amat allah
01-Mar-09, 05:55
Sudanese Responses to the Application
79. In Sudan, several impacts can already be seen, and some hoped-for or feared
repercussions have not materialized, at least not yet. The entire Sudanese political class is preoccupied with the ICC issue. The government has not expelled UN missions. Nor has it reneged on existing commitments including the CPA. It has neither declared a state of emergency nor cancelled elections. It has not mounted major new offensives in Darfur. If any of these things were to happen, direct responsibility for the action would fall upon the Sudan Government. However, the Prosecutor would have played a leading role in bringing about a state of affairs which influenced the Sudan Government to act in this way. Indeed, if the Government were indeed to be the criminal institution that the Prosecutor alleges, it would be expected to act in such a brutal or undemocratic way.
80. It would be a mistake to see the relatively cool response of the Sudan Government in the six months since the 14 July announcement as an indication that business as usual will continue. This period has been marked by the NCP and other Sudanese parties testing the ground, domestically and internationally. The Sudan Government tried and failed to obtain support at the Security Council to force a vote on an Article 16 deferral. It hoped to make sufficient progress in the Darfur peace process to convince the international community that there was a genuine prospect of peace worth protecting, but so far without success. The NCP tried and failed to obtain sufficient domestic political support from partners in the Government of National Unity to present a united front.
Perceiving the internal and international weakness of the Government, some opposition forces, including the Popular Congress Party and the Justice and Equality Movement, have been emboldened to make themselves the domestic champions of regime change through handing over Bashir to the ICC.
81. The ICC issue has the potential to be a life and death issue for the government
leadership. In this context, the response of the NCP and security leadership to an arrest warrant will depend upon the reactions of others. No options have been ruled out. While the possibility of things continuing unchanged exists, it should not be taken for granted.
82. There is a real possibility of political business grinding to a halt. This would be a threat to Sudan’s peace and security, insofar as key deadlines in CPA implementation are looming, notably the national elections, and a further slowing of the political process could easily generate a crisis. A likely scenario is that the arrest warrant will lead to the entrenchment of President Bashir in office, and a slow tightening of the screws on civil society, democracy and the international humanitarian and peacekeeping efforts. The national elections, scheduled for 2009 in accord with the CPA, were initially envisaged as a democratic exercise to provide popular legitimacy to the Government of National Unity and the CPA. They are now in danger of becoming a purely tactical exercise, instrumentalized in support of the NCP and its leader remaining in power. If this is the 22
outcome of the Prosecutor’s initiative it will not be an impressive contribution to
peace and democracy in Sudan.
83. The possibility of a crackdown on human rights activists, political opposition and hum nitarian workers is real. The possibility of restricting UN and foreign diplomatic and assistance activities is real. The possibility of a new round of hostilities in Darfur is real, possibly in response to military-political initiatives by the armed movements.
Human rights activists in Sudan are concerned that the Prosecutor has set in motion a process which is likely to result in their repression, without the ICC having any means to contain the consequences and protect those at risk from the backlash.
Wider Implications for the ICC
84. More widely, the Bashir case is undermining the standing of the ICC across Africa. African countries, which were early supporters of the Court, are having second thoughts.
The 14 July Application came in the wake of the arrest of the Congolese opposition leader Jean-Pierre Bemba while visiting Brussels, and arrest warrants issued by French and Spanish magistrates against Rwandan government officials.11 The sense among African politicians, and increasingly among civil society leaders and human rights activists, that international justice is becoming a tool for western countries to control Africa in neo-imperial fashion, has led to a strong African reaction against universal jurisdiction and the ICC. When the Peace and Security Council of the AU met in closed session in September 2008, to review the ICC-Sudan case, every single representative who spoke criticized the ICC. Many regretted having signed the Rome Statute. Few made reference to Sudan, rather focusing on the wider implications of the OTP strategy for Africa. It is inconceivable that another African state will refer a case to the ICC in the
foreseeable future, and most unlikely that any will cooperate with the ICC in executing arrest warrants. Africa may become zone free from ICC jurisdiction as a result, quite the opposite outcome to that heralded by the drafters of the Rome Statute and those African leaders who enthusiastically embraced the Court in its early days.
