The ICC in Sudan: relevant to peace?

26 april 2010

Today I spoke at a conference of Africa Legal Aid on the significance of the arrest warrant issued against Sudanese President Al-Bashir for crimes against humanity and war crimes on 4 March last year. Then I wrote in my blog that this unprecedented move creates an opportunity for peace in Darfur and stability in Sudan. Some commentators disagreed. The arrest warrant would stifle the peace process. Today, after two additional though imperfect peace accords, I maintain that the arrest warrant issued by the ICC is still a chance for peace. And a necessary condition for stability.

 

This is the first arrest warrant issued by an international criminal court against an active head of state. Since the request of the prosecutor for an arrest warrant, President Bashir, who seized power in a coup in 1989, has actively cooperated with Qatar in peace talks with Darfur rebel groups. On 3 February a preliminary agreement was signed with the Justice and Equality Movement and on 18 March a separate agreement was signed with the Liberation and Justice Movement. Yet the peace process is far from complete. Fighting continues and all parties accuse each other of failing to stick to the terms of the agreements. The Sudan Liberation Movement is still out of the peace process.

 

The leader of the Sudan Liberation Movement-Abdulwahid al-Nur, says he is reluctant to join the Darfur peace talks because the Government of National Unity does not understand the true meaning of peace.

 

According to Abdul Wahid: “I would like to confirm that we completely differ with the Khartoum government on the peace process in Darfur. The Sudanese government believes that peace means giving positions to the anti-government group’s leaders, or it believes that peace means correcting the consequences of the wrong actions they were responsible for in Sudan. But for us peace means ensuring security on the ground first, then secondly tackling the root causes of the conflict. We have a road map to achieve peace in Darfur. Peace starts by conflict suspension or security. The government should first stop the genocide against our people, disarm their militia the Janjaweed and stop the rape of our women and chase out the new settlers from Mali and Niger. The meaning of peace to us is when people feel that they are secure. But to the Sudanese government, peace is giving power to people in Khartoum and in the region and that is all.”

 

Abdul Wahid is right of course. And he has said so for years. Yet, by refusing to talk to President Bashir he has practically blocked a unified rebel position in negotiations with the Sudanese government. Which would have made the rebels stronger and peace less divisive. At a meeting with Abdul Wahid some years ago where I was present, Sudanese diaspora in The Netherlands accused him of obstructing peace. They urged him to participate, even is peace would be less than perfect and Bashir could not be trusted. Such is the nature of pace processes and agreements.

 

So what has been the effect of the ICC’s bold actions? Practically, the arrest warrant cannot be enforced. There is no international police force that can arrest a head of state against his will. The UN mission in Sudan does not have such powers either. The AU refuses to cooperate with the ICC as long as the genocide charges are pending, saying that the decision by the ICC to consider adding genocide charges to the arrest warrant harms the peace process in Sudan. And although member states of the ICC, among which are the majority of African countries, are obliged to arrest Bashir when he travels to their country, the President has travelled to Eritrea, Egypt, and Zimbabwe, all signatories to the ICC statute. But president Bashir has also refused a number of invitations, to countries such as Uganda, Nigeria, Venezuela, Denmark, Turkey, South Africa and US, perhaps fearing arrest. The recent imperfect elections have reconfirmed the existing order.

 

It is crucial for the international community to do whatever it can to maintain Sudan's fragile stability, boost support for the Comprehensive Peace Agreement between south and north Sudan and the outcome of the first multiparty elections, support the ICC’s work, and support those willing to grab this momentum for peace in Darfur and peaceful political change.

 

The ICC is a player in the quest for peace. Arrest warrants do not necessarily hinder, and may even benefit, peace processes. Foregoing accountability does not bring lasting peace. There had been no serious peacemaking in Sudan for years. Yet, since the arrest warrant by the ICC there has been a flurry of activity. Imperfect perhaps but still. The ICC is not only about justice but also relevant to peace.

 

The Netherlands, seat of the International Criminal Court and one of the largest donors to Sudan, with long and strong ties to its central government, the government of southern Sudan as well as good contacts with the rebel leaders, has a special responsibility to show that justice and peace are not irreconcilable notions but mutually reinforcing. That is what its constitutional obligation to strengthen the international legal order