ICC's case against Sudan's President Omar Hassan Al-Bashir is a mess riddled with flaws - UNSC must invoke Article 16

Fellow Brit Dr Alex de Waal (recently awarded an OBE for his services to development and conflict resolution in Africa) has just published his latest analysis at his ssrc.org blog Making Sense of Darfur. The analysis contains a neat round-up of news on Sudan and, with regard to averting a constitutional crisis and a return to civil war, a proposal that the UNSC should invoke Article 16 without condition. In other words, as reported by Sudan Tribune 26 January 2009 [Sudan expert calls for ‘unconditional’ deferral of Bashir indictment], the UNSC should exercise its power and suspend any arrest warrant that may be issued by the ICC against Sudan's President Al-Bashir.

The entire archives of Sudan Watch show why I wholeheartedly support the proposal that the UNSC should invoke Article 16 without condition. For the record, here is a copy of the analysis followed by Dr Alex de Waal's critique posted on 27 January 2009 at his ssrc.org blog, Making Sense of Darfur. In addition to a postscript here below, I have added a YouTube video message to implore all warring factions in Sudan to think of Sudan's children and give peace a chance. Also, for future reference, here below is news from Kampala, Uganda that the UN-African Union Mission in Darfur (UNAMID) has opened a liaison office in Uganda; plus a report from Sudan Radio Service claiming that Sudanese journalists in Khartoum have been told by the UN Mission in Southern Sudan (UNMIS) to check facts with UNMIS before reporting on UNMIS.

Here is the analysis from Making Sense of Darfur by Dr Alex de Waal, 25 January 2009:

Dangerous Weeks Ahead

Sudan is in a state of high tension at the moment, and we face a dangerous month ahead. Darfur is witnessing its worst fighting for a year.

The immediate cause of the tension is the expected arrest warrant to be issued by the ICC, the immediate cause of the fighting is JEM’s offensive.

The Sudan Government sees the ICC as the gravest threat to its survival it has ever faced and a matter of life and death. It is a national issue, not one confined to Darfur. Up to now, the Sudan Government has responded coolly to the threat, but it is clear that no option is off the table should an arrest warrant be issued.

Key to how the Khartoum leadership responds will be the reactions of others, international and domestic. If the reaction all round were to be that the arrest warrant changes nothing and business as usual should continue, then the NCP and security leadership is likely to remain cool. But if the reactions are otherwise, then the response could be very adverse.

President Omar al Bashir has made it clear that he considers the UN responsible for allowing the ICC Prosecutor to proceed with his application for an arrest warrant, and he will hold the Secretary General and the Security Council responsible should the warrant be issued. Should this happen, all relations with the UN will be up for reconsideration. In Darfur, UNAMID is relatively protected because it is a joint mission with the African Union, which is opposed to the arrest warrant. UNMIS may be more exposed. Possibly the test for the UN will be if its senior officials, including the Special Representatives, are ready to meet with President Bashir, who is their host. If they refuse to meet with him, the government may conclude that they have no business being in Sudan. A similar test may be applied to ambassadors accredited to Sudan: will they meet with the President?

More sensitive still is the question of how the national parties respond. Just recently, Hassan al Turabi was arrested for demanding that Bashir be handed over to the ICC. This, we can be confident, will be the fate of any national political figures who take this line. The government expects that many Darfurians will openly support the ICC and has already discounted this, as far as the IDP camps and rural areas are concerned. But it is unlikely to tolerate open opposition in Khartoum.

The SPLM’s reaction will be pivotal. There seems to be a range of views within the SPLM, with some seeing the indictment as a threat to the CPA and others seeing it as leverage against the NCP. First Vice President Salva Kiir has emphasized the strategic interest of the south in seeing a stable and legitimate Government of National Unity. But it is not difficult to foresee a ratchet of escalation in which the NCP suspends or stalls on certain CPA provisions, leading to a crisis which in turn pushes some SPLM figures to argue that this is the opportunity to short-circuit the CPA and push for unilateral independence. Relations between the NCP and the SPLM will be absolutely crucial in the coming weeks and could determine the country’s fate.

The ICC issue is so preoccupying the NCP leadership that all other political business in Sudan is grinding to a halt. This in itself portends crisis as it means that key CPA implementation deadlines will slip.

Meanwhile, parts of Darfur are again in flames, with the worst fighting in the region since the beginning of 2008. This began with the military takeover of Muhajiriya, formerly controlled by SLA-Minawi, by JEM. Other Minawi strongholds have also fallen and JEM is now threatening Gereida. Minni Minawi tried to fight off the attackers without the Sudanese army, but having lost, the government is responding at scale with its most readily available military asset, the airforce. Reports indicate high-technology bombardment and considerable casualties, in Muhajiriya and other places including Gereida and north Darfur.

