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Sudan: Justice, Peace and the ICC
Sudan: Justice, Peace and the ICC
Table of Contents
  1. Executive Summary
Sudan: Stopping a Spiral into Civil War
Sudan: Stopping a Spiral into Civil War
Report 152 / Africa

Sudan: Justice, Peace and the ICC

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.

Executive Summary

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.

Nairobi/Brussels, 17 July 2009

Sudanese forces are deployed around Khartoum's army headquarters on 3 June 2019 as they try to disperse Khartoum's sit-in. AFP / ASHRAF SHAZLY
Statement / Africa

Sudan: Stopping a Spiral into Civil War

Sudan’s political transition is in great peril following the unprovoked killing of dozens of protesters. The African Union has rightly suspended the country’s membership. Western and Gulf powers should take urgent steps to compel Sudan’s interim leaders to accept a civilian-led transitional administration. 

On 3 June, Sudan’s security forces launched a bloody crackdown on unarmed protesters in Khartoum, clearing a sit-in outside the country’s military headquarters and bringing its political transition to a screeching halt. The horrific rampage left dozens dead and many more injured. State-affiliated militias now roam the streets of the capital and other major cities, with residents sheltering at home. Many Sudanese fear the prospect of fractures among the army, intelligence services and Rapid Support Forces (RSF), the paramilitaries blamed for the attacks. The risk of widespread conflict is at its highest since the military removed Omar al-Bashir on 11 April. But the alarming course of events is reversible. On 6 June, the African Union’s Peace and Security Council took an important first step in the right direction, suspending Sudan’s African Union (AU) membership until authorities put a civilian administration in place. Other world leaders, including Sudan’s backers in the Arab world, must now follow suit, quickly and in concert, to force the military junta to resume talks aimed at handing power to a civilian-led transitional authority.

The ouster of Bashir was set in motion by a remarkable, non-violent campaign, which began in the provinces in mid-December and quickly spread countrywide, eventually forcing the toppling of one of Africa’s longest-ruling leaders. Since 11 April talks have been marked by periods of apparent progress, only to be followed by stalemate. On one side is the Transitional Military Council – an awkward marriage of the Sudan Armed Forces, now led by General Abdel Fattah al-Burhan, and the RSF, a rural militia primarily from Darfur led by General Muhammad Hamdan Dagalo, known as Hemedti, who many consider the true power behind the scenes. (The RSF rose to prominence as a counter-insurgency force during the civil war in Darfur.) On the other side is the opposition – the Forces of the Declaration for Freedom and Change, comprising traditional parties and active rebel movements as well as a coalition of professional trade unions known as the Sudanese Professionals Association.

There had been hopeful signs: the two sides agreed on the outlines of a deal built around a civilian-led executive overseen by a sovereign council for a three-year transitional period leading up to elections. The sovereign council’s composition and chairmanship remained in dispute, but the parties reportedly came close to a compromise under which they would have had an equal number of seats, with the chair rotating between the two sides, and with the civilian-dominated council of ministers and legislative council wielding more power in any case.

What happened next is not entirely clear. According to various reports, parts of the military council were unhappy with the tentative deal, fearing it ceded too much power. The RSF and other disgruntled elements scrapped the deal and moved to disperse the protesters. On 4 June, Burhan announced plans to form a government and hold elections in nine months.  That the crackdown came immediately on the heels of the junta leaders’ first state visits from 23 May, including to Egypt, Saudi Arabia and the United Arab Emirates (UAE), fuelled protesters’ suspicions that external actors encouraged the Sudanese officers down the path of violence instead of compromise.

All concerned with peace and stability in Sudan should take every possible step to stop this prospect in its tracks and press for a genuine transition to a civilian-led transitional administration.

The attacks on the protesters have muddied the road ahead. The RSF now patrols the streets of Khartoum as residents hole up at home, fearing to go out and without internet access, which the state has cut off. The crackdown could in principle bring together the factious opposition against the military council, which had been quietly trying to peel off some of the established opposition parties. Protesters say they will continue their campaign of civil disobedience rather than negotiate to share power with the military rulers responsible for the mass killings. They have demanded that the junta step down.

The junta’s most powerful constituency lies, by all appearances, outside Sudan – in Cairo, Riyadh and Abu Dhabi. The Saudis and Emiratis know Burhan and Hemedti well due to their command of Sudanese forces in the Yemen war. They trust the generals to shepherd the country through a managed transition from one military-led regime to another, avoiding the interlude that occurred in Egypt – elections with uncertain outcomes followed by brief Muslim Brotherhood rule – by sidelining those favouring more wholesale reform among civilian protesters. This gambit is risky, however: it could lead to greater unrest, or perhaps even civil war, precisely the outcomes Arab allies say they dread. The recent two-day general strike has made clear that popular protest can continue to render the country ungovernable. Sudan’s economic troubles are already severe, and both Saudi Arabia and the UAE would be on the hook for open-ended subsidies to keep the ship of state afloat.

