By all accounts, the court’s decision to pursue a war crimes trial against a current head of state is an important historical precedent for the cause of international justice. If the decision makes even one other person in power control the impulse to quash dissent with violence, it will have been worthwhile. Few think, of course, that Bashir will be taken into custody any time soon. Sudan is not party to the Rome Statute creating the ICC, and even UN Security Council Resolution 1593, which referred the Darfur matter to the court in 2005, says that Khartoum has “no obligation under the Statute.” The real debate pertaining to Sudan at the moment is whether this indictment will actually be useful in forwarding peace negotiations and ending the war in Darfur. Human rights organizations and other proponents of the ICC option, including Bishop Desmond Tutu, cite the heightened pressure that Khartoum will presumably now feel to resolve the conflict through political rather than military means. On the other hand, critics, including the African Union and the Arab League, argue that Bashir’s incentive to resume peace talks will be reduced.
What is missing in this debate is the question of how to bring about a durable resolution to the Darfur crisis in the long term. Bashir, after all, is a single leader among many others responsible for the mass murders in Darfur. The problem for Sudan, and for the people of Darfur, is much larger than the president. His arrest — should it transpire — would be a first step toward achieving a semblance of justice for the thousands murdered at his behest. But even trial and punishment for Bashir would not temper the authoritarian nature of the regime in Khartoum or halt the horrific violence against the Darfuri people. What is needed is vigorous international diplomacy to boost the prospects of clean elections in 2009 and to extend the provisions of Khartoum’s peace deal with the rebels in the south to the rest of the country.
Deflecting the Outrage
The level of the violence is down from the plateau it reached from 2004, when former Secretary of State Colin Powell famously labeled the regime’s counterinsurgency “genocide,” to May 5, 2006, when Khartoum signed the Darfur Peace Agreement in the Nigerian town of Abuja. Starting in 2003, unwilling to accede to rebel demands for greater autonomy, Khartoum organized and armed bands of “horsemen with guns” (janjaweed) to wage a scorched-earth campaign in Darfur, while warplanes of the Sudanese air force bombed and strafed indiscriminately. The revolt has not yet been quelled, and the toll upon civilians has been appalling. According to (possibly conservative) UN estimates, the war has taken over 300,000 lives and displaced over 2.7 million people, many of whom languish in refugee camps in neighboring Chad or equally squalid tent cities for the internally displaced. Nor has the violence abated after the 2006 accord, despite Bashir’s October 2008 statement, “There are no problems and life is very normal.” Fighting between government-backed militias and rebels, as well as among rebel groups, killed well over 1,000 people in 2008, and UN Secretary-General Ban Ki-Moon said an additional 230,000 people were displaced between January and October. UN figures for 2008 also show escalating attacks on humanitarian aid workers, with 11 staffers killed and 36 wounded.
For a long time, Khartoum denied any role in the depredations of the janjaweed, ascribing reports of violence to tribal disputes. But extensive eyewitness testimony, and government documents obtained by Human Rights Watch in 2004, proves definitively that the militia raids were ordered by the regime. The previous year, the regime had released from “house arrest” one Musa Hilal, leader of thuggish precursor gangs to the janjaweed, and directed him to muster the troops. Khartoum’s next strategy for deflecting the growing international outrage over Darfur was to scoff at it, pledging to ignore any attempt to bring the tools of international justice to bear. It was no careless clerical error when the regime switched the portfolio of Ahmad Haroun, one of the two figures indicted by Ocampo in 2007, from minister of interior to minister of state for humanitarian affairs.
But as momentum built for an indictment of Bashir himself, Khartoum mounted a diplomatic offensive at the Security Council, arguing that the measure would endanger ongoing talks regarding both Darfur and southern Sudan, as well as the lives of aid workers serving the displaced. Khartoum asked the Security Council to invoke Article 16 of the Rome Statute, which allows the world body to defer action on ICC charges for up to one year. Not surprisingly, the regime found support for its position in letters sent to the Security Council by the Sudan Workers Trade Unions Federation, which (as in many other Arab countries) is an arm of the state, and the Sudan International Defense Group, a “non-governmental committee” established by the regime for the express purpose of lobbying the UN about the ICC decision. The regime has also found backers in neighboring presidential palaces, where there is little enthusiasm, to put it mildly, for the Bashir precedent. Egyptian state radio, echoing a common refrain of Khartoum’s, blasted the “double standard” whereby Sudan attracts the ICC’s scrutiny while Israel’s “massacres and genocide” and “the former US administration’s violations in Iraq and Afghanistan” do not. Toward the end of February, Bashir traveled to Cairo to extract another public denunciation of the ICC’s intervention from Egyptian President Husni Mubarak himself.
