(Sarah Washburne is a doctoral student at the University of Exeter. She contributed this article from Khartoum.)
For another view on the ICC decision, see Khalid Mustafa Medani, “Wanted: Omar al-Bashir — and Peace in Sudan,” Middle East Report Online, March 5, 2009.
On the day after the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar al-Bashir, the wanted man addressed a pre-planned rally of thousands in front of the presidential palace in Khartoum. Bashir was defiant, denouncing the warrant as “neo-colonialism,” and praising his supporters in Martyrs’ Square as “grandsons of the mujahideen,” a reference to the participants in the Mahdiyya uprising against Anglo-Egyptian rule in 1885. The atmosphere was almost one of jubilation; one might have mistaken the crowds for soccer fans celebrating a win. As Bashir condemned the ICC and the West from the microphone, the protesters waved the Sudanese flag and held aloft pictures of Bashir, as well as posters depicting the face of Luis Moreno Ocampo, the ICC prosecutor, superimposed upon the body of a pig. There were sporadic outbreaks of drumming, dancing and singing.
It is easy to dismiss the March 5 rally as just another show staged by an authoritarian regime. Yet smaller groups of protesters could be found throughout the streets of Khartoum. Roadside spectators shouted chants of support as the demonstrators passed by; cars plastered with Bashir posters zipped through the capital with horns honking. Indeed, the Bashir regime does have a strong, loyal base in the central region of the country, which is, after all, some 600 miles from the far western province of Darfur, where the crimes against humanity and war crimes that the president is accused of orchestrating have taken place.
Within days of the ICC’s announcement in The Hague, protests in Sudan had dwindled, in line, perhaps, with the official position of the government, as outlined by ‘Abd al-Rahman Ahmad Khalid Sharif of the Foreign Ministry, that they are “not concerned” by the warrant. Many analysts think that, if Bashir is held accountable to international law, some sort of change of leadership may take place in Sudan. The International Crisis Group, for instance, reports that in light of the “internal tensions within the regime, the indictment itself may provoke change.” Yet the question remains: Was the decision to indict a sitting head of state a wise one, and what effect will the decision have upon the future of Sudan?
“Why Should We Worry?”
The ICC has charged Bashir with five counts of crimes against humanity (“murder, extermination, forcible transfer, torture and rape”) and two counts of war crimes (“intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities and pillaging”). The court concluded that there was not enough evidence to charge the president with genocide, as the violence inflicted upon the population of Darfur has sometimes been called. Moreover, the judges stated that it is the responsibility of the government of Sudan to turn Bashir over to the court. They also called upon all signatories to the Rome Statute, which established the ICC in 1998, and the United Nations, as well as those states that are not members (as Sudan is not), to aid in securing Bashir’s surrender.
Realistically, it is far from certain that the Sudanese junta will give up its leader; countries in the Arab League and African Union, which vocally opposed the indictment, as well as China, may likewise be loath to cooperate. “Why should we worry about the ICC issue?” the Eritrean minister of information asked a curious reporter on the occasion of Bashir’s first trip abroad after the warrant was issued. On March 23, however, the Committee of Islamic Scholars, Sudan’s highest Muslim religious body, released a fatwa recommending that the president not travel to Qatar for the Arab summit to be held at the end of the month.
Should Bashir remain at large, the case would be remanded to the UN Security Council, which could impose further sanctions and even authorize the use of force to apprehend him. Deadlock among the Council members, however, would preclude such measures. Given the unlikelihood of an actual arrest, what does the warrant actually achieve? Many long-time Darfur activists, such as the prominent actor George Clooney, have appeared on international news channels to say that the international community must look to the possibility of an arrest in the future. This possibility in and of itself, he says, will deliver some justice to the people of Darfur. But while the legal aspects of the case may be debated for years to come, the immediate political ramifications are undoubtedly of more importance. The ICC, of course, is a judicial institution that should not be swayed by political considerations. But once the court decided to prosecute a sitting head of state, the entire situation turned political. It had to. The history of the Bashir regime, and the present state of affairs in Sudan, make it clear that the political outcome of this ruling can only be negative.
