New ICC Prosecution: Opportunities and Risks for Peace in Sudan

Written by Mary Elizabeth Grant - VP


Brussels, 14 July 2008: Today’s application by the Prosecutor of the International Criminal Court (ICC) for a warrant of arrest for Sudanese President Omar Bashir for genocide, crimes against humanity and war crimes committed in Darfur creates both big opportunities and big risks for peace in Sudan.

These are the first charges of genocide and the first charges against a head of state to be brought before the ICC. The judges will now have to weigh the Prosecutor’s evidence and decide – a process that could take some months – whether to issue the
arrest warrant.

In seeking this warrant, the Prosecutor is acting within his mandate under the Rome Statute and from the UN Security Council, which in 2005 referred crimes committed in Darfur to him for investigation and prosecution. That mandate has been consistently frustrated by the Sudanese government – not least in its refusal to hand over the government minister, Ahmad Harun, and Janjaweed commander, Ali Kushayb, against whom warrants were issued in April 2007 – and it is important for the Prosecutor to protect the credibility of the Court by pursuing further prosecutions.

It may also prove to be the case that in initiating this process the Prosecutor will be advancing the interests of peace. That is not his official role – which is rather to act, in the interests of justice, to end impunity for those believed guilty of atrocity crimes. But it may be that the increased pressure now placed on the NCP governing regime will lead it to take long overdue steps to cease all violence, implement genuine and credible measures to resolve the Darfur crisis – including allowing the full and effective deployment of the UNAMID peacekeeping force – and fully carry out its side of the bargain to implement the North-South Comprehensive Peace Agreement (CPA).

The problem for international policymakers is that the Prosecutor’s legal strategy also poses major risks for the fragile peace and security environment in Sudan, with a real chance of greatly increasing the suffering of very large numbers of its people. Hard-liners on all sides may be reinforced, with the governing regime and other actors reacting to today’s application, and any subsequent warrant, in ways that seriously undermine the fragile North-South peace process, bring an end to any chance of political negotiations in Darfur, make impossible the effective deployment of UNAMID, put at risk the humanitarian relief operations presently keeping alive over 2 million people in Darfur, and lead to inflammation of wider regional tensions. These are significant risks, particularly given that the likelihood of actually executing any warrant issued against Bashir is remote, at least in the short term.

The best way through this dilemma may be for the UN Security Council to take advantage of the likely two to three month window before the judges’ decision on the arrest warrant, to assess whether genuine and substantial progress is in fact being made in stopping the continuing violence for which the governing regime bears responsibility, engaging in genuine peace negotiations in Darfur, expediting UNAMID deployment and advancing the CPA. If it believes such progress is being made, and that the interests of peace justify this course being taken, the Security Council could – even if the Prosecutor and the ICC wanted to proceed – exercise its power under Article 16 of the Rome Statute to suspend any prosecutions, for an initial twelve months but with such suspension able to be renewed indefinitely.

Such a decision would have to be made in light of the regime’s history of repeatedly flouting agreements it has entered into. But the need for any Article 16 deferral to be renewed on an annual basis would provide an incentive, hitherto lacking, for the regime to abide by commitments made under threat of ICC prosecution.

This is not the time to be relieving pressure on the Bashir regime – or the rebel groups who are making their own major contribution to conflict in Darfur. But the most critical of all needs is to end the horrific suffering of the Sudanese people and to ensure there is no new explosion of mass violence.

Crisis Group President Gareth Evans said that the international community now faced a hard policy choice in balancing risk and opportunity: “The Sudanese governing regime has until now utterly failed in its responsibility to protect its own people. The judgement call the Security Council now has to make is whether Khartoum can be most effectively pressured to stop the violence and build a new Sudan by simply letting the Court process proceed, or – after assessing the regime’s initial response, and continuing to monitor it thereafter – by suspending that process in the larger interests of peace”.

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Great Speaker this Wednesday

INTERNATIONAL HUMAN RIGHTS LAW SOCIETY,

NATIVE AMERICAN LAW SOCIETY,

&

INTERNATIONAL LAW SOCIETY

PRESENT

CONSUL GENERAL OF EGYPT

Abderahman Salaheldin

LECTURE ON:

“Egypt and the U.S.: A Model of Dialogue and Cooperation on Peace, Economic Development and Human Rights in the Middle East”

When: Wednesday, April 16; 12:00-1:00 pm

Where: Grace Court Room in Warren Hall

FOOD and Drinks will be provided!

Synopsis on Ambassador Salaheldin

Ambassador Salaheldin has been a career Diplomat for more than 27 years. Since September 2004, Ambassador Salaheldin has served as the Consul General of Egypt in San Francisco, covering the states of Arizona, Alaska, California, Idaho, Washington, Utah, Montana, Oregon, Nevada, Hawaii and Wyoming. Previously, he occupied the following positions:

• Deputy Assistant Minister Of Foreign Affairs for North America (02-04)
• Minister for Political and Congressional Affairs, Embassy of Egypt, Washington, D.C. (98-02)
• Director, UN Affairs, Egypt’s Ministry of Foreign Affairs (96-97)
• Political Counselor, The Permanent Mission of Egypt at the UN in New York, dealing with Middle East and Peace keeping issues and served as the Rapporteur of the UN Peace Keeping Committee. (92-96)
• Member of the Cabinet of the Foreign Minister and member of Egypt’s delegation to the “Madrid Middle East Peace Conference” and “Moscow’s Conference on Regional Cooperation in the Middle East”. (90-92)
• First Secretary, Embassy of Egypt, Washington, D.C. (86-91)

*Ambassador Salaheldin has recently written an article in the San Francisco Chronicle on the Palestine Israeli Conflict. Students may review the article by looking up this website: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/02/10/EDL2UUI5J.DTL