Indicting Bashir: Sudan and the International Criminal Court

6 March 2009 16:00 - 17:30 GMT+00
Public event
Streamed live online

Speakers:

H.E. Omer M.A. Siddig – Ambassador of Sudan to the UK
Julie Flint - Independent Sudan Analyst
Sara Pantuliano – Programme Leader, Humanitarian Policy Group at ODI

Chair:

Richard Dowden - Director, Royal African Society

Description

On Wednesday 4th March, the International Criminal Court (ICC) will announce whether or not it will prosecute Sudanese President Omar al-Bashir for alleged war crimes in Darfur. This could be the Court’s most controversial decision to date and has reinvigorated debates about peace and justice worldwide. While the decision could pave the way for reform in Sudan, the Government does not accept the court’s jurisdiction and any decision could deepen divisions. The end result could be increased violence in a volatile region, compromising a fragile peace in southern Sudan and the Three Areas.

At this event, co-hosted by ODI and the Royal African Society, H.E. Omer Siddig, Ambassador of Sudan to the UK, will give his thoughts on the ICC decision and possible repercussions in the country. Julie Flint and Sara Pantuliano, both seasoned Sudan experts, will provide responses focusing on Darfur and North/South issues respectively.  

Richard Dowden, Director, Royal African Society

Introductory comments

·         Two positions presently seem to dominate the debate surrounding the International Criminal Court (ICC) decision to issue an arrest for President Bashir: one is that global relations should be based not on power but on justice, and that justice should be international; the other is that the ICC is little more than a neo-colonial project, evidenced by the sole focus on abuses by Africans.

·         Those on the middle ground argue that international justice is positive, but can be a distractions from the process of negotiating for peace, especially given that many peace processes have resulted in the co-option of “criminals” and “rebels” into governments.

H.E. Omer Siddig, Ambassador of Sudan to the UK

Official Sudanese reaction to the ICC arrest warrant

·         Sudan is disappointed but not surprised by the decision taken by the ICC, given the campaign waged by Ocampo [ICC Prosecutor].

·         The resolution by the UN Security Council that referred Darfur to the ICC is legally flawed.  Sudan has not signed up to the ICC, and so is not bound by the decisions of the Court.  The manner in which the ICC conducted its research is also legally flawed since it focused on Articles serving its purpose, and neglected articles that prevent the ICC from indicting a sitting head of state, who - in common international law - are immune. The referral by the Security Council does not permit the ICC to indict a sitting president.

·         The behaviour of the prosecutor raises doubts about the validity of the arrest warrant. The evidence collected by the Prosecutor was one-sided: he never visited Darfur despite being invited by the government, and relied mainly on “hear-say” evidence.

·         Sudan’s position regarding the ICC decision is shared by many, including the AU, the Arab League, the Group of 77 in China, and the ACP.  For example, the President of Senegal, a member state of the ICC, claimed that the decision was selective justice, only focusing on Africa; and the President of the AU General Assembly stated that the decision was unhelpful to resolving the problems in Darfur.

·         The Security Council should not have referred this issue to the ICC; Sudan’s problems are internal, and a political dimension has been added to what is a legal, internal problem which could have been resolved as such.

·         The Security Council has rejected pleas by the AU and Arab League to defer ICC involvement.  This is against Article 8 of the Charter which gives priority to regional organisations when dealing with regional problems.

·         The arrest warrant is unhelpful to the situation in Darfur, only complicating a difficult situation. Since the warrant was issued, the rebel movement has started building up forces with the intention of escalating the war.  The timing of the warrant is also poor – coming when Sudan is the in the process of building peace and democratisation.

·         Sudan refuses to deal with the ICC. Sudan’s judicial system is functioning and capable of addressing any violations in Darfur. Commissions have been established and trials have been going on; some top army, security and police officers are being investigated.  Sudan will always respect its obligations under International Law, it will abide by the conventions and agreements it is party to, and will respect foreigners.

Julie Flint, Independent Sudan analyst

Humanitarian and political repercussions in Darfur

·         The government reaction to the arrest warrant will cause a humanitarian catastrophe in Darfur.  The immediate effect of the expulsion is that 60% of all aid will be cut off within 48 hours.  Deaths will increase.

·         The responsibility lies solely with the government, whose decision it was to expel some of the largest humanitarian organisations working in Sudan.  Agencies were selected for expulsion as not all have been asked to leave; the 13 expelled organisations come from the P3 (France, Britain, the US) which supported the ICC decision.  The question remains whether there will be further action against the P3.

·         The government has claimed that civilians won’t be affected by its decision, and that it will take over the work of the expelled aid agencies. It doesn’t have the capacity to do so. The agencies left will struggle to take over.  The expelled agencies have been asset-stripped so it will be difficult to rebuild.

·         Some of the humanitarian consequences are: in Kalma, no aid agencies are left (last year agencies conducted 50,000 consultations and 20,000 ante-natal consultations); Muhajeriya has no medical agencies left following the expulsion of MSF France (there are 30,000 IDPs, 1400 hospitalised including 200 who have undergone major surgery); 80% of WFP food was distributed by 2 agencies that have been expelled (STC-US and CARE), and it is unclear who will take over this distribution network.  There will also be a knock-on effect as there is synergy and dependence between agencies.