Khartoum has several bedfellows, but none stranger than the conservative American evangelist Franklin Graham, head of the missionary organization Samaritan’s Purse and a key figure in the decades-long campaign by the Christian right to wring a punitive Sudan policy out of Washington because of persecution of Christians in south Sudan. Graham, who has repeatedly labeled Islam an “evil and wicked” religion, has met with Bashir on more than occasion to secure protection for his missionary activities in the south and, while he is at it, spread the good word in the office of the president. “I would like to convert every person I meet,” Graham said in 2007. But the conversion seems to have worked the other way. Graham took to the op-ed page of the New York Times on March 3 to argue that peace agreements in the south are in peril thanks to the ICC. “Mr. Bashir, who fought members of his own party to approve the deal, is critical to the peace process,” he wrote, as if the junta in Khartoum is a one-man dictatorship. Here the preacher essentially ventriloquizes Sudan’s head of intelligence, arguably the most powerful man in Sudan after Bashir, who has warned that Khartoum “would revert to more hardline Islamist policies if there is a push to put Bashir on trial.”
Khartoum’s threats have not, of course, been entirely empty. On March 4, the regime decreed the explusion of several charitable organizations, including Oxfam and Doctors Without Borders, offering succor to the war refugees. “The humanitarian impact of this is massive,” a UN official told the Washington Post. But the Security Council has not budged on the Article 16 demand, sticking to the position announced by its most powerful member, the United States. “Those who are guilty of crimes against humanity should face justice,” said State Department spokesman Gordon Duguid. “The delay or deferment of the ICC warrant is not something that the United States is looking at right now.” (The Obama administration’s “support” for the ICC is somewhat confusing, since it has yet to reaffix the US signature to the Rome Statute out of concern that US military personnel might one day be prosecuted in The Hague. This is the same concern that led the Bush administration, which was ideologically hostile to international justice mechanisms, to “unsign” the treaty in 2001.) Supporters of the arrest warrant insist that it will intensify Khartoum’s international isolation to the point that Bashir’s fellow generals will eventually hand him over. “All the diplomatic sound and fury emanating from Bashir’s palace these days signifies nothing,” one such supporter, John Prendergast of the Enough Project, told the Christian Science Monitor on February 24. “The arrest warrant will have severe repercussions. If he laughs in the face of international justice, he will join the likes of [Slobodan] Milosevic and [Charles] Taylor who similarly laughed at their indictments but who ultimately ended up in custody.”
Knack for Survival
To be sure, and regardless of who is right about the arrest warrant’s immediate effect, the ICC decision against Bashir represents a remarkable symbolic victory for the people of Darfur and their supporters. Ocampo would win even more friends in Darfur and in Sudanese opposition circles if he requested authority to apprehend ‘Ali ‘Uthman Taha, the second vice president of Sudan who managed the Darfur file from 2003 to 2004 and is widely believed to be the official who unleashed Musa Hilal and his minions on “the zurga,” a racist epithet that Khartoum and the janjaweed use to describe “the blacks” resident in Darfur. Taha is named several times in Ocampo’s application for arrest of Bashir, and an Associated Press story in 2008 posited that he is next in the prosecutor’s crosshairs. Perhaps in response, the second vice president (a southerner has been first vice president since 2005) has mostly been keeping a low profile, “under the ICC radar” as Sudanese wags put it. He did surface at the end of February in Turkey, where he asked the Ankara government to use its seat on the Security Council to invoke Article 16.
It is important, however, that the agenda of those concerned about Darfur not stop with arrest warrants. In particular, supporters of justice for Darfur should focus on assisting civil society organizations in advance of parliamentary elections scheduled to be held by July, by the terms of the 2005 Comprehensive Peace Agreement (CPA) signed between Khartoum and the Sudan People’s Liberation Movement of the south, to ensure that these contests are free and fair.
Understandably, the human tragedy of Darfur has eclipsed nearly all else in Sudanese affairs, and it may sound odd to speak of elections when the ruling National Congress Party, the face of the junta that staged a coup in 1989, has monopolized political power for nearly two decades. One should not, however, underestimate the vibrancy and resiliency of democratic forces in Sudan. There are a number of popular opposition parties planning to vie for control of Parliament, including the Umma Party, the Democratic Unionist Party, the Sudan People’s Liberation Movement and a range of Darfur-based parties, including the two major rebel factions, the Justice and Equality Movement and the Sudan Liberation Movement. The ruling party will certainly win a majority in the next assembly, but the coalition in opposition could be considerably strengthened if regime vote-rigging efforts are kept to a minimum. Many Sudan watchers dismiss the opposition parties because they seek to reform rather than overthrow the existing regime, but in the opposition’s view, they are merely engaging in the politics of the possible. The regime has exhibited quite a knack for survival, having broken a previous power sharing agreement with the Umma Party in 1999 without penalty and then successfully ousting Hasan al-Turabi, the Islamist thinker once thought to rule in condominium with the generals. Since 2001, the regime has been further emboldened by newfound oil wealth and enlistment on Washington’s side in the “war on terror.” The prominence of Sudan hawk Susan Rice among candidate Barack Obama’s foreign policy advisers led to speculation that Obama would reverse the slow “normalization” of relations with Khartoum, but as ambassador to the UN Rice will execute rather than fashion policy, and there is no indication yet that Sudan policy will change dramatically.
