Deferral of ICC indictment is against justice in Darfur

By Mahmoud A. Suleiman

September 20, 2008 — Media reports talk of the British and French governments will back efforts in the United Nations Security Council (UNSC) to stall the International Criminal Court (ICC) issuance of an arrest warrant against president of Sudan, Omer Hassan Ahmed al-Bashir in order to protect the peace process in Darfur and Southern Sudan. It is flabbergasting and disappointing to the victims of crimes against humanity, war crimes and genocide. If this is actually true, despite the fact that both countries are members of the ICC and have been the main advocates at the UNSC for referring the Darfur case to the Court, their credibility will be called into question. Many Sudanese people in Darfur thought that these Veto-wielding UNSC countries maintain credibility but it seems they have chosen to take that unexpected route nonetheless. On the face of it, this stance of the two permanent members of the UNSC seems to have been resorted to on the pretext to protect the Comprehensive Peace Agreement (CPA/ Naivasha Agreement) signed on the 9th January 2005 that has ended the 21-year civil war between the Sudanese People’s Liberation Movement (SPLM) and the Government of Sudan (GOS). The CPA stands firm, but needs more support from the international community for its implementation. The government of Sudan (GOS), the key partner in the Government of National Unity (GNU) is renowned for flouting rules and violating agreements with impunity. In the recent turn of events, it was learned that the indicted Sudanese president, Omer Hassan Ahmed al-Bashir has relieved Pagan Amum, the general secretary of SPLM of his position as Minister of Cabinet Affairs. This news is not surprising since some of the hawks within the NCP elements such as Nafie Ali Nafie, a close presidential adviser, former inventor of the “Ghost Houses” and National Islamic Front (NIF) security and intelligence chief, criticized Mr. Pagan and called on him to step down. The ghost houses, by the way, are torture houses used only by nights where screams of the victims could be heard from far distances but by day time these houses stand empty and silent. Earlier, the Sudanese foreign minister Deng Alor advised the government of Sudan to cooperate with the ICC.

Human Rights Watch said that the Naivasha agreement has settled the 21-year conflict waged mostly in southern Sudan, and will provide for a referendum in the south on self- determination in six and a half years. Human Rights watch expressed concern at the absence of any substantive human rights clauses in the Naivasha peace accord despite the devastating war in southern Sudan and the ongoing cycle of impunity that has contributed to what we now see in Darfur.

The French stance is difficult to figure out where the International Criminal Court (ICC) is “a key tool, both in combating impunity when the most serious crimes, striking at the very essence of humanity are committed and in preventing the use of violence,” according to the EU Presidency, currently held by France which is of great significance, given that France has a veto at the UN Security Council.

It is a common place that the Comprehensive Peace Agreement (CPA) has been reached between the Government of Sudan (GOS) and the SPLM and not with individual members in the GOS or the SPLM. Accordingly, the CPA should continue in force whether the president of the NCP, Omer Hassan Ahmed al-Bashir is in power or being arrested and taken to The Hague. The truth of this assertion rests in the fact that the CPA has continued to remain viable despite the sad death of Dr. John Garang De Mabior, the father of the Vision of ‘New Sudan’. The same case will be if al-Bashir departs to the ICC. Therefore, it is quite absurd that the international community’s unfounded concern about the fate of CPA or the peace in Darfur in the post-al-Bashir era. The pillars of true peace are justice! No peace without justice!

Sudan signed but has not ratified the Rome Statute of the (ICC) and is refusing to cooperate with its jurisdiction, but the UNSC triggered the provisions under Chapter VII of the United Nations Charter, to enables it to refer situations in non-State parties to the world court if it deems that it is a Threat to International Peace and security. This is beside Responsibility to Protect (R2P) Principle which in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity, the UN member countries are prepared to take collective action, in a timely and decisive manner through the UNSC. President Omar Hassan Ahmed al-Bashir will not be able to escape with impunity without being subjected to justice for the crimes he committed and is continuing to commit against the people of Sudan in Darfur no matter how long it takes.

