He is hurt, angry and hunted by the International Criminal Court.
He is also the first sitting president of a country to be issued
with ICC arrest warrants — in March this year. Amid resplendent
chandeliers, I visited Sudan’s president, Omar al-Bashir, in his
palace in Khartoum in April.
Eschewing his field-marshal’s uniform, and wearing traditional
white flowing robes and a turban, the President said: “When
Morgan Tsvangirai raised his hand to take the oath of office in
the Zimbabwean government of national unity — with Robert Mugabe
— all the international pressures and legal threats were
forgotten. Maybe I should ask Tsvangirai to raise his hand here
as well?”
Africa has many nasty despots, including Mugabe, so why is the
ICC concentrating on Bashir? Does its selectivity conjure up
suspicions of political targeting by the West? And what will be
the results of ICC intervention?
Political Target?
Bashir is accused, inter alia, of war crimes in Darfur. Whereas
the government in Khartoum says the Court’s ambitions are
political, not legal: regime change in another oil-rich Islamic
country. Many African leaders, even those who disdain Bashir, are
outraged that all the indictments have been in Africa.
Besides the Sudan, the ICC has intervened in Uganda, the
Democratic Republic of Congo and the Central African Republic.
Khartoum argues that the ICC has no legal right to intervene in
Sudan, which is not a signatory to the Rome Statute which
established the Court in 2002. Moreover, say Bashir’s lawyers, he
has sovereign immunity as head of state. Further, they say, the
ICC — while claiming universal jurisdiction — is simply not
international. Less than 27% of the world’s population comes
under its jurisdiction, and this excludes, for example, the U.S.,
Russia, China, and India.
Many African leaders caricature the ICC as neo-colonialism, white
man’s justice, especially French, German and British meddling,
which ignores indigenous systems, such as South Africa’s Truth
and Reconciliation process. They ask why the Court does not
actively investigate alleged war crimes and crimes against
humanity in Iraq, Afghanistan or Gaza. So far, however, the Court
— which has no dedicated police mechanism — has not secured a
single conviction of African defendants.
The Court has indicated that it may encourage signatory states to
detain Bashir in international air space. Some senior lawyers
have argued that this could violate international law, if Bashir
were hi-jacked. Thus could air piracy compound Washington’s
difficulties with piracy at sea.
Washington has long declared its opposition to the ICC, arguing
that it would be used to exact “political” justice, and that
states and individuals would be pursued for bogus political
reasons under the façade of justice. Paradoxically, the American
position on Sudan and the ICC has proved this to be absolutely
the case. While attacking the ICC in the strongest terms,
Washington nevertheless acquiesced in the Security Council
referral of Darfur to the ICC (while demanding immunity for its
own citizens). Washington has urged Sudan to submit to ICC
demands. To many observers this is precisely the sort of
political vendetta the U.S. had itself warned that the Court
might be used for.
Peace Before Justice?
The ICC acted in order to improve conditions in Darfur. Instead
they have been made worse. The timing of the arrest warrants
could not have been more unpropitious. Just before March, peace
talks in Doha were moving towards a possibly favourable outcome.
The various rebels groups in Darfur are now encouraged to stall
on talks. And Khartoum’s knee-jerk response of ejecting major
humanitarian agencies, alleging that they spied on behalf of the
ICC, will also exacerbate the suffering of the hundreds of
thousands of refugees.
Bashir’s advisors make the point that the 2005 Comprehensive
Peace Agreement which ended the longest war in Africa’s biggest
country — the north-south conflict — did not include specific
judicial claims to punish the numerous war crimes on both sides.
The 2005 agreement, an unsung triumph of the Bush administration,
could itself now be disrupted. That is why the former southern
rebels, the Sudan People’s Liberation Movement, now a part of the
National Unity government in Sudan, fret about a possible return
to war because of ICC intervention.
The ICC wants peace, but threatens to undermine it throughout
Sudan. In a glaring example of the law of unintended
consequences, the ICC action has made Bashir a poster-boy for the
Sudanese nation. He will probably easily win the presidential
election early next year. With the exception of the rebels in
Darfur, many Sudanese — both opponents and allies — are likely
to rally around him. Another unintended consequence is that, like
Mugabe, fear of the ICC will make Bashir president for life. He
cannot risk retiring, even if he wanted to, 20 after coming to
power in a coup. No one expected the ICC to entrench
dictatorships.
The Future
Sudan is often projected as a tough authoritarian
“Islamo-fascist” state. It is certainly authoritarian, but also
potentially fragile. If the destabilisation of the peace process
in the West (Darfur) and in the South leads to further explosions
in the unsettled East, then a replay of the meltdown in Somalia
could result. Sudan has borders with nine states, including
Egypt, a strategic partner of the US. The implosion of Sudan
would mean its removal as a key ally in Washington’s
counter-terrorism campaign. Surely President Obama has enough
failed or failing states to worry about?
Recent Western intervention in Africa rarely makes things better
and usually makes them worse. Richard Dowden, the director of the
Royal African Society, summed it up nicely: “The ICC cannot hand
out justice in Sudan as if it were Surrey [England].” More
robustly, The Hague has also been dubbed “Europe’s Guantanamo Bay
for Africans”.
In Africa and in the Islamic world, the ICC is seen to ignore
those voices, be they Ugandan, Sudanese or in the African Union,
who say that the Court’s arbitrary pursuit of African leaders is
delaying peace.
It can be argued that the ICC has inadvertently prolonged the
horrific war in northern Uganda by aborting seemingly fruitful
peace talks by issuing warrants against rebel leaders. In the
case of Darfur, the ICC warrants against Bashir have merely
bolstered the insurgents’ intransigence regarding peace talks.
They claim they will hold out, until Bashir is arrested. This
could mean an indefinite extension of the Darfur war.
The answer is straightforward: the ICC can defer its arrest
warrants for renewable yearly periods. That may be one inducement
for Khartoum to start talking again to the Darfur rebels, who
then cannot expect rapid regime change. Bashir has not been
defeated, the historical precedent for trials of national
leaders. Arguably, he is politically and militarily stronger than
he has ever been. Economically, the recent oil bonanza has
strengthened Bashir’s hand. And, in a further twist, the U.S.
economic sanctions against Sudan, in place since 1977, have
largely insulated the country from the Western economic meltdown.
Bashir was a vital ingredient in the north-south peace; likewise
he may also be crucial in guaranteeing peace in Darfur. Any
successor may not be able to hold the country together, let alone
have the power to finesse peace deals.
Also vital is the Obama’s administration re-engagement in the
political process there. No military solution is on offer; only a
replay of Western political will and local cooperation can repeat
the success of the major 2005 peace agreement. Darfur is doable,
now, given the will — provided the sword of Damocles is removed
from the neck of Sudan’s president.
Save Darfur?
The ICC action may serve as a warning shot across the bows of
Africa’s monsters, not least Mugabe’s destructive presidency.
This might be a soothing psychic balm to the liberal consciences
in the West. But, in a war-ravaged continent, peace must precede
justice, whether defined as African or European. Meanwhile, to
its many African critics, the ICC’s arrest warrants for Bashir
look like the 21st-century equivalent of old-fashioned
19th-century gunboat diplomacy — but minus the gunboats.
Meanwhile, the suffering goes on in Sudan’s refugee camps. The
ICC may have failed, not fixed Darfur.
