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By: Bill Andress July 21, 2008

The request by the prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo that the International Criminal Court issue an arrest warrant for Sudanese President Omar Al-Bashir has been controversial in the extreme.  The prosecutor  wants al-Bashir indicted on charges of genocide, crimes against humanity, and war crimes in Darfur.  His presentations suggest that he has strong evidence to support his request.

Few would argue that, as a minimum, Bashir as President of Sudan bears ultimate responsibility for the death, destruction, carnage and brutality which has been heaped on Darfurians of African culture by both Government of Sudan regular forces and its allied Arab militia.  That is the responsibility of leadership.  Few would argue that a negotiated peace to stop the bloodshed and abuse is essential or that civilians must be protected.  Few would argue that justice requires both restoration of the land, homes, crops, animals etc which have been taken and punishment of those who are responsible for the crimes.

What seems debatable is whether the indictment of Bashir is useful and sufficient to achieve both restoration and accountability.  There are two relatively distinct camps among people who clearly want the genocide stopped, peace restored, and justice imposed. 

Those who say that the indictment would be a mistake often cite the following:

a.  The indictment is viewed by African people and politicians as an effort to re-colonize Africa.

b.  The ICC has been focused on Africa when other continents have similar issues.

c.  The indictment is viewed as an imposition of Western justice.

d.  The indictment will result in Bashir's further restricting the humanitarian effort, limiting the deployment of UNAMID, delaying the peace process in Darfur and in the failure of the CPA.

e.  If Bashir is indicted there will be a power vacuum which will lead to anarchy.

f.   There will be negative reactions from the African Union, Arab League, Russia, China and the National Congress Party.

Those who say that the indictment is appropriate and timely argue that:

a.  Holding people accountable for war crimes directly promotes peace.  They cite the case of Slobodan Milosevic noting that concerns similar to those above were raised, that the concerns did not materialize, and that Milosevic's hold on power did not last long after his indictment.

b.  There is no progress toward a negotiated peace in Sudan; Sudan already has limited the deployment of UNAMID to the point of its failing; and that humanitarian aid is so constrained by government-allowed (perhaps sponsored) violence that it already is totally inadequate.  They ask why we would want to maintain this situation.

c.  If Bashir is not indicted what would be the incentive for his changing the brutality and repression of the Sudanese people that has marked the entire period of his Presidency.  They note that if he remains untouchable, logically he should be emboldened to continue his thus far successful (from his perspective) policies.

d.  The indictment provides a path for change by Sudanese who do not want their nation ruled by an indicted war criminal, Sudanese who see this as an opportunity to rid themselves of leadership which is creating such problems for their nation, and Sudanese within the NCP who will turn against Bashir both for self preservation from similar treatment and because they will question his leadership. 

Indeed the International Crisis group notes that one possibility is, " ..... 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). " (Note 2)

Within the context of the debate, we must not lose track of the facts that:

a.  The Prosecutor was tasked to investigate by the UN Security Council; he has concluded there are reasonable grounds to believe that Omar al Bashir bears criminal responsibility for 10 counts of genocide, crimes against humanity and war crimes.  Ocampo is doing what he was told to do. 

b.  Should the ICC indictments really be impediments to peace, it may or may not be true that absent the ICC indictments, any path to peace exists.   For as John Prendergast notes,

" The regime has directly and repeatedly defied the will of the Security Council by:

              • Not arresting the (previous) ICC indictees;
              • Obstructing UNAMID’s deployment;
              • Continuing offensive military flights;
              • Maintaining support to the Janjaweed; and
              • Flouting the arms embargo and buying weapons from Security Council members" (Note 1)

Someone once said that insanity is defined as doing the same thing yet expecting different results.  And, John Prendergast provided a compelling argument that Bashir DOES respond to well coordinated, international pressure,  "The record shows over the last two decades that General Bashir’s regime has backed off its most deadly war strategies when international pressure has been well coordinated and at its high points. When the spotlight was on the regime’s use of food as a weapon, it relented. When the pressure focused on ending bombing of civilians in the South, it stopped. When the temperature went up over the regime’s facilitation of a resumption of slavery, it abandoned its strategy and slave-raiding ended. " (Note 1)

So in the face of such divided public opinion from people and groups on each side of the controversy who are knowledgeable and caring, what is the right course of action?

Most of the reasons given for believing that the indictment would be a mistake are opinions and examination of possibilities.  However, when considering the allegation of those who claim that the ICC has been focused on Africa when other continents have similar issues, it is appropriate to remember while it is accurate that since the court was established in 2002 it has charged only suspects in Africa, in the first three cases the prosecutor was invited to investigate by the host government, while in Sudan the case was referred by the Security Council.  This pattern does not suggest that the prosecutor's actions are based on any bias.  Regardless, the failure to indict another does not mean that justice is served by failing to indict Bashir.

