Sudan: The Beginning of the End

On Monday the prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, presented evidence to a panel of judges asking for the issuance of an arrest warrant against Sudanese President Umar Hassan al-Bashir on charges of genocide, crimes against humanity, and war crimes for his role in the conflict in Darfur. While it is highly unlikely that a legal indictment from a tribunal sitting at The Hague will have much immediate effect on what the United Nations has termed “the worst humanitarian crisis in the world” – if anything, as some critics of the move have already argued, it might worsen the situation, at least in the short-term – the proceedings initiated signal the beginning of the end, not only for Bashir and his Arab-dominated Islamist regime, but for the geopolitical monstrosity that has been Sudan.

According to the summary of the case presented by the prosecutor to the three judges who serve as the ICC's first Pre-Trial Chamber, Bashir “bears criminal responsibility” for the consequences of his March 2003 decision to target a substantial part of the Fur, Masalit, and Zaghawa groups on account of their ethnicity after negotiations and armed action failed to end a rebellion in Darfur by insurgents who belonged mostly to the three peoples. According to Moreno-Ocampo, “His motives were largely political. His pretext was a 'counterinsurgency.' His intent was genocide.” Consequently, the legal filing argues for the Sudanese dictator's personal responsibility under international law:

At all times relevant to this Application, [Bashir] has been President of the Republic of the Sudan, exercising both de jure and de facto sovereign authority, Head of the National Congress Party and Commander in Chief of the Armed Forces. He sits at the apex of, and personally directs, the state's hierarchical structure of authority and the integration of the Militia/Janjaweed within such structure. He is the mastermind behind the alleged crimes. He has absolute control …

[Bashir] controls and directs the perpetrators. The commission of those crimes on such a scale, and for such a long period of time, the targeting of civilians and in particular the Fur, Masalit and Zaghawa, the impunity enjoyed by the perpetrators, and the systematic cover-up of the crimes through public official statements, are evidence of a plan based on the mobilization of the state apparatus, including the armed forces, the intelligence services, the diplomatic and public information bureaucracies, and the justice system.

The prosecutor sketched the outlines of a ten-count indictment that would include three counts of genocide for killing members of the Fur, Masalit and Zaghawa ethnic groups, causing those groups serious bodily or mental harm, and inflicting “conditions of life calculated to bring about their physical destruction“; five counts of crimes against humanity for acts of murder, extermination, forcible transfer, torture, and rape; and two counts of war crimes for attacks on civilian populations in Darfur and for pillaging towns and villages in the region.

It will now be up to the judges to review the evidence submitted and determine whether or not to issue an arrest warrant as requested by the prosecution. If and when one is issued, it is not likely to have much immediate effect. In fact, two other Sudanese officials, Minister of State for Humanitarian Affairs Ahmad Harun and Janjaweed militia leader Ali Kushayb, were indicted by the ICC last year. Not only are both still free, but, as the prosecutor's own brief complained, after the tribunal's decision “Bashir traveled to Darfur with Harun and publicly announced that he would never hand Harun over to the ICC; to the contrary, Harun would continue working in Darfur to implement his orders.”

The jurisdiction of the ICC over the situation in Darfur derives from UN Security Council Resolution 1593 (passed 11-0, with four abstentions in March 2005), which invokes Chapter VII of the world body's Charter to declare that “the situation in Sudan continues to constitute a threat to international peace and security” and to refer events in Darfur from July 1, 2002, to the tribunal. While Sudan is not a party to the Rome Statute establishing the ICC (neither is the United States), the Chapter VII referral made any resulting issues a global concern of the UN Security Council. However, it would be unrealistic to expect the Security Council to act vigorously in support of the proceedings which it itself set in motion. Just last Friday, after weeks of expressing moral outrage over the violence and electoral fraud carried out in Zimbabwe at the behest of that country's despot, Robert Mugabe, the Security Council failed to pass a resolution that would have imposed an arms embargo that would have at least proscribed the sale of arms to the regime and placed financial and travel pressure on its key members. Not only did the People's Republic of China and Russia veto the measure on the grounds that it amounted to interference in Zimbabwe's internal affairs, but the African continent's would-be leader, South Africa, tossing aside whatever shreds of moral authority it once had to decide that revolutionary solidarity with Mugabe trumped moral clarity, likewise voted against the measure. And even before Moreno-Ocampo presented his evidence, UN Secretary-General Ban Ki-moon was distancing the world body from the court it had asked to investigate the Darfur crisis, telling the Sudanese ruler that “the UN Secretary-General does not have any influence on the ICC Prosecutor” (Ban's office even issued a press release on the conversation).

Despite the unlikelihood of immediate execution of any arrest warrant forthcoming from the ICC, an indictment will not be without its consequences. In a posting last Saturday on the website of the Social Science Research Council, former United States Agency for International Development (USAID) administrator Andrew Natsios, who served from 2006 until 2007 as the President's Special Envoy for Sudan, complained that judicial action was “a disaster in the making“:

An indictment of Bashir will make it much more difficult for any country or international organization to help negotiate a political settlement with the Sudanese government. Some forms of pressure may force the Sudanese government to negotiate a political settlement, some will only make their leaders more intransigent: an indictment is clearly in the later category. 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. Free and fair elections are now much less likely, if they ever happen. They are much more likely to be rigged or if Bashir's party looses them they will refuse to comply with the results just as Mugabe has in Zimbabwe.