The gambit also appears based on a faulty analogy. An Egyptian-style managed transition in Sudan lacks a critical ingredient: a cohesive military. Bashir gutted the Sudan Armed Forces, gradually outsourcing security tasks to a dysfunctional array of state-backed militias and paramilitaries, in order to forestall a coordinated challenge to his rule. In recent years he bolstered the RSF in particular to counterbalance other elements of the security apparatus. The RSF also gained influence as it contributed to the Saudi-led war in Yemen. Indeed, Bashir so divided his security forces that, in the end, he could only be ousted through a coup-by-committee. Today, many of Sudan’s officer corps would sooner trust their fate to Khartoum’s opposition elite than to Hemedti, whom they view as a thuggish provincial warlord and who lacks the legitimacy and political constituency to rule on his own. In short, this bloated and fissiparous security apparatus offers no clear foundation for a political regime.

A key to a peaceful settlement thus lies in prompting the junta’s Arab backers to rapidly shift tack. There are signs that they and their Gulf backers have softened their position in the face of widespread condemnation and revulsion at the attack on unarmed protesters. On 5 June, Saudi Arabia publicly expressed “great concern” over the loss of life in Sudan, calling for a resumption of dialogue. As if in response, Burhan quickly changed his tune, calling on 5 June for the opposition to return to talks. A day earlier, the U.S. State Department released an unusually blunt readout from a call between Under Secretary of State for Political Affairs David Hale and Saudi Deputy Defence Minister Khalid bin Salman in which the Americans pressed for a transition to a civilian-led government “in accordance with the will of the Sudanese people”. This call may be directly related to the softening of Riyadh’s stance – and Khartoum’s.

Still, Sudan’s peaceful transition to more inclusive governance is in great and immediate peril. International actors should take the following steps:

  • The AU Peace and Security Council should follow up on its suspension of Sudan’s membership by pressing authorities there to drop their unilateral decision to hold elections within nine months. The military rulers should instead go back to the deal earlier broadly agreed with protesters for a civilian-led transitional administration. The Council should set a new deadline for the conclusion of a final round of talks on the hand-over to an authority led by civilians. AU Commission Chair Moussa Faki should visit Khartoum at the earliest opportunity to convey the urgent need to meaningfully advance the dialogue process.
     
  • Parties with influence over Riyadh and Abu Dhabi, particularly the U.S., should urge them to lean on the generals in Khartoum to back down from their attempts to rule through repression. They should instead ask Sudan’s military rulers to resume talks with the protesters and swiftly accede to a civilian-led transitional authority that can restore stability.
     
  • To persuade an understandably reluctant civilian protest movement to resume talks, the junta will need to take a number of confidence-building measures. It should release all political prisoners, accede to an outside-led commission of inquiry into the killings and swiftly reinstate access to telecommunications. A more difficult step might be persuading the RSF, whose reputation arguably is beyond repair following its role in the violence, to retreat to the barracks. To this end, the RSF’s backers, notably Riyadh and Abu Dhabi, should rein in its leaders and urge them to back down, to avert the descent into chaos they fear. Egypt, a key regional power broker and current chair of the AU Assembly, ought to have every interest in avoiding a Libya-style meltdown in one of its key neighbours. It should lean on Saudi Arabia and the UAE to persuade the RSF leadership to pull their men out of Khartoum and to give space to parties able to strike a deal that could prevent a dangerous slide to civil war.
     
  • The AU Peace and Security Council, the U.S. and the EU should warn members of Sudan’s security forces who stand in the way of a political deal that they will face targeted sanctions, asset freezes and travel bans. The Council, which on 6 June took the additional welcome step of cautioning those obstructing a path to a political settlement that they would face individual sanctions, could start compiling a list of targets. 
     
  • The U.S. should reiterate that no talks with Khartoum toward the normalisation of ties, which could lead to the lifting of Sudan’s state sponsor of terrorism designation, the potential return of a permanent ambassador to Khartoum and Washington’s enabling of debt-relief, will resume until the military junta reaches a deal on a civilian-led transitional authority.   

As early as 2012, Crisis Group had warned that the security forces might fly apart in a post-Bashir Sudan. The danger of such a split – and the conflict it portends – is real and growing. All concerned with peace and stability in Sudan should take every possible step to stop this prospect in its tracks and press for a genuine transition to a civilian-led transitional administration.