Sudan Must Engage With ICC – Foreign Minister

Source: IWPR

By Katy Glassborow in The Hague (AR No. 186, 08-Sep-08)

In a break with the official line, Sudan’s foreign minister says cooperation with the International Criminal Court, ICC, is the only way for his country to respond to the possibility that President Omar al-Bashir will be indicted on genocide charges.

In an exclusive interview he gave to IWPR during a visit to The Netherlands, Foreign Minister Deng Alor said the move toward indicting al-Bashir had caused a crisis within Sudan’s coalition government, and a special committee set up to deal with ICC actions was sharply divided on what to do. 

His own view, however, is unambiguous. “We have to cooperate with the ICC, it is the only political way of handling this issue,” he said.

“The ICC is something which cannot be wished away. It is here to stay, so we have to deal with it, and the only way to deal with it is legally.”

Alor’s remarks are a complete departure from the position taken by the coalition government, which has refused to cooperate with the ICC ever since the United Nations Security Council referred the situation in Darfur to prosecutors in 2005.

The government rejects the indictment of state minister Ahmed Harun, and “janjaweed” militia commander Ali Kushayb for war crimes and crimes against humanity. When ICC prosecutor Luis Moreno-Ocampo revealed the allegations against al-Bashir on July 14 and asked judges to issue an indictment for ten counts of genocide, war crimes and crimes against humanity, the parties that make up the current government of national unity came out solidly in support of the president.

Alor’s divergence from the official line reflects the fact that he belongs not to al-Bashir’s dominant National Congress Party, NCP, but to the main party from South Sudan, the Sudan People’s Liberation Movement, SPLM. After a prolonged civil war between north and south, the SPLM signed a deal with Khartoum under the 2005 Comprehensive Peace Agreement, CPA, and was awarded posts in a coalition cabinet as a result.

Alor was appointed foreign minister in October last year, replacing another southerner, Lam Akol.

In the interview, Alor made it clear he was representing the official SPLM view on cooperation with the ICC, but he did not say he was speaking only as a party representative or private individual, rather than in his official capacity as foreign minister.

He suggested that the emerging political debate around the ICC was a good thing for Sudan.

“It is a healthy thing, because for the first time it is generating a serious, real national debate. Until now, it has been difficult to say things against the ruling NCP. But the SPLM has encouraged many people to speak out,” he said.

When Moreno-Ocampo announced his allegations, President al-Bashir set up a crisis management committee to handle the ICC crisis. He appointed as its head First Vice-President Salva Kiir, who simultaneously heads the semi-autonomous region of South Sudan and the SPLM.

The foreign minister, who has attended recent committee meetings, says the body is divided about what Sudan’s strategy should be.

"We are discussing a potential warrant of arrest against our president at the national level and have yet to reach a consensus,” he said. “We know we don't have much time left. We hope we can find a consensus".

As Sudanese officials from al-Bashir’s NCP attempt to fend off the ICC, one of the arguments they have brought to bear is that the national justice system is both willing and able to investigate and prosecute grave crimes of war. The ICC intervenes only in countries where this is not the case.

However, the initiatives undertaken by the NCP to prove its commitment to justice have been widely dismissed by legal experts and human rights groups as a sham.

Alor acknowledged that there was a problem with the legal process in Sudan, noting that “there are people who say the Sudanese judiciary is not independent but controlled or influenced seriously by the executive”.

He went on, “The crimes in Darfur are supposed to be investigated and tried by the Sudanese judiciary. This is not happening, and it is only now that the justice minister has appointed some judges to investigate and possibly try, maybe seriously, some suspects.

“Although some suspects were tried in the past, many people said these trials were not fair.”

Since Sudan has not signed up to the ICC, it does not feel bound by the court’s decisions, despite its obligation to cooperate because of the UN Security Council referral. Instead, after Harun was indicted, he was promoted and is now minister for humanitarian affairs.

Alor argues that if Khartoum wants to stave off ICC proceedings against the president, it has to engage with, rather than ignore it.

