Global Policy Forum

By Alex de Waal *

The request to indict Sudan's president on charges of genocide and war crimes in Darfur is a historic moment in international justice. But is it wise, and will it bring peace in Sudan nearer or destabilise the country further? Alex de Waal presents the many sides of a vigorous debate

Today, 14 July 2008, the chief prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo asked the court to indict the president of Sudan, Omar Hassan al-Bashir, on charges of genocide, crimes against humanity and war crimes committed in Darfur.

This report was first published as a contribution to the ongoing Social Science Research Council blog "Making Sense of Darfur" Here, Luis Moreno-Ocampo is taking a bold and momentous step for global human rights and for Sudan. It is also controversial and fraught with danger. Will this be a historic victory for human rights, a principled blow on behalf of the victims of atrocity against the men who orchestrated massacre and destruction? Or will it be a tragedy, a clash between the needs for justice and for peace, which will send Sudan into a vortex of turmoil and bloodshed?

Over the last month, the Social Science Research Council (SSRC) blog has hosted a debate on the imminent indictment, which has attracted diverse contributions by scholars and experts. Contributors have diverse opinions and have provided arguments from different disciplines and perspectives. In pursuit of its aim of providing social-science expertise on matters of immediate import, the SSRC has hosted this debate as a resource for those interested in delving deep into the complexities of the issues that confront Sudan, the ICC and the United Nations. This article provides a guide to the main strands of the debate.

The prosecutor's application

The application to the court follows from the previous indictments, of Ahmed Harun (then in the ministry of the interior with responsibility for Darfur, now minister of state for humanitarian affairs) and militia leader Ali Kushayb. Both were indicted for their roles in the massacres of 2003 and 2004. Speaking to the United Nations Security Council on 5 June 2008, Luis Moreno- Ocampo indicated his intention to finger the men who instructed Harun.

But the decision Luis Moreno-Ocampo has made on 14 July by naming Presdient al-Bashir makes history. The prosecutor is striking an immense blow for universal jurisdiction. He is seeking to demonstrate that no one can enjoy impunity for crimes. He is taking a step towards a world constitution in which the barriers of national sovereignty are swept away in favor of the rule of law with global reach. This point is emphasised by William Schabas and also by Ronald Jennings.

The legal arguments

It is significant that Luis Moreno-Ocampo has indicated that his investigations range more broadly than the period of massacres of 2003-04. In his address to the United Nations Security Council - which referred Darfur to the International Criminal Court with Resolution 1593 in 2005 - he claimed that government actions the subsequent period represent the continuation of a systematic campaign of crimes against humanity. If he does indeed proceed to asking the court to make charges on this basis, it is an ambitious claim. The prosecutor would, in effect, be charging that the entire apparatus of the government of Sudan is involved in a coordinated and systematic criminal enterprise.

The legal options open to the prosecutor have been analysed by Jens Meierhenrich. There are three main avenues he could have chosen to pursue:
* allege a conspiracy to commit war crimes, crimes against humanity, or genocide
* charge senior government figures in Khartoum with joint criminal enterprise to commit a range of crimes
* prosecute on the basis of command or superior responsibility for crimes, in effect returning to the 2007 case against Ahmed Harun and following it up the chain of command.

Is the prosecutor on solid ground when he claims that a policy of eradication has continued for the three and a half years since the beginning of 2005? On this point, Moreno-Ocampo's empirical case has been criticised by Julie Flint, who points out how much has changed. Fabrice Weissman of Médecins sans Frontií¨res (MSF) makes similar points, especially with regard to the displaced camps. These observers argue that evidence for such a policy, pursued in a determined and coordinated manner, is slender. Socio-economic analyses of Darfur by various authors (reviews of publications on markets and livelihoods, and of the political economy of Sudan) make the point that it is better understood as a "complex emergency" than an ongoing genocide. Pieter Tesch has also criticised parallels with the holocaust and especially Moreno-Ocampo's controversial comparison with the Nazis.

Julie Flint and these other contributors do not dispute that horrendous crimes have been committed and that responsibility reaches up to the highest echelons of the Sudanese state apparatus. Nor do they cast doubt on the continuing crisis and the violations perpetrated by Khartoum and its proxies. But they do question the prosecutor's depiction of the current situation, and do question the wisdom of his approach.

The prosecutor's decision to pursue a charge of joint criminal enterprise against a head of state is certain to cause controversy. The charge has been developed in United States law and is used primarily to catch racketeers and gangsters; it has often been used (such as in the well-known RICO cases) as a charge of last resort, a dragnet to catch individuals who may not have individual culpability for a crime but who are deemed to have common purpose with others who have actually committed the crimes.

As discussed by Jens Meierhenrich, this approach could eviscerate the principle of individual responsibility for crimes and set a precedent in international law with very far-reaching consequences. By the same token that joint criminal enterprise allows a prosecutor to reach into the highest echelons of state power, it is also open to indiscriminate use. For example, it could be applied to make a head of state, or government ministers, criminally culpable for crimes committed by their underlings, even if they had no direct involvement in or even knowledge of those crimes.

