Blog Posts in International Criminal Court
How the ICC Can Save Lives in Sudan: The Case for an Article 16 Suspension
George Kennan said, “The important thing in thinking about international affairs is not to make moral judgments or apportion blame but to understand the nature of the forces at work as the foundation for thinking about what, if anything, can be done.” In the case of Sudan’s president, Omar al-Bashir, such a pragmatic approach can be difficult to stomach. But it is vitally necessary.
A year and a half ago, the International Criminal Court, or ICC, charged Bashir with war crimes and crimes against humanity. After the Court added genocide charges this past July, ICC Prosecutor Luis Moreno-Ocampo wrote in London’s Guardian that the Security Council must “End this Darfur Denial.” Tellingly, he did not speak of ending the genocide, but only of arresting and trying Bashir. He offered no evidence that doing so would lessen the suffering of victims or refugees. On July 27, the African Union AU, lamenting Ocampo’s “egregiously unacceptable, rude and condescending statements,” proclaimed that its members “shall not cooperate with the ICC in [Bashir’s] arrest and surrender.” This longstanding debate, in which immediate prosecution defines the terms of success or failure, helps no one but Bashir, and guarantees protracted suffering for the Sudanese people.
As a prosecutor, Ocampo sees his role as “ensur[ing] justice for… the victims of genocide.” Indeed, international criminal courts rarely see preventing victimization in the first place as part of their mandate. The most recent example is the Khmer Rouge tribunal in Cambodia, where trials are being held 30 years after the world’s failure to prevent mass slaughter. This same pattern of contemporaneous inaction followed by retrospective blame placing can be seen in Yugoslavia, Rwanda, Sierra Leone, and East Timor. But Sudan is different.
In previous tribunals, the conflicts were already over, the bodies were in the ground, and the court’s only task was to collect evidence and affix blame. In Sudan, this is far from true. Although outright slaughter in Darfur has ebbed, the country clings to a delicate peace, with millions remaining refugees in their homeland. Renewed violence, possibly sparked by the pending southern referendum, could create thousands if not millions of new victims. In light of this, Sr. Ocampo’s duty to build a case against Bashir and his accomplices must be weighed against the Security Council’s bedrock obligation to prevent and respond to “any threat to the peace, breach of the peace, or act of aggression.” Where an immediate prosecution could reignite a smoldering conflict, the Council can and must step in.
As recently noted by the Enough Project, the Security Council may request a suspension of an ICC investigation for renewable periods of one year if doing so could result in concrete, demonstrable steps towards peace. Thus, it can impose any number of conditions on Bashir, including a peace deal in Darfur, full implementation of the CPA, and respect for the southern referendum, among others. If these are not met, the indictment could be reinstated, with the ICC having briefly lost time, but not evidence or jurisdiction. The chance for peace is well worth such a tradeoff. A temporary deferment would also allow AU countries to become more directly involved in the peace process without contravening their duties as ICC signatories.
The promise of this strategy lies in its emphasis on saving lives before securing convictions. It would not satisfy Ocampo’s zeal for a speedy trial. Nor would it placate those AU nations that would only accept Bashir’s prosecution in an African court. But it would, as Kennan counseled, be based on “understand[ing] the nature of the forces at work as the foundation for thinking about what, if anything, can be done” for those who still suffer and survive. To do otherwise, clinging to political principle while millions still suffer, would be unconscionable.
James Bair is a graduate of Northeastern University School of Law in Boston, MA. He helped establish the Victims Unit at the Extraordinary Chambers in the Courts of Cambodia and has published on the rights of victims under international criminal law.
Top LRA Commander Moves to Southern Sudan
Testimony from former LRA fighters who were recently captured near Yambio in Sudan’s Western Equatoria state indicates that a notorious LRA commander, Dominic Ongwen, recently crossed into Sudan from the Democratic Republic of Congo.
Ongwen, who was indicted by the International Criminal Court for crimes against humanity and war crimes in 2005, is part of the LRA’s top leadership, second or third in command after leader Joseph Kony.
One of Ongwen’s “wives,” who was captured by the Ugandan army in July, said that the LRA group had moved to Western Equatoria state. Unlike in the past where LRA fighters attacked southern Sudanese towns from bases in Congo, Onwgen’s group is now based in Western Equatoria state. All fighters have new guns and uniforms and plenty of bullets, she said, adding that she did not know where the supplies came from. Former LRA fighters from groups operating in CAR and Congo said until recently that they were using old guns and that bullets were scarce.
