Indicting Bashir Is Wrong

This is part of a strategic dialogue on Omar al-Bashir’s indictment. Find Meghan Stewart’s piece here and the responses here.

The indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC) threatens peace and security in Sudan. The arrest warrant for the president not only escalates the conflict in Darfur and makes the resolution of the conflict more elusive, but it also weakens the sovereignty of the state of Sudan. This in turn revives the violence that escalated in the South-North war, destroying the peace deal that ended 22 years of civil war. This war saw the deaths of two million Sudanese and the displacement of more than three million refugees overseas.

The premise for the indictment of al-Bashir largely rests on the killing of civilian Darfuris during the war between government troops and the Janjaweed militia on one side and opposition forces on the other. According to the United Nations High Commissioner for Refugees (UNHCR), this second conflict left 200,000 people dead and about 2.5 million internally displaced in camps. Responding to these atrocities, Luis Moreno-Ocampo, the ICC prosecutor filed 10 charges against the president. There were five counts of crimes against humanity and two counts of murder. The indictment also accused al-Bashir of planning a campaign to wipe out African tribes in Darfur such as the Fur, Masalit, and Zaghawa. The court rejected the three genocide charges because Moreno-Ocampo failed to provide sufficient evidence.

The crimes committed in Darfur are clear and well documented. Al-Bashir certainly presided over the state when it directed the killing of hundreds of thousands of civilians. This same state failed to provide shelter and basic necessities to displaced peoples. The question before the international community is not whether or not to arrest al-Bashir for the war crimes for which he stands accused. Rather, the most important question is: How does the international community protect the people of Sudan and safeguard the signed peace agreements between the government with the South and the rebel groups in Darfur? The indictment of al-Bashir does not help to achieve these goals.

Arab and African Reactions

Instead of waiting for the input of the African Union and the Arab League, which are both crucial to the resolution of this conflict, the ICC hurriedly embarked on making history. It went ahead and indicted a sitting leader for the first time since its founding. The indictment undermines conflict prevention in Sudan and complicates the mission of the weak peacekeeping forces in the country. It also ruins the credibility of the ICC in the eyes of the African Union and the Arab League. African Union members are already calling for a massive pull out of the ICC because they see the indictment as political and selective. Ramtane Lamamra, the African Union commissioner for peace and security criticized the ICC’s downplaying of the AU’s “legitimate concerns.” He went on to say that “some member states have raised profound apprehension on the…conduct of the prosecutor and unreservedly attributed the indictment of the Sudanese president to a glaring practice of selective justice.” The African Union worked hard to block the indictment and asked for peace in Sudan to be given a chance.

The Arab Summit last month in Doha firmly supported the government of Sudan and rejected the indictment of al-Bashir. Many Arab states like Egypt, Syria, Yemen, and others issued their own statements against the indictment of the president. Egyptian Foreign Minister Ahmad Abu Al-Gheit spoke of the “the deterioration of the security situation and the threat to state security and political stability in Sudan.”

African and Arab nations are deeply disturbed by what they see as a world system largely governed and run by powerful western states where their voices are not heard or even considered in the world body of the United Nations. Many states in the African Union and the Arab world see al-Bashir’s indictment rightly or wrongly as an infringement of their sovereignty and security. The redefinition of sovereignty through the Responsibility to Protect doctrine is problematic for many of the states that gained independence in the 1950-60s, and feel they have earned their sovereignty in the fight against European colonialism and oppression. Sovereignty cannot be a shield of protection for human rights abusers. But Western countries often ignore the emotional and historical reality of geopolitics in the Afro-Arab world when they support the ill-informed indictment of al-Bashir.

Beyond Black and White

Sudan is a complex country with diverse people and races that have experienced hostility, wars, and coexistence for many years. Sudan’s politics cannot be seen as simply black and white, which is how we would like to view it in the west. In this instance, issuing the indictment of a sitting president will not prevent more lives from being lost or help to manage the conflict in Sudan, or even promote justice there. On the contrary, it destabilizes the region, erases the peace deal that was brokered with the South, and sends the whole country into chaos and potentially war.

A case in point is that right after the ICC issued the arrest warrant for al-Bashir, the Justice and Equality Movement, the loudest and most media-savvy rebel group in Darfur that signed a preliminary accord with al-Bashir’s government, announced that it was no longer interested in negotiating with the government. The southern portion of Sudan is clearly nervous about the implications of this indictment. In March 2009, a few weeks after the issuance of the ICC warrant, UNHCR reported a conflict breaking out between the Nuer and Murle ethnic groups in the Jonglei region that killed 750 people and sent many to seek refuge in neighboring towns.

Instead of focusing on indictments, the international community should focus on saving lives in Darfur. Sudan needs humanitarian aid and conflict resolution experts, not legal proclamations. After the indictment of al-Bashir, the Sudanese government expelled organizations like Médicins Sans Frontières from the country, disrupting supplies of food, medicine, and shelter to uprooted communities. The government saw these organizations as part of a Western campaign to bring it down.

Sudan can only continue down the spiral of conflict and chaos if the international community relies on the indictment strategy. If Sudan goes up in flames, so does Darfur, the south, every region in Sudan. Prevention of this potential chaos should be the world’s focus, not an arrest warrant that isn’t taken seriously in Sudan or in many parts of the African and the Arab world.

Hussein Ali Yusuf is a Foreign Policy In Focus contributor and a Ph.D student at the Institute For Conflict Analysis and Resolution, George Mason University.