Sudan's polarisation

Sudanese opinion on the ICC's role is polarised - and not simply "for" versus "against". Many Darfurians are enthusiastic about the indictment of the men they consider responsible for the destruction of their land and the slaughter of tens of thousands of people (see Omer Ismail's contribution). There are already exuberant demonstrations in Khartoum of support for the ICC among Darfur's displaced and its rebels. Many opponents of President al-Bashir, including southerners, are similarly delighted that he has finally received the condemnation that they believe he deserves. Without doubt, Bashir's adversaries - in Darfur, the south and within Khartoum itself - will feel emboldened. The dangers of emotive polarisation leading to bloodshed should not be minimised.

Others are less celebratory; one civil-society activist said that "This government deserves everything that can be thrown at it. But it is the people of Sudan who will pay the price." Another comments: "All of us want justice but justice cannot be achieved in a social vacuum. We should choose the time for justice. Today it is the lives of people that count." A Sudanese political leader - known for publicly supporting the ICC in principle - regards this as "a classic case in which justice and stability are at loggerheads." Many Sudanese - including people who are not supporters of the government - are worried about their country's political stability. Some are concerned that the prosecutor's action is depriving them of their democratic rights to choose their own government (see Abdalbasit Saeed's contribution).

Omar al-Bashir will not surrender himself voluntarily to the International Criminal Court. In resisting, will he be stigmatised, shamed and thus weakened? The possibility of the stigma of an indictment acting as a deterrent to future crime, an end to a culture of impunity, is examined by Nicki Alam. These outcomes seem improbable. Al-Bashir has already vowed never to hand over any Sudanese to the ICC and has accused the court of being a "terrorist" organisation. He may see an attempt to indict him as an act of war.

The likelihood that al-Bashir will react angrily, seeking to retaliate to avenge his sense of humiliation, is examined in my posting based on the writing of criminologist James Gilligan. In assessing al-Bashir's response, the long-standing rule of thumb for Khartoum elite politics should not be forgotten: the greatest threat to the president comes from those closest to him. His actions will be driven by calculations of internal threat more than by his assessment of how threatening the ICC or the UN troops in Sudan, might be. In the aftermath of the Justice & Equality Movement (JEM's) attack on Khartoum on 10 May 2008, the government is feeling vulnerable and the army especially feels that it needs to demonstrate its strength. President al-Bashir is also known for his propensity to respond to insult with fury, and is reportedly preoccupied with what he sees as foreign conspiracies to overthrow him. His response cannot be predicted.

Africa's ambivalence

The ICC prosecutor may have the law on his side. But whether he can win his case in the court of world opinion is a different matter - especially in Africa. When a common criminal is in the dock, he is on trial. When a sitting head of state stands indicted of crimes against humanity, both he and his prosecutor are on trial.

A point made by several contributors is that the ICC does not operate like a regular criminal court. The choice of individuals to indict and the charges to bring against them are political decisions. Luis Moreno-Ocampo's political judgment and the future of the ICC are under scrutiny as much as the record of President al-Bashir.

The ICC's exclusive focus on African cases to date is causing some unease in Africa. It represents an expansion of western power at the expense of African concerns, including national sovereignty and the possibilities of pursuing local mechanisms for justice. Chidi Odinkalu and Beshir Gedda make these points. It is notable that the African Union (AU), an early supporter of the ICC, is showing a distinct lack of enthusiasm for the direction of the court. The AU-ICC cooperation memorandum, which was expected to be finalised by this time, has been put on hold. As Stephen Ellis describes, the precedent of the Charles Taylor prosecution shows that this will be a highly political act.

Beshir Gedda's second contribution argues that Moreno-Ocampo's strategy has less to do with justice and Africa and more to do with international politics: it is aimed at getting United States support for the court. William Schabas makes a similar point: "A more robust judicial intervention in Sudan from the Court has the potential to restore its flagging credibility."

Peace-and-justice dilemmas

Several contributors have predicted political turmoil as the most likely outcome of the indictment; they include Mary Harper and Michael Davies's far-reaching "worst-case scenario" - a frightening prediction that is privately shared by senior United Nations staff). Well-connected individuals fear that the indictment may spell the restriction or expulsion of UN missions, the end of Sudan's comprehensive peace agreement (CPA) agreed in January 2005, and new outbreaks of violence. The prosecutor's step comes at a time when the partnership between the National Congress Party and the Sudan People's Liberation Movement (SPLM) that underpins the CPA is very fragile.