According to former fighters, Kony put Ongwen ‘in charge’ of the LRA in Congo soon after Operation Lightning Thunder, the Ugandan army offensive against LRA bases in northern Congo on December 14, 2008. In the absence of Kony – who is believed to have been in Central African Republic since May 2009 – Ongwen commanded all LRA groups scattered in Haut Uele and Bas Uele districts of Congo’s Province Orientale. Groups under Ongwen are thought to have carried out the so-called Makombo massacre in Congo where LRA fighters killed over 350 civilians in December 2009.
Onwgen’s passage to Sudan in July with a reported 30 fighters is worrying. Sudan is preparing for a very important referendum early next year, and the LRA has a proven record of destabilizing entire regions with few soldiers. Officers from the southern Sudanese army, or SPLA, allege the Khartoum government is supporting the LRA in return for launching attacks in the South. They say Khartoum officials who do not want the South to secede from the North – an almost certain outcome of the upcoming referendum – are using the LRA to destabilize the South to create the impression the SPLA cannot provide security in the long run. President Museveni of Uganda has made similar accusations, but officials of the Omar Al Bashir government vehemently deny the links.
While it remains unclear whether Khartoum is supplying Kony’s men or not, LRA attacks in the Sudanese states of Western Equatoria and Western Bahr el Ghazal certainly intensified this summer. It is likely that the recent spike of LRA violence in Western Equatoria is attributed to Ongwen’s group. (Attacks in Western Bahr el Ghazal are likely carried out by another LRA group from bases in neighbouring Central African Republic.) On June 20, 2010 an LRA group attacked near the town of Nzara in Western Equatoria, abducting and later killing six people. After an LRA attack in the village of Ukcuo, in the state capital Yambio, a group of Arrow Boys clashed with an LRA group capturing four women. Additional LRA attacks were registered on July 30 and August 2 in the towns of Ezo and Nzara respectively. Three people were killed and six were injured.
Photo: LRA commander Dominic Ongwen in file photo from International Criminal Court
Sudanese Diaspora Protest Kenya’s Welcome of Bashir
Disappointment hung in the air yesterday outside the Kenyan embassy in Washington D.C., where members of the Sudanese diaspora and human rights activists gathered to protest the Kenyan government’s recent reception of Sudanese President Omar al-Bashir. “We’re here to protest the Kenyan government allowing the dictator Bashir to go safely into Kenya and return back home,” said Khalid Gerais, a member of the Nubia Project. “We are here with our friends, the Americans, to protest this action for all Sudan, from north to south, east to west, for the whole country.”
Despite being a signatory to the Rome Statute, which established the International Criminal Court, Kenyan officials did not arrest Bashir when he arrived on Friday to participate in a ceremony for Kenya’s new constitution. In response, Darfur activists arranged protests, in both Los Angeles and Washington D.C., to convey their disbelief.
In Washington, Jimmy Mulla, from Voices of Sudan, presented a letter on behalf of the Sudanese diaspora to a Kenyan embassy official. “We are here to express our outrage that Bashir an indicted war criminal be allowed in Kenya—a country that has signed on to the ICC statute,” Mulla said in an email. Mulla believes that peace and security in the region will ultimately benefit Kenya—which borders South Sudan—economically. “If we have peace in all of Sudan, it is good for Kenya as well,” he said.
Melissa Delbon contributed to this post.
President Obama's Sudan Policy
There are 132 days left until two decisive votes take place in Sudan. That deadline, and the increasing unlikelihood that it will be met, prompted the Obama administration to send an expanded negotiating team under the leadership of former ambassador Princeton Lyman to Sudan last week. These extra “diplomatic boots on the ground,” as the State Department called them, and the display of high-level engagement that they represented, are a necessary and welcome step. But, without a clearly spelled-out Sudan policy from the top, one that defines which incentives and pressures the administration is willing to deal out and what actions or inactions will trigger those responses, the expanded U.S. ground presence will not have the necessary direction to do its job effectively.
In the eleven months since the unveiling of its Sudan policy last October, the Obama administration has appeared more consumed by infighting than the implementation of its approach. Over the weekend, New York Times columnist Nick Kristof outlined the failings of President Obama’s approach to Sudan thus far and, more importantly, the potential human cost of continuing to fail. He wrote:
“(…) Mr. Obama is presiding over an incoherent, contradictory and apparently failing Sudan policy. There is a growing risk that Sudan will be the site of the world’s bloodiest war in 2011, and perhaps a new round of genocide as well. This isn’t America’s fault, but neither are we using all of our leverage to avert it. (…) [T]he problem isn’t that the administration is too busy to devise a policy toward Sudan but that it has a half-dozen policies, mostly at cross-purposes.”
