FEATURE: Justice a threat to peace in Darfur?

By Wasil Ali

June 29, 2008 (WASHINGTON) — The statements by the former US special envoy to Sudan Andrew Natsios about the danger posed by the indictments of the International Criminal Court (ICC) to the stability of Sudan reignited debate on whether justice and peace can go together.

Natsios said at a forum organized by the US Institute for Peace on Sudan that if the ICC prosecutor Luis Moreno-Ocampo goes ahead with his plans to charge senior Sudanese officials as expected “it will drive the country closer to dissolution”.

The former US diplomat disclosed a recent meeting he had with Ocampo in which he tried to convince him of this point of view with no success. In the meeting the ICC prosecutor stressed that his duty is to do justice and cannot be part of diplomatic initiatives on Darfur.

The ICC prosecutor is due to present evidence on a new case to the judges within the coming weeks. His condemnation of the Sudanese state apparatus in his UN Security Council report gave the impression that senior officials may be charged next month. Some observers have speculated that even the Sudanese president Omar Hassan Al-Bashir is target for prosecution.

Natsios said that there are no realistic prospects that any of the individuals indicted by the ICC will face trial. He further said that ICC arrest warrants against Lord Resistance army (LRA) leaders in Northern Uganda are an obstacle to peace.

The former US envoy appeared to favor maintaining the status quo in Sudan to prevent a Somalia like style scenario that could be caused by the ICC. Natsios has previously called for working with the ruling National Congress Party (NCP) to prevent collapse of the North-South peace agreement and any harsh response against Darfuris if placed under too much pressure.

John Prendergast, a former Clinton administration official and Co-Chair of the ENOUGH Project dismissed Natsios warnings about disintegration of Sudan as a result of ICC investigations.

“Natsios grossly distorts the objectives of the ICC. He has been peddling the same line about the imminent dissolution of Sudan for years” Prendergast said.

“To argue that the ICC’s attempt to break the cycle of impunity will destroy the country is hysterical and an insult to all the Sudanese people who want some kind of justice for the crimes the regime has committed” he added.

Professor Eric Reeves who publishes extensively on Sudan and a longtime critic of Natsios as a special envoy said that the latter is “incapable of understanding either the National Islamic Front (NIF) regime in Khartoum or the urgent claims of justice for Darfur”.

“His evident wish that the ICC cease and desist in its pursuit of justice is nothing more than the crudest accommodation of evil in the name of Sudan’s stability, a stability that is based entirely on the NIF’s ruthless control of the military and security forces in the country” he stressed.

But maintaining the status quo in Sudan to prevent a worst scenario has some merit according to Diaa Al-Deen Bilal from the pro-government daily Al-Rayaam.

“This is a unique situation different from anything that the government has ever faced. It is not their political agenda that is targeted but rather them as individuals. Even the president is a target. In their eyes this is a threat to their existence” he said.

The reaction of the Sudanese government to naming of new suspects is not an easy prediction by any means. Some have expressed fears that they may resort to restricting humanitarian work in the war ravaged region of Darfur or placing more obstacles to the deployment of the hybrid United Nations-African Union (UNAMID) peacekeeping force.

Alex De Waal, a renowned Sudan expert and Julie Flint, co-author of “Darfur: A Short History of a Long War” have both argued in a series of articles published recently in the Guardian and Washington Post that UNAMID deployment and the Comprehensive Peace Agreement (CPA) should be a priority over punishing war crimes in Darfur.

“We support accountability for the crimes committed in Darfur, including at the highest levels. But prosecutions must be in the interests of the victims. Few would dispute that their interests are served today by strengthening the protection and peacekeeping force of the joint U.N.-African Union mission” De Waal and Flint said.

“The interests of all Sudanese are served by working with the government to sustain the north-south peace agreement and trying to ensure that democratic elections are held next year to return a government with genuine popular support” the co-authors emphasized.

However Anne Bartlett, Director of the Darfur Centre for Human Rights and Development based in London contend that working with the NCP is a fruitless strategy.

“It is a fallacy to think that being nice to the Government of Sudan will produce results….the NCP are master manipulators of the truth and have no interest whatsoever in cooperating with UNAMID, Mr. Ocampo or anyone else for that matter, unless their options are shut off” Bartlett said in her article “Darfur: Truth or Fiction”.

Professor Reeves also echoed Bartlett conclusions and said that “defense of the status quo represents precisely the kind of international reassurance that will sustain the NIF in its ruthless and murderous survivalism”.