Celia McKeon of Conciliation Resources makes the important point that accountability mechanisms should pay due regard to the need for peace. Under the Rome statute of July 1998 that set up the ICC, the prosecutor is in fact required to ensure that any prosecution is in the interests of justice and the interests of the victims. My posting on the deficiency of the justice provisions in the Darfur peace agreement (DPA) signed in May 2006 makes the complementary point that the UN Security Council's referral of Darfur to the ICC had the unintended consequence of excluding accountability issues from the peace talks, with the outcome that the ICC has become the only judicial mechanism operative with regard to the crimes committed Darfur. If - as now seems almost certain - ICC prosecutions are stalled, then there will have been no progress at all in obtaining justice for the victims of atrocities in Darfur. Chad Hazlett is more sanguine, arguing that Darfur's peace process is stalled and that the adverse consequences of an indictment can be managed.

Peace and political stability are not the prosecutor's prime concern. The Rome statute set up the prosecutor as an independent agent concerned with the pursuit of justice. When the UNSC referred Darfur to the ICC on 31 March 2005, it mandated the prosecutor to examine the evidence and pursue criminal prosecution. Other concerns such as humanitarian relief, peace and civilian protection were dealt with by other UNSC resolutions. The prosecutor is obliged to consider the interests of the victims, but ultimately it is for the Security Council to exercise its powers to defer ICC activities, should it choose to do so. Moreno-Ocampo has, as examined in my posting of 11 June, thrown down a gauntlet to the UN Security Council.

What next?

Around the world, human-rights campaigners are expecting a bold step from Moreno-Ocampo which they can hail as the single most important blow for justice and human rights for many years. They argue that such an action by the chief prosecutor will signal that there is no impunity for crimes, even for a head of state, and demonstrate that the international community will stand up for the human rights of victims, whatever the consequences - and thus irrevocably change the world for the better. Moreover, by giving hope and solidarity to the victims of unspeakable crimes in Darfur, these campaigners contend that the indictment of al-Bashir will be a huge step towards realising human dignity, democracy and peace.

Others disagree, and fear the casualties of justice triumphant. Responsibility now passes to the judges of the ICC, who must now consider the evidence presented and decide whether to indict the men named. In theory, the judges could reject all or part of the application, because they consider the evidence deficient. On past record, this is unlikely.

The UN Security Council could in principle intervene and, using its powers under Article 16 of the Rome statute, defer any prosecution for a year. At present this seems improbable. The prosecutor has checkmated the two countries most opposed to the ICC. The US, which refuses to support the court on principle, has determined that the crimes in Darfur constituted genocide, and both presidential candidates have committed themselves to a tough line on Sudan. China is unlikely to want to endanger its standing in the world with less than four weeks to go to the Olympic games.

Chad Hazlett makes the interesting point that use of Article 16 can be seen, not as a rebuff to the court, but as a use of the ICC mechanism to bring pressure to bear on the Sudanese government. His posting focuses on how an indictment can be used as an important point of leverage for achieving both justice and peace.

The challenge to the United Nations and the international community will be as profound as to Omar al-Bashir. Sudan's status as a pariah state will be confirmed while al-Bashir's defiant stand would be no more than his habit of nineteen years. But for the international community - respectful of the rule of law and supportive of the ICC, but also committed to the CPA and the national elections, and supporting two huge peacekeeping and civilian-protection missions - the dilemmas are acute. Cornelia Schneider's article on the UN and the ICC makes it clear that the UN forces are not under any legal obligation to execute ICC arrest-warrants - a step that would certainly bring them into sharp conflict with the Sudanese government. But whether it is possible for UN officials and peacekeeping troops to sit at the same table with Sudanese officials whose president and commander-in-chief is officially accused as a war criminal, and to enter into legally-binding agreements with him and his government, remains to be seen.

These legal issues will arise only if the judges of the court decide to uphold an application from the prosecutor and issue an indictment. The focus will now shift to the next act in this drama - the decision of the judges. If past experience is a guide, they will take at least a month to examine the application.

The UN Security Council's approach to the Darfur crisis has deployed a vast array of instruments including sanctions, peace processes, peacekeeping and the ICC. These decisions have rarely been coordinated and prioritised, and the last four years appear increasingly like an exercise in giving powerful new weapons to untrained foot-soldiers who lack a single commander. These weapons may cause less danger to the enemy than the risk of friendly-fire casualties to their own side. Some fear that the Security Council referral of Darfur to the ICC may yet turn out to be the international community's biggest self-inflicted wound.

About the Author: Alex de Waal is a fellow of the Global Equity Initiative at Harvard University, and a director of Justice Africa. His books include Famine that Kills: Darfur, Sudan, 1984-85 (Oxford University Press, 1989, revised edition, 2005), Islamism and Its Enemies in the Horn of Africa (Indiana University Press, 2004), AIDS and Power: Why there is no political crisis - yet (Zed Press, August 2006), and (with Julie Flint) Darfur: A Short History of a Long War (Zed Books, 2nd edition, 2008)

This article originally appeared on openDemocracy.net under a Creative Commons licence. To view the original article, please click here.