The operation was carried out by former SLA-Minawi commanders who had defected, and JEM is now claiming their loyalty. There are some indications that JEM had intended to mount an offensive in South Kordofan, which is already a tinderbox, which would have been a very dangerous escalation of the war, but instead seized Muhajiriya because the opportunity arose.

For some time, JEM has been saying that it is the only armed opposition movement worthy of the name and should be the sole group represented at the planned peace talks in Doha. JEM’s offensive can be seen as an attempt to turn that claim into a reality on the ground. It is common for the run-up to peace talks to see this kind of military action. Taking Muhajiriya also allows JEM to recruit more fighters and to make new appeals to the Arabs.

The timing may also be connected to the ICC. JEM’s leaders do not want any ICC announcement to be solely an international affair, and want to position themselves as the Sudanese champions of the ICC. The government suspects a link between JEM and Turabi on this issue.

The immediate loser in this fighting has been Minni Minawi. He refused Sudan Armed Forces assistance in defending Muhajiriya. Only after losing the battle did the army and airforce intervene. The Sudan Government has been quite open about bombing JEM positions in Muhajiriya. Having lost his main territorial base in Darfur, Minawi is now losing the little independence he possessed. He has called upon SAF to defend Gereida, knowing that as soon as Sudanese troops take up positions there, they will not leave unless by force of arms.

Meanwhile the Arab tribes are agitating for arms from the government, while also watching this contest to see who emerges on top. In this context, the ICC is a mixed blessing for JEM, as an arrest warrant would probably push the Arabs into siding with the government.

Ironically, the Khartoum leadership is less unhappy about JEM taking over Muhajiriya. Their argument is that it is easier to deal politically with JEM once it has a base inside Sudan. It will not be hostage to Chadian agendas and now, for the first time, JEM has an incentive to negotiate a ceasefire because it has something to defend. Bombing Muhajiriya and other areas of JEM activity would therefore not just be a military tactic but a signal that it is time to negotiate a truce.

But the current fighting might also portend something altogether more dangerous: a true showdown. There is no question that some of Khartoum’s leaders see the conjunction of JEM attacks, Turabi’s hardline stand, and the imminent ICC arrest warrant, as the first round of a new war for regime survival. This weekend’s air raids signal that the government has the capacity and readiness to strike as hard as it considers necessary.

What should be done? My proposal is that the UN Security Council should invoke Article 16 without condition. I think that there is sufficient threat to peace and security arising in the current situation for the Security Council to have reason to be seized of the matter. Most unusually, there is an immediate step the Council can take. I do not support putting conditions on the Article 16 deferral. Using every opportunity for leverage on the Sudan Government is not a strategy but a habit, and in my view the absolute priority is to focus on the CPA and Sudan’s progress towards democracy and stability, and only when that objective is agreed does it make any sense to apply additional leverage. The 12-month deferral is the time period in which the strategy for that objective needs to be in place and seen to be working.

Equally importantly, making justice conditional on specific political actions would, in my view, be in violation of basic values of human rights and the independence of the Court. From the viewpoint of The Hague or New York, it may not be evident how much damage is being done to the standing of the ICC by the ongoing escalation of reciprocal machismo.

In this context, there can be both incentive and pressure for a reduction in violence in Darfur, reining in JEM’s adventurism and halting the terror unleashed by the Sudanese airforce.

Photo: Dr Alex de Waal OBE (Sudan Tribune)
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ICC's CASE AGAINST BASHIR IS A MESS RIDDLED WITH FLAWS

Here is a critique from Making Sense of Darfur by Dr Alex de Waal, 27 January 2009:

A Critique of the ICC Prosecutor’s Case against President Bashir

With all the attention to the ICC Prosecutor’s application for an arrest warrant against President Omar al Bashir, it is remarkable how little scrutiny has been given to the contents of the Public Application itself. Frankly, it’s a mess. A few years ago I asked the undergraduate students in my class to prepare the arguments for a debate on the question of whether what was going on in Darfur was genocide or war crimes and crimes against humanity. If one of my students had presented the 14 July Public Application against Bashir, I would have sent it back for revision before I would give it a pass grade. Perhaps that is what the Pre-Trial Chamber is considering now. I hope so.

It is astonishing that, confronted with a government which during its nineteen years in power has presided over a wide range of unspeakable violations including some of the most heinous crimes under international law, the Prosecutor of the ICC should set out a prosecution case which is so riddled with flaws. If the Public Application represents the approach that the Prosecutor would take in a future trial, we face the prospect that Pres. Bashir might well be acquitted of genocide and also quite possibly the other charges too. I am not alone among Sudan’s most seasoned human rights activists and its best-informed political analysts in my astonishment at this shortcoming.

