A military or political coup? The options for Sudan's regime are grim, writes Mohamad Abul Fadl* Even for a country with such a troubling history the news came as a shock. On 14 July International Criminal Court Prosecutor-General Luis Moreno-Ocampo called for the arrest of President Omar Hassan Al-Bashir and the confiscation of his property, concluding that the Sudanese president was involved in war crimes in Darfur. While the consequences of the move are hard to predict, a long- running confrontation between the Sudanese regime and its domestic and foreign foes is to be expected. Around the region Arab officials had no other option but to stand by the Sudanese president, either because they are concerned for Sudan's stability or because they don't want a precedent to be established. The ICC has been on Sudan's case for sometime. In February 2007 it ordered the arrest of the current minister of humanitarian affairs, Ahmed Harun, and the leader of a pro-government militia, Ali Koshib. It was said that the ICC had a list of over 50 Sudanese officials suspected of war crimes, though President Al-Bashir was not thought to be among them. Many in Sudan still believe that the ICC is a pawn in an international political game aimed at intimidating the Sudanese regime and extracting concessions. But even if this is true the indictment of Al-Bashir has taken the game to a new level. The ICC's move is hard to counter and impossible to ignore. Although earlier human rights reports about violations in Darfur make little or no mention of Al-Bashir, the ICC prosecutor-general claims that orders given by the Sudanese president allowed the killing of 35,000 civilians, caused the "slow death" of 80,000, and led to the displacement of 265,000 others. He has accused Al-Bashir of ordering the army and the Janjaweed militia to engage in acts of "genocide" against the Fur, Masalit and Zaghawa tribes. Under ICC regulations the prosecutor-general's charges are not binding until seconded by judges from the court, a process that may take up to two months. Should the judges agree with the prosecutor-general's assessment they would post an arrest warrant for the Sudanese president. According to Moreno-Ocampo, the process may take longer than two months given the complexity and high-profile of the case. Once an arrest warrant is served the Sudanese government will be asked to take action, at which point the UN Security Council will become involved. There are three ways in which cases are referred to the ICC. Countries that are party to the Rome Statute can make referrals; the prosecutor-general can identify cases worth investigating and the UN Security Council can refer a case to the court, as has happened with Sudan. The court is then entitled to review the case even if the country involved is not a signatory to the Rome Statute. In an unprecedented move the UN Security Council asked the ICC prosecutor-general in March 2005 to investigate the so-called "Darfur massacres" while urging the Sudanese government and other parties to the conflict in Darfur to cooperate fully with the investigation. Yet in his statement Moreno-Ocampo failed to mention human rights abuses by the rebels despite several international reports maintaining that the rebels have committed as many crimes as pro-government groups in Darfur. In Sudan many voiced sympathy with President Al-Bashir, fearing that the charges would further destabilise the country. The ruling National Congress Party reacted to the charges with its usual hyperbole, dismissing the whole thing as a foreign conspiracy and making no attempt to address the issues that the charges raise. Sudanese parties, even those that had welcomed earlier ICC charges against Harun and Koshib, were alarmed by the audacity of the move. Al-Umma Party voiced the fear that the ICC's action would lead to a "constitutional collapse" in Sudan. The Unionist Party said the move would "greatly undermine the peace process in Darfur and the south" while the People's Liberation Movement, the main ally of the National Congress, said that the charges would undermine the stability of Sudan and urged action to resolve the Darfur crisis. Al-Turabi's Popular Congress, the ruling party's main rival, said that "resolving Darfur's problems would defuse all related matters". Most Western countries defended Moreno-Ocampo's position though some major powers, including China, have voiced reservations. Arab and African countries are appalled. The African Union (AU) has voiced the hope that the ICC will suspend its decision until the problems in Darfur and South Sudan are sorted out. The AU presidency has warned of "military coups and extensive chaos" in Sudan. The AU doesn't want Al-Bashir's indictment to lead to charges being brought against other African leaders. Sudan has three options. One is to propose a workable peace initiative in Darfur and suggest a formula for resolving other outstanding political problems in the country though it will be hard for the regime to do this while its leader is facing an international indictment. Also, the rebels are likely to become more demanding now that the Sudanese president is being called a criminal. Peace initiatives, though, could yet bring some sympathy to Sudan while highlighting the considerable differences between insurgents. Another option is to urge both China and Russia to support Sudan in the UN and activate Article 16 of the ICC Statute which obliges the court to wait for 12 months before taking action on cases referred by the UN Security Council. "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions": judging by the views of both China and Russia over Iraq this course of action may prove successful, especially when China's extensive interests in Sudan and Moscow's determination to raise its international profile are factored in. A third option is for Sudan to negotiate with the US and make strategic concessions. This is not as easy as it seems given that the Save Darfur coalition, a major US lobby, is likely to oppose it. Because the US is not a member of the ICC it can theoretically veto any decisions concerning the ICC at the UN Security Council but it did not do so in March 2005 and it is unlikely to reverse its position now. * The writer is a researcher specialised in African and Sudanese affairs.
