Slow Dancing With Sudan

Khartoum’s aces of stonewalling may be at it again. Discrete diplomacy is an apt first step, but if it fails to yield results, Obama should speak up, Claudio Guler writes for ISN Security Watch.

Pre-Trial Chamber I of the International Criminal Court (ICC) external pageissued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir on 4 March on seven counts of war crimes and crimes against humanity, and as anticipated, he retaliated. The US has stepped in, yet maybe not forcefully enough, and Washington risks getting hoodwinked.

Retaliation

The day after the issuance of the arrest warrant, Khartoum external pageaccused 13 private international humanitarian aid agencies of cooperating with the ICC, revoked their licenses and expelled them from its territory. Estimates given by the aid agencies to various media sources suggest international humanitarian organizations – including among others Oxfam, Médecins sans Frontières and the International Rescue Committee – provide anywhere from 40 to 70 percent of the aid internally displaced Darfuris need.

In addition to expelling the aid agencies, al-Bashir embarked on a regional grandstanding tour. He secured the support of the Arab League (AL) and the African Union (AU), and paid visits (in sequence) to Eritrea, Egypt, Libya, the Arab League Summit in Doha, Qatar, Saudi Arabia and Ethiopia.

South Africa is the first country to have told al-Bashir that it could not host him for newly elected President Jacob Zuma’s inauguration because of its legal obligations under the Rome Statute of the ICC. Botswana has external pagedissented from the AU position as well.

Peace vs justice

The concern, particularly among humanitarians and peace negotiators, is that the pursuit of justice conflicts with the pursuit of peace.

In the Sudan, they fear, the ICC's actions are disrupting peace negotiations and humanitarian aid to suffering Darfuris. The ICC, however, was established as an autonomous, apolitical, judicial institution. If the evidence against al-Bashir is convincing and meets the threshold for prosecution, the Prosecutor and Chambers should proceed, argues Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court (external pageCambridge University Press, 2008). Under the Rome Statute, responsibility for the political judgment that suspension or delay would be appropriate external pagelies not with the Court, but with the UN Security Council and the Permanent Five in particular.

Under US President Barack Obama, the Permanent Five’s most prominent member finally looks set to shake its disdain for the ICC.

Fence-mending

US support for the ICC would likely reinforce the case against al-Bashir. After eight years of subversion, Washington now signals cooperation.

In a recent telephone interview with ISN Security Watch, Professor Schiff argued that improved relations were likely to result in a policy of “benign engagement,” skirting ratification of the Rome Statute because of the domestic political costs associated with advancing this position.

Indicators support this assessment. The Fiscal Year 2009 omnibus appropriations bill no longer external pageincludes the Nethercutt amendment that limited US aid to states sympathetic to the ICC. In written testimony to the US Senate Committee on Foreign Relations, Secretary of State Hillary Clinton external pagesaid, "We will end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice."

The external pagecontroversial nomination of Harold Koh, former dean of Yale Law School, to the US State Department’s senior legal advisory post also appears auspicious. Referring to the situation in Sudan on 28 April, Koh external pagestated prudently before the US Senate Committee on Foreign Relations: “It's a complicated situation in which international justice, I believe, could play an important role in bringing a better outcome in Sudan than we have now. On the other hand, I don't think that we should reengage [the ICC] without fully protecting American interests.”

Matthew Heaphy, deputy convenor of the American NGO Coalition for the International Criminal Court (AMICC) told ISN Security Watch: “Harold Koh is a leading and highly regarded international law expert who clearly appreciates and understands the work of the ICC. We expect that his role in creating the new US policy on the ICC will be positive and constructive.”

Professor Schiff highlighted viable areas for US-ICC cooperation once the relationship warms. He told ISN Security Watch: “My assumption is that the US has all kinds of information, in all the areas of the ICC’s operations being generated by intelligence and other sources [...] and as far as we know publicly that information has not been shared with the ICC.”

The professor noted satellite images and cell phone intercepts in particular, arguing that such information, if material, could strengthen the prosecutor’s case against al-Bashir.

Discrete diplomacy

The US administration has reacted to Khartoum’s retaliation with diplomatic engagement. Obama tapped retired Air Force General J Scott Gration as his special envoy to Sudan and dispatched him in early April. Gration held talks with Sudanese officials and external pagereturned promising “friendlier” US-Sudanese relations, reasoning that this is the best avenue to a political settlement. According to an 8 April news report, he also external pagegave Khartoum 30 days to resolve the expulsion issue. Gration went back to Sudan on 6 May to assess Khartoum’s commitment.

US Senator John Kerry (MA-D) also traveled to Sudan in  April. Upon returning to Washington, Senator Kerry gave an external pageinterview with National Public Radio (NPR) and said that a deal had been brokered with the Sudanese to readmit some of the aid agencies. He also published an editorial in the Boston Harold entitled “external pageDiplomacy has chance in Sudan.”

On 6 May, Khartoum external pageannounced itself willing to admit “new” aid agencies (this may entail simply repainting the doors of agency vehicles), but concerns linger that all services may not be restored. UN humanitarian chief John Holmes external pagewelcomed the move.

Attempting a strategy of discreet diplomatic engagement first is shrewd – all parties save face and are therefore more likely to sign up to a deal. However, the present government in Khartoum is notorious for stonewalling and may renege on promises of action.

Action entails first and foremost securing the readmission of the expelled humanitarian aid agencies. It further calls for guaranteeing Khartoum’s adherence to the Comprehensive Peace Agreement (CPA) that ended the 20-year North-South civil war; advancing peace talks on Darfur, for example by way of the ongoing Qatari forum; and securing al-Bashir’s cooperation with the ICC arrest warrant.

A contingency plan

If Khartoum elects to stonewall, Obama should consider employing his normative leverage. It is Obama’s most valuable asset and it could make a difference.

The tide may even be turning in the Islamic world. In a recent televised Doha Debate, a Muslim audience external pagevoted 55 to 45 percent in favor of sending al-Bashir to The Hague.

Obama could stigmatize al-Bashir. He could convey the message that doing business with the present government in Khartoum is reprehensible. Obama could also pressure the AL and the AU to renounce their support for al-Bashir, and encourage them to follow the South African and Botswanan examples.

Normative politics may also be a sagacious way to encourage China – Khartoum’s protector-in-chief at the UN Security Council – to temper its defense. Beijing cares about image politics. Normative pressures likely convinced China to abstain on UN Security Council Resolution 1593, which referred the situation in Darfur to the Prosecutor of the ICC in the first place. Obama, however, should avoid targeting Beijing directly. Such an approach is fraught with pitfalls; indirect pressure is preferable.

Time is ticking. Rations and medical supplies are running low. If Khartoum stonewalls, Obama should consider speaking up.

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