Tuesday, July 15, 2008

The ICC and Sudan

Gideon Rachman highlights an interesting debate on the ICC indictment of Omar al-Bashir.

Alex de Waal's guide appears on openDemocracy. de Waal himself thinks al-Bashir's actions "will be driven by calculations of internal threat more than by his assessment of how threatening the ICC or the UN troops in Sudan might be."

Richard Goldstone writes that criticism of the ICC is misdirected.


Michael Davies said...

It appears that the strategy of the NCP, Bashir's party, is to stay calm and try to make the case that it is genuinely seeking peace. This is a good reaction for Sudan at this time.

It is probably trying to build a coalition to support an ‘Article 16’ 12-month deferral of the case by the Security Council before the arrest warrants are issued later this year. The NCP has securred the backing of the AU and Arab League and have two P-5 members sympathetic. I guess the others will be assessing their options. The Southern Sudan SPLM is also playing ball, thus maintaining the 'Government of National Unity' intact for now. The SPLM has a strong interest in maintaining the 'Comprehensive Peace Agreement' with the NCP, even though they have spent 50-years on and off in blood-soaked civil war with each other. The agreement shares

Article 16 of the Rome Statute allows the Security Council to defer (but not stop) an ICC investigation or prosecution for 12 months on a renewable basis.

I believe this would be the right thing to happen now (even if it is what Bashir wants). The danger is that the indictments would destabilise the fragile peace processes in Sudan. This makes for a conflict between pursuit of justice and pursuit of peace. In this real world example the platitude that you can't have peace without justice breaks down. There may well be a trade off. As a journalist said to me last night, the longer you spend in Africa, the more likely you are to come down on the 'peace' side of this dilemma.

So I think the case for a 12 month (renewable) deferral rests on the following:

+ Damage to peace and stability in Sudan if the cases proceed and NCP reacts in a way that will damage the CPA or SPLM has to walk out

+ Time for Security Council to consider wider implications (eg. by commissioning an assessment from the UN) and exercise its wider responsibilities.

+ Leverage over the government – a kind of probation effect in which the NCP permanently lives on borrowed time… this could help with UNAMID deployment, security in Darfur… etc. Though they would still have strong incentives to cling to power.

+ Possibility to extract some important concessions from NCP in return for the deferral – forcing the government to hand over ICC suspect Sudanese Ahmed Harun to the court, for example. Bashir has refused this so far.

If this strategy doesn’t work, we can expect a different approach from the Bashir's party if and when the court issues the arrest warrants in a few weeks or months time.

At that point the prosecutor's allegations harden into charges endorsed by the court and Bashir becomes an international fugitive…. I suspect that day will be the day the charm-offensive ends and the trouble really begins in Sudan.

My contribution to the DeWaal debate: What if Ocampo indicts Bashir? The worst case scenario.

Clive Bates said...

As well as the SSRC blog, which is an excellent guide to the controversy about the ICC as it is playing out in Sudan, I'd like to recommend the response from the International Crisis Group.

This highlights the conflict between peace and justice in Sudan and lays the responsibility for resolving this conflict where it should be - with the Security Council. The question is whether the Security Council is willing to weigh these consequences and has the means to do it.

Caspar Henderson said...

Many thanks. I also found some comments from Mark Lattimer quite useful. He begins:

Justifying his move this week to seek an arrest warrant for the president of Sudan, Omar al-Bashir, the international criminal court's prosecutor, said: "I don't have the luxury to look away. I have the evidence." It was a characteristic riposte from Luis Moreno-Ocampo to a barrage of warnings last weekend that the prosecutor should not interfere with the difficult situation in Darfur and damage any last chances of a peace deal (not that in four years Bashir has ever attended the Darfur peace talks). In fact, the ICC has less room for political manoeuvre than its critics allege. That may yet prove its greatest strength...

-- continues at For all Bashir's bravado, he is marked as damaged goods