Published 04 Mar 09

Strategic Interests

by J. Peter Pham, Ph.D.
World Defense Review columnist

Beyond Bashir: Sudan After the Indictment

Sudanese President Umar Hassan al-Bashir has just acquired another addition to the already extensive list of the dubious distinctions which he has racked up over the course of his decades-long career as an Arab racist, Islamist extremist, military dictator, and state sponsor of terrorism. With the issuance by the Pre-Trial Chamber of a decision (and the accompanying arrest warrant) finding that "there are reasonable grounds to believe" that he "is criminally responsible as an indirect perpetrator or as an indirect co-perpetrator" of at least five counts of crimes against humanity and two counts of war crimes for his role in the humanitarian disaster that is Darfur, Bashir now becomes the first sitting head of state to be indicted by the International Criminal Court (ICC) and only the third to be summonsed before any international tribunal after Yugoslavia's Slobodan Milošević and Liberia's Charles Taylor (on the latter, see my column here two years ago).

The move was not unexpected. As I reported here last year, ICC prosecutor Luis Moreno-Ocampo had petitioned for the indictment, arguing that Bashir "bears criminal responsibility" for the consequences of his March 2003 decision to target a substantial part of the Fur, Masalit, and Zaghawa groups on account of their ethnicity after negotiations and armed action failed to end a rebellion in Darfur by insurgents who belonged mostly to the three peoples. According to Moreno-Ocampo, "His motives were largely political. His pretext was a ‘counterinsurgency.' His intent was genocide." Hence the prosecutor's application argued that Bashir had personal responsibility under international law:

At all times relevant to this Application, [Bashir] has been President of the Republic of the Sudan, exercising both de jure and de facto sovereign authority, Head of the National Congress Party and Commander in Chief of the Armed Forces. He sits at the apex of, and personally directs, the state's hierarchical structure of authority and the integration of the Militia/Janjaweed within such structure. He is the mastermind behind the alleged crimes. He has absolute control ...

[Bashir] controls and directs the perpetrators. The commission of those crimes on such a scale, and for such a long period of time, the targeting of civilians and in particular the Fur, Masalit and Zaghawa, the impunity enjoyed by the perpetrators, and the systematic cover-up of the crimes through public official statements, are evidence of a plan based on the mobilization of the state apparatus, including the armed forces, the intelligence services, the diplomatic and public information bureaucracies, and the justice system.

The prosecutor sketched the outlines of a ten-count indictment that would have included three counts of genocide for killing members of the Fur, Masalit and Zaghawa ethnic groups, causing those groups serious bodily or mental harm, and inflicting "conditions of life calculated to bring about their physical destruction"; five counts of crimes against humanity for acts of murder, extermination, forcible transfer, torture, and rape; and two counts of war crimes for attacks on civilian populations in Darfur and for pillaging towns and villages in the region.

The three judges examining the case – Akua Kuenyehia of Ghana, Anita Ušacka of Latvia, and Sylvia Steiner of Brazil – obviously took their time in reviewing the dossier carefully, asking in October for additional evidence and other information from the prosecutor. The fact that, Judge Ušacka dissenting, they did not include genocide in their bill of indictment is a testament both to the seriously with which they undertook their deliberations and to the difficulty of meeting the standard of proof required. Legally, while the prosecutor presented the well-known facts of the situation in Darfur which provide reasonable grounds to believe that the actus reus, or physical elements, of genocide have taken place, he clearly found it a challenge to demonstrate that Bashir had the specific intent (dolus specialis) to destroy the Fur, Masalit, and Zaghawa as peoples, much less that the Sudanese military, janjaweed, and other actual physical perpetrators of violence acted with such a mens rea and that thus a joint criminal enterprise was in motion. The fact that one million Darfuris of different ethnic groups continue to live in Khartoum and another two million internally-displaced Darfuris are clustered around army garrisons clearly made Moreno-Ocampo's task that much more difficult. As Rony Braumann, former president of the French non-governmental humanitarian organization Médecins sans Frontières (Doctors Without Borders), pointedly asked in a World Politics Review commentary last year: "Can one seriously imagine Tutsis seeking refuge in areas controlled by the Rwandan army in 1994 or Jews seeking refuge with the Wehrmacht in 1943?"

