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Why Ocampo’s efforts against Bashir are futile

By Ken Ramani

As predicted, foreign NGO agencies are on the receiving end in Sudan. Some of them have been ordered to close shop following the indictment and subsequent arrest warrant against President Omar al-Bashir of Sudan.

It is apparent the Sudan Government is uncomfortable with the NGOs for feeding International Criminal Court (ICC) with ‘falsehoods’ and more so the truth in Darfur.

Khartoum cannot guarantee the safety of NGO personnel. Therefore, the earlier they leave the Sudan the better.

The ICC action has since last year elicited mixed reactions but popular opinion in Sudan seems to be opposed to Bashir’s indictment. It is not surprising that even the Sudan Peoples Liberation Movement/Army (SPLM/A) that controls the semi-autonomous Southern Sudan is supporting Bashir.

Southern Sudan is facing a real threat of civil war even before it becomes a state. Numerous militia groups have been clashing among themselves or with SPLA forces. The widespread gun culture in the region is also a possible catalyst for a civil war as the frequent inter-tribal clashes following cattle rustling expeditions have shown.

It would have been naive for anybody to imagine that Southern Sudan president Salva Kirr would have supported ICC position on Bashir. Kirr’s SPLA may in future be accused of war crimes.

Like it happens in any armed conflict, chances are SPLA forces are likely to commit war crimes while dealing with armed militias. By supporting Bashir, Kirr is safeguarding his own future interests.

The period between now and 2011 when Southern Sudanese will hold a referendum to decide their fate with Khartoum is critical and any sideshows with ICC prosecutor Moreno Ocampo may be catastrophic if entertained.

Further afield, among the African Union and Arab League, Bashir is in good company. From Chad, Uganda, Central Africa Republic, DR Congo, Ethiopia, Somalia, Zimbabwe to Afghanistan and Iraq. War crimes and crimes against humanity are being committed on a daily basis.

To expect presidents Robert Mugabe (Zimbabwe), Joseph Kabila (DRC) or Meles Zenawi (Ethiopia) to support ICC arrest warrant is being over optimistic.

Bashir can sleep soundly knowing that ICC has no capacity to arrest him. ICC agents cannot fly to Khartoum, arrest him and haul him to a cell in The Hague.

ICC cannot fly to Qatar where Bashir plans to join the rest of Arab League leaders in a summit and try to arrest him.

Chances of a regime change in Khartoum are remote, and neither is there a possibility of an outsider taking power in Sudan whose rank and file of the armed forces is drawn from a royal clique of soldiers. Because Bashir’s would-be heirs are already working closely with him, it will mean they are culpable by association and guilty as charged if Bashir’s crimes were to be proven.

According to Ocampo, Bashir masterminded and implemented a plan to destroy, in substantial part, the Fur, Masalit and Zaghawa groups on the account of their ethnicity. It is argued the groups, which are historically influential in the vast Darfur region, were challenging the marginalisation of the province by engaging in rebellion.

Ocampo accused Bashir of failing to defeat the armed movements and instead resorted to actions meant to exterminate the Darfur tribes.

counter-insurgency

"After failing to defeat the movements, so he went after the people. His motives were largely political. His alibi was a counterinsurgency. His intent was genocide," said Ocampo, when he applied to ICC for an arrest warrant against Bashir seven months ago.

He further accused Bashir of complicity in the so-called genocide in Darfur: "Bashir is the president. He is the commander-in-chief. Those are not formal words. He used the whole state apparatus — he used the army, he enrolled the militia (read Janjaweed). They all report to him, they all obey him. His control is absolute."

However, experts opine Ocampo’s accusations will face serious legal challenges should the arrest warrant materialise, although chances are almost nil.

Mr Alex Waal of Social Science Research Council of Sudan argues instead of Ocampo arguing for modes of liability such as superior responsibility, conspiracy or joint criminal enterprise, he has chosen to pursue an ambitious and innovative mode of liability: indirect perpetration.

"It is unclear what Ocampo will need to prove for this to stick," notes Waal.

He argues "pursuing an arrest warrant against a sitting head of state is tantamount to calling for a regime change, which is in contradiction to the international strategy of negotiating with the Sudan government to achieve peace and democracy. The approach is therefore a gamble with unknowable consequences and very large risks."

Waal takes issue with the way Ocampo has labelled the Darfur tribes, which in itself is self-defeating.

Whichever way the arrest warrant goes, the fact remains that the Darfur crisis will not be resolved by ICC action.

Ocampo is the outsider who wailed more than the bereaved.