On the other hand, most of the reasons given for believing that the indictment is appropriate are based on observations of Bashir's past behavior under differing circumstances and the results of criminal indictments of other leaders.  There also are some opinions expressed that others in Sudan might react in a positive way to Bashir's indictment. 

Some have raised concern that Russia, China and others may attempt to derail the process by invoking Article 16 of the Rome Statute.  Clearly there are permanent members of the U.N. Security Council who can preclude such an effort if they choose to.  But Article 16 might be used in a different way.... as a carrot.   Postponing the indictment might be an inducement for Bashir to systematically correct some of the issues which have led to Ocampo's seeking the indictment.  

Would we be willing to delay the indictment for six months and tell Bashir that another indictment delay will be forthcoming if all objections to the full deployment of UNAMID are withdrawn.  Based on his fulfilling those promises, would we be willing to delay the indictment if the janjaweed are disarmed of all offensive weapons?  Would we be willing to tie delay of the indictment to see the CPA fully implemented?  If, between now and 2011, Sudan makes major strides toward a just and lasting peace and general elections are successful, would we be willing to allow him asylum in some nation so long as he remains clear of Sudan and its political, military, and economic issues?   When all has been achieved, issue the indictment with the provision that it will not be enforced within the nation in which asylum is granted so long as he remains in that nation and complies with specified restrictions.

A part of me does not like my own proposal.  It seems that Bashir would not be adequately punished.  However, my faith assures me that ultimately he will be judged and given his full reward.

Conclusion:  Using the ICC indictment to achieve the goals of the international community is the way forward.  

1 "The Merits of Justice", John Norris, David Sullivan, and John Prendergast, July 14, 2008

2  " New ICC Prosecution: Opportunities and Risks for Peace in Sudan," International Crisis Group, July 14, 2008

Sudanese Land and Culture

Bill Andress

March 14, 2008

Recently I read a paper which was written by James Okuk. His paper dealt with the ownership of land in Southern Sudan. He reports that while some differences exist from one to the other group, all tribal groups believe strongly in respecting and safeguarding their land as a community-owned resource.

As big business comes to southern Sudan, unless these principles of community ownership and other features of Sudanese culture are firmly protected in both law and praxis, the people will be overrun and these historic principles will be lost. Often, a developing nation sees big business as progress...and it can be...but only if it is required to conform to the principles valued by those who live in the developing nation.

I expect that there is a strong temptation to think that western ideas are more modern and, perhaps, even superior. I hope that Sudanese people understand that some aspects of Sudanese culture are superior to Western culture and that they have the wisdom to manage development using the best of both.

My first prayer for southern Sudan is that the CPA will be honored and peace will truly come.

My second prayer for southern Sudan is that the leaders will be servant leaders rather than "grabbing for themselves while the opportunity is there."

My third prayer for southern Sudan is that the people and leaders will have the wisdom to move slowly in seeking to modernize. Every Sudanese whom I ever have asked has told me that the most important priority is education. Let education, healthcare, sanitation and safe water move rapidly and all else at a managed, deliberate pace.

A Genocide Foretold

Nicholas Kristof

Published: February 28, 2008

JUBA, Sudan

The Sudanese government started the first genocide of the 21st century in Darfur, and now it seems to be preparing to start the second here among the thatch-roof huts of southern Sudan.

South Sudan is rich in oil, but its people are among the poorest in the world, far poorer than those in Darfur. Only 1 percent of girls here finish elementary school, meaning that a young woman is more likely to die in pregnancy or childbirth than to become literate. Leprosy and Ebola linger here. South Sudan is the size of Texas, yet it has only 10 miles of paved road and almost no electricity; just about the only running water here is the NileRiver.

The poverty is mostly the result of the civil war between North and South Sudan that raged across the southern part of the country for two decades and cost 2 million lives. For many impoverished villagers, their only exposure to modern technology has been to endure bombings by the Sudanese Air Force. The war finally ended, thanks in part to strong American pressure, in 2005 with a landmark peace agreement — but that peace is now fraying.

Sudanese President Omar al-Bashir is backing away from the peace agreement, and prodding Arab militias to revive the war with the South Sudan military forces. Small-scale armed clashes have broken out since late last year, and it looks increasingly likely that Darfur will become simply the prologue to a far bloodier conflict that engulfs all Sudan.

Even my presence here is a sign of the rising tensions and mistrust. The Sudanese government refuses me visas, but the authorities in the south let me enter from Kenya without a visa because they want the word to get out that war is again looming.

The authorities in disputed areas such as the NubaMountains and Blue NileState also welcomed me, rather than arresting me, even though those areas technically are on the northern side of the dividing line. Local officials in both areas warned that President Bashir and his radical Arab political party are preparing to revive the war against non-Arab groups in the south and center of the country.

