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What should be done - About Omar al Bashir, the third military and religious dictator in Sudan's history, and a continuation to ICC Indictment.
Bashir's indictment for atrocity crimes in Darfur requires immediate action on several fronts:
Al-Bashir is wanted on charges of war crimes and crimes against humanity. The International Criminal Court (ICC) issued the arrest warrant issued on seven counts, which include murder, rape and torture.
Luis Moreno Ocampo says "The reality now is that Omar al Bashir is attacking his own citizens who he is supposes to protect as leader of the country."
"I agree that he may not immediately give up, but as soon as al-Bashir travels through international aire space, his plane can be intercepted and he can be arrested."
"The solution for Sudan has to start with arresting Omar al-Bashir."
"Nothing is worse for people of Sudan. They are dying slowly, 5,000 people are dying in the camps each month. Three weeks ago villages were bombed."
"To make peace in Darfur we have to stop the crimes."
"There are many groups responsible for the violence in Sudan, not just Omar al Bashir. That's why we are also prosecuting rebel commanders involved in these attacks."
"All the rebel groups say if the court calls them, they will come voluntarily. That could be a shift in the conflict. We are saying, of course you have to make peace, but in the meantime you can't commit crime – that is the line we are drawing."
Preventing retaliation and backlash
The regime and its proxies should refrain from retaliation against its citizens or internationals in response to the indictment. It should ensure that any protests, in support of or against the Court's decision, are orderly and peaceful, and not use them as a pretext to impose a state of emergency.
The international community, and particularly Sudan's neighbours and Arab countries, should call on the regime to exercise restraint and not impose a state of emergency. The ICC prosecutor should also make it clear that if there is violence against peacekeepers, humanitarian agencies or the camps in Darfur, he will investigate those responsible, and they will risk joining Omar al Bashir as indicted war criminals.
Supporting the ICC decision
For the millions of Darfuri victims of the conflict, this landmark decision provides independent legal recognition of the massive crimes committed against them, and confirms that there are reasonable grounds to believe that Omar al Bashir is personally criminally responsible.
The international community should affirm its support for the Court and insist that Sudan and other countries cooperate with it as required by the UN Security Council, including the 2005 resolution referring the situation in Darfur to the ICC for investigation and prosecution.
Changing the institutions and policies that drive conflict in Sudan
Whether the indictment of Omar al Bashir marks a turning point for the better in Sudan depends on whether the NCP genuinely accepts that it now has to change the repressive and murderous policies pursued by the regime, end the ongoing crimes against the civilian population in Darfur and secure a sustainable peace.
The government should take immediate and genuine steps to establish a credible system of judicial accountability and create an environment conducive for a peaceful settlement of the Darfur conflict, while implementing the agreed political reforms mandated under the CPA.
The international community should provide meaningful incentives – such as the lifting of sanctions and the provision of international aid – if the government takes these steps. It can also hold out the prospect of a deferral of the prosecution of Omar al Bashir as a further incentive in response to genuine change.
If, on the other hand, the regime refuses to compromise, then the international community should take all measures available to enforce the warrant and deepen the isolation of the regime.
Any move to defer the prosecution of Omar al Bashir must be approached with extreme caution. Article 16 of the ICC's Rome Statute gives the UN Security Council the power to defer ICC prosecutions and investigations in the interests of peace and security for renewable increments of up to twelve months.
If this measure is used to bring about broader accountability measures in Sudan, end a conflict that has devastated the lives of millions and transform the internal politics of Sudan so as to end the cycles of conflict that have prevailed for decades, it should be seriously considered.
And if proper domestic accountability measures are implemented, then other NCP officials would also have the prospect of avoiding international prosecution – an important additional incentive now that the risk of such prosecution has become a lot more real.
Before agreeing to any deferral, the Council would have to see demonstrated progress by the Sudanese government on these fronts. A clear demonstration of good faith would require all of the following steps:
The Darfur rebel groups and the SPLM should also demonstrate equal commitments to a peaceful settlement in Darfur and CPA implementation, both being essential to encourage the NCP to act responsibly.
In the context of the UN Security Council, a number of countries, including the U.S. – which has already condemned the regime for what it describes as genocidal policies – will and should demand a high price for any deferral, going well beyond promises to concrete action.
While China, the African Union and the Arab League have already indicated that they will be pushing for a deferral, they will have to do more than simply echo Khartoum's demands. They should use their close relationships to the regime, and its increased dependence on their support following an indictment, to press for the changes cited above. Doing so will be in their own interests, as none of them benefit from increasing instability in Sudan, or from a being a public defender of an indicted head of state.
The ICC indictment provides an opportunity for the Sudanese people to come together, advance the cause of both peace and justice, especially in Darfur, and transform the institutions and policies that have driven decades of conflict in Sudan. But without fundamental change in the country's policies, the indictment will remain in play; Omar al Bashir and the NCP will become increasingly isolated; and the Sudanese people will continue paying a devastating price for the regime's destructive policies.
Check out www.crisisgroup.org.
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