Sudan: Justice, Peace and the ICC
Africa Report N°152
17 Jul 2009
EXECUTIVE SUMMARY AND RECOMMENDATIONS
The International Criminal Court (ICC) arrest warrant against President Bashir for atrocity crimes in Darfur has brought Sudan to a new decision point. The long-ruling National Congress Party (NCP) has defied the court, gained African Union (AU) and Arab League pressure on the Security Council to suspend the case and restricted humanitarian aid in Darfur, putting several million internally displaced persons (IDPs) and others at risk. Darfur rebels have been emboldened, reducing prospects for diplomatic progress. Simultaneously, the Comprehensive Peace Agreement (CPA) that ended the North-South civil war is unravelling. As a new U.S. special representative begins to make his mark, the international community may be ready to sacrifice the justice issue for a quick-fix deal that would ensure elections in 2010. But Sudan will have peace only when its impunity system is dismantled. The right course is to build leverage by strongly backing the ICC so as to persuade the NCP that it will only secure the deferral of Bashir’s case by adopting and implementing serious reforms.
In 2005, the Security Council gave the ICC jurisdiction over the situation in Darfur. The prosecutor eventually obtained arrest warrants against one mid-level official and one militia commander and then applied in July 2008 for a warrant against the president. The NCP sought to mobilise African, Arab and Islamic help by charging that the court, and its prosecutor in particular, was an instrument of a Western campaign against its Islamic discourse and for regime change. Domestically, it launched the Sudan People’s Initiative (SPI), advertised as a broad-based national consultation to come up with Darfur solutions, but it tightly controlled proceedings and has not carried out its recommendations.
Violence intensified in Darfur from September 2008 onwards, with deadly attacks on aid workers and the peacekeepers of the joint UN/AU mission (UNAMID). Inter-tribal clashes and fighting between government and rebel forces continued unabated, creating new civilian displacements. On 4 March 2009, the ICC Pre-Trial Chamber ordered the arrest of Bashir, upon which the NCP retaliated by expelling thirteen international non-governmental organisations (INGOs) that had been providing vital food and health services. Perceiving Bashir to be weakened by the arrest warrant, opposition and rebel groups hardened their positions and became even more reluctant to engage genuinely with the government. Though the Darfur rebel group JEM signed a “good will” agreement to pursue further talks with the government in February 2009, fighting continued on the ground, and the mediation process set up by Qatar in Doha appears stymied.
Attention has turned increasingly to the overarching threat in Sudan: possible collapse of the CPA, which could mean a return to wider civil war. The NCP has held back the key concessions required for the democratic transformation that agreement appeared to promise, including repeal of repressive laws and restoration of basic freedom of association and expression, and it has blocked the actions necessary for a peaceful referendum, such as a credible census, demarcation of the border, fuller wealth-sharing and de-escalation of local conflicts in the transitional areas of Abyei, South Kordofan/Nuba Mountains and Blue Nile. It appears to have decided to allow neither the secession of South Sudan nor meaningful political reforms in the North. The South’s goal is now to maintain its 2011 self-determination referendum.
The international community, including the Obama administration and its new special envoy, Scott Gration, who shows welcome signs of activism, is right to make saving the CPA a priority. But the temptation is to accept a humanitarian, political and security quick-fix on Darfur in order to preserve chances to hold the 2010 general elections on time and move on to the 2011 referendum. Justice for the crimes committed in Darfur would be in danger of disappearing from that kind of peace process, just as it was dropped from the CPA negotiation itself in 2005 and later from the Eastern Sudan and Darfur Peace Agreements.
That would be a mistake. Justice and peace are closely connected in Darfur. Judicial reforms and transitional justice mechanisms leading to reconciliation and a culture of accountability are essential to the success and sustainability of the peace process there. Nor will there be sustainable peace in northern Sudan if the system of impunity is not done away with and genuine change of governance promoted. If the NCP is allowed to relegitimise its rule and close the door to political accommodation with Darfur rebels through a fraudulent electoral process in 2010, northern Sudan will likewise face increased turmoil. That turmoil and the failure to deal with census, border and military redeployment issues will also undermine the conditions for a peaceful referendum in the South on the future of that region.