In any event, even without the genocide headliner, the charges are serious enough and represent a significant milestone in the historic global campaign against impunity for high-ranking perpetrators of the most serious violations of international humanitarian law and other human rights abuses. Nevertheless, while an indictment may have been handed down, what happens next will be less a legal matter than a geopolitical question since there is no chance that the Sudanese ruler will be appearing voluntarily at The Hague anytime soon to answer the charges pending against him. Quite to the contrary, Bashir has embarked on a very public campaign of defiance, appearing this week before throngs of supporters and literally dancing as he shouted insults at the ICC while his minions burned prosecutor Moreno-Ocampo in effigy.

There has been a considerable amount of concern expressed in recent weeks about the safety of United Nations personnel as well as humanitarian aid workers present in Sudan. Currently there are more than 25,000 blue-helmeted peacekeepers in Sudan: 9,999 with the UN Mission in Sudan (UNMIS) watching the fragile peace between Khartoum and South Sudan and 15,179 with the hybrid African Union/United Nations mission in Darfur (UNAMID). While there certainly is a danger that individuals or small groups within the Khartoum regime will give rein to their anger over the indictment of their leader, others within the ruling circles will realize that a violent reaction will ultimately prove counterproductive. The majority of the international peacekeepers deployed in Sudan are Africans with some thirty African countries – including Benin, Botswana, Burkina Faso, Burundi, Cameroon, Côte d'Ivoire, Egypt, Ethiopia, Gabon, The Gambia, Ghana, Guinea, Kenya, Madagascar, Malawi, Mali, Mauritania, Mozambique, Namibia, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Tanzania, Togo, Uganda, Zambia, and Zimbabwe – contributing military and police personnel to the two UN missions in Sudan. To date, the African Union has been one of Bashir's more reliable supporters, continuing to lobby the UN Security Council to exercise its right under Article 16 of the Rome Statute of the ICC to suspend the legal proceedings. In fact, the AU has even appointed former South African president Thabo Mbeki as its point man to deal with the indictment, despite his less-than-stellar record handling Robert Mugabe for the Southern African Development Community (see my report last year on Mbeki's enabling of the Zimbabwean despot). The AU's record is so predictably lamentable that South African Nobel Peace laureate Archbishop Desmond Tutu penned an op-ed in the New York Times this week to plead the case that "the issuance of an arrest warrant for President Bashir would be an extraordinary moment for the people of Sudan – and for those around the world who have come to doubt that powerful people and governments can be called to account for inhumane acts" and that "African leaders should support this historic occasion, not work to subvert it." Hence it is highly unlikely that Bashir and members of his regime would want to turn other African governments against themselves by targeting the mainly African UN personnel.

More likely, in fact, is the possibility that the indictment might serve as a pretense for other leaders in Khartoum's ruling National Congress Party (NCP), formerly the National Islamic Front (NIF), and the military to consider a move against the Bashir who has become too much of a liability, much in the same way as the elites in Liberian leader Charles Taylor's National Patriotic Party decided in August 2003 that it was better to push him aside and survive than to go down with him. In this regard, those regime stalwarts turning on Bashir might expect the backing of the People's Republic of China which, as I reported here last year, has billions of dollars invested in Sudan's hydrocarbon sector as well as infrastructure, as well as Arab states which have also made significant investments in the country and been forced to expend not inconsiderable diplomatic capital defending the NCP regime. Saudi Arabia's King Abdullah is reported to have even extended an offer of asylum to Bashir if he would step aside and go into exile. Moreover, the Khartoum elite may decide that not only can they not afford to be at odds with the international community at a time when depressed oil prices and the global economic downturn have erased the economic gains they have made in recent years, but that without Bashir they might actually have greater room for maneuver and, ultimately, better prospects for regime survival, especially if they earn some good will by handing over the president and the two other Sudanese officials previously indicted by the ICC, Minister of State for Humanitarian Affairs Ahmad Harun and Janjaweed militia leader Ali Kushayb. Think of the relative indulgence with which the international community treated previously untouchable Serbian nationalists after Milošević was extradited to the International Criminal Tribunal for the former Yugoslavia (alternatively, in their decision on Bashir, the judges noted that the Sudanese government has not cooperated with the Court since the warrants were issued for these two and raised the possibility of referring that as a separate referral to the UN Security Council).