The perspective of Dr. Natsios is one which I have considerable sympathy with. In a 2005 article in The Long Term View, the public policy journal of the Massachusetts School of Law at Andover, reflecting on the case of Liberia's Charles Taylor, another African head of state who was indicted by an international tribunal, I argued:

[L]eaving a “thug” like the Liberian leader no options to withdraw only encouraged him to fight it out to the bitter end, taking hundreds, if not thousands, of innocents with him, and worsening the conditions of life for those who survived, before finally retiring …

Clearly, there are no easy answers. However, in many transitional situations, it is of paramount importance that the thugs who have mismanaged states and terrorized peoples be removed from the political scenes of their respective countries. Only then can stable environments be built that can lead to elections and the establishment of accountable democratic governments. The retirement of the former rulers might well be the price, however controversial, that will need to be paid to avoid the dangerous situation of isolated and desperate thugs who see no way out other than to fight to the end, dividing and destroying their countries in the process …

Dogmatic absolutism may serve the theologian whose calling is to distinguish between good and evil in the realm of the spirit, but it is of little use to the statesman who must, in the real world, balance conflicting aspirations and competing interests and seek an outcome that optimizes the greatest good for the largest number of people, especially those who suffer under the rule of the world's “thugs.”

However, the case of Sudan is different precisely because the very existence of the unitary state has been at the root of conflict and injustice there. Undoubtedly, the proceedings initiated against Bashir will immensely complicate the lives of diplomats seeking to keep myriad ramshackle accords and processes on life support. Moreover, hardliners within his National Congress Party (NCP) will resist further cooperation, not only with undermanned hybrid African Union/United Nations force in Darfur (UNAMID) which lost seven peacekeepers to an ambush just last week, but also slow down their already-lagging implementation of the 2005 Comprehensive Peace Agreement (CPA), which ended the decades of civil war between the Arab-dominated Muslim north of the country and South Sudan, where the population is largely Christian or adherents of traditional African religions, that had taken the lives more than two million people, mostly South Sudanese. The risk is that the humanitarian operations keeping more than two million Darfurians alive will be further compromised and, just as likely, recent fighting between forces answerable to the NCP-led central regime in Khartoum and those belonging to the Government of South Sudan (GOSS), led by the Sudan People's Liberation Army/Movement (SPLA/M), over the oil-rich Abyei district – on which I reported most recently in this column last month – will resume. In fact, in advance of the anticipated warrant application, Bashir last week suspended Pagun Amum, secretary-general of the SPLM, from the on-again-off-again “government of national unity” created by the CPA in which he served as cabinet affairs minister. The number two in the SPLM was being subjected to a judicial investigation for having told a forum on press and political freedom that Sudan was a “failed and corrupt state.” According to a source in Khartoum, the NCP regime was considering whether or not to indict Pagun Amum for treason. And, as Dr. Natsios correctly points out, an indictment makes the elections, scheduled for next year, even less likely to be free and fair (see my May 15 report on the continuing breakdown of the CPA).

A resumption of the North-South conflict, possibly beginning in Abyei, and political attacks on Southern leaders participating in the ostensible “national unity” effort underscore the fragility of the situation in Sudan, even before the developments at the ICC. An indictment of Bashir will weaken his regime even further as it increases the diplomatic costs for other governments should they choose to deal with him. As my friend Professor David Crane, the prosecutor of the Special Court for Sierra Leone who won the indictment of Taylor, told the Voice of America, the fact that charges were even presented signaled “the beginning of the beginning of the end of President Bashir as far as his place as a leader in Africa.”A special report “China's Secret War,” which aired Monday evening on BBC One's investigative news program Panorama, documents how, in contravention of an arms embargo, Beijing continues to arm Khartoum's forces (see also my report earlier this year on the Sino-Sudanese partnership). While no one expects the communist mandarins to cut their ties to one of their largest petroleum suppliers, they will now be forced to face further opprobrium for continuing to support a formally-indicted war criminal. Just the publicity that Hu Jintao and comrades want less than four weeks before the opening of what has already been labeled the “Genocide Games.”

Hence, while rough patches lie ahead, Monday's warrant application may well mark a watershed in the progressive isolation of the Khartoum regime as well as the continuing break-up of the artificial Sudanese state as rigged elections and other tensions lead to the collapse of the CPA and South Sudan then declaring its sovereign independence without waiting for the scheduled 2011 referendum foreseen by the accord. The break-up of Sudan would then deprive the NCP regime of the resources – recall that almost all of the country's proven reserve of 6.4 billion barrels of petroleum are found in the South – which it has hitherto used to buy loyalty from the Arab Muslim population at the center and oppress the peoples of the periphery in places like South Sudan and Darfur. That would not only spell the end of an Islamist regime that once hosted Usama bin Laden and al-Qaeda, but would also deal a major setback to mainland China's strategy of penetrating Africa and, through marriages of convenience with local despots, acquiring privileged access to natural resources to fuel its rise to great power status while setting back democratic progress on the continent. Thus, in a broader perspective, indicting the Sudanese tyrant is not only a victory for the campaign against impunity in the case of one man, it may well also open the way to ending a whole series of conflicts and present a historic opportunity for both Africans and their American friends.