SUDAN WATCH: UN Security Council: Article 16 deferral resolution on Bashir Darfur case unlikely

Saturday, February 14, 2009

UN Security Council: Article 16 deferral resolution on Bashir Darfur case unlikely

A Council discussion in response to a decision by the judges of the pre-trial chamber is likely. But it may come in the content of other scheduled meetings.

A formal Council meeting on Sudan is scheduled for 17 February to discuss the latest Secretary-General’s report on AU-UN Hybrid Operation in Darfur (UNAMID).

UN SECURITY COUNCIL UPDATE REPORT NO. 1
SUDAN
13 FEBRUARY 2009
(Sudan Watch Note: I have highlighted text in red, for future reference)

Expected Council Action • Key Recent Developments • Key Issues • Options • UN Documents • Other Relevant Facts • Other SCR Reports on this Issue

Expected Council Action
Council members anticipate that shortly a decision will be issued by the judges of the pre-trial chamber of the International Criminal Court (ICC) concerning the prosecutor’s application of 14 July 2008 for the issuance of an arrest warrant against Sudanese President Omar al-Bashir.

It seems inevitable that any announcement of a warrant will trigger some discussion in Council informal consultations. However, recent private Council discussions suggest that formal Council action is unlikely. Some members may continue to advocate for a resolution suspending Court proceedings, but it seems clear that the votes to pass such a resolution are not there.

A formal Council meeting on Sudan is scheduled for 17 February to discuss the latest Secretary-General’s report on AU-UN Hybrid Operation in Darfur (UNAMID).

Key Recent Developments
The application for a warrant of arrest against Sudanese President Omar Hassan al-Bashir in connection with alleged genocide, crimes against humanity and war crimes in Darfur was lodged with the Court by Chief Prosecutor of the ICC Luis Moreno-Ocampo on 14 July 2008. For a detailed background please see our 28 July 2008 Update Report.

The security situation in Darfur deteriorated in January as a result of rebel movements undertaking military offensives, retaliatory attacks by the Sudanese armed forces and continued tribal fighting in southern Darfur. A UNAMID staff member was shot and wounded on 31 January in El Geneina in western Darfur.

On 9 February, a UNAMID helicopter was fired upon near its headquarters in El Fasher in northern Darfur.

On 3 February, the Council received a second briefing in closed consultations from Assistant Secretary-General for Peacekeeping Operations Edmond Mulet on the continued fighting between Justice and Equality Movement (JEM) forces and the Sudanese military in Muhajeriya in southern Darfur. The Council was informed that Sudanese forces had dropped 28 bombs in Muhajeriya that morning (seen by some as a likely breach of the sanctions regime) despite reports JEM was withdrawing its forces from the area. Members were also informed that UNAMID officials had been prevented by the Sudanese government from undertaking an assessment visit to Muhajeria, in violation of the status of forces agreement between UNAMID and the government, which allows unrestricted movement for UNAMID throughout Darfur.

The fighting at Muhajeria appears to have ceased. It led to at least thirty deaths and uprooted some 30,000 people. Sudanese authorities have reportedly prevented aid agencies from accessing more than 100,000 civilians in the affected areas in southern Darfur. The Council initially began work on a presidential statement addressing the situation. While it seems consensus was reached on several elements of the draft statement including deploring JEM’s provocation in Muhajeriya, for all military action, including aerial bombings to cease, for all parties to respect UNAMID’s freedom of movement, and for rebel groups that have not done so to attend peace talks, unanimity was not achieved in part because of the deep division within the Council on the issue of suspending ICC proceedings against al-Bashir. The draft also seemed to be overtaken by events—not least the cessation of the fighting but also the fact that on 10 February a Khartoum government delegation met JEM representatives for the first time since 2007 in Doha, Qatar to begin discussions on a framework agreement for peace talks. Advisor to al-Bashir, Nafie al Nafie and JEM leader, Khalil Ibrahim were present for the talks.

On 9 February, the Arab League Secretary-General Amr Mussa, Organisation of the Islamic Conference Secretary-General Ekmeleddin Ihasanoglu, AU Commission Chairman Jean Ping, Qatar’s State Minister for Foreign Affairs Ahmad bin Abdullah al-Mahmud and UN/AU joint chief negotiator Djibril Bassolè met in Doha to discuss support to the peace talks. Despite the ongoing talks in Doha, a JEM spokesperson in Darfur said JEM forces had clashed with Sudanese forces in Malam southern Darfur on 12 February. JEM also claimed Sudanese army troops attacked JEM forces in Jebel Marra in western Darfur but that JEM had repelled the attack.

