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Sudan's President Omar Hassan al-Bashir indicted by the ICC: What’s Next?
By Rumbidzai Maweni
Research Associate, Citizens for Global Solutions
On Monday, July 14th 2008, Sudan's President Omar Hassan al-Bashir became the first national leader to be indicted by the International Criminal Court (ICC).
The ICC's chief prosecutor Luis Moreno-Ocampo, filed exactly ten charges against the Sudanese leader, three counts of genocide, five of crimes against humanity, and two of murder. He has effectively accused Bashir of running the campaign of genocide that has afflicted Sudan's western Darfur region for the last four years, killing 35,000 people outright, at least 100,000 through 'slow death' and forced 2.5 million to flee their homes. Overall the UN puts the death toll at roughly 300,000.The indictment was long in coming. The crisis in Sudan's western province of Darfur, not to be confused with the Sudanese Civil Wars between north and south Sudan, began in February 2003 when the first two of several rebel groups -- the Sudan Peoples Liberation Army (SPLA) and Justice and Equality Movement (JEM) began attacking government targets claiming both neglect of the region and that the government was arming Arab militia against civilians. In response to the attacks, the Sudanese government mounted a campaign that has killed hundreds of thousands of Darfurians. Many experts claim that the violence is tribally and ethnically motivated, unlike the civil war which was along religious lines. In addition to sponsoring horseback attacks by the janjaweed, nomadic Arab militias, the Government of Sudan has launched aerial bombardment campaigns and helicopter gunship attacks against the people of Darfur, all of which President Bashir has presided over and is believed to have been complicit in.
In March 2005, the U.N. Security Council referred the situation in Darfur to the International Criminal Court (ICC) for investigation. The Security Council's referral, made through Security Council resolution 1593, obliges Sudan to cooperate with the ICC even though Sudan is not a state party to the ICC's Rome Statute.
Perhaps the first real sign to many Darfurians of the international outcry that the genocide has provoked, the response from Darfur has been strongly positive. "It's a great moment for the people of Darfur", said Tahir el Faki, the Justice and Equity Movement's legislative commander soon after the announcement in a phone interview with the Bloomberg news group. Street protests against the court by Bashir sympathizers were held almost daily in Khartoum during the first week after the charges were announced, but they have been small and without the heavy government-backing evident at some past demonstrations, indicating that civilian support for Bashir has started to diminish. A "million man march" planned for the following Monday was cancelled.
This has proved especially good news for the ICC. The ten-year old Court alongside the entire international justice process has had an uphill struggle trying to gain legitimacy on the global platform. This has primarily been because international courts do not have police forces to carry out their rulings and must therefore rely on the goodwill and support of the governments involved as well as the international community which has been far from reliable. In April 2007, the Court issued arrest warrants against Ahmad Harun, currently Sudan's state minister for Humanitarian Affairs for 42 counts and former Janjaweed leader, Ali Kushayb, for 50 individual counts, but the Sudanese government has repeatedly refused to cooperate with the Court and arrest the two suspects. The indictment of Bashir coupled with the recent arrest of Radovan Karadzic by the International Court Tribunal of Yugoslavia in Serbia has the potential to send a clear message that the international justice system is not to be taken lightly.
Yet, curiously, despite these positive signs, opposition has been voiced by various factions of the international community who believe that the indictment was unwise. Their opposition is essentially premised upon two arguments. The first is that the pursuit of justice must not undermine the "greater" pursuit of peace and security and this is what the indictment will do, prompting civil unrest and weakening the willingness of the government to cooperate with peace agreements. The second misgiving, perhaps the one that has the wider scope, is that the ruling undermines Sudan's national sovereignty and sets a bad precedent for the biased rulings of a politicized Court and even neo-colonial intervention in the affairs of developing states.
Those who believe that the Court will undermine the pursuit of peace and security are plentiful and various, from human rights groups to national governments. On Tuesday July 15th, the Brussels-based human rights group, International Crisis Group, expressed concern in a news statement that the indictment would pose, "Major risks for the fragile peace and security environment in Sudan, with a real chance of greatly increasing the suffering of very large numbers of its people."
In Washington, there has been worry that ICC charges might make President Omar al-Bashir less willing to negotiate a form of settlement for the conflict. Andrew Natsios, a former US envoy to Sudan, wrote a statement soon after the announcement of the charges expressing the concern that, "The regime will now avoid any compromise or anything that would weaken their already weakened position because if they are forced from office they face trials before the ICC." Aid agencies taking part in what is currently the world's largest humanitarian operation in Darfur also fear for the long-term deterioration of security.
These are some of the concerns upon which China has based its opposition to the ICC's charges. As has increasingly been noted over the course of the Darfur crisis, China, as Sudan's closest economic, military, and political partner is the national government most able to pressure Sudan to end the violence in Darfur as well as the violence it supports in Chad . And yet at a briefing in Beijing last week Liu Jianchao, Chinese foreign ministry spokesman, said the indictment could cause further instability in the region. " China expresses grave concern and worry about the International Criminal Court prosecutor's indictment of the Sudanese leader," he said. He added, "The ICC's actions must be beneficial to the stability of the Darfur region and the appropriate settlement of the issue, not the contrary." Mr Liu said China, which has a close relationship with Sudan, would consult with other members of the UN Security Council over the issue, but would not say if the government would use its position as a permanent member of the Council to suspend the indictment.