·         The ICC process raised expectations in the IDP camps that an indictment would end their problems, but they will be disappointed.  In fact their lives have been made worse as a result of the expulsion of the aid agencies; who is there to bear witness to potential abuses, and to protect people if they leave the camps either due to a lack of aid or government action?

·         Another concern is that poverty-stricken pastoralist Arabs, who have been systematically been neglected, were just beginning to get onto the agenda of aid agencies. With aid and development work stopped short, there are greater incentives for them to liaise with the government as a survival strategy, intensifying the problem.

·         The issue of indicting Bashir has dominated the entire political process, meaning political opportunities were missed, whilst it is unlikely that Bashir will ever actually be arrested.

·         The peace process may be compromised by the warrant.  It is difficult for governments to engage with a government whose head of state is an indicted war criminal, and whose government has been accused of being a criminal apparatus. It also encourages retrenchment by the government of Sudan and has empowered hardliners.

·         The language and claims made by the prosecutor of ongoing genocide is problematic; his sole focus on ongoing genocide around the camps, for which there is no evidence, and exaggerated claims of deaths in the camps threatens the credibility of the court. The prosecutor is supposed to make his decision in the interest of the victims, which he has not done.

·         The timing of the warrant is poor.  Ocampo claims the alleged ongoing genocide necessitates urgency. But with Sudanese elections coming up he should not have pre-empted the democratic process, and instead allowed Sudan to try hold elections.

Sara Pantuliano, ODI

Repercussions on the CPA, and broader humanitarian and political implications

·         Tension exists between hardliners and the moderate elements in the government. One of the first impacts has been hardliners gaining an upper hand.

·         The leverage of CPA observer countries has been reduced.  The CPA, already challenging and fraught with difficulties, needs diplomatic pressure to ensure its implementation and that fundamental landmarks - including elections - are met.  That point of pressure has gone.

·         We are entering into unchartered diplomatic territory; everyone is struggling to understand how to now engage politically with the President of Sudan. Emerging legal advice is that the presumption of innocence stands.  But it does make attempts at political transformation very challenging, and raises questions of how elections will be conducted.

·         The expelled agencies work throughout Sudan, not only in Darfur, with far-reaching humanitarian repercussions. For example, fundamental life-saving aid will now be lacking in eastern Sudan, where levels of vulnerability are higher than in Darfur. 

·         The work of the remaining agencies operating in the Three Areas – a very fragile, volatile part of the country, and which has between 60-80,000 new IDPs as a result of clashes last year – is also being threatened.  It is not clear to what extent the expulsion will also affect agencies operating in the South, but if their national registrations are revoked they may have to leave Southern Sudan.  This poses enormous challenges to efforts supporting the peace process, threatening the already-limited capacity to support reintegration efforts.

·         The vulnerability of Arab groups – not only those in Darfur, but also neighbouring regions such as Southern Kordofan, will no longer be addressed, as the main agencies have had their registrations revoked.  This will impact on an already volatile region, where there is the danger of armed groups using the opportunity to further violence.

·         The government of Sudan should urgently reconsider its decision to revoke registrations of humanitarian agencies, which will have severe humanitarian consequences, increase the danger of furthering instability in an already volatile region, and hamper a fragile peace process.

Questions and comments included

·         Criticisms of the ICC decision are focussed on Ocampo, but Ocampo’s role is to be a prosecutor.  The decision to issue the warrant lies with the judges in the pre-trial chamber who looked at the evidence, felt there was a strong case to answer, and agreed to issuing the warrant. 

·         If the ICC cannot issue a warrant for a head of State its function becomes meaningless, but it is clear in the Rome Statute that it can. For many who feel that pushing on the possibilities of international criminal justice is a positive development, to have reached this point is a milestone.  Regarding the argument that Africa is being persecuted as part of a neo-colonial project, the crimes perpetrated in central Africa are on a mind-numbing scale that dwarf anything anywhere else in the world. If the ICC is not going to operate there and take its role seriously, there is little point in having an ICC.

·         There is a general consensus that the timing is bad, but is there ever a good time to issue an arrest warrant?

·         Some SPLM individuals have expressed the fear that the ICC warrant gives the government a pretext to stall the CPA. 

·         How does the government intends to fill the vacuum created by the expulsion of the aid agencies? There is no national capacity to fill the gap.  It is impossible to replace the logistical capacity, especially with the rainy season approaching. Thousands of people are completely dependent on aid, creating an impending crisis.

·         What is the actual reason for expelling the aid agencies is, given that none of the agencies have yet been given a reason?

·         What are the regional implications of the ICC’s decision are, as it is likely to have an impact on the Great Lakes, and to the west beyond Chad?

·         There is no serious judicial process taking place with regards to the crimes committed in 2003/2004 [in response to the Ambassador’s comments regarding Sudan’s functioning judicial system]