Outcomes Likely and Unlikely
Idealism aside, it should be assumed that the decision to prosecute Bashir was taken knowing full well that the result will not be an actual arrest of Bashir, at least not in the near future. The ruling sends one clear political message: that no one who commits war crimes, not even a sitting head of state, is immune from justice. Yet many Darfur activists would like to see other political consequences. Firstly, there is hope that the warrant will help to end the war in Darfur, even if there is not an arrest. Secondly, the warrant may encourage dissent against Bashir within Sudan, leading to his removal by internal or external forces. (Bashir accuses the ICC of plotting “regime change.”)
Any immediate push to end the war in Darfur is unlikely, however. In the past, the Bashir regime has shown that it demands respect, not condemnation, in order to cooperate with the international community. In addition, the two main rebel groups in Darfur, the Justice and Equality Movement and the Sudan Liberation Movement-Minnawi branch are now less likely to participate in meaningful peace talks.
The Bashir regime, from its beginnings in 1989, has been characterized as a dictatorial Islamist junta, but it is also a pragmatic government influenced greatly by “symbolic politics.” When the regime has felt threatened, as in 1993 when it was placed on the US list of states that sponsor terrorism, it has backed into isolation. When given certain concessions, however, Khartoum is willing to engage the international community. The early years of the George W. Bush administration are a prime example. The Clinton years had culminated in the US bombing of the Shifa pharmaceutical plant in Khartoum in 1998. In the summer of 2001, the Bush administration showed signs of taking a different approach, aided by the 1999 “palace coup” in Khartoum that saw the ouster of the government’s key Islamist ideologue Hasan al-Turabi, who is said to have personally invited Osama bin Laden to live in Sudan in the mid-1990s. Then, the September 11, 2001 attacks occurred, and the two governments began cooperating in counter-terrorism matters. Though Sudan remains on the state sponsors of terrorism list, in 2007 the State Department called Sudan “a strong partner in the war on terror.” In the meantime, the Bush administration, under pressure from conservative Christians and the Congressional Black Caucus, pushed Khartoum and the southern Sudan People’s Liberation Movement (SPLM) to sign the Comprehensive Peace Agreement (CPA) of 2005. Whatever Bashir’s intentions, he did pull the junta out of isolation on this occasion, and, for the most part, the CPA has held. As the international media and human rights groups turned the spotlight on the Sudanese government for its actions in Darfur, the regime, feeling threatened, fell back into its old ways.
There has been no coordinated international strategy for dealing with the Darfur crisis, as there was with southern Sudan starting. The West, and in particular the United States, has sent mixed signals about Darfur, which have in turn been overshadowed by immense pressures from non-state actors, namely NGOs and the media. The media’s preoccupation with Darfur, and the claim of genocide, was a nuisance for Bashir. It now appears to the regime, however, that human rights groups and the “Zionist” media have exacted their “revenge” through the justices in The Hague.
Meanwhile, the arrest warrant has emboldened the Justice and Equality Movement, which sat down for talks in Qatar with interlocutors from Khartoum in mid-February. The talks were a tentative step in the right direction. The Justice and Equality Movement leader, Khalil Ibrahim, now takes a hard line. In a press release on the group’s website, Ibrahim is quoted as saying: “Bashir refuses to surrender? We’ll just go in and drag him out of his palace…. Any chance for a deal is over.” The other main Darfuri rebel movement, the Sudan Liberation Movement-Minnawi, signed the Darfur Peace Agreement with the government in 2006. The group’s leader, Minni Minnawi, now holds an official position as presidential adviser to Bashir, and on March 4 he said he remained committed to implementing the 2006 accord. On March 6, however, the movement issued a statement “strongly supporting” the ICC decision, and blaming Bashir’s National Congress Party for rendering Sudanese courts too anemic to adjudicate the Darfur charges themselves. Party spokesmen insist there is no contradiction, but theirs is a strange position. Sudanese rebel movements are unpredictable, and it may be the renewed fighting in Darfur that has led to their change of attitude. But the ICC warrant definitely affects the groups’ media strategy: They want to be seen as in line with the weight of international moral opinion. No matter the reason of the rebel factions, their relationships with Khartoum are quickly worsening pursuant to the indictment.
A rapid change of government in Sudan is as unlikely as an early peace in Darfur. Public opinion in Khartoum is varied on the subject of the ICC decision. Informal conversations show that, in spite of general antipathy for Bashir’s party, many regard the warrant as a form of imperialism infringing upon national sovereignty. Others feel that the label of “neo-colonialism” promoted by the state-run media is a propaganda tool that clouds Bashir’s role in the country. Some voice the opinion that it is time for Bashir to go, not necessarily because of the ICC warrant, but because “20 years is enough.” Overall, since there are strict laws limiting freedoms of speech and assembly, the population is keeping mum and staying at home.
