Indicting Bashir is Right

This is part of a strategic dialogue on the indictment of Omar al-Bashir. You can read Hussein Yusuf’s piece here and the responses here.

The International Criminal Court’s indictment of Sudanese President Omar al-Bashir is more than a moral imperative. It’s a strategic opportunity to advance peace in Sudan.

Since al-Bashir took office in 1989 through a military coup, he has overseen two premeditated, coordinated military campaigns inside Sudan, both characterized by crimes against humanity and war crimes. Although the ICC’s indictment only addresses acts committed in Darfur, the Sudanese government killed hundreds of thousands of citizens and displaced millions of others over the course of these two campaigns. The first campaign, in the south, ended with the signing of the Comprehensive Peace Agreement in 2005 with the Sudan People’s Liberation Movement/Army. The second, in Darfur, is ongoing, and there is no immediate end in sight.

Opponents of the ICC’s indictment of al-Bashir argue that the ICC’s involvement in Darfur will stifle negotiations, prolong the conflict in Darfur, and harm Darfuri civilians. In the short term, these opponents have been partially correct on one count. Sudan’s response to the indictment has negatively influenced civilians in Darfur — an admittedly high cost to pay for a possibility of peace. But on the other counts, opponents of the indictment have failed to take into account the realities on the ground. The indictment is not responsible for prolonging the conflict in Darfur or preventing negotiations. On those counts, al-Bashir and the Sudanese government are the guilty parties.

Al-Bashir has shown no interest in a negotiated settlement for Darfur. The government of Sudan continues its efforts to divide and conquer Darfuri leaders, and those efforts to date have been quite successful. Infighting among factions of Darfuri leaders has increased, and the Sudan Armed Forces and Janjaweed continue to foment fear and unrest through new attacks on civilians. Some Darfuri rebels actively work to undermine each other, effectively supporting the goals of the Sudanese government and harming the interests of the Darfuri population at large. But the indictment has had no effect on these dynamics. The blame for lack of progress in the peace process in Darfur lies with the parties to the conflict, particularly al-Bashir and his government, not with the indictment.

That said, there is no doubt that the warrant for al-Bashir’s arrest was issued at a time when Sudan is at a complex crossroads, balancing the continued conflict in Darfur and the peace process with South Sudan. But rather than prolonging the conflict and preventing negotiations in Darfur, the indictment of al-Bashir will in fact open doors to new possibilities for peace, if the international community can find the means to take advantage of those opportunities.

Justice and Peace in Sudan

To date, the indictment represents the only opportunity for justice for the millions of people in Darfur affected by the Sudanese government’s military campaign. The situation in Darfur is the exact type of situation the ICC was established to address, and the Court has clear jurisdiction to act under United Nations Security Council Resolution 1593(2005).

Given the wealth of evidence collected on the Sudanese government’s crimes in Darfur, no reasonable observer can doubt the extent of the atrocities committed there. Omar al-Bashir holds primary responsibility for the deaths of the hundreds of thousands of Darfurian civilians who have been killed in the coordinated campaign. For the survivors of those atrocities to accept peace, al-Bashir must be held accountable for his role in the atrocities committed in Sudan’s Darfur region.

But justice is not the only prerequisite for long-term peace and stability in Sudan. To implement a long-term peace, the Sudanese government must support peace, and this step will not occur with al-Bashir as president.

Contrary to the blustery displays of defiance following the issuance of al-Bashir’s arrest warrant, and despite quick condemnation from select states, some reports indicate that al-Bashir’s grip on power is increasingly tenuous. Furthermore, behind the public rallies and accusations of sovereignty violation — the standard argument used by murderous regimes when they’re called on to account for their actions — there are indications that al-Bashir’s indictment has weakened the Sudanese government’s strength and resolve to continue previous policies in Darfur.

In recent weeks, the Sudanese government made a series of concessions in response to international pressure on Darfur. It has allowed a number of international humanitarian organizations back into Sudan; adopted reforms to Sudan’s Penal Code to incorporate war crimes and crimes against humanity, per the recommendation of the Arab League; and announced that it will implement the recommendations of the African Union’s panel on Darfur, which is tasked with helping Sudan to move the peace process forward and implement accountability mechanisms. It’s unclear whether these changes will help lead to a viable, long-term peace process. In the short term, however, they demonstrate that al-Bashir’s indictment has pushed the Sudanese government toward reform, and there is potential for additional change.

These reforms may also indicate great change on the horizon within Sudan. Some insiders claim that as a result of the indictment, the National Congress Party (NCP), al-Bashir’s political party, is laying the groundwork to remove him from power. The indictment may establish al-Bashir as the face of the genocide and allow the NCP to remain in power while reversing previous policies in response to international pressure. The indictment may be the out that the NCP has been looking for.

As international pressure on the Sudanese government has increased, international condemnation of the indictment has decreased. Despite initial calls for African governments to withdraw en masse from the Rome Statute, governments have been much more moderate in their protests. At two recent regional meetings, held in Victoria Falls, Zimbabwe, and Addis Ababa, Ethiopia, governments stopped far short of withdrawing from the Rome Statute, instead issuing calls for the UN Security Council to suspend the indictment. Moreover, according to reports from the region, the leaders of a number of African states, including Botswana and South Africa, have communicated to al-Bashir that they will honor the ICC’s arrest warrant if al-Bashir travels to their territory.

The ICC’s indictment of al-Bashir, in conjunction with years of sanctions and Security Council action, has opened the door for reform in Sudan. International pressure has yielded demonstrable successes. But how do we turn those successes into a viable peace process?

Next Steps

To support peace in Sudan, the U.S. government should strongly support the ICC indictment. This support should include coordinating with other states to ensure enforcement of al-Bashir’s arrest warrant, establishing a clear international roadmap to advance the peace process, and directly engaging with the parties to the conflict to push for a durable negotiated settlement. The U.S. government must work to establish a strong, coordinated international approach toward Sudan, working bilaterally with like-minded states to harmonize policies and through the Security Council and the General Assembly to block efforts to suspend the indictment. Unless Sudan and the NCP demonstrate a strong willingness to work toward peace, including removing al-Bashir from office, the U.S. government should continue to push for the strict enforcement of comprehensive sanctions and bilateral pressure from Sudan’s remaining friends and allies, particularly China.

The U.S. government can also advance the peace process in Darfur by helping to bring together different Darfuri rebel groups to reconcile and develop a coordinated negotiating position. It can support cooperation by offering rewards for collaboration among Darfuri leaders and technical assistance to build the capacity of Darfuri leaders to negotiate toward peace. This strategy is used regularly to support peace negotiations, and similar support has proved successful in a number of peace processes, including Bosnia and Kosovo.

The goal in Sudan is long-term peace and stability, and the indictment of al-Bashir is an important step in that direction. Al-Bashir and his supporters have been backed into a corner, an uncharacteristically weak position for the regime. The door is now open to end to the conflict in Darfur.

Meghan E. Stewart is an attorney, a contributor to Foreign Policy In Focus, and Senior Peace Fellow with the Public International Law & Policy Group, where she advises governments on peace negotiations, constitutional reform, and democratization.