Read my critique of the Public Application on this link: [click here and scroll to end]

Copy of some responses to “A Critique of the ICC Prosecutor’s Case against President Bashir”

Nassir Alsayeid:
January 27, 2009
It is wise enough to consider the political turmoil that will occur following the issuance of arrest warrant by ICC. The gripping regime will not surrender to the international pressures except with a huge price at expense to prepare a safe gate. A new challenge faces the both the justice and peace maintaining conceptions, the emerging achievements which were sponsored by the West such as Peace Agreement that ended the longest civil war in the world will be tested if the ICC arrest will be de facto request. I think it is well known that the non-elected governments will not leave power at any cost.

H. Kamal:
January 27, 2009
A well written paper Alex! There is no doubt that the Government of Sudan should be held accountable for the role they played in Darfur. But we would like to see this done properly! It is a pity that we don’t see people like you and Julie Flint in Western media, instead I’m being “forced” to put up with celebrities trying to “educate” me about a part of the world I happen to come from!

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Discussions started taking place at Making Sense of Darfur on 27 January 2009 in post entitled Debating the ICC Critique. Excerpt:

posted by Khalid Omer
Dear Alex, I have a number of questions regarding your critique.
1. First in August 2004 you were quoted as describing the Darfur Counter-insurgency as “genocide by force of habit”. Are you reversing positions now?

[Alex de Waal's answer] This is a very good question. My argument was that the methods used by the Sudan government (not just this one but its predecessor too) routinely involved violence against communities of such a scale and nature that it was likely that acts of genocide had been committed in the course of counterinsurgency. (The title of the article was “Counterinsurgency on the Cheap.”) If the Prosecutor had argued that President Bashir’s aim was the repression of the insurgency and that he employed military tactics that almost certainly would entail these kinds of atrocities, and therefore he had a measure of command responsibility for any acts of genocide that were committed by his forces, I would have argued that his case was stronger. Back in 2004, my understanding of the law of genocide was that such acts would indeed have counted as genocide. Now, I’m not sure at all, for reasons I spell out in the critique. While it may be possible (pace the Cassese report) to prosecute individual commanders for acts of genocide, it would be exceptionally hard to argue that the President had command responsibility that involved intending these acts.

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UNAMID OPENS LIAISON OFFICE IN UGANDA

Copy of news from Kampala, Uganda at Sudan Tribune 24 January, 2009:

Photo: UNAMID’s Adada and the Ugandan Minister of Foreign Affairs during the exchange of letters in Kampala, on Jan 23 2009 (UNAMID)

January 23, 2009 (KAMPALA) - Darfur hybrid peacekeeping mission (UNAMID) signed today an agreement with the Ugandan government to establish a liaison office in Etntebbe.

The signing ceremony was attended by the the Ugandan Minister of Foreign Affairs Sam K. Kutesa, the Joint Special Representative (JSR) Rodolphe Adada and the United Nations Resident Coordinator and Humanitarian Coordinator Theophane Nikyema.

According to this agreement, the Government of Uganda will facilitate the free, unhindered movement to Uganda of all personnel, as well as equipment, provisions supplies and other goods, which will be for the exclusive use of the UNAMID Liaison Office.

The privileges and immunities also will be extended to UNAMID property, funds and assets, personnel and contractors.

In a speech delivered at this occasion, Rodolphe Adada pointed out that UNAMID activities within the framework of its mandate have demonstrated a need for additional logistical arrangements to support the Mission from offices outside Darfur.

While the foreign minister Sam K. Kutesa, reiterated Uganda’s commitment to work with the United Nations and the African Union to find lasting solutions to conflicts in African and elsewhere.

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UNMIS' MEDIA WORKSHOP FOR SUDANESE JOURNALISTS IN KHARTOUM

Copy of news report from Sudan Radio Service:

January 28, 2009 (Khartoum) - The United Nations Mission in Sudan, (UNMIS), conducted a media workshop on Tuesday attended by about thirty Sudanese journalists working for local and international media agencies in Khartoum.

UNMIS deputy spokesperson, Kouider Zerrouk, said UNMIS will organize a series of workshops on election coverage for journalists.

[Kouider Zerrouk]: “I would like to assure you that the office of the spokesperson will always be open, the phones of the spokesperson - of the two spokespersons are always open. You are free to contact us at anytime, even at night, because the aim is to report accurately so that the news reported should be for the benefit of the public, for the benefit of the journalists themselves and for the benefit of the mission.”

Zerrouk reiterated that journalists in Khartoum should not report anything about the mission until they get accurate information from the mission’s office, to avoid reporting what he calls “irrelevant and misleading information” to the public.

