Alex De Waal’s unconditional support for Article 16

By El-Tahir Adam El-Faki

January 28, 2009 — While the international community is bracing for a decision by the judges of the International Criminal Court (ICC) against Sudanese President Omar Hassan Al-Bashir, Alex De Waal of the New York-based Social Science Research Council wrote on his Blog ‘Making Sense of Darfur’ saying: ‘My proposal is that the UN Security Council should invoke Article 16 without condition’.

I thought by now Alex De Waal has enough experience to merit the title; ‘Expert on Sudanese Affairs ‘. Instead he has chosen to demonstrate once again -to me at least- in this thesis to remain; ‘A- so-called Sudan’s Expert’. The failed DPA that was part of his enchanted mastery led to more misery for Darfuris. Yet De Waal continued to support it until almost all of its architects accepted its failure and finally ditched it. Now he comes up with a thesis that calls for unconditional deferral of the arrest warrant against Bashir. He has based his argument on assumed reactions by the National Congress Party (NCP) to derail the Comprehensive Peace Agreement (CPA) and on holes in the case presented by Luis Moreno Ocampo to the Pre-Trial Judges at The Hague. Let us look at those assumptions in more details.

Firstly we agree that the atmosphere in the capital Khartoum is tense and littered with rumors and counter-rumors about the ICC. It doesn’t take much to realize that the tension has been carefully orchestrated by the NCP supporters to create feelings of impending unrests and disasters if the ICC goes ahead with the arrest warrant. All the statements against the ICC were brought about by senior leaders of the NCP, mainly Dr. Nafi Ali Nafi and Salah Gosh the chief of Intelligence and Security Forces. The silent Sudanese majorities struggling for their daily living and seeing the lavish life styles of NCP members are in no moods to support Bashir. The marginalized people in Darfur, Kordofan, the South, Blue Nile and the East and within Khartoum itself are more than happy to see him in the dock and pay for the evils he committed in Darfur and the miseries they are in.

Secondly if we argue that ambassadors and diplomats will face a legal challenge to engage with an indicted head of state, we fail to comprehend that national interests of individual countries can not fall hostage to a single country such as Sudan. The democratic Western countries are in no mood to make the mistake and support a tyrant like Al Bashir who contradicts their values. It is up to the Sudanese people to decide how they want to deal with him if they chose to be part of the international community.

Thirdly the NCP is in real dilemma and risks losing twenty years of its rule continue to haunt it. It knows for sure that the CPA has given it new life, legitimacy and engagement with the international community. It will not be in its favor to endanger it and lose everything. It is therefore not in its interest to derail the CPA and open a new front against international community and the SPLM. It has already lost Darfuris who used to be its manpower for military support. Furthermore the mounting recent military successes of the Justice and Equality Movement (JEM) in Darfur against Sudan Armed Forces (SAF) and positioning itself in areas it can defend will certainly weaken the NCP’s power to scrap the CPA. There are smart persons within the NCP hierarchy whose lines of thoughts are in the national interests and the future of the party. What they publicly say in support of Al-Bashir does not reflect their real intentions and views behind the scenes. They know for sure of the impending disaster that awaits the country and the party if they failed to cooperate with ICC.

Fourthly Alex implied that the survival of the CPA is dependent on the existence of the NCP in power. The untimely death of Dr. John Garang did not derail it and nor would the arrest warrant or the removal of Bashir from power would succeed to tear it apart. However, if the CPA is fatally traumatized by the arrest warrant then there must be serious problems with its security provisions at the start. In that context the CPA will defeat the arguments for the democratic transformation that De Waal is calling for. The real threat to the success of the CPA is in fact the continuation of Al-Bashir in power and not vice versa. CPA was meant for creation of a new Sudan reliant on providing tangible measures which would make unity attractive. NCP has proven so far that such measures are way down in its agendas. The high tensions which have befallen Sudan are the creations of the NCP. They do not reflect images of the Sudanese societies outside Khartoum. De Waal should remember the last few days and hours of President Nimeiry ‘s regime. Millions who claimed to rally in his support melted away as soon as the oppositions took to the streets in Khartoum leaving Nimeiry to face his demise. The same people who are forced to stage anti- ICC demonstrations will be the first to celebrate the indictment in jubilation.

Fifthly De Waal knows very well that the coming elections will not be different from previous ones. In those elections, the results were always known and celebrated well in advance and distribution of power rather than its transference always took place prior to elections. Article 16 and deferral of Al-Bashir’s arrest warrant will not pave the way for fair elections. It would rather entice NCP further to ensure Al-Bashir rolls the election results and win.

Let us assume that the elections took place and the NCP lost; what would the reactions of the winning party be relative to the CPA? And assume once again that SPLM won the elections and the arrest warrant is pending. Would the SPLM face the international community and refuse to hand him over to The Hague and risk internal and external support? Furthermore if ICC warrant is nullified and all capitulated to the demands of the NCP what are the guarantees on the table to assure honoring of the CPA when there are so many potential issues under the bridge to derail it? Article 16 will not be an answer but its revoke is the practical option.

Calling for unconditional deferral of the arrest warrant is not only an insult to the millions of victims whose sole demand is justice but equally to those who seek to implement the CPA. Deferring the indictment would certainly create an atmosphere of uncertainty that would play into the hands of radicals seeking justice with possible escalation of events and further humanitarian disasters not only in Darfur but possible in the center as well. De Waal’s perception of the chaos the ICC will throw Sudan into is shaped by his own failed experience with the DPA. Our own view is that justice, at least when sought will work even where the NCP response is unpredictable.

To conclude Alex failed to differentiate between the moral values of the ICC and what he thought might be some of its possible absurdities and accordingly concentrated on the latter and based his thesis on the anticipated difficulties that may complicate the political and security future for the survival of the CPA. His inclination, it seems is to do nothing but to focus on the CPA and look backward in isolation of justice as opposed to looking forwards to what will happen to the victims in Darfur.

The author is Dr. El-tahir El-faki. He is the Speaker for the Legislative Assembly/JEM. He can be reached at [email protected]