“If things go on as they are now, war will break out,” said Sila Musa Kangi, the commissioner of Kormuk in Blue Nile. “And it can break out at any time.”

Although people speak of renewed “war,” the violence is more likely to resemble what happens in a stockyard. If it is like the last time, government-sponsored Arab militias will slaughter civilians so as to terrorize local populations and drive them far away from oil wells.

Under the 2005 deal that ended the war, Sudan is supposed to hold elections early next year, but President Bashir is unlikely to allow them because he almost surely would lose. Likewise, Mr. Bashir is unlikely to abide by his commitment to allow the south to hold a referendum in 2011 to decide whether to separate from Sudan because southerners would likely vote overwhelmingly for independence — and more than three-quarters of the country’s oil is in the south.

Already, the Sudanese government is backtracking on its commitments under the Comprehensive Peace Agreement, or C.P.A.: It still hasn’t withdrawn all of its troops from the south; it hasn’t accepted a boundary commission report for the oil-rich border area of Abyei; it keeps delaying a census needed for the elections; and it appears to be cheating the south of oil revenues. And the U.S. and other countries have acquiesced in all this.

“We say to the international community, ‘you midwifed the C.P.A., and then you left,’ ” said Rebecca Garang, the widow of the longtime southern leader, John Garang. “You must come back and check the baby.”

Those who focused on Sudan’s atrocities in Darfur, myself included, may have inadvertently removed the spotlight from South Sudan. Without easing the outrage over Darfur — where the bloodshed has been particularly appalling lately — we must broaden the focus to include the threat to the south.

One of the lessons of Darfur, Rwanda and Bosnia is that it is much easier to avert a genocide ahead of time than to put the pieces together afterward. So let’s not wait until gunshots are ringing out again all over the south.

There are steps that the U.S. can take to diminish the risk of a new war. We can work with the international community to raise the costs to President Bashir of defying his treaty obligations.

We can warn Sudan that if it starts a new war, we will supply anti-aircraft weapons to the south to make it harder for the north to resume bombing hospitals, churches and schools. We can also raise the possibility of protecting the south with a no-fly zone, which might be enough to deter Mr. Bashir from starting yet another genocide.

Comment on this column on my blog at: www.nytimes.com/ontheground.

bobbie frances mcdonald

Oldanew@aol.com

September 4, 2007

“History repeats itself” has become a trite comment and therefore is frequently ignored. “Never Again!” seems to have fallen into the same category. Both of them should be neon signs in the world view as it relates to Sudan.

A knowledgeable Sudan advocate who has been on the scene for over 20 years said last week that the entire country could be in chaos by the end of the year. As alarming as that was, to those of us who pay close attention to Sudan, it was sad but not unthinkable.

By looking at Sudan’s turbulent past it was evident that Darfur-like scenes would certainly be reported from regions all across this huge country.  Each new atrocity, dirty trick and broken promise that has been reported recently has a parallel Sudan’s history. 

Presently reports coming out of the Nubia, Kordofan and Beja regions, as well as areas in Southern Sudan,  indicate that history is indeed being repeated and the impending consequences will be more chaos and death across the country.  Will it be a “genocide?”  That depends on who is assessing the situation but on September 3, 2007 Darfur finally made to the front page of the New York Times with this headline telling of a new variation on the old divide and conquer: 

Chaos in Darfur on Rise as Arabs Fight with Arabs   “NYALA, Sudan:  Some of the same Arab tribes accused of massacring civilians in the Darfur region of Sudan are now unleashing their considerable firepower against one another in a battle over the spoils of war that is killing hundreds of people and displacing tens of thousands.”

"Darfur’s violence has often been characterized as government-backed Arab tribes slaughtering non-Arab tribes, but this new Arab-versus-Arab dimension seems to be a sign of the evolving complexity of the crisis. What started out four years ago in western Sudan as a rebellion and brutal counterinsurgency has cracked wide open into a fluid, chaotic, confusing free-for-all with dozens of armed groups, a spike in banditry and chronic attacks on aid workers."

Hopefully, the international community will intervene before these kinds of headlines become commonplace.

SAAF's Position on a No Fly Zone over Darfur

Bill Andress      

BillAndress@SudanAdvocacy.com

July 21, 2007

In the past SAAF was a "quiet  advocate" of a NO FLY ZONE (NFZ).  That is - we believed in the concept but did not understand how it could be implemented.  Because we could not understand "how" to do it, we did not openly advocate for it.  Based on recent information and changing circumstances on the ground,  we now feel that imposing a NFZ is not just a difficult - but an inappropriate action. 