Dissension within the government, in theory, is another path to an alternation of power. The National Congress Party dominates the current coalition government. Some Sudanese think that the party will kick Bashir out of the presidential palace, but decline to hand him over to the ICC, for the sake of their own survival in power. Bashir, however, maintains the firm support of the army, which has always been key to the rise and fall of Sudanese regimes. There are also opposition parties in the parliament and the cabinet; the first vice president, Salva Kiir, is a southerner from the SPLM. Officially, these parties are not supportive of the ICC decision. Certain fringe parties, such as the United Democratic Liberal Party, or more established, but weak ones such as the Communist Party or the Islamist People’s Congress Party, led by Turabi and said to be a key supporter of the Justice and Equality Movement, wholeheartedly support the decision. “Politically, we think he is culpable,” Turabi has said of Bashir. But these figures have no clout with the government.
The oldest and best-established parties in the country — the Umma Party and the Democratic Unionist Party — have been unable to present a united front. Publicly, party members have contradicted themselves, at times hailing the ICC decision and at other times saying that any judicial process should be internal. On paper, the Democratic Unionist Party is categorically against prosecution of a head of state by an international institution. The leader of the Umma Party, Sadiq al-Mahdi, head of the democratically elected government overthrown by Bashir and his fellow officers in 1989, was initially supportive of the ICC indictment. Al-Mahdi backed away from this position once the arrest warrant was issued, saying that foreign intervention was not justified. Mid-level members of the two parties hold differing views. No matter their view on the subject, however, there is a constant theme: Politicians from all backgrounds fear that Bashir will use his authoritarian powers to delay the elections tentatively set for July 2009, thus preventing the current march towards a return to democracy.
The Southern Perspective
The SPLM is in a precarious position. On the one hand, the SPLM fought what was, at the time, the world’s longest-running civil war against the central government. On the other hand, it is now the second-largest partner in the government in Khartoum. Many of the accusations made against Bashir about Darfur were also made during the war in the south; an estimated 2 million people died during the fighting. The mission of the SPLM has always been to bring about a “new Sudan,” one that embraces religious and cultural pluralism and creates a genuine democratic process in all of the country. While this goal was originally to be achieved by forcibly seizing the state, since the signing of the CPA, the SPLM has changed its tune. In its amended manifesto, the movement states, “Using all legitimate peaceful means at its disposal, the SPLM shall continue to its struggle to build a new socio-political order.” In the minds of the SPLM, this wording refers to change through elections, not a coup or outside intervention. In fact, the movement believes it will win the July presidential election, as long as the electoral process is free and fair. National and local legislative elections are to take place concurrently. One SPLM state minister says he is convinced that the party has support all over Sudan since the traditional parties are outdated and Bashir’s party is generally despised. Interviews with numerous members of the SPLM political secretariats in the southern towns of Bor, Wau and Juba reveal persistence in the goal of having a southerner as president of the entire country. Any disruption of the CPA, however, would jeopardize this dream.
The peace between the north and south not only gave the SPLM autonomous control over southern Sudan, but it also gave the movement 28 percent of cabinet seats and the first vice presidency. All of the SPLM’s future aspirations rest on the full implementation of the CPA and the upcoming elections. A key factor here is a healthy and productive relationship between the National Congress Party and the SPLM. Publicly, therefore, the movement fully backs Bashir in the ICC matter. Their reasoning has less to do with dislike of foreign intervention than with fear that the peace process will be derailed. Salva Kiir, the SPLM chairman, headed a crisis committee to exert diplomatic efforts to defer the indictment. Lam Akol, foreign minister from 2005 to 2006 and leader of a dissident SPLM faction, also said that the movement should support Bashir because they are now partners in government. In an interview held days before the ICC decision, he outlined the SPLM’s logic:
[The SPLM and NCP] are partners in the agreement. The agreement provided that the two must be partners in implementing the CPA…. But, of course, there are countries in the West that would want to use the SPLM as a lever to continue pursuing their policies against the National Congress. And I, as a person, do not like that because once we have signed an agreement, we have to see that agreement through…. Because this regime that we want to change now includes us. How do we absolve ourselves from this responsibility?
