Khartoum should not count on an Article 16 Deferral of the ICC (Alex de Waal)

In private conversation, there are few diplomats who believe that an ICC arrest warrant against President Bashir is a good idea, writes Alex de Waal in the concluding paragraph of his post at ssrc.blogs, September 18, 2008 entitled 'Khartoum Should Not Count On an Article 16 Deferral of the ICC'. Excerpts:

Last week, the text of the ICC Prosecutor’s public application for an arrest warrant against President Bashir was released. It can be found here. The text is heavily redacted in places, where the prosecution does not want to make its sources public. As the Lubanga trial has shown, if the case ever comes to court, prosecution evidence will have to be shared with the defence.

There is a small chance that the judges will not accept the genocide charges at all. But the charges of crimes against humanity and war crimes will surely go ahead.

Next week, Vice President Ali Osman Taha leads a large Sudanese government delegation to the UN General Assembly. The strategy is undoubtedly to try to get a UNGA resolution condemning the ICC. Sudan has the support of the African Union (whose Peace and Security Council will also pass a resolution on the issue next week) and the League of Arab States.

A vote at the UN General Assembly carries symbolic weight. But it’s only the UN Security Council that has the power to defer a prosecution under Article 16 of the Rome Statute. It is important to recall the procedure here. To prevail, Sudan needs a Security Council member to introduce a resolution, which will need the votes of at least nine of the fifteen members, and which must not be vetoed by any one of the five veto-wielding members. Sudan has strong support from the African and Asian blocs in the Security Council. It probably has seven assured votes including China and Russia. South Africa is the most likely sponsor of a resolution, as an African state and a state party to the ICC, which opposes the indictment of Bashir.

Sudan’s challenge is to win at least two more votes and to ensure that none of the U.S., Britain or France uses its veto. All three of these governments have been engaged in discussions with the Sudan government over what would be required for them to support an Article 16 deferral.

To date, the Sudan government is far from meeting the conditions laid down. In fact, Khartoum’s actions in Kalma camp and its military offensives in North Darfur have set back the process.

President Bush is alone among world leaders in having labeled Darfur as “genocide.” He has now been joined by Luis Moreno Ocampo. It would be extraordinarily difficult for the U.S. government, with no concrete gains to demonstrate to the American public, to block an effort to indict the Sudanese president for the crime of genocide.

Without very major, verifiable and irreversible steps towards meeting American conditions, an American veto is near certain.

Both France and Britain have hinted that they might accept softer conditionalities than the Americans for supporting—or not vetoing—an Article 16 deferral. France has aligned itself with the Qatar initiative for a Darfur peace process. While the Sarkozy government seems to be refusing to make any formal link between the Qatar process and the ICC, other than the observation that a credible peace process is a good thing for Sudan and its standing, there is speculation that a deal may be cooking. France also has its specific concerns on Chad. The British government has dropped similar hints about a softer line—Foreign Office minister Lord Malloch-Brown said as much in a recent interview.

As with the Americans, Khartoum needs to make a lot of demonstrable progress before Britain or France decide not to veto an Article 16 deferral.

The fundamental problem between Khartoum and the three western capitals is a lack of trust. The P3 of Washington, London and Paris wants to see verifiable and irreversible progress, albeit in slightly different configurations. Powerful Sudanese leaders suspect that there is a regime change agenda lurking and that any concessions they give will be swallowed up and followed by more demands.

In private conversation, there are few diplomats who believe that an ICC arrest warrant against President Bashir is a good idea. But the mechanism for stopping it is very unlikely to work in the time available. The most probable scenario for the next few months is that an Article 16 resolution is introduced to the UN Security Council and vetoed by one or all of the U.S., Britain and France, and then the ICC’s Pre-Trial Chamber will issue the arrest warrant.

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Vagueness and ambiguity from the P3

Note comment by Michael Davies in response to Alex de Waal's post 'Khartoum should not count on an Article 16 Deferral of the ICC'. Excerpt:

Alex - I think you are right in all you say above. And time is now very definitely running out. Some observations on the current situation:

Vagueness and ambiguity from the P3

At this stage, the French and British are just not clear enough where they are setting the bar for an Article 16 deferral. The usually-clear Americans are wrong-footed by their opposition to the ICC in a way that confuses everyone else involved. That now has to change.

Going by recent posts here at Sudan Watch, I think that the French and British are so vague and ambigious it actually makes them appear slippery, forked tongued and cavalier. Imagine how their 'diplomatic speak' translates into Arabic. It's hard enough figuring out their English version. It took me ages to transcribe Lord Malloch-Brown's talk (ref Sudan Watch post 20 September 2008 TRANSCRIPT OF BLIP.TV VIDEO: Lord Malloch-Brown in discussion at the Frontline Club)

Read the rest of Michael's comment at ssrc.blogs - Making Sense of Darfur.