79. In Sudan, several impacts can already be seen, and some hoped-for or feared
repercussions have not materialized, at least not yet. The entire Sudanese political class is preoccupied with the ICC issue. The government has not expelled UN missions. Nor has it reneged on existing commitments including the CPA. It has neither declared a state of emergency nor cancelled elections. It has not mounted major new offensives in Darfur. If any of these things were to happen, direct responsibility for the action would fall upon the Sudan Government. However, the Prosecutor would have played a leading role in bringing about a state of affairs which influenced the Sudan Government to act in this way. Indeed, if the Government were indeed to be the criminal institution that the Prosecutor alleges, it would be expected to act in such a brutal or undemocratic way.
80. It would be a mistake to see the relatively cool response of the Sudan Government in the six months since the 14 July announcement as an indication that business as usual will continue. This period has been marked by the NCP and other Sudanese parties testing the ground, domestically and internationally. The Sudan Government tried and failed to obtain support at the Security Council to force a vote on an Article 16 deferral. It hoped to make sufficient progress in the Darfur peace process to convince the international community that there was a genuine prospect of peace worth protecting, but so far without success. The NCP tried and failed to obtain sufficient domestic political support from partners in the Government of National Unity to present a united front.
Perceiving the internal and international weakness of the Government, some opposition forces, including the Popular Congress Party and the Justice and Equality Movement, have been emboldened to make themselves the domestic champions of regime change through handing over Bashir to the ICC.
81. The ICC issue has the potential to be a life and death issue for the government
leadership. In this context, the response of the NCP and security leadership to an arrest warrant will depend upon the reactions of others. No options have been ruled out. While the possibility of things continuing unchanged exists, it should not be taken for granted.
82. There is a real possibility of political business grinding to a halt. This would be a threat to Sudan’s peace and security, insofar as key deadlines in CPA implementation are looming, notably the national elections, and a further slowing of the political process could easily generate a crisis. A likely scenario is that the arrest warrant will lead to the entrenchment of President Bashir in office, and a slow tightening of the screws on civil society, democracy and the international humanitarian and peacekeeping efforts. The national elections, scheduled for 2009 in accord with the CPA, were initially envisaged as a democratic exercise to provide popular legitimacy to the Government of National Unity and the CPA. They are now in danger of becoming a purely tactical exercise, instrumentalized in support of the NCP and its leader remaining in power. If this is the 22
outcome of the Prosecutor’s initiative it will not be an impressive contribution to
peace and democracy in Sudan.
83. The possibility of a crackdown on human rights activists, political opposition and hum nitarian workers is real. The possibility of restricting UN and foreign diplomatic and assistance activities is real. The possibility of a new round of hostilities in Darfur is real, possibly in response to military-political initiatives by the armed movements.
Human rights activists in Sudan are concerned that the Prosecutor has set in motion a process which is likely to result in their repression, without the ICC having any means to contain the consequences and protect those at risk from the backlash.
Wider Implications for the ICC
84. More widely, the Bashir case is undermining the standing of the ICC across Africa. African countries, which were early supporters of the Court, are having second thoughts.
The 14 July Application came in the wake of the arrest of the Congolese opposition leader Jean-Pierre Bemba while visiting Brussels, and arrest warrants issued by French and Spanish magistrates against Rwandan government officials.11 The sense among African politicians, and increasingly among civil society leaders and human rights activists, that international justice is becoming a tool for western countries to control Africa in neo-imperial fashion, has led to a strong African reaction against universal jurisdiction and the ICC. When the Peace and Security Council of the AU met in closed session in September 2008, to review the ICC-Sudan case, every single representative who spoke criticized the ICC. Many regretted having signed the Rome Statute. Few made reference to Sudan, rather focusing on the wider implications of the OTP strategy for Africa. It is inconceivable that another African state will refer a case to the ICC in the
foreseeable future, and most unlikely that any will cooperate with the ICC in executing arrest warrants. Africa may become zone free from ICC jurisdiction as a result, quite the opposite outcome to that heralded by the drafters of the Rome Statute and those African leaders who enthusiastically embraced the Court in its early days.