Khartoum doesn’t try and fail at the CPA, it raises last minute objectives and stonewalls. Locally, the tactic is to foment division and unrest. The SPLM is likewise facing it’s own set of political problems. Some in South Sudan claim that they have been shortchanged by the CPA, or that benefits of the CPA are either long overdue, or benefit some more than others. The “peace dividend,” for instance, is as yet unforthcoming, and while Disarmament, Demobilization, and Reintegration (DDR) efforts are underway with a pilot program in Blue Nile State, the country as a whole remains under arms. A scheduled referendum in 2011, to take place in the south and will determine whether South Sudan splits away from Khartoum entirely and many on both sides see this as a foregone conclusion, using this reasoning to simply ignore the CPA.

Except for the guns, this is democracy in action.

The problems with holding the July elections on time are enormous and prospects look grim. A national census was undertaken, but Khartoum, in one of its typical delaying moves, withheld the CPA mandated funding for a time. It’s reliability is another issue which seems to have been tabled for the moment, though this leaves a perfect opening for Bashir to claim later that the elections were a sham and ignore the results. (Which is exactly what I expect.) Consider as well the question of both internal and externally displaced persons – if and how they vote, and where their vote is counted – which remains (as far as I can see) outstanding, and the security situation in key areas is so poor that few are choosing to risk returning home.

Bashir’s expulsion of NGO’s, if it continues, will create a humanitarian crisis that will derail the elections, and could possibly kill the CPA process. If something doesn’t change, the most optimistic scenario I can think of is for the CPA process to limp along until 2011, when a referendum is scheduled in South Sudan to determine whether to secede from Khartoum entirely. If the election were held now, it seems very likely a seccession referendum would have no trouble passing and a seccession crisis would emerge. Status quo ante.The oil wealth in the disputed areas flows almost exclusively to Khartoum and to the NCP’s power base in North Sudan. and Khartoum isn’t about to walk away from this peacefully.

The ICC warrant also compels the rest of the international community to step up. Diplomatic action is next expected in the UN Security Council, over the issue of a one year suspension. In this case a curious reversal of the usual order of events is possible. Previous attempts to bring forceful action against Khartoum have been quashed by China’s veto. China is likely not acting out of a perceived need to protect it’s energy interests or it’s trade, however. Beijing is likely as, if not more, concerned with maintaining control over its own Uigyur population and Tibet and the prospect of an armed uprising by either gaining traction in world media and diplomatic circles. (China’s trade with Sudan is probably too insignificant a factor.) In the UN Security Council, the ICC indictment changes the usual dynamic. China and Russia (I expect) would both support a one year suspension of the warrants, but this time, action to suspend the warrants would require France, the UK and the US to refrain from vetoing the measure, and this hardly seems likely.

The creation of the CPA is a major diplomatic milestone. It resulted from a breathtaking effort by a coalition of western and African nations to attempt a peace where none had ever existed. Since the signing however, diplomatic attention has shifted more towards Darfur and away from the CPA process, even though the CPA offers a way out of that conflict as well. Long on monitoring the process, the international community has taken a somewhat hands-off stance, allowing the erstwhile belligerants to work out as much of the agreement on their own as possible. A pattern has emerged: Khartoum stalls, after awhile the SPLM threatens to walk away from the CPA process, and then the international community weighs in again. And the CPA process inches along, losing momentum and support. In the past twenty or so years, the world has taken three different approaches on peacekeeping and genocide: Rwanda, Kosovo, and Sudan, and none of those approaches has as yet generated anything like a satisfactory result. The peace process in Sudan, if successful, paves the way for other purely diplomatic solutions to conflict. Those involved in the conflict could see some way out with the Sudan model, and for the international community, a successful model of diplomatic peace-making by the UN would lend a degree of credibility that organization and the international system has never known, and make future initiaves like the CPA much easier. It took the respect, trust, and goodwill of two men, Dr. John Garang for the SPLM, and Ali Osman Taha for the Sudan government to start down the road to peace.1 Omar al Bashir symbolizes all that stands in the way of it’s fulfillment. So the question isn’t whether anyone can treat with an as yet unconvicted war criminal—everyone in the international community has no choice, especially now, but to put forward another major effort.

<sup1Garang died in a helicopter crash in 2005 and Taha has since been marginalized by the NCP.

Sources:

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