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The Reaction to the Arrest Warrant against Sudanese President Al-Bashir

On 4 March 2009, the International Criminal Court announced that the Prosecutor’s request for an arrest warrant against Sudanese President Omar Al Bashir would be granted. Since then there has been much debate over how the international community should respond. A particular focus of discussions about possible responses has centred on the Security Council. The council referred the Darfur situation in 2005, and therefore has a particular stake in this investigation. The council has the right to intervene in any situation before the Court by asking that proceedings be delayed for one year.

Council members have largely laid out their views. African members have called for a deferral, arguing that this will give the government time to continue to move forward the implementation of the peace agreement with the South, and to negotiate peace in Darfur. Western members, particularly France, the United Kingdom and the United States have made it clear that they will not consider a deal on deferral until they see some positive change from the government of Sudan. So far, that has not been forthcoming, and the impasse seems to have been decided in favour of doing nothing, allowing the process to proceed.

The consequences of the decision are being felt and discussed in Sudan and across the continent.

Closing the space for activism

Immediately following the news of the Court’s decision, there was a crackdown on civil society within Sudan. The government expelled 13 international humanitarian NGOs and suspended the registration of three national ones. The response was clearly linked to the suspicion on the part of the government of Sudan that these organisations had passed information to the International Criminal Court in order to assist in its investigations. Although the prosecutor has stated unequivocally that he did not use any information from humanitarian organisations, the Sudanese Ambassador to the United Nations, Abdalmahmood Abdalhaleem Mohamad, claimed to have concrete evidence that the organisations violated their humanitarian mandate by, among other things, cooperating with the ICC.

The inability of these organisations to function has had serious consequences. The humanitarian organisations that were expelled were estimated to provide more than 50% of the total aid in Darfur. The United Nations and its agencies have warned that millions of Darfurians could be left without assistance. A joint assessment carried out by the UN Office for the Coordination of Humanitarian Affairs has estimated that the UN and national authorities can only fill about 20-30% of the gap.

The domestic organisations which were shut down played a critical role in monitoring and responding to human rights and protection issues in Darfur and Sudan as a whole. For example, the Khartoum Centre carried out monitoring and advocated for legislative change. The Amal Centre provided legal aid and counselling to victims in Darfur.

A number of human rights activists have reported that they are subject to increased scrutiny and government harassment. Activists have been followed, had their offices besieged, and seen their accounts frozen. There have been a series of detentions and interrogations of human rights defenders, particularly former staff of the expelled and deregistered NGOs. Students protesting in support of the ICC were similarly arrested. In addition, clear public threats have been levelled against human rights defenders. National Security and Intelligence Services Director Salah Gosh warned publicly that those working in support of the ICC would be beheaded and have their limbs cut off. Some have felt forced from the country.

Political parties’ reactions

Although the National Congress Party (NCP)’s reaction has been dominated by the crackdown, there have been some moves to at least appear to tackle the accountability question. Since the announcement of the arrest warrant, the Sudanese Justice Minister has said that the passage of pending war crimes legislation will be expedited in order to facilitate national accountability for Darfur crimes. Around the same time, the new Sudanese Special Prosecutor for Darfur has indicated that he has a list of 176 suspects and that two have been arrested – including Ali Kushyab, who is also wanted by the ICC.

Opposition politicians have taken a careful stance in responding to the ICC’s decision. Several months ago, prominent Sudanese opposition politician Hassan Al-Turabi had called on Bashir to surrender himself to the ICC saying that it would improve Sudan’s international relations and was promptly imprisoned.  

Pagan Amum of the Sudan Peoples’ Liberation Movement (SPLM), former rebels and now partners in the Government of National Unity, has called for the President to respond to the matter through formal legal channels, “even at the Hague.” The SPLM advised the President to “deal with the issue of the indictment with restraint and wisdom and avoid any escalation of the situation.”

Umma party politician and former Prime Minister, Sadiq al-Mahdi, has called for the creation of a hybrid tribunal to try Darfur crimes. Although he criticised the President’s reaction for pushing the country into confrontation with the international community, he also indicated that handing Bashir over would not fit with “national dignity.”

The former Darfur rebel leader, Minni Minawi, who signed a peace deal with the government in 2006, referred to national justice as the “ideal solution.” However, Darfurians in the camps and in exile have expressed satisfaction, reflecting that the mere recognition of Bashir’s responsibility is a victory.

Media offensive

The government of Sudan has launched a media offensive aimed at showing a fearless Bashir supported by his people against the ICC.  In the days following the announcement, he appeared at rallies in Sudan, dancing and waving his cane in defiance. These rallies were large and broadcast at every opportunity on government controlled TV.

To demonstrate that the Court will not intimidate him, Bashir has taken himself on a whirlwind tour of the region. In the past weeks the President has visited Ethiopia, Eritrea, Egypt, Libya, Qatar and Saudi Arabia.

While the African Union and the Arab League have called for a delay of proceedings using Article 16 of the Rome Statute, which allows the Security Council to suspend proceedings for a year, Sudan has said that this is not enough, arguing that they see opposition in the framework of the ICC indictment as insufficient. State Minister for Foreign Affairs, Ali Karti, said that the delay is “a trap that we will not accept and we reject any decision. Voiding and rejecting [ICC decision] is what is required and anything less is unacceptable.”

The debate in Africa

Outside Sudan, a debate over the appropriateness of the ICC as a vehicle for accountability, and the appropriate balance of national, regional and international actors in responding goes on.

A Sudanese diplomat living in Uganda accused the prosecutor of deliberately undermining the peace process in Uganda’s New Vision. On the legal side, the role of the Security Council in referring cases was challenged as both subject to political manipulation and in contravention of the international law principle that states should only be held to standards which they have accepted through treaties. The issues of immunity for heads of state and complementarity (requiring the ICC to investigate only in circumstances where local authorities are unable or unwilling) were also raised.

Others argued that the ICC is being turned inappropriately on Africans. This was taken up in Rwanda’s New Times, where Patrick Hatari argued “Ocampo’s sword is yet to strike hard on all the powerful Africans [...] His sword is meant to cripple African authorities so that we may succumb to the white man’s ideology.”

Others noted that the ICC’s focus on Africa simply needed to expand to the rest of the world. Henry Owuor argued in Kenya’s The Daily Nation that Bashir should stand trial, but that Bush should be next. The Daily Trust Nigeria argued that, “All men anywhere suspected to have a hand in illegal wars, war crimes and crimes against humanity should be brought to book [...] Al-Bashir should one day have his opportunity in court to prove his innocence, but so should other men such as Ehud Olmert and George Bush.”

South African Archbishop Desmond Tutu argued that to “imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment to justice we have seen across the continent”. A Nigerian journalist, Azibuke Ishiekwene, argued that Africa needed to expand this commitment: “Gadaffi will have to find a place for this home truth in his journey towards a United States of Africa.”

On a diplomatic level, the African Union has appointed a high level panel headed by former South African President Thabo Mbeki to explore ways of approaching the Darfur conflict that will address both the need for reconciliation and for accountability. They will also convene a Special Summit in June in Addis Ababa intended to discuss the ICC more broadly. These fora will likely contribute significantly to the developing regional conversation on this issue. They need to be watched attentively.