On the other hand, it needs to be recognized that the multiple fissures in Sudan's body politic are such that it is not altogether clear that at this point in history even true political transformation in Khartoum – rather than merely the substitution of one Islamist ruler drawn from the riverine Arab minority (ja‘aliyyin, from their claimed common descent from Ibrahim Ja‘al, a descendant of al-‘Abbas, an uncle of Muhammad, the prophet of Islam) with another member of that same group which has long monopolized power and wealth in Sudan – would alleviate the deeply-rooted sense of marginalization and alienation felt by the majority of Sudanese who dwell in the country's periphery. In fact, the scenario might be posited whereby an internal coup against Bashir, whether or not it resulted in his being sent to The Hague, might accelerate the centrifugal tendencies already at work in the country.

The 2005 Comprehensive Peace Agreement (CPA) which ended the decades of civil war between the Arab-dominated regime in Khartoum and the mainly Christian or traditional African religionists black Africans in South Sudan – a conflict which, in its last phase (1983-2005) killed more than two million people, most of them South Sudanese – is currently rapidly fraying. Last week, fighting broke out in the town of Malakal, close to strategic oilfields on the north-south border in Upper Nile state, between troops loyal to the Bashir regime and local military forces aligned with the Sudan People's Liberation Movement/Army (SPLM/A) which administers South Sudan. The clash, which involved tanks and artillery as well as small arms, left at least fifty-seven people dead and some one hundred wounded, at least half of the casualties being civilians. The fighting broke out when a Sudanese army commander accused of sparking violence in the same town three years ago and whose arrest is sought by the Government of South Sudan (GOSS), Gatwich Chan, a.k.a. General Gabriel Tang-Ginye, provocatively showed up in Malakal. This latest low-intensity conflict is in the same continuum as the fighting which erupted last May in the oil-rich Abyei district (see my report last year on that dispute) and characteristic of the Khartoum regime's pattern of using force to create facts on the ground.

According to the terms of the CPA, "general elections at all levels of government" are due to be held by July 2009. Even without the added complexities presented by Bashir's indictment and whether or not he manages to maintain his grip on the central government, the poll is in trouble. The elections, which were supposed to pave the way forward for the country, are predicated on a national census that was conducted over the course of two weeks in April and May 2008 (the census results would determine the future political representation of the country as well as the sharing of oil revenues between North and South). The census itself was supposed to have been conducted by July 2007, but the NCP-dominated bureaucracy repeatedly delayed preparations. Because of when the count was finally held at the start of the rainy season, leaving whole regions in South Sudan, where roads are scarce, entirely out of the tabulations. Also uncounted were the several million South Sudanese refugees in neighboring African countries, while Southern Sudanese who were internally displaced were counted as residents of the North (the Khartoum regime conveniently arranged for proxies to initiate clashes with the SPLA in South Kordofan to justify the closing of roads south into Bahr al-Ghazal state which some IDPs were taking to head for the census). So, on one hand, even if elections were to be held on schedule, the legitimacy of the results would be contested, based as they would be on manipulated census data. On the other hand, if Bashir's overthrow or even just his indictment is used as a pretext to delay the vote, then South Sudanese leaders, irrespective of what they may presently profess at meetings with irenic Western leaders, will be under tremendous popular pressure to not wait for the promised referendum in 2011 to declare independence. As I warned last year, given "repeated violations of the CPA and the failure of the international community to hold President Umar al-Bashir and his regime accountable for them, it is not only certain that South Sudanese would opt for secession in the 2011 referendum promised to them in the peace accord, but it is increasingly likely that they may just precipitate matters and declare independence sooner."

There are certainly indications that GOSS authorities are thinking along these lines. A report this week in the Nairobi-based Business Daily Africa claimed that as many as one hundred Russian-made T-72 tanks as well as other arms have been delivered to South Sudan via Kenya – and this does not include the thirty-three tanks, grenade launchers, anti-aircraft guns, and other armaments offloaded in Mombasa three weeks ago from the ransomed Ukrainian-owned, Belizean-registered freighter MV Faina that had been held by Somali pirates (see my February 19 column). The arms are necessary, of course, for South Sudan's self-defense given that it is almost certain that any Khartoum government would seek to obstruct the secession of a region that held upwards of 90 percent of Sudan's proven petroleum reserves as well as potential rich deposits of other strategic resources. Of course, as I observed previously:

