Why the Arrest Warrant Against Sudan’s President Will Serve Neither Peace nor Justice

The ICC’s latest move against the Sudanese president will harden Khartoum’s stance, push Darfuri rebels to make unreasonable demands, and raise expectations in Sudan — complicating efforts to secure peace and justice.

ANDREW NATSIOS is Distinguished Professor in the Practice of Diplomacy at the Walsh School of Foreign Service at Georgetown University and was U.S. Special Envoy to Sudan.

While the crisis in Darfur simmers, the larger problem of Sudan’s survival as a state is becoming increasingly urgent. Old tensions between the Arabs of the Nile River valley, who have held power for a century, and marginalized groups on the country’s periphery are turning into a national crisis. Engagement with Khartoum may be the only way to avert another civil war in Sudan, and even that may not be enough.

Andrew Natsios
This week, Andrew Natsios answers questions submitted by readers about what the United States and others can do to bring peace and humanitarian relief to Sudan.
Two weeks ago, the judges of the International Criminal Court (ICC) announced what many had long clamored for: an order for the arrest of Sudanese President Omar Hassan al-Bashir, whom it indicted in July for the atrocities his government committed against the people of Darfur.
As the administrator of the U.S. Agency for International Development and then the U.S. special envoy to Sudan, I have interviewed enough people in Darfur over the past six years to know that Khartoum committed terrible crimes, particularly in 2003-4, when it tried to crush an insurgency through ethnic cleansing, ordering the burning of villages, mass rape, and the summary execution of young men it feared might join the rebel movement. The question now is not whether such crimes were committed — they were — but what consequences the ICC’s latest action will have for justice, peace, and stability in Sudan. They will not be good.
Within days of the court’s announcement, Bashir ordered the expulsion of 13 U.S., British, and French nongovernmental organizations on the grounds that they had been providing information about war crimes to the ICC.
Unlike most war crime indictments, which are served against former heads of state, this ICC warrant was issued against a sitting head of state who controls an army, a ruthless internal security force, and a growing group of internal and external allies. Bashir had means of reprisals at his disposal, and he was swift to use them.
This was a predictable response. After the Bush administration developed plans in March 2007 for a new sanctions regime against Khartoum — of my design and at my urging — Bashir responded by, among other things, suspending oil payments he was required to give to the government of southern Sudan under the terms of the 2005 peace deal that ended the civil war between the north and south (known as the Comprehensive Peace Agreement).
He also cancelled the withdrawal of northern troops from the south, in violation of the CPA, and remobilized the Arab militias that committed some of the worst atrocities in the south during the 1980s and early 1990s.
The past is prologue, and with Khartoum already retaliating against the humanitarian relief effort in Darfur, one can only fear that its response to the arrest warrant will also include more stonewalling of the international peacekeeping troops there and perhaps retributions against the south.

The chances of a peaceful political transformation in Sudan, admittedly slim to begin with, have become even slimmer with the order for Bashir’s arrest.

Advocates of the recent ICC decision believed it would pressure Bashir and his government to behave better. It has already done the opposite, and now the regime will do everything necessary to remain in power and make sure that Bashir is never arrested.
The chances of a peaceful political transformation in Sudan, admittedly slim to begin with, have become even slimmer with the order for Bashir’s arrest. So long as the threat of the order loomed, it probably did help to restrain the Sudanese government. With the threat now realized, the regime has far less to lose.
Paradoxically, the ICC warrant also gives Darfuri rebels the wrong incentives. The more international advocacy groups, the media, and foreign politicians demand war crimes trials for the perpetrators of atrocities in Darfur, the longer the list of nonnegotiable demands the rebels there will make and thus the more remote the possibility of any political agreement, which is the only real hope that refugees have of safely returning home.
The traditional form of reparation in Darfur has been blood money paid by the perpetrator to the victim’s family — a mechanism that, before the ICC’s intervention, the Darfuri rebels accepted (albeit at a high asking price) and Khartoum obliged with in the form of reconstruction money (accompanied with some self-serving rhetoric).
But now the rebels are demanding Western-style justice — the arrest and prosecution of all perpetrators as a condition for any peace deal — and the Sudanese government will never agree to this, especially now that Bashir is under indictment. Many Sudan observers expect the people of South Sudan to vote for secession in the referendum scheduled for 2011. At that point, it will become even more difficult for the Darfuri rebels to strike a peace deal with Khartoum because their allies in the south will no longer be part of the central coalition government.
Worse, from the point of view of the court’s advocates, the ICC arrest warrant may not advance justice either. It was unclear from my conversations with displaced political leaders in Darfur in late 2007, after the indictments against lower-level Sudanese officials were issued, just who would comply with these demands: Sudan’s leaders are not going to arrest themselves, and the international community has neither the political will nor the troops to do the job.
The refugees and their leaders with whom I spoke in the displaced persons camps in Darfur said they welcomed the ICC’s decision against Sudan’s leaders. But they insisted that for justice to be served, the tens of thousands of government-led Arab militias who committed the atrocities would also have to be arrested and prosecuted. This expectation, however, cannot be satisfied; it is too impractical.
The frustration that will result will only delay progress on a peace deal, and the longer a peace agreement is postponed, the greater the likelihood that none will ever be signed. In the meantime, either the Darfur camps will become another Gaza or the Sudanese government will disperse residents by force, probably causing many deaths

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