Questions Beyond the ICC Arrest Warrant of Sudan's President

Questions Beyond the ICC Arrest Warrant of Sudan's President

The ICC and Al-Bashir: Future Scenarios

With the issuance of the International Criminal Court (ICC)'s warrant for the arrest of the Sudanese President Omar Al-Beshir on March 4, 2009, at the request of the Court's Attorney General on July 14, 2008, and which was commissioned by the UN Security Council, the issue has gone out of control and Khartoum has to face the new reality of an internal, regional and international situation.
Dozens of questions and future scenarios have emerged, which, in turn, need working out dozens of scenarios and immediate and later answers at the same time.
How is the court going to implement the warrant and arrest Al-Bashir? Will it be possible to commission some western SWAT troops to carry out a flash operation to arrest him across the borders of Chad, the area that has already witnessed a coup attempt by a Darfur faction that had advanced into the country as far as the outskirts of Khartoum?
Will the UN Security Council issue a binding resolution, according to Chapter VII compelling all the states to arrest him by force, after the Council's rejection of an African-Arab proposal to freeze the trial?
Will the UN Security Council issue a binding resolution, according to Chapter VII compelling all the states to arrest him by force, after the Council's rejection of an African-Arab proposal to freeze the trial?

Domestic and Regional Scenarios

What will happen inside Sudan? Will the two wings of hawks and doves in the ruling National Congress remain united or will the hawks-- proponents of the view of sacrificing the President and pushing him to resign-- opt for the Islamic Project of protecting Sudan from the threat of external invasion and siege?
Or will they persuade the Sudanese Minister of Humanitarian Affairs, Ahmad Harun, to turn himself in so as to alleviate the pressure on Al-Bashir and show Sudan's good intentions which might lead to the freezing of this sentence?
Will Darfur's rebels seize the opportunity to launch attacks against Khartoum supported by the Criminal Court's ruling as they have lately threatened?
Will the peace plans in the south be delayed or the presidential and parliamentary elections, scheduled for July 2009, be deferred? Will the south seek detachment from Sudan making use of this very tense atmosphere? Will the plans of fragmenting or dividing Sudan into four provinces be accelerated in accordance with an old known scheme?
What about the African Union and the Arab League: Could the 37 African States which signed the Rome Convention of the International Criminal Court withdraw in protest against the court's "political" ruling thereby damage the credibility of the Court? (The number of signatories of the convention is 108.)
May all these questions and their accompanying scenarios be premature and the situation in Sudan will remain as steadfast as ever, especially as 20 resolutions were previously issued by the Security Council concerning the conflict in Darfur, since 2005 but they have not been put into effect; gone with the wind, and Sudan remained steadfast.
Will the three Arab countries, members of the Court, withdraw as well or will the Arab position invariably remain mere rhetorical expression of solidarity with Sudan, particularly as there have been speculations that the Arab countries, "have sold" Al-Bashir off fearing to be linked with his destiny– as was the case with late President Saddam Hussein– which means confrontation with the new Obama administration.
In this case, they might be later forced to stand trial for opposing America and the West's desire to punish Al-Bashir?
Credibility and Future of the ICC
What about the fate and future of the Special International Criminal Courts, which have become looked upon, in spite of their growing in number (in Lebanon, Rwanda, Yugoslavia, and Cambodia), as unfair in their distribution of justice.
This is evidenced by their prosecution of the poor and overpowered countries while the crimes of the Americans in Iraq and Afghanistan go unpunished.
Similarly, the Americans' ally, Israel commits endless crimes in Palestine. What about the future of the ICC, especially since it deals only with African cases– four African cases at hand– while it refuses to touch the case of Israel's war crimes in Gaza or America's in Iraq?
Repercussions
However, what is certain is that the resolution of arresting Al-Bashir will have its immediate and future repercussions on Sudan, Africa, and the world as a whole.
These repercussions may reach a stage of chaos and of escalating schemes to divide, and hence fragment, Sudan, especially if the resolution is linked to a fierce desire of the West to enforce its implementation and resort to the Security Council– and the seventh paragraph of the Charter– to be implemented by force, in spite of the African and Arab demands to apply to article 16 of the Statute for the freezing of the verdict.
Such repercussions may not undergo any escalating consequences against Sudan– in contrast with the previous scenario– except for the issuance of more resolutions by the Security Council imposing new punitive measures against Sudan.
The most ferocious sanctions against Sudan might be the imposition of an embargo and a ban on Sudanese air flights over Darfur. This means delimiting action to maintaining the court's verdict until a peace agreement about Darfur is reached, and then the embargo will be lifted.
Escalation vs. Appeasement Scenarios
Again, one could talk about the West's escalation scenario against Sudan by applying the Seventh Paragraph of the United Nations Charter. This will provide all the support it can do to Darfur rebels to raise public unrest, and to allow the intervention of the US and Western military imposition of a no-fly zone over Darfur.
On the other hand, the appeasement scenario which will sustain the court's verdict as a sword ready to strike Al–Bashir's neck with the object of compelling Sudan to compromise in some files.
But before talking about these two scenarios, we should point out that the article (89) of the Statute of the Tribunal establishes the procedures for the arrest of the accused, who has got the following verdicts:

