The SPLA wiser than many ICC critics

The ICC critics sometimes resort to a line of argument: Ocampo is a publicity seeking incompetent prosecutor, and the ICC indictment is a travesty, and ... [they rarely have a "what to do" after that].

SPLA at least has a consistent public position: work within the rule of law.

Pagan Amun, interviewed by Sudan Tribune:

ST: As to the ICC, part of the official position of the SPLM is that Al-Bashir should cooperate with the court, but what specifically does that mean?

Our advice before the indictment was — and that goes back again to the first indictment of Minister Ahmed Haroun and the militia commander called Kosheib — that the best course of action for the Sudan and for the National Congress is to cooperate legally with the ICC, that is to say repute the case and challenge the legality of the jurisdiction of the court itself and deal with this matter legally.

ST: But not actually at The Hague?

Yes — even at The Hague. Send lawyers defending the government of Sudan and the president or whoever is accused. And now just before the indictment decision we advised the president to cooperate with the court but also to deal with the issue of the indictment with restraint and wisdom and avoid any escalation of the situation, avoid confrontation with the international community — that was our advice to them.

Is the ICC incompetent?

De Waal and some others are making this argument. But part of me wonders if it is not misplaced. The court (judges and prosecutor) just has to be less incompetent than the war criminals appearing before trial... like the old joke and the men running away from the bear. Al-Bashir seems to think the court is pretty competent. Otherwise he'd show up, post his bail, and have his lawyers run circles around the court... but... do you really think he thinks he'd get acquitted because the court is incompetent?

Israeli airstrike on Sudan

Radio dabanga

Just discovered this website or Radio Dabanga... great way to listen to Sudanese Arabis...

Somehow I missed this

From The Guardian

Tayeb Salih, who has died aged 80, was Sudan's most illustrious literary figure, a critically acclaimed and popular writer in the Arab world. His later work was largely overshadowed by Mawsim al hijra ila al shimal (Season of Migration to the North, 1966), a slim, idiosyncratic novel that was immediately lauded and has subsequently been translated into more than 30 languages. It has spawned vast amounts of academic analysis.

It tells the story of a man who returns to his village after years of study abroad, only to discover that another man, Mustapha Sa'eed, has taken his place. A strange, elliptical work, Season of Migration to the North reads like a series of theatrical monologues which map out the distance between the rural countryside of northern Sudan and cosmopolitan London of the 1920s. Colonial and sexual conquests compete across the east-west divide in one of the most remarkable encounters of its kind. In a form of revenge for the colonial "taking" of his country, Sa'eed devotes himself to seducing English women by posing as the fulfilment of their Orientalist fantasies.

Interesting analysis of JEM from African Confidential

Especially noting that Muhajiriyya was disaster for JEM politically. Very hard for me to evaluate this kind of reporting, without being an insider.

The SLM/A-Abdel Wahed sent senior commanders to Muhajeriya, including its number three commander, Abdel Rahman 'Terrada', to help settle the tensions. Yet the damage had been done. Minni had been undermined by reckless ground command and control and JEM was now in a position in which Muhajeriya had to remain under its control, since it was strategically essential to appear as a well-organised front. JEM does not usually hold territory.

JEM was on unfamiliar ground, politically and geographically. Almost immediately, the government organised a mixed Janjaweed/Sudanese army assault on the town. JEM not only fended this off, it obliterated the attackers, killing some 150 men and shooting down one or possibly two attack helicopters, which crashed on a column of Janjaweed. JEM was becoming a group seen as fighting for the people of Darfur, a group that could fight a major government offensive and win, something not seen for a long time. In addition, JEM could state it was protecting civilians, as the government had been targeting the Zaghawa community of Muhajeriya for years with repeated Janjaweed attacks.

The pressure became too much. JEM leaders told people to leave, though key members are reported to have refused, Muhajeriya-born Bakhit being one of them. JEM left on the eve of a huge government offensive and the next morning their departing forces were bombed en route to the north.

Discussion of ICC arrest warrant

An interesting discussion at crossroads of opinio-juris and wrongingrights... Available here. I was nervous - around the lawyers who make fun of people- but I made a comment anyway. An extract:

In