SAAF is not welded to any specific position; rather we adjust our advocacy to reflect current and reasonably anticipated conditions on the ground in Sudan.  What we never  compromise is our objective....a just and lasting peace for all of Sudan.  This change in our position on the NFZ is driven by changes on the ground. 

The major change on the ground in Darfur which advises our opposition to a NFZ is that few people today are being harmed by Government of Sudan (GoS) flights.  While it is true that some GoS military flights against both civilian and rebel military targets continue, the number and frequency of such flights has been significantly reduced.  All, of course, should be stopped.  Some might say, so long as there are any people being harmed we should support a NFZ.  However, the unintended consequence of the imposition of a NFZ is that it would result in increased mortality rather than less. 

The imposition of a NFZ probably would result in retaliation against the humanitarian relief efforts which, in all likelihood, would result in shutting down their operations.  This would bring about a horrible humanitarian disaster which now is being averted by these humanitarian relief efforts. Additionally, information which is being provided by humanitarian workers and that level of protection, which now is provided by the active presence of international aid workers, would be lost if they were forced to evacuate the region.

Even if the NFZ did not result in retaliation, as a minimum distinguishing between military flights, humanitarian flights and commercial flights used by NGOs would be very difficult though not impossible.  The GoS is consciously using the same types of planes used by UN and humanitarian agencies.  It has painted many of them the same color and even disguised tail markings.  Both GoS and humanitarian aircraft operate from the same air fields and are virtually visually indistinguishable from the air.  The confusion resulting from these GoS actions would result in high risk for humanitarian aircraft which likely would result in their withdrawal from Darfur.

Implementation of a NFZ in all likelihood would require obtaining basing rights from Chad.  Eastern Chad already is embroiled in its own "Darfur-like" tragedy.  This would be exacerbated by Chad's granting such rights.

Our decision to oppose a NFZ does not mean that we should abandon "the stick" in our "carrot and stick" effort...just that "the stick' should not include threatening a NFZ at this time. 

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“We slaughter goats, we eat together, we are reconciled.”

(Acholi Justice)

bobbie-frances mcdonald

bobbiefrances@sudanadvocacy.com

July 14, 2007

Does traditional justice indicate a level of naiveté? Does it reflect poorly on those who would prefer time honored solutions such as “Mato Oput”? This reconciliation ritual involves a murderer admitting his crime to the relatives of the victim followed by both parties drinking a bitter brew made from a tree root mixed with sheep’s blood. Here the closest thing to civilized justice is that compensation might be required and even then the amount is decided in a spirit of cooperation.

“The US based Human Rights Watch says, such rituals are unacceptable because credible justice must dish out punishments to fit the crimes.” (Reuters, July 5, 2007) I am struck by the use of the words “dish out punishments.” It implies that the only way to attain justice is to exact retribution since the synonyms for punishment are all words that describe severe penalties.

Perhaps we should be more considerate of the culture and customs of the impacted people rather than seeking to impose our way of thought on them. When we meddle, we not only insert ourselves into the problem but at times such as in the case of the Lord’s Resistance Army and the government of Uganda we may actually intensify the problem. In this instance, as well as in the case of the genocide in Darfur, western powers have initiated an action by the Hague’s International Criminal Court to indict and try the people they have deemed to be the transgressors of crimes against humanity. In both of these cases some of those named in the indictments are high level officials who are important players in the long sought peace negotiations. And the tribunals that loom in the future are having a negative impact on getting a sustainable peace agreement.

In considering this idea of the peace being held hostage to getting justice I examined what justice means. Some synonyms for it are reparation, atonement, amends, redress and even satisfaction. None of these words implies flogging which is one of the choices for punishment However, satisfaction caught my attention because that can only be defined by ones culture and values.  Therefore, in these instances, it seems arrogant to impose western values especially since there are no westerners involved in the crimes.

Next I looked at this from a faith-based perspective. I think that in most of the major religious traditions it is the Supreme Being of the faith that ultimately decides one’s fate. If it is the Divine who metes out justice, then what are we here on earth trying to accomplish? What is it that needs to be addressed so that we can live peacefully? For peace on earth is what most of us would state as a main objective. In that case what if we tried to understand justice in light of what has to occur to bring us to reconcile with our abusers? Reconciliation is to find a way to reunite, harmonize, restore relationship with or even resign ourselves to or adjust.

Therefore, if the Acholi need to have a Mato Oput ceremony to become reconciled and live in harmony with the Lord’s Resistance Army why should westerners object? To us it may look like amnesty which lately seems to be a dirty word. But it doesn't really mean that someone got away with something and it worked in South Africa and Rwanda where courts leveled a more traditional form of justice.

I believe that my faith would want me to pray for Peace and Justice and leave Crime and Punishment to Dostoevsky.