First, The court first sends its ruling to the State of destination, Sudan, and requests its judges to put the sentence into effect. In this case, the verdict demand could be sent via the Sudanese embassy in the Hague –by fax as previous communications about the arrest of Minister Ahmed Haroun and Leader Kushayb have already taken place.
In this case Sudan would reject the request since Khartoum and the Sudanese parliament have not been signatories of the Convention establishing the court and therefore the convention is not part of the Sudanese law.
Second, The court should send the request corroborated by the indictment evidence that warrants the arrest of the person concerned to the country which has already ratified the court convention if the accused is on its land. The court should also request all the other countries to cooperate to implement the arrest.
Alternatively, Ocampo should circulate the arrest warrant of the Sudanese president to the countries which have ratified the ICC convention, namely all European countries except Russia, and all of the Southeast Asian states except China and the 37 African countries, and most of Latin America, and Canada. For them the arrest warrant is obligatory and binding.
In case this is impossible and if Sudan and any other country involved refuses to enforce the resolution, the court should automatically refer it to the UN Security Council. Although the court is not affiliated to the Council, the issue submitted should be implemented and to compel all the States to cooperate with the Tribunal, including the issuance of a resolution under Chapter VII of the Charter requiring all the Member States of the United Nations, including Sudan, to cooperate in order to execute the warrant of arrest.
Here the scenarios of escalation and appeasement are also important to the United States and Europe that have a tight grip on the Security Council.

The Appeasement Scenario
The appeasement steps could be figured out as follows:
1– Conciliation could start by delimiting the court's "politicized" resolution to one or two charges of the current three ones filed against President Al Bashir. The "Genocide" charge is to be dropped.
This will imply the existence of some kind of justice, especially as the Ocampo memorandum submitted to the court speaks about only thirty five thousand victims in Darfur, compared to 200 thousands according to the Western allegations and only 10 thousands according to Khartoum estimates.
2 - The resolution remains no more than ink on paper, meaning that it is not to be implemented, unless Al-Bashir travels to an ICC party state , and thereby creates a real problem. But this scenario may not be applicable as Al-Bashir seldom travels abroad and if he travels to some Arab countries like Egypt, Saudi Arabia or Libya, it will not matter since these countries will not hand him in because they are not members of the Tribunal. Moreover, the nature of the Arab relations-makes this procedure unlikely.
3 - America and the West would not demand the enactment of Article VII of the UN Charter through a UN Security Council resolution. It should be used only as a measure of pressure.
4 - Washington will respond to the African and Arab demands, so there is a deal of freezing the resolution in exchange for a peaceful settlement in the Darfur Territory and a peace agreement that would include further Sudanese concessions, such as autonomy for the territory or apportioning it to three regions with autonomy.
The Escalation Scenario
The steps of this scenario could be figured out as follows:
1- America and Europe would seek rejection of freezing the arrest warrant of Al- Bashir.
2- They both will strive to support a new resolution to be issued by Ocampo and to be submitted to the Security Council to pass a resolution according to Chapter 7 of the Chart obliging all the other UN members including Sudan to cooperate in order to put the arrest warrant into effect.
3- The Darfur dissidents would get due support and encouragement to heighten their attacks like those of the Justice and Equality Forces last May on Um Durman with the object of pressuring Khartoum to allow them to arrest Al- Bashir and hand him in to the court.
4- Imposition of no-fly zones over Darfur like the one imposed by Americans over Iraq before the American invasion in addition to the economic, political and military embargo.
5- Employing the NATO troops, special French, European , American or other forces in special operations to penetrate the Sudanese borders or to operate outside Sudan to arrest Al-Bashir. One way is to force Al –Bashir's plane to land in an international airport so as to arrest him. The Attorney General Ocampo is authorized to use all the weapons and Devices available in the 108 UN members including the Intelligence capabilities, special forces, interior security forces, the army in addition to the UN forces to implement the resolution.
In any case, it is unexpected that the UN forces in Darfur (10 thousand troops) will be employed to arrest Al-Bashir, though they are the primary body responsible for such action.
This may lead to the attack of the Sudanese army on the UN troops and kicking them out of Sudan. This scenario has been figured out by the leaders of these troops which made them try to avoid getting involved and refrained from cooperating with the ICC concerning the special information related with Al-Bashir's prosecution.
Destiny of Elections and Peace With the South
There is still great fear of the impact of this verdict on Sudan internally and its repercussions on the parliamentary and presidential elections scheduled for next July. These will have close relationship with the future of peace and the Naivasha Peace Accord between the North and the south.
In case the verdict should affect the internal status quo, especially during the skirmishes between the Northerners and the Southerners, and the demand made by some southern leaders that Al-Bashir must hand himself in to the ICC, and in the light of the incompletion of the population census which may deter the promulgation of the election laws which are expected thereby to be deferred to December 2009 at most, given that that the peace accord between the north and the south which stipulates running the election in July, such deferment to next December will entail a constitution adaptation.
In case the elections should be run as scheduled and Al-Bashir should participate, it is expected that he will have a sliding victory owing to the popularity he has gained by the ICC verdict.
His victory will represent a new legitimacy bestowed on him by the voters. However, in case the elections are postponed or could not be run, this may aggravate the disputes with the southerners which may as well accelerate the unilateral detachment of the south without waiting till the year 2011 when the final destiny determination referendum should be administered.
This, in turn, might start a civil war between the south and the north apart from the west's wars for destiny determination. Sudan will then experience turmoil and instability which will re-thrust it into the status which existed before the Rescue Revolution of 1989.
This means that Sudan may relapse into its early Islamic roots which were characterized by rigidity and extremism. "Slah Qoush", Director of the Sudanese Intelligence, has openly warned against such relapse. Similarly, Othman Mohammed Taha, the Sudanese Vice President has alluded to the same warning when he said, " It will be a long battle".
Muhammad Gamal Arafa
political analyst in IOL
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