But the central and very basic question has often been raised in similar debates. Is there a way to stop the ICC investigations in Darfur? Is this something the UNSC can do?

Article 16 of the Rome Statue which is the ICC’s Bible states that the UNSC has the power to request a deferral of an investigation or prosecution for a period of 12 months in a resolution adopted under Chapter VII.

But Professor Daniel Nsereko in his paper named “The Relationship between the International Criminal Court and the United Nations Security Council” pointed out that invoking Article 16 is highly unlikely because referring a situation to the ICC “means that the Council now deems judicial action against the alleged disturbers of the peace to be appropriate”.

Politically speaking UNSC members such as UK and France are unlikely to endorse any deferral of Darfur investigations as it would set a precedent and may likely be viewed as sending wrong message to war crimes perpetrators.

So as it stands now the ICC is a reality from which there is no escape and Sudan, along with other countries in the international community, has to factor it in any Darfur peace initiatives.

The AU negotiator in Darfur Salim Ahmed Salim speaking to reporters at the UN headquarters last week said that while “impunity must never be allowed to prevail the timing of any decision becomes important”.

Dr James Smith, Chief Executive of the Aegis Trust responding to Natsios’s assertions on the ICC role in Darfur said that “the ICC indictments are coming whether diplomats like it or not. Whether they aid or hinder peace is a calculation for the international community”.

“Either the indictments can be used as a lever to undermine international and domestic support for the architects of the Darfur crisis, or they can be shelved under threat that war criminals will behave even worse than they already have done” Smith added.

The fundamental argument in favor of the ICC is that it prevents commission of further crimes in any part of the world.

Many would remember the scene in the movie ‘Hotel Rwanda’ where hotel manager Paul Rusesabagina makes well calculated blackmail of the Hutu army general, Augustin Bizimungu by telling him that he is in danger of being tried as a war criminal.

Rusesabagina promised to testify in favor of Bizimungu if he helps him move some refugees safely to the hotel. The trick worked but the Rwandan general was ultimately arrested and transferred to the War Crimes Tribunal in Tanzania.

But De Waal, chief architect of the ailing Darfur Peace Agreement (DPA) and Flint said in Washington Post article titled ‘Justice off Course in Darfur’ that “history shows that dictators often learn that power is their only protection and that nothing, and no one, can be allowed to stand in the way”.

Natsios put forward a similar argument saying that Zimbabwean leader fear of going on trial is preventing a peaceful settlement in the country. He cited the “Charles Taylor factor [Liberian ex-president]”.

However Smith from Aegis Trust noted that “generals responsible for recent violence [in Zimbabwe] were also responsible for massacres in Matabeleland in the 1980’s”.

“Never held to account, the lesson they learned 25 years ago was that they could use mass murder to maintain power and get away with it” he said.

Sara Darehshori Senior Counsel in the International Justice Program at Human rights Watch (HRW) stressed that the “culture of impunity” constitute a far more danger than the ICC arrest warrant.

“Silence on accountability emboldens parties to a conflict to continue to commit serious crimes” she said.

Some analysts have also mentioned that vulnerable Darfuri refugees living in camps could also face repercussions from Khartoum.

But Hussein Abu-Sharati, the spokesperson of Darfur displaced and refugees at the Kalma camp in South Darfur, with some 90,000 residents, said “there is no alternative to prosecuting the Darfur criminals before any peace settlement. All of the displaced and refugees support punishment of the criminals”.

Asked about possible retaliation from government following the naming new Darfur suspects he said “the Sudanese government routinely carries out retaliation against us. We fear no one but god”.

On the Sudanese political front some are bracing for further restrictions of freedoms when senior NCP officials find themselves directly threatened. Yet some see a window of opportunity in the ICC.

Ala’a Al-Deen Bashir a political analyst from the daily Al-Sahafa think that ICC indictments might be helpful.

“There are changes happening as we speak within the Sudanese government and the NCP. There are some moderates within the NCP in the shadows who have been sidelined by the hardliners” Bashir said.

Bashir said that he expects “short term political congestion” after naming the new suspects. He also noted that the ordinary Sudanese has little interest in issue of the ICC given the pressing daily needs to make a living.

“We will see a huge media campaign against the ICC and portraying it as an agent of Western powers. The only problem is that this kind of strategy has been overused during the NCP years in power. At the same time the policies of poverty and injustice will make them less sympathetic with the government” he said.

The political analyst pointed out that all Sudanese political forces are supportive of the ICC with the exception of the Democratic Unionist Party (DUP) led by Mohamed Osman Al-Mirghani.