Privately, however, many SPLM members are on the fence. They sympathize with Darfuris, and perhaps would like to see a change of government. Many SPLM members are especially upset at the expulsion of aid groups from Darfur. SPLM civil servants working in capital say they are reluctant to endorse the ICC decision because of the possible consequences for the peace agreement. Many are taking a wait-and-see attitude. If the arrest warrant is pursued and the CPA holds, then they will herald the arrest. If the CPA suffers, then they are against the ICC ruling. Other SPLM representatives and members are less hesitant. Edward Lino, the former administrator of the oil-rich southern province of Abyei, where Khartoum has been slow to cede autonomy, has said that Bashir must hand himself over or “commit suicide.” Others believe that there is no reason for the ICC move to affect the SPLM’s position in Khartoum since the court is after a single individual, not the entire government. In an interview, one official from the SPLM-Northern Sector said the movement “cannot support the ICC and cannot support Bashir,” simply because it has no dog in the fight.
For many ordinary southerners, who after all were chief among the victims of the civil war, the warrant is a sign from God that Bashir will get what he deserves. There is a near universal support for the ICC ruling among southern Sudanese living in the south, excepting those few who are members of Bashir’s party.
To review, it is unlikely that Bashir will be arrested; that the war will end; or that the regime will fall, either to external or internal foes. One begins to question if the indictment of Bashir is constructive. Negative outcomes of the ICC ruling are already a reality. Khartoum has revoked the operating license of 16 aid agencies, and foreign staff has been expelled from northern Sudan, putting at risk the welfare of thousands, if not millions, of Sudanese internally displaced by war. Naturally, these actions are themselves criminal under international humanitarian law, but they are a logical reaction to the threat that Khartoum perceives. For all its bellicose rhetoric, the regime is indeed worried about its own future. It deals with perceived threats by lashing out, and the aid groups are conveniently at hand.
Longer-term effects are also likely to be unsettling. The anticipated July 2009 elections would be the first held in the country since 1986 and the first comprehensive elections ever in all of southern Sudan. The National Congress Party now fears, naturally, that a challenger might win the presidency. Sudan’s foreign policy might change thereafter; it is even conceivable to Bashir and his backers that a successor would sign the Rome Statute. As nerves fray in Khartoum, Bashir might preempt this eventuality by delaying the elections indefinitely. That step would imperil the CPA, which stipulates that elections must be held before a referendum on independence in southern Sudan in 2011. The government has promised that the arrest warrant will not affect the north-south agreement. In a country that is very unstable at the margins, however, anything is possible.
Finally, and perhaps most detrimental to the long-term resolution of political conflicts in Sudan, the ICC decision gives Bashir an excuse to plunge his country back into the injurious isolation of the first decade of National Congress Party (then called the National Islamic Front) rule. During this decade, the government gave Osama bin Laden refuge; was allegedly involved in an assassination attempt upon Egyptian President Husni Mubarak during a visit to Addis Ababa, Ethiopia; and was the only African state to support Iraq when it invaded Kuwait. As it shrinks from engagement with the West, Khartoum is relying on traditional allies in the Arab and African regions, as well as China. These countries, however, are unlikely to be able to help Sudan solve its problems. Regional initiatives to end the war in the south, for example, were miserable failures. The Egyptian-Libyan initiative accomplished nothing. The Inter-Governmental Authority on Development, an African-sponsored peace process, was unsuccessful until the US gave it a push. Had the ICC accused the Sudanese president of war crimes in 2003 or 2004, it is unlikely that the negotiations with the SPLM would have been successful. Most likely, the war in southern Sudan would still be going on.
The path forward the international community, now that Pandora’s box has been opened by the ICC decision, is hazy. Certainly, the Security Council could put the warrant on hold for a year pending political progress in Darfur or until the elections are held. As long as the accusatory rhetoric remains, however, the regime will continue to be defiant. If, on the other hand, the West chooses to accommodate the regime somehow, it will throw the legitimacy of the ICC into question. In other words, the international community, and specifically the West, must tread lightly. The discrepancy between moral responsibility and pragmatic diplomacy is significant. In order to produce imperative short-term benefits in Sudan, long-term objectives of prosecution of Bashir and changing the country’s leadership might have to be put aside.