The (UNSC) passed 17 resolutions on the Darfur crisis, all of which are internationally binding. The Sudanese regime has not complied with anyone of those resolutions to date, bearing in mind that they are meant to achieve security and peace in the region of Darfur. Many critics say that the UNSC is either a toothless lion or its members act with double standards; in both situations its credibility is tarnished. The Security Council failed to extend the arms embargo to the Sudanese government, impose travel sanctions and asset freezes on key government and military officials or implement the no-fly zone over Darfur.

Sudan’s ambassador to the UN Abdalmahmood Abdalhaleem Mohamed has said in his usual belligerent rhetoric that the government of Sudan intends to ask the Security Council to block the prosecution, describing any attempt to arrest Bashir as “an act of war.” He added that President Omar al-Bashir is weighing all options, including an undefined military response!

China’s Foreign Ministry spokesman Liu Jianchao said Beijing maintains friendly relations with Sudan and is deeply concerned and worried about the ICC charges against president al-Bashir. He continues to say that the situation in the Darfur region is at a sensitive and critical moment and that China hopes all sides can resolve their differences through consultation and avoid adding complications that could interfere with or harm the atmosphere of cooperation. It is understood that China is consulting with other U.N. Security Council members to see if the court could be blocked from issuing an arrest warrant against Mr. Bashir, according to the Associated Press.

Analysts believe that Omar al-Bashir’s threats in which he claims that he will make Sudan another Somalia if he is convicted by the International Criminal Court (ICC) as part of the world widely known lies of his collapsed unpopular regime and empty rhetoric for domestic consumption. Those are his usual raving menaces of refusal and soon return to surrender to reality under stark warning or confrontation. Unfortunately, al-Bashir and his clique do not learn from their mistakes and never take lessons from experience. To say the world is better off without Omer al-Bashir and his NCP regime is to speak an obvious truth. The old habits of bullying and blackmailing are not going to save al-Bashir from the predicaments of his abhorrent deeds in Darfur. The NCP needs to stop this nonsense and cooperate with the ICC.

The Comprehensive Peace Agreement (CPA) should not be exploited or taken as escape goat or the “Wooden Horse of Troy” to turn into survival instrument for the National Congress Party (NCP) regime led by the indicted Marshal Omer Hassan Ahmed al-Bashir. The CPA remains an achievement of the people of the Southern Sudan, a price of their decades of struggle and endurance during which two and a half million people perished in the conflict. The Naivasha agreement will not and should not freeze the indictment of Omer al-Bashir. If the ICC judges at The Hague agree to the request of arrest warrant for Gen. al-Bashir, it will mark the first time the ICC has brought charges against a sitting head of state. In that event, the Sudanese political powers should intervene by forming a national transitional government for continuity and avoiding a vacuum. Dr. Khalil Ibrahim, Sudanese leader of the Justice and Equality Movement (JEM) has been reported by the news media Sudan Tribune as proposing the formation of an interim government now that the indictment of the Sudanese president by the International Criminal Court (ICC) has “eroded his legitimacy” and created a “new reality” “The erosion of legitimacy of the current Sudanese government obligates all political parties and forces to intervene in a responsible way and prevent the country from sliding into chaos, anarchy and constitutional vacuum.” Although, supposedly, fears have been raised that the arrest warrant could lead to attacks on UN peacekeepers in Darfur or the expulsion of Western diplomats, but it was reported that Al-Zahawi Ibrahim Malik, the Minister of Information and Communication as saying that Sudan would guarantee the safety of foreigners. After Omer al-Bashir loses the battle against the ICC, the Sudanese people are “going to hang him out to dry” and will not shed tears!

Will the UNSC as a “Dove of peace” for the world accomplish its mission in Darfur by distancing itself from the plans aiming at stalling the arrest warrant of the indicted Sudanese president by the International Criminal Court (ICC)? That is a sixty-four dollar question ($64 question)!

Dr. Mahmoud A. Suleiman is the Deputy Chairman of the General Congress for Justice and Equality Movement (JEM). He can be reached at [email protected]