If this news story is true, I wonder how it affects British journalist Andrew Heavens who is based in Khartoum, Sudan and writes for Reuters.
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POSTSCRIPT FROM SUDAN WATCH'S EDITOR

Some related reports from the archives of Sudan Watch:

GERARD PRUNIER: DARFUR IS NOT GENOCIDE



Photo: Darfur: The Ambiguous Genocide by Gerard Prunier (via Amazon.com)

July 13, 2008: ICC should not indict Sudan's President Omar al-Bashir

Dec. 03, 2008: Sudan's minister for humanitarian affairs points his finger at rebel groups and western imperialists

Dec. 04, 2008: Genocide in Darfur? To answer it, ICC Prosecutor Moreno-Ocampo, like Sudanese President Al-Bashir himself, should be given his day in court

Dec. 04, 2008: What's going on? UN says Darfur no longer an emergency while ICC prosecutor says genocide continues in Darfur
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JOINT ARAB-AFRICAN PEACE INITIATIVE FOR DARFUR



Nov. 29, 2008: Qatari Peace Bid: UN, EU, AU, AL, UK, US & France support the joint Arab-African peace initiative for Darfur led by Qatar & Sudan People's Forum (SPF) - Qatar have proposed to host peace talks to end the five year war in the western Sudanese region of Darfur. [This post contains a compilation of news reports and photos that provide an overview of the launch of the joint Arab-African peace initiative for Darfur]
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MESSAGE TO WARRING FACTIONS: GIVE PEACE A CHANCE



War begets war. Peace begets peace. UNSC must invoke Article 16. The ICC's case against Bashir is a mess riddled with flaws. Please think of Sudan's children and give peace a chance.



YouTube video: John Lennon & Yoko Ono: Give Peace A Chance
Courtesy of www.imaginepeace.com
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SIR PAUL McCARTNEY'S GLOBAL CONCERT FOR WORLD PEACE:
4 APRIL 2009 IN NEW YORK CITY



Photo source: Dr Keith DeBoer's blog post 20 January 2009: Paul McCartney‘s Concert for the Transcendental Meditation Program.
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CREATING A PEACEFUL WORLD FOR CHILDREN



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SEND YOUR WISHES TO IMAGINE PEACE TOWER



Photo: Yoko Ono of imaginepeace.com. Please type your wish to wish@imaginepeace.com and it will join the millions of others at the IMAGINE PEACE TOWER on Videy Island, Reykjavik, Iceland.



The above image is from the IMAGINE PEACE TOWER live Earthcam on Dec 31, 2008 8:21 PM. Click here to send a message to the IMAGINE PEACE TOWER. Imagine Peace in 24 languages.

Since 1981, Yoko Ono has collected over 700,000 PEACE WISHES from people worldwide as part of her interactive Wish Tree exhibits, and also via email and conventional mail. The wishes will be installed around the IMAGINE PEACE TOWER. If you have not had the chance to hang your wishes on one of Yoko’s Wish Trees yet, you can make your own Wish Tree, and/or send your wishes to the IMAGINE PEACE TOWER from the Wish page. You can send as many wishes as you like, at any time. Don't miss this short YouTube video about IMAGINE PEACE TOWER by Yoko Ono.


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PLEASE SPREAD THE WORD ON SIR PAUL McCARTNEY'S GLOBAL BENEFIT CONCERT 04 APRIL 2009

This post has taken many hours to produce and is the culmination of five years work. This site's sister blogs Congo Watch and Uganda Watch were created to track and file reports on the Lords Resistance Army's terrorism and movements in and out of Sudan. Here is a graph from SiteMeter, giving a snapshot of visitors at Sudan Watch blog on Sunday 18 January 2009.


To date, Sudan Watch (3,924 Posts) has received 440,145 visitors and 647,415 page views.
Congo Watch (366 Posts) has received 162,834 visitors and 235,066 page views.
Uganda Watch (289 Posts) has received 40,936 visitors and 48,758 page views.
A total of 2,441 photos have been posted.
These blogs are a labour of love, freely given for the children of Sudan, Uganda and DR Congo.

All I ask for now in return is a small favour: to please spread the word of Paul McCartney's GLOBAL BENEFIT CONCERT FOR WORLD PEACE to be held at Radio City Music Hall in New York City on Saturday, April 4, 2009. Thanks.

Thank you for reading Sudan Watch. With love and peace from Ingrid xx

"A small group of thoughtful people could change the world. Indeed, it's the only thing that ever has."
--Margaret Mead

+ + + Rest In Peace all those who have perished in war + + +

A Prayer for the janjaweed rape babies