Strategic Dialogue: Bashir Indictment

Hussein Yusuf’s initial essay in this strategic dialogue is Indicting Bashir is Wrong; Meghan Stewart’s initial essay is Indicting Bashir is Right.

Meghan Stewart

Hussein Yusuf and I clearly share a common goal for Sudan: a lasting peace. Where we diverge is on the question of whether the indictment of al-Bashir will support that goal. I believe it already has.

In making his arguments as to why the indictment of al-Bashir is wrong for Sudan, Mr.Yusuf relies on the premise that the Sudanese government, as it’s currently constituted under al-Bashir, will be a good faith partner in peace. This is a false premise. Al-Bashir’s government has demonstrated during the last four years of implementation of the Comprehensive Peace Agreement (CPA) with the South that it is anything but a good faith partner.

In carrying out his argument further, Yusuf asserts that the indictment of al-Bashir and peace and stability in Sudan are mutually exclusive, that “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.” He contends that indicting the sitting president of Sudan “destabilizes, erases the peace deal that was brokered with the South, and sends the whole country into chaos and even potential war.” Moreover, he argues that the “[i]nstead 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.” As a result, “[t]he indictment undermines conflict prevention in Sudan.”

But the facts do not support Yusuf’s assertions. Rather than leading to chaos and destabilization, the indictment of al-Bashir has led to increased international engagement in the Darfur peace process and renewed international support for the North-South peace process. Since the ICC issued the indictment, African and Arab states have significantly increased their support for a Darfur peace process. The African Union recently appointed a high-level panel headed by former South African President Thabo Mbeki to support the peace process, and in September 2008, shortly following the indictment, the Arab League initiated the Doha process, which was endorsed by the African Union and the United Nations.

With regard to South Sudan, on June 23, 2009, representatives from 32 states and international organizations, including the parties to the CPA, gathered in Washington, DC, and reaffirmed their commitment to implementation of the peace agreement. The North and the South both committed to implementation of the Abyei Arbitration decision, due in July, and al-Bashir’s government has moved forward with negotiations on the establishment of the referendum commission for the 2011 referendum on independence in the South. These important and contentious steps in the implementation of the CPA would not have been taken without increased pressure on the al-Bashir’s government.

A number of African and Arab states have cried foul on the indictment, but their outrage does not make the indictment wrong. The ICC process has pushed African and Arab states into action, spurring them to engage in Darfur on a more intensive basis than they have since the Security Council first put Sudan on its agenda in 2004.

Furthermore, complaints regarding a lack of time and consideration of African and Arab states are not based in fact. The Security Council and the ICC both conducted intensive investigations before moving forward with the ICC process in Sudan. The Security Council referred the situation in Darfur to the ICC in March 2005 (Resolution 1593(2005)) following a series of Chapter VII Resolutions and an investigation by a UN Commission of Inquiry to review reports of war crimes and crimes against humanity in Darfur. The ICC Prosecutor’s Office conducted three years of investigations before seeking an indictment, including interviewing thousands of witnesses and survivors.

The world cannot sit patiently on the sidelines until al-Bashir and his government are ready to make peace their way. Too many people would die while we waited. The international community must continue to use every tool at its disposal to push for peace, and the indictment of al-Bashir is an important step toward that end.

Hussein Yusuf

Meghan Stewart is correct when she states that the crimes committed against civilians in Darfur and Sudan’s Southern region have happened under the rule of al-Bashir’s party. But she is misguided in her support of the ICC indictment of Sudan’s president. She has presented several fallacies to explain her position and has failed to take into consideration the African-Arab reception of the indictment.

The indictment is dangerous for Sudan’s sovereignty as it could lead to the weakening of the government of Sudan and potentially even the disintegration of the country. The timing of this indictment is bad. The ICC should have listened to the African request to place a moratorium on the indictment and allow the peace process in Sudan to take its course.

Stewart argues that Botswana and South Africa have informed al-Bashir that he faces the possibility of arrest at the urging of the ICC if he steps foot in their countries. Botswana and South Africa are pinnacles of African democracy, but they do not represent the African Union’s position on al-Bashir’s indictment by the ICC. Nor are they the frontline states involved in the peace process in Sudan. The African Union and the Arab League have expressed shock and rejected this indictment because it does not promote justice in Sudan or present any durable solution for the conflict there. On the contrary, the indictment unravels the fragile peace process that numerous states, including the United States and the European Union, have worked hard on for years.

Stewart proves my point in her own words when she states that “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.” Sudan is indeed a complex country with a difficult history marked by war and injustice. Making an example of al-Bashir and using the indictment as a “tool” to bring about change is wrong and dangerous for Sudan. What the international community truly needs is a nuanced approach to the crises in Sudan, and a clearly outlined, multiple-track engagement of conflict resolution and long-term peace building.

Sudan is fragile a state that needs an awakening of democratic consciousness, strengthening of its institutional capacities, and healthy and knowledgeable engagement to resolve its conflicts. The indictment does not open doors. In fact, it actually complicates the opening of doors for peace in Sudan, revives old wounds of colonial control, and makes the conflict in Sudan harder to resolve. This indictment compromises the ICC’s credibility before African and Arab states.

Stewart claims that the Sudanese government has shown no interest in a “negotiated settlement for Darfur.” This is partially true in the sense that the Darfuri crises are still with us after many years. But to simply reduce the whole government of Sudan as an entity not interested in negotiations or peace settlements for the Darfur conflict is terribly misleading.

A good example of the government trying to forge a lasting peace is the Comprehensive Peace Agreement with southern Sudan, which ended one of the longest and bloodiest wars in Africa. The spirit and the imagination that went into this fragile but workable peace agreement could be applied to Darfur.

Another example is when the Sudanese government finally allowed African Union peacekeeping troops to monitor and protect civilians in Darfur, a clear testament to the willingness of the Sudanese government to engage with the international community to resolve the conflict in Darfur.

The U.S. government should continue to explore innovative ways to resolve the conflict in Sudan, and seek the wisdom and technical expertise of conflict resolution experts to help end the tragedies in Sudan and Africa as a whole. The United States should avoid supporting this terrible indictment, but should instead pursue a principled engagement with the Sudanese government.

Meghan E. Stewart is an attorney and Senior Peace Fellow with the Public International Law & Policy Group, where she advises governments on peace negotiations, constitutional reform, and democratization. Hussein Ali Yusuf is a Ph.D student at the Institute For Conflict Analysis and Resolution, George Mason University. They are both contributors to Foreign Policy In Focus.