[I]f the South Sudanese succeed in striking it out on their own, they will deprive Khartoum of the very resources which it has up to now used to fuel it violent oppression of other parts of the country, including Darfur. The windfall profits of its petroleum resources and the consistent support of its Chinese partners notwithstanding, the NCP regime's grasp on power is incredibly tenuous, as [the May 10-11, 2008] foray into Omdurman, the largest city in Sudan just across the Nile River from the capital of Khartoum, by hundreds – some reports even said thousands – of fighters belonging to the largest faction of the Justice and Equality Movement (JEM), underscored. JEM [is] one of the main Darfuri resistance groups...While the attack was repulsed amid heavy fighting, JEM has served notice to the world that if the government of Umar al-Bashir is so vulnerable that a large band of rebels can cross more than 600 miles of hostile territory to reach the gates of the capital while the despot's coffers are flush with cash, then the viability of any eventual Khartoum-based successor regime drawn from the hitherto governing elite of Nile Valley Arabs (less than five percent of the population), once they are reduced to penury by the secession of South Sudan, is questionable at best.

More recently, JEM has issued a statement saying that it "hopes for the issuance of an arrest warrant" for Bashir, while the group's leader, Dr. Khalil Ibrahim, went even further, telling The Times of London last week: "When this warrant comes it is, for us, the end of Bashir's legitimacy to be President of Sudan...We will work hard to bring him down...If he doesn't co-operate with the ICC the war will intensify." According to the JEM chairman, while his group, the most formidable armed opposition group on the ground in Darfur, was prepared to preserve the territorial integrity of Sudan within the context of regional autonomy, it was also willing to carve up the country if necessary: "If peace does not come quickly Kordofan and Darfur would have to form their own entity – Western Sudan – with the White Nile as its border. If there was no peace then this part would have to become its own country ... We are not going to ask to control Darfur and Kordofan through peace talks if they [the Government] are not going to give it – we'll take it."

I need not belabor here where the national interests of the United States not only in ending the various conflicts in Sudan, but also in helping bring about a sustainable security balance in the critical Horn of Africa subregion, lie should the historically artificial Sudanese state begin to disintegrate. One can only hope that the Sudan policy review, reportedly led by National Security Council aide Samantha Power, being undertaken by the administration of President Barack Obama will balance both the demands of the present fluid circumstances and the requirements of a long-term geopolitical calculus.

While it is far too early to know whether and how long Bashir will manage to avoid answering for his crimes before an earthly tribunal, in many ways the charges brought against him mean that he is no longer master of his own fate, to say nothing of his continuing to play a dominant lead in the ongoing drama of Sudan. On the global stage, the ICC indictment may be a judicial action carried out in conformity with international law, but its enforcement will depend on the political will of the UN Security Council which referred the Darfur case to the Court in the first place. However within Sudan the indictment will take on its own inexorable momentum as other actors acquire considerable say, not just over what role Bashir is allotted, but over the shape of the future Sudan – all in an accelerating dynamic process that is likelier to be ultimately determined by geostrategic realities and Machtpolitik rather than by jurisprudential norms. Consequently, while the short-term outlook is unclear, the contours of the end state are already discernible.

— J. Peter Pham is Director of the Nelson Institute for International and Public Affairs at James Madison University in Harrisonburg, Virginia. He is a Senior Fellow at the Foundation for the Defense of Democracies in Washington, D.C., as well as Vice President of the Association for the Study of the Middle East and Africa (ASMEA). In addition to the study of terrorism and political violence, his research interests lie at the intersection of international relations, international law, political theory, and ethics, with particular concentrations on the implications for United States foreign policy and African states as well as religion and global politics.

Dr. Pham is the author of over two hundred essays and reviews on a wide variety of subjects in scholarly and opinion journals on both sides of the Atlantic and the author, editor, or translator of over a dozen books. Among his recent publications are Liberia: Portrait of a Failed State (Reed Press, 2004), which has been critically acclaimed by Foreign Affairs, Worldview, Wilson Quarterly, American Foreign Policy Interests, and other scholarly publications, and Child Soldiers, Adult Interests: The Global Dimensions of the Sierra Leonean Tragedy (Nova Science Publishers, 2005).

In addition to serving on the boards of several international and national think tanks and journals, Dr. Pham has testified before the U.S. Congress and conducted briefings or consulted for both Congressional and Executive agencies. He is also a frequent contributor to National Review Online's military blog, The Tank.

© 2009 J. Peter Pham

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