“To defer the arrest warrant, the ICC will have to be convinced about our engagement,” he said. “If we want the UN Security Council to help us and influence the ICC to defer the warrant of arrest for a year, this can only happen if we cooperate with the ICC by hiring a law firm or lawyers in Sudan who are capable of representing the government, or by cooperating directly through the minister of justice.”

“We should either deal with the ICC directly, or ask a Sudanese or foreign law firm to represent us before the ICC,” he added.

The minister’s views are not shared by the NCP which dominates the governing coalition, although Alor said some members were quietly supportive of him.

Asked what the reaction was within government to his outspoken views on the ICC, Alor said, “The NCP is angry but I have to say my opinion. Some ministers, outside of official meetings, agree with my views. But they are afraid. Democracy within the NCP is difficult. Some say my views are good and liberal, and support me informally.”

He said that after the ICC prosecutor’s announcement in July, many ministers who represent minority political parties were at a loss for what to do or say.

“A lot of them are very reserved on this issue, and when they talk they mostly toe the NCP line,” he said.

The foreign minister was in The Netherlands to talk to Dutch foreign minister Maxime Verhagen about Sudan’s attitude to the ICC, the possibility of Dutch peacekeepers joining the combined UN and African Union force, UNAMID, and progress on implementing the CPA.

During a press briefing at the Netherlands foreign ministry, Alor conceded that the ICC was a "very difficult and thorny issue in Sudan".

He said an indictment against al-Bashir, if issued, would come at a “difficult time” for Sudan, with Darfur the central problem, complicated by the deployment of UNAMID peacekeepers, the distribution of humanitarian aid, Sudan’s difficult relationship with Chad and the implementation of the CPA.

The terms of the CPA are scheduled to be implemented in full in 2011, when a referendum will be held to decide whether South Sudan should become fully independent of the rest of the country.

Alor warned that indicting al-Bashir could prevent an early resolution of the Darfur conflict and derail the CPA process governing north-south relations.

“We anticipate there will be ramifications on the peace processes. It could prolong the war in Darfur, and break the implementations of the CPA. There are so many things that could happen,” he said.

Meanwhile, the fighting continues in Darfur. A peace agreement brokered in May 2006 has yet to be signed by all the rebel groups.

Rebels have accused the government of attacking insurgent-held areas in Darfur in recent months. According to Darfur rebels, government troops flanked by janjaweed units, helicopters and planes, attacked the villages of Disa and Birmaza in north Darfur this weekend.

An August 25 attack on Kalma, a vast refugee camp near Darfur’s capital Nyala, left 37 civilians dead and many more injured.

The government insisted the camp was being used by rebels to hide weapons and drugs, but several ministers subsequently resigned in protest at the attack.

At the press briefing, Alor noted that the resignations had been shrouded in secrecy, “Some elements of the ruling [NCP] party resigned over the Kalma camp attack, but this hasn't been recognised centrally. This shows the political vulnerabilities in Sudan."

Sudan’s hostility to the ICC meant there was no question of Alor meeting representatives of the Hague-based court while he was in The Netherlands.

Beatrice Le Fraper du Hellen of the ICC prosecution told IWPR her office was encouraged by statements made by foreign minister Alor, and also by regional leaders.

When Moreno-Ocampo requested the indictment of al-Bashir, the African Union and the Arab League rallied behind him.

Among some regional states, at least, this support may now be waning as they weigh the steps that may become a political necessity.

Le Fraper du Hellen says the prosecutor is due to meet Jean Ping, chairman of the African Union’s Commission, and the South African justice minister. In addition, she noted that the leaders of Senegal and Botswana had indicated that the solution to the Sudan’s ICC problems lie in compliance with the court.

“The prosecutor presented evidence to judges and did what he needed to do judicially, but we understand that countries of the region, which contribute to the UNAMID peacekeepers on the ground, are considering the consequences in managing the conflict,” said Le Fraper du Hellen.

“It is the African and Arab countries which will have to manage what is happening in Darfur. They have to adjust to the new legal reality, but it is tough and they are measuring the consequences.”

Katy Glassborow is an IWPR reporter in The Hague.