In the six months since the Prosecutor first made his Public Application for issue of the warrant the level of political and media attention surrounding the decision has reached colossal levels. The international community is acutely divided over whether Bashir should be arrested and tried, or alternatively, whether the United Nations Security Council should use its powers under Article 16 to defer the ICC prosecution in the hope of encouraging peace negotiations.
But ICC proceedings alone will not solve Darfur's problems. What is needed is a comprehensive long-term strategy which attempts to deal with the fundamental issues driving the conflict and embraces each of the many actors involved. The problem with the current debate is that it tends to obscure any meaningful discussion of how this might be achieved. For the 2.7 million Sudanese enduring grim conditions in Darfur refugee camps, this is a tragedy.
DEBATING THE INDICTMENT
The decision is undoubtedly one of great consequence and significance. If as expected the ICC authorizes the indictment, it will be the first such action taken by the court against a serving head of state. Arguments in support of issuing the warrant include:
(1) Bashir's leading role in coordinating the attacks against civilians: according to Human Rights Watch, Bashir played a pivotal role in mobilizing the janjaweed, has most likely ordered all major aerial bombardments, and is the driving force behind the government’s overall "ethnic cleansing" policy. According to the Prosecutor of the ICC, he is the master of the government’s genocidal plan and is using the entire state apparatus to put it into effect.
(2) the unlikely success of current peace negotiations: opponents of the ICC proceedings protest that the issue of the arrest warrant will likely shatter the fragile peace process, which had some limited success recently with a declaration of intent being signed between the government and the main rebel group. Supporters respond that neither Bashir nor his government have ever been serious about settlement talks and have broken agreements many times in the past.
(3) a deferral would set a dangerous precedent: deferring the proceedings on the pretext of encouraging a peace deal would send a message to other would-be targets of the ICC that justice can be bargained with and criminal prosecution avoided through political manipulation.
Britain, France and the US support the ICC process and are against a deferral of the proceedings. The African Union (AU), Arab League, Organisation of the Islamic Conference, and the Group of 77 developing countries and China, support deferral of the proceedings, claiming that:
(1) an indictment would destroy chances of peace: in addition to the recent declaration of intent, the Sudanese and the international community are in the process of implementing the Comprehensive Peace Agreement ("CPA") signed in January 2005 which ended the second civil war. Although frustrated by the government’s obstinacy and in need of renewed international support, it represents Sudan’s best chance for enduring peace. The indictment could lead the government to suspend implementation of the CPA and abandon the current Darfur negotiations. The government has indicated that the security of the UN peacekeeping force in Sudan could also be threatened.
(2) Western double standards: amongst developing nations and especially in Africa, the ICC is increasingly being seen as a post-colonial tool used by rich Western nations to pass judgment upon their poor third-world cousins. This perception is based mostly on the ICC’s case-load, which is currently focused entirely on Africa. It is not helped by the fact that the USA, one of the indictment’s most ardent supporters, has not even ratified the Rome Statute.
(3) the indictment cannot be fulfilled: even if authorized, there is very little chance that Bashir will be handed over to the court in the near future, as such an act would require the cooperation of the government of Sudan. This would leave the ICC with another outstanding arrest warrant (the warrant against Joseph Kony in Uganda being also unfulfilled) damaging its credibility and its capacity to effectively carry out its mission.
DEBATING THE ISSUES
Notwithstanding all this very worthy academic debate, indicting Bashir alone will not solve Darfur’s problems. It is not a substitute for a comprehensive political and military solution to the current crisis, and does not liberate the Sudanese and international community from the much more difficult task of understanding the factors driving the conflict and seeking an effective strategy for managing them. These factors include:
(1) allocation of scarce resources: although the conflict began as response to a rebel insurgency, it has continued as an extension of a complex dispute over resources in a land which, due to desertification and other factors, has increasingly little. The lack of resources has been exacerbated by inefficient and corrupt government agricultural policies favouring commercial elites and dispossessing small rural farmers. Any long-term solution will require an understanding of how Darfuris use their limited resources and finding ways to use them more efficiently and equitably.
(2) reforming the Sudanese government: in the unlikely event that Bashir is arrested, it is most likely that he would be replaced by another hardliner, such as the second vice-president Ali Osman Taha or presidential adviser Nafie Ali Nafie. Both of these men have been as, if not more, responsible for the government’s genocidal policies. Enduring peace will require a thorough purging of all such ideologues from the Sudanese government and a dismantling of the entire war apparatus.
(3) disarming the rebels: a workable ceasefire will require the comprehensive disarming of rebel groups on both sides of the dispute. Attacks on civilians are now frequently committed by random gangs of janjaweed outside the government’s control. There are also significant divisions among the various rebel groups fighting Khartoum, and so far only one such group (the Justice and Equality Movement) has been brought into the current peace deal. A settlement will need to embrace all the different rebel movements and provide a timetable for disarmament. According to British researcher and author of the blog "Making Sense of Darfur", Alex de Waal, such a process could take between six and nine months.
These issues will remain at the heart of the conflict whether or not the ICC authorizes the indictment. As de Waal notes, the legal strategy proposed by the ICC and the international community is not a substitute for a political strategy devised by the Sudanese themselves:
"What I am looking for—and not finding—is a political strategy for solving Sudan’s political problems... Putting faith in international salvation is never a strategy and is always a mistake… Sudan needs a Sudanese solution… I don’t believe that Sudanese can afford to spend 2009 focusing on anything other than finding a consensus on the future of the nation."
On its own, the ICC is an inadequate response to this complex and urgent situation. Renewed efforts should be made by the Sudanese and the international community to understand the real causes of the dispute and to forge an effective solution. The people of Darfur do not have the luxury of time to debate.