The list of supporters also includes even the partners in the government of National Unity Sudan People Liberation Movement (SPLM).

The Sudanese foreign minister Deng Alor urged the government to comply with the UNSC resolution on the ICC.

“I am not talking as a minister of foreign affairs. In this particular issue I’m speaking as SPLM and SPLM calls for cooperation. That’s what I said in my briefing with the ambassadors,” Alor told reporters earlier this month on the sidelines of a visit by the UN Security Council (UNSC) to Khartoum.

Alor’s position angered NCP officials and some pro-government columnists accused him of straying from the government’s official position.

Mariam Al-Mahdi, a leading figure in the Umma Party, the largest Northern opposition party in Sudan with a large base in Darfur blamed the government for not taking the ICC issue seriously.

“The Sudanese authorities are taking this matter very lightly. The NCP adopted a policy of ignoring it and treating it as something that does not exist. However the truth of the matter that the ICC is real with a direct impact on the NCP” she said.

Al-Mahdi, daughter of the former Prime Minister Sadiq Al-Mahdi, said that the Umma party supported UNSC resolution 1593 referring he situation in Darfur to the ICC.

“We [Umma Party] supported resolution 1593 knowing its complications that comes with it. The Darfur crisis is caused by people who do not really care about human rights or the need to ending violations that created this humanitarian disaster” she said.

The Umma party official also said that the concept of transitional justice is missing in Sudan and that the existence of the ICC would help fill that void. She called on the government to deal with the ICC from a “legal and technical perspective” and two hand the two suspects Haroun and Kushayb.

“We know that this court is meant with justice and handles specific cases. Using political propaganda and ‘clowning’ is not the way forward” she warned.

De Waal and Flint also threw a new factor into their claim by saying that the ICC is relying on questionable and “circumstantial” evidence. They both claim that the situation in Darfur is not as bad as the ICC prosecutor tried to portray it in his report to the UNSC this month.

They also said that “Several senior ICC staff members have quit, fearful of eventually having to defend an indefensible position” without naming them.

However an ICC official who spoke to Sudan Tribune expressed surprise over this statement.

“The only senior member to leave was Serge Brammertz who was appointed to lead the probe into the assassination of the Lebanese Prime Minister Rafik Hariri” the official said on condition of anonymity because he is not authorized to speak to the press.

It is also ironic that 3 years ago when the ICC investigations started in Darfur war crimes Ocampo was under heavy criticism from international figures including UN officials for moving too slowly. But the ICC prosecutor at the time responding to pressure said that he has to conduct his investigation “in a thorough and fair manner”.

But today Ocampo seems under pressure to place his prosecutions on hold. It is not clear whether he will actually succumb and delay his July’s announcement.

In the meanwhile the mounting pressure by the UNSC, EU and G-8 on the defiant Khartoum to cooperate with the ICC seems to have paid off, at least partially.

This week a senior Sudanese official speaking to Sudan Tribune on condition of anonymity made a surprise revelation that the leadership of the ruling National Congress Party (NCP) “is getting very nervous over the upcoming announcement by the ICC of new suspects”.

He said that the NCP, with recommendation from state minister for foreign affairs Ali Karti, is considering handing over two Darfur suspects Haroun and Kushayb to the ICC “as a protection from further indictments”.

The official said that president Al-Bashir appeared to be in agreement with the proposal as well as others who were present but that 2nd Vice President Ali Osman Taha blocked the proposal saying it is a violation of Sudan’s sovereignty.

But realistically, even if the proposal was to go through, the ICC could not have accepted such a bargain which would undermine its credibility.

The immediate threat to those Sudanese officials who end up being charged is when travel abroad.

The plan to divert a plane carrying one of the Darfur suspects, Ahmed Haroun, on his way to Saudi Arabia in December to perform the annual Islamic pilgrimage was likely to have motivated Karti’s proposal.

The most worrying aspect of the plan to Sudanese officials was that a number of countries took part in the plan including one of Sudan’s neighbors. Saudi Arabia, which maintains good relations with Sudan, was made aware of the plan.

Sudan’s envoy to the UN Abdel-Haleem Abdel-Mahmood told Reuters that it was “especially infuriating” that other countries were willing to help the ICC in the failed operation.

The moral of the story to Sudanese officials is clear; travelling abroad pose a risk of arrest regardless of the destination.

In the coming weeks and months the ICC will become the focus of the international community. The identities of the new suspects are anxiously awaited to determine the full impact on the explosive and unpredictable East African nation.

(ST)