According to sources, including the Washington Post’s article on the administration’s intensified efforts in Sudan, the president and his advisers are currently reviewing U.S. policy toward the country, and are notably “mulling over incentives” to secure the Sudanese government’s cooperation. Incentives are of course necessary, but so are pressures, not in the least because there should be some consequences for the role that the government has played in the recent deterioration of the situation in Darfur. As Kristof points out, Khartoum “sees that it pays no price for misbehavior,” and this only encourages it to continue on a path that makes peace more elusive.
In recent weeks, the Sudanese government has stepped up restrictions on humanitarian aid organizations, quietly expelling a handful of workers in the last month and blocking humanitarian access to a camp for displaced Darfuris in the south. The government has also proposed “domesticating” the Darfur issue, a strategy that may sound good in theory, but that many believe is an attempt to extricate the international community from the peace process altogether, and may ultimately solve the Darfur “problem” through massive violations of the rights of the displaced. Alarmingly, reports indicate that the U.S. has signed off on the dubious plan. Preparations for the two referenda are not going well either; the Abyei vote seems indefinitely stalled as tensions on the ground mount, while substantive preparations for the southern referendum only recently started. Yet while the administration has intensified its efforts on the referendum, it has stayed largely silent on Darfur.
In the little time left until the two referenda, it seems that the administration has decided to prioritize a smooth southern referendum over other issues and principles, including some of those outlined in its original policy. In doing so, the administration has opened itself up to manipulation by Khartoum and a government that can dangle the prospect of a failed or insecure referendum before U.S. diplomats, while stalling or fueling other issues however it sees fit. Bashir’s brazen visit to Kenya last week, which solicited only ‘disappointment’ from President Obama, shows just how far he can push the envelope. The right decision for the president to make at this juncture is to return to the administration’s October policy, one composed of both incentives and pressures and one that looks at the conflicts in Sudan comprehensively.
Photo: President Barack Obama and U.S. Special Envoy to Sudan Major General Scott Gration (AP)
Bashir Visit to Kenya Undermines U.S. Policy
Kenyan officials today welcomed Sudanese President Omar al-Bashir to a signing ceremony for Kenya’s new constitution, in direct contravention of the state’s legal obligations as an International Criminal Court signatory, to arrest the indicted sitting head of state. Bashir is wanted by the ICC for multiple counts of genocide, war crimes, and crimes against humanity in Darfur.
Kenya’s public repudiation of international law demonstrates an alarming lack of commitment to accountability for war crimes. It also raises numerous questions about the government’s support for the ICC’s ongoing investigations into post-election violence in Kenya, as well as the motivations behind this gesture of friendship to Bashir, so close to the potential split-up of Sudan.
Kenyan Foreign Affairs Minister Moses Wetangula was unapologetic about his government’s decision: "There are no apologies to make about anybody we invited to this function because I am sure we are enhancing peace and security and stability of this region more than anything else.”
While the first ICC arrest warrant initially resulted in international isolation for Bashir—last November, his attendance at an Organization of the Islamic Conference meeting in Turkey was canceled in response to international pressures, as was a trip to an African Union summit in Nigeria last October—more recently this trend has reversed. This year, visits to Egypt and Libya have escalated to travel in ICC signatory states, including Chad, and now Kenya. Bashir’s visit to Kenya is a continuation of this growing willingness to flout international law, and an alarming statement of the line the Obama administration is willing to toe with regard to Khartoum.
As David Bosco says on Foreign Policy, there is little doubt that the U.S. knew about the trip in advance. Special Envoy Scott Gration is currently in Sudan, engaged in talks. Yet it appears that no pressures were brought to bear—on a Kenyan government that has strong relations with the U.S.—to prevent the vist from taking place. The lack of U.S. commitment to accountability that took place today sends a clear signal to the Sudanese government that the Obama administration is willing to sacrifice some of its own core policy objectives, mostly notably justice for the people of Sudan, in order to achieve others, namely the upcoming South Sudan referendum. In so doing, the administration sends the go-ahead for future acts of intransigence—for non-implementation of the CPA and an indefinite hold on the Darfur peace process—ultimately weakening the administration’s position vis-à-vis Khartoum and undermining any U.S. strategies going forward.
Enough’s official statement can be found here.
Photo: Sudanese President Omar al-Bashir.