The U.S. and other international partners of the Sudan peace process should increase pressure on the NCP in order to create a chance for meaningful policy changes. The best way to do so is to reconfirm their support for execution of the ICC arrest warrants and to deliver a firm message in Khartoum that they will only consider a Security Council resolution suspending execution (via the procedure for one-year renewable deferral provided in Article 16 of the Rome Statute that established the ICC) if the NCP first takes a series of specific and irreversible steps, including but not limited to acceptance of judicial reforms and transitional justice mechanisms as key elements of a Darfur settlement.
What is needed is not to sacrifice peace in Darfur to save the CPA – in any event a self-defeating proposition – but to strengthen peacebuilding throughout Sudan by taking aim at the system of impunity that has led to and prolonged the country’s multiple conflicts.
1. Implement legal and judicial measures to end impunity in Darfur, such as:
a) appointing non-partisan judges, including in the special courts;
b) ensuring the independence of courts, reviewing police investigation, arrest and prosecution procedures and replacing the chief justices and police commanders in the three Darfur states;
c) holding all government forces and associated militias accountable for their violations of international humanitarian law, such as attacks on civilians; destruction of property, livelihoods and means of sustenance, including wells and granaries; murder; forcible transfer of populations; and inhumane acts such as torture and rape; and
d) amending the provisions in the police law, the criminal law and the criminal procedural law that give the police and security personnel immunity.
2. Review the security management committee in each Darfur state and allow UNAMID to participate in it.
3. Replace the governors and their deputies by technocrats to administer the three Darfur states until elections.
4. Persuade President Bashir to step down as soon as possible, and in any event before the general elections.
5. Nominate another presidential candidate and agree with the GNU to postpone the election to 2011, so as to give time for Darfur’s stabilisation and allow fair Darfuri participation in the process.
6. Engage genuinely with the ICC.
7. Prosecute officials for whom the ICC has issued arrest warrants, by first suspending Ahmed Haroun, governor of Southern Kordofan state, and then bringing him and militia commander Ali Kushayb to trial in a credibly independent Sudanese court for the alleged crimes that are the subject of the ICC proceedings.
8. Suspend application of any court decisions on political and military prisoners in Darfur pending a final peace agreement there.
9. Establish a Transitional Darfur Task Force (TDTF), a high-level committee comprised of the president, first vice president, special envoy of the UN/AU, chief commander of UNAMID and the justice, interior and humanitarian affairs ministers, to monitor implementation of the above judicial and accountability measures.
10. Accept and implement a comprehensive ceasefire in the three Darfur states through the Doha peace process.
11. Participate in the UN/AU/Qatar-supported Doha peace process and accept and implement a comprehensive ceasefire in Darfur, as well as judicial reforms and transitional justice mechanisms, as key components for settlement of the conflict.
12. Affirm their support for the ICC and insist that Sudan and other countries cooperate with the execution of the arrest warrants, unless or until the Security Council defers the prosecutions in accordance with Article 16 of the Rome Statute.
13. Agree to deferral on the basis of Article 16 only on condition that the Government of Sudan first implements the measures set out above.
14. Recommend to the UN/AU special envoy in charge of the Darfur peace process that judicial reforms and transitional justice mechanisms be included as key components of any settlement.
15. Put judicial reforms and transitional justice mechanisms such as a truth and reconciliation commission and vetting procedures prominently on the Doha agenda.
16. Proceed with investigations into crimes allegedly committed by other senior Sudanese officials and rebel leaders in Darfur and consider seriously the option of sealed arrest warrants where appropriate.
17. Request the NCP to demonstrate progress in national investigations into the policies that drove the crimes and support the inclusion of judicial reforms, lifting of instituationalised immunities and the establishment of credible transitional justice mechanisms as key elements of the Darfur peace process.
18. Recommend practical measures for transforming the African Court on Human and Peoples’ Rights into a court able to conduct trials for atrocity crimes on the continent.
Nairobi/Brussels, 17 July 2009