New ICC prosecution: Opportunities and risks for peace in Sudan

In seeking this warrant, the Prosecutor is acting within his mandate under the Rome Statute and from the UN Security Council, which in 2005 referred crimes committed in Darfur to him for investigation and prosecution. That mandate has been consistently frustrated by the Sudanese government – not least in its refusal to hand over the government minister, Ahmad Harun, and Janjaweed commander, Ali Kushayb, against whom warrants were issued in April 2007 – and it is important for the Prosecutor to protect the credibility of the Court by pursuing further prosecutions.

It may also prove to be the case that in initiating this process the Prosecutor will be advancing the interests of peace. That is not his official role – which is rather to act, in the interests of justice, to end impunity for those believed guilty of atrocity crimes. But it may be that the increased pressure now placed on the NCP governing regime will lead it to take long overdue steps to cease all violence, implement genuine and credible measures to resolve the Darfur crisis – including allowing the full and effective deployment of the UNAMID peacekeeping force – and fully carry out its side of the bargain to implement the North-South Comprehensive Peace Agreement (CPA).

The problem for international policymakers is that the Prosecutor’s legal strategy also poses major risks for the fragile peace and security environment in Sudan, with a real chance of greatly increasing the suffering of very large numbers of its people. Hard-liners on all sides may be reinforced, with the governing regime and other actors reacting to today’s application, and any subsequent warrant, in ways that seriously undermine the fragile North-South peace process, bring an end to any chance of political negotiations in Darfur, make impossible the effective deployment of UNAMID, put at risk the humanitarian relief operations presently keeping alive over 2 million people in Darfur, and lead to inflammation of wider regional tensions. These are significant risks, particularly given that the likelihood of actually executing any warrant issued against Bashir is remote, at least in the short term.

The best way through this dilemma may be for the UN Security Council to take advantage of the likely two to three month window before the judges’ decision on the arrest warrant, to assess whether genuine and substantial progress is in fact being made in stopping the continuing violence for which the governing regime bears responsibility, engaging in genuine peace negotiations in Darfur, expediting UNAMID deployment and advancing the CPA. If it believes such progress is being made, and that the interests of peace justify this course being taken, the Security Council could – even if the Prosecutor and the ICC wanted to proceed – exercise its power under Article 16 of the Rome Statute to suspend any prosecutions, for an initial twelve months but with such suspension able to be renewed indefinitely.

Such a decision would have to be made in light of the regime’s history of repeatedly flouting agreements it has entered into. But the need for any Article 16 deferral to be renewed on an annual basis would provide an incentive, hitherto lacking, for the regime to abide by commitments made under threat of ICC prosecution.

This is not the time to be relieving pressure on the Bashir regime – or the rebel groups who are making their own major contribution to conflict in Darfur. But the most critical of all needs is to end the horrific suffering of the Sudanese people and to ensure there is no new explosion of mass violence.
Crisis Group President Gareth Evans said that the international community now faced a hard policy choice in balancing risk and opportunity: “The Sudanese governing regime has until now utterly failed in its responsibility to protect its own people. The judgement call the Security Council now has to make is whether Khartoum can be most effectively pressured to stop the violence and build a new Sudan by simply letting the Court process proceed, or – after assessing the regime’s initial response, and continuing to monitor it thereafter – by suspending that process in the larger interests of peace”.

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