The ICC Indictment of Bashir: A Turning Point for Sudan?

Today's decision by the judges of the International Criminal Court (ICC) to issue a warrant of arrest for Sudanese President Omar Bashir for crimes against humanity and war crimes committed in Darfur is a welcome and crucial step towards challenging the impunity that has worsened conflict in Darfur and elsewhere in Sudan. The Sudanese government must exercise restraint in its response to the decision, and ensure that its actions do not undermine the opportunity to achieve peace in Sudan. It must also take genuine steps to transform the political institutions and policies that drive conflict in Sudan. The response by the Sudanese people, their government, the region and the international community will help determine whether this is the beginning of genuine democratic transformation in Sudan, or whether Bashir's regime, including the army and other security services, will continue on their destructive path.

The consequences of the indictment

Bashir's regime has already issued veiled threats against the UN and AU missions in Sudan, the international humanitarian agencies operating there and Sudanese who support the ICC prosecution. It could also direct, or encourage, violence against the millions of displaced Darfuris living in camps in the war-torn region. There are signs that it may also declare a state of emergency and clamp down on internal political opposition, to show the Darfur rebel groups that they will not be able to use this development to their military and political advantage.

Such actions would risk further destabilising the country, given the inevitable opposition from many within Sudan, and likely international condemnation, including from its African and Arab allies. The Sudan People's Liberation Movement (SPLM), the NCP's partner in government, would strongly oppose the declaration of a state of emergency, and may well pull out of the North-South Comprehensive Peace Agreement (CPA) in the event of a unilateral declaration. This risks plunging Sudan back into widespread conflict.

There are also internal NCP constraints. In addition to divisions on strategy, powerful figures within the NCP and in the top ranks of the Sudan Armed Forces have grown wealthy from economic investment in Sudan, and will be keen to ensure that such investment is not driven away by a violent over-reaction to the indictment.

Sudan's international allies have a strong interest in the country's stability, and they too must pressure the regime to react with restraint. In particular, China, with its very significant stake in the oil industry, Egypt with its interest in regional stability and access to the Nile waters, and Gulf states with big economic investments in the country should push Sudan not to lash out.

Given internal tensions within the regime, the indictment itself may provoke change. Bashir's delegitimisation in the eyes of both external actors and the Sudanese population may empower those opposed to the security-focused approach of the NCP hardliners. The prospects of Bashir's isolation and even removal are real, but unlikely. The more likely outcome is that he will remain in power with no prospect of ending up before the ICC any time soon.

But the status quo is not tenable either. The potential collapse of the CPA and a consequent return to conflict pose a huge risk of national disintegration an outcome feared by the regime and its neighbours. And Sudan is in an increasingly parlous economic state now that its oil revenues have fallen dramatically. Economic partners are likely to be increasingly wary of the reputational costs of dealing with a country headed by a leader indicted for atrocity crimes.

To preserve its economic interests and guarantee its survival, the NCP is likely to look for a way out of the situation. In the past it has responded to international pressure by making tactical concessions and stalling for time.

The regime's recent signing of a declaration of intent in Doha, Qatar, with the rebel Justice and Equality Movement must be analysed in this context. While it is a useful first step to relaunch the Darfur peace process, too many such commitments have been violated in the past for it to be taken as evidence of a change in approach.

The time has now come for a genuine change in the NCP's policies.

What should be done

Bashir's indictment for atrocity crimes in Darfur requires immediate action on several fronts:

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 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 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 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 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 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:

1. making genuine efforts to produce a peaceful settlement of the Darfur crisis, including through the current negotiation efforts in Doha, to end hostilities and guarantee Darfuri participation in the coming general elections;
2. instituting credible domestic judicial measures to ensure accountability for those responsible for crimes committed in Darfur and in Sudan's other conflict regions;
3. ensuring that President Bashir steps down from power and is not the NCP candidate in the upcoming 2009 presidential elections; and
4. fully implementing the CPA so as to foster democratic governance, including by rapidly demarcating the 1956 North-South border, repealing repressive laws on the media and freedom of association, and amending the national security and intelligence agencies' legal frameworks so as to make them accountable to other national institutions.

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; Bashir and the NCP will become increasingly isolated; and the Sudanese people will continue paying a devastating price for the regime's destructive policies.