China, in response to the heavy criticism the country has faced for not doing enough to resolve the humanitarian crisis in Darfur, has sought to show itself as a helpful power in Darfur, coaxing Bashir to accept a joint U.N.-AU mission that took over peacekeeping in Darfur in January. But China also sells weapons to Khartoum and is a major investor in Sudan's oil, and critics claim that China's policy toward Sudan is driven by a combination of an unabated desire for natural resources as well as an ongoing attempt to position itself in Africa and globally as a non-interventionist alternative to Western dogmatism on issues of human rights and governance. Still Liu Guijin, Beijing's envoy for Darfur, insists that Beijing is primarily concerned that the charges will threaten deployment of peacekeepers and hopes for negotiations. "The United Nations is using these different measures, and it should ensure its own priorities, and the use of one measure should not undermine the other measures," Liu told a small group of reporters.
But thus far the Sudanese government has not reacted with violence, but diplomacy. Bashir's government has reacted with a strong counter-diplomatic defense seeking regional support, forming a united front with oppositional parties. "We have made it very clear we are going to pursue a diplomatic campaign, a diplomatic counter attack to explain our position," Foreign Ministry Spokesman Ali al-Sadig has reportedly said.
Bashir's diplomatic campaign has seen Sudanese officials visiting a dozen countries in the past two weeks to drum up support for the tabling of a U.N. Security Council resolution to suspend any ICC warrant for Bashir for a renewable period of 12 months. This would give the Bashir government enough time to set up special courts on the national level to look into Darfur crimes, thereby either further stalling or altogether halting the work of the ICC. Under the Rome Statute the ICC is a "last resort" court and can only step in if the local judiciary of the country in question is unable or unwilling to hold hearings that are genuine and fair. So far they have been successful in gaining the support of several Arab and African governments. The African Union, after meeting in Addis Ababa, immediately after the charges were announced, asked that the ICC "suspend" any actions against al-Bashir and criticized the ICC's indictment claiming it will not help to resolve the crisis in Darfur. The Arab League soon after their emergency meeting in Cairo the following weekend, fell in line with their support of al-Bashir. As Arab League Secretary-General Amr Moussa told reporters on the following Wednesday, "We are not convinced that the steps taken [by] the criminal court were well considered." The governments of individual Arab countries have gone on to issue statements of their own, with Egypt and Yemen expressing support for Bashir, and Iran's foreign prime minister Manouchehr Mottaki saying it viewed the ICC prosecutor's move as "unpleasant."
Yet not only has Bashir thus far not spurned Darfur peace talks as many believed he would, but rather he has been adamantly insisting that he is ready for them. He has also moved quickly to shore up relations with his afflicted neighbors, announcing last week that Sudan would restore diplomatic ties with neighbor Chad, a longtime rival that Sudan has accused of supporting Darfur rebels.
Given Sudan's failure to react with violence and aggression, China and company will be hard-pressed to prove that the ICC's move was in fact dangerous and irresponsible as they claim. It clearly has sent a message to Khartoum that the international community is no longer willing to tolerate injustice and this message will prove vital both in the process of stabilizing Darfur as well as towards deterring future acts of lawlessness on the part of the world's governments with the belief that atrocities can be committed with impunity.
The other argument that has been raised is that the indictment is an affront to Sudan's national sovereignty and a neo-colonial maneuver on the part of Western countries. This concern has been voiced most adamantly by Sudan's neighbors. Even Eritrea, which has often criticized Bashir's government, voiced support for its neighbor, calling the ICC case "an insult" and "harassment" from Western powers. Bashir sympathizers in Sudan have also have cashed in on this portrayal of Bashir's indictment as an affront to African sovereignty. Khartoum's pro-government Sudan Vision newspaper said recently that Bashir's prosecution marked a "new post-colonial period" by an "evil triangle" consisting of the U.S., Britain and France . This argument is perhaps the more precarious supposition, for the logic it is predicated upon has long-term implications that should not be taken lightly.
This narrative that casts the West as "sinisterly neo-colonial" is tired and overused, and discarding it will go a long way towards improving global governance. The notion that the leader of Sudan and countries like it should be held to a different ethical standard simply because Western countries in the past have committed atrocities on a par or worse is preposterous. Zimbabwe's President, Robert Mugabe, has used this same line of thinking for years, to secure the votes of his constituents; his loss of the popular vote in the recent March election is perhaps a testament that the peoples of these countries will no longer stand for this kind of rhetoric to be used as an excuse for leaders to govern however way they please. The international community should follow suit.
The recent arrest of Radovan Karadzic in Serbia in such close succession with Bashir's indictment has created a critical window of opportunity for international justice. The international community has a chance here to further legitimize the international justice process and its established bodies by supporting the ICC's indictment, bringing Bashir to justice by any means necessary.
"The world at-large has allowed al-Bashir to continue his reign of destruction, recalcitrance and violence with utter impunity," President of the Save Darfur Coalition, Jerry Fowler, wrote in a recent statement. "These charges must now sober al-Bashir's international apologists who continue to shield and protect the Khartoum regime from meaningful measures with meaningful consequences."