The 2009 elections, more than the ICC decision, have promise to resolve the Darfur crisis in the long term, if the demands of Sudanese opposition parties are met. They call for release of census results, so that the number of eligible voters is public knowledge. They want repeal of a host of press censorship laws, the infamous national security law restricting freedom of assembly and the land commission law that leaves the demarcation of constituencies under the purview of the Bashir regime. As most Sudanese know full well, it is impossible to hold representative elections in the south during the rainy season between May and September, and accordingly the opposition demands that the contests be deferred until the fall. Any meaningful election in Sudan will depend on satisfying the above requirements. The regime has balked at them so far, and instead seeks to accelerate the electoral timetable to limit the campaigning opportunities of the opposition, despite the fact that the registration of voters is not yet underway.
Why should Bashir, who has called the ICC and the UN “tools of the new colonialism,” be amenable to international pressure backing the opposition’s demands? One reason is that the regime can ill afford to scare away the foreign investment that has been attracted to Sudan since oil was discovered in large quantities. The generals also do not want to risk their own stake in the country’s wealth. Another source of leverage is that Khartoum is betting that if it shows seriousness on the issues of peace and democracy, prosecution of Bashir and others “can be easily forgotten,” in the words of government spokesman ‘Abd al-‘Ati Rabi‘. International pressure must be exerted to make sure both the Khartoum regime and the Sudan People’s Liberation Movement consult with other parties in setting a new date for elections after release of the census and the rainy season. Independent election monitors must be sent to help ensure that the opposition candidates get a fair shake in the actual balloting. As the presence of independent monitors, which would be a first in the democratic experiments of Africa’s largest country, is a major demand of the Darfuri rebel groups, it is the best way to undercut Bashir’s efforts to exploit the increasing factionalism among Darfuris.
Hardly content to rally opposition to the ICC indictment, Bashir and his fellow generals are manipulating the internal politics of the Darfur rebellion, signing a declaration of intent to talk peace with only one insurgent faction, the Justice and Equality Movement, in Doha, Qatar on February 17. The parties vaguely pledged “to remain engaged in the peace process and to maintain representatives in Doha to prepare a framework agreement for the final talks.” Additionally, they agreed to the concept of a prisoner exchange and to permit humanitarian aid to reach the people who need it. Sudan’s ambassador to the UN claimed that Khartoum wants a comprehensive peace in Darfur “within three months.” But the Doha understandings do not even include a ceasefire. In the weeks after they were concluded, the government turned around and ordered its forces to join with the janjaweed and their former adversaries, the Sudan Liberation Movement’s Minnawi faction, to attack Justice and Equality Movement bases in Darfur in a strategy of divide and conquer.
Darfuris, for their part, have resisted the regime’s tireless propaganda machine that justifies attacks by “Arabs” like the janjaweed against “blacks” like them. They know that the junta manufactured this racialized framing of the conflict in order to soothe the consciences of the janjaweed, who have little relation to the tribal constellations in Darfur, as they rape and pillage. And, though for some time various would-be saviors of Darfur in the West (like Franklin Graham) parroted the nonsensical storyline of “Arab-on-black” violence, the people who live there know that the problem is in Khartoum first and foremost. Whatever their ethnic and tribal lineage, Darfuris are intent on surviving their ordeal together.
Where to Go from Here
In addition to calling for the arrest of Bashir, therefore, the international community should also ensure the full implementation of the CPA. The CPA’s central principle is the importance of holding free and fair democratic elections. As the agreement notes, this is the only way to safeguard the fragile peace in southern Sudan and — here is the pivotal point — to resolve conflicts in other “peripheral” regions of the country, including Darfur. In the last week of February, clashes between government forces and the army of the Sudan People’s Liberation Movement claimed 50 lives, 14 of them civilians, according to the UN, in the southern town of Malakal. Malakal, adjacent to the hydrocarbon treasures of the south, is only the latest flashpoint in a simmering confrontation between the signatories to the CPA. It is a troubling sign that the peace in the south is precarious — more so because developments in south Sudan are inextricably tied to the Darfur crisis. Like the 21-year war in the south, the conflict in Darfur is rooted in Darfuri grievances over the distribution of national resources and political representation at the center. In fact, the real reason Khartoum has been waging the war in Darfur is precisely that Darfuris have called for the expansion of the CPA beyond the southern region to Darfur and all parts of the country, including the north and the east.
By Bashir’s calculation, the ICC decision is not the end of the road. His primary objective is to consolidate the junta’s power by expanding oil production in Darfur and elsewhere. Only a genuinely democratic transition stands in the way of this objective. The ICC’s warrant for Bashir’s arrest will have little effect in resolving the larger problem in Sudan: the lack of participatory politics. Only if this warrant is followed by a concerted effort to support free and fair elections will it fulfill its promise.
Otherwise, the end result of the ICC’s intervention, as the critics say, could be to further marginalize of the people of Darfur, threaten the CPA and undermine the struggles of civil society organizations bridging ethnic divides. The arrest warrant is to be applauded for its boldness and its implications for the future. Most Sudanese, however, are more desirous of a long-term peace that would usher in a period of political stability and economic advancement for their beleaguered nation.
(Khalid Mustafa Medani is an assistant professor of political science at McGill University in Montreal and an editor of Middle East Report.)