The former rebel group, Sudan Liberation Movement led by Minni Minnawi (SLM/MM) who signed the Darfur Peace Agreement with the government in 2006, reportedly asked to join the peace talks but was told by the government they would be part of the government delegation. (Clashes were reported between SLM/MM and the Sudanese Armed Forces on 22 January in Graida in southern Darfur.) The Sudan Liberation Movement faction of Abdel Wahid al-Nur continues to refuse all talks with Khartoum.

During the 12th Ordinary Summit of the AU Heads of State and Government in Addis Ababa from 2 to 4 February, members adopted a decision urging the Security Council to defer ICC proceedings in view of the fact an arrest warrant against al-Bashir would seriously undermine the ongoing efforts to resolve the conflict in Darfur. Members of the AU Peace and Security Council also decided to establish a High-Level Panel of Eminent Personalities under the chairmanship of the former president of South Africa, Thabo Mbeki, to submit recommendations on how best to reconcile the issues of accountability and impunity with reconciliation and healing in Darfur.

During a 14 January meeting of the Arab-African Ministerial Committee for Peace in Darfur in Doha, the Committee mandated a delegation from Qatar, the AU and the Arab League to visit New York to mobilise international support for the peace process in Darfur and to seek a deferral from the Security Council on ICC proceedings. Council members met the delegation, led by AU Commissioner for Peace and Security, Ramtane Lamamra, on 12 February. Council members were told that while the AU and Arab League do not believe in promoting impunity, further time was needed to allow progress in Sudan and that a deferral of ICC proceedings would facilitate progress. The responses of the Council members were divided, but demonstrated that most Council members were unconvinced that a suspension would facilitate progress. The failure of the delegation to bring to the table any credible benchmarks seems to have been a major factor in the firm positions that were articulated. Clearly a suspension resolution could not attract enough votes to pass.

Other related developments include a further deterioration in relations between Sudan and Chad. An agreement on 8 November to resume full diplomatic relations and exchange ambassadors seems to have collapsed, with the Chadian government accusing the Sudanese government of supporting the Chadian armed opposition coalition, Union of Resistance Forces and its aim to destabilise Chad. The Sudanese government has accused Chad of supplying Darfur rebel group JEM and providing protection to the rebels. The AU has expressed serious concern at the current tensions. The AU mission chaired by former Burundian president Pierre Buyoya, which visited the region in October/November 2008 (following the request of the AU Peace and Security Council in June) to examine the root causes of tension between Sudan and Chad is yet to release its recommendations.

The AU-sponsored Dakar Agreement Contact Group failed to meet in Khartoum in January. Following its last meeting in N’Djamena on 15 November the Group indicated a peace and security force comprised of Sudanese and Chadian troops to monitor the common border would be deployed in January 2009. This appears to be delayed.

Key Issues
With the prospects for an ICC article 16 deferral resolution now clarified, Council members are likely to begin to focus on the issue of what in practice an ICC indictment will mean for the peace process in Darfur and for stability in Sudan and the region. One risk is that it may stimulate both sides of the conflict to step back from peaceful negotiations and commence new military offensives. Another risk is possible obstruction, violence or reprisals as a result of any indictment.

A key underlying and persistent issue is getting the government and rebel groups to the negotiating table and for an agreement to be made on a meaningful ceasefire and peace process in Darfur.

Another issue is the division in the Council on sanctions.
The Council issued a presidential statement prior to the convening of peace talks in Sirte in October 2007, which underlined its willingness to take action against any party that sought to undermine the peace process. However, no action such as, for example, individually targeted sanctions, has been taken against peace spoilers. And despite resolutions repeatedly demanding there be no aerial bombings in Darfur, the continued use by the government of such a tactic continues and the Council has been unable to reach consensus on a presidential statement condemning these acts. A question which has been increasingly acute for several months is how the Council can regain some sort of relevance in the eyes of the parties.

Options
A Council discussion in response to a decision by the judges of the pre-trial chamber is likely. But it may come in the content of other scheduled meetings.

Given the suspension resolution now seems very unlikely, there are some common themes which the Council unanimously supports including:

the need for all parties to commit to peaceful negotiations;
the cessation of military action;
UNAMID’s freedom of movement;
the need for civilians to be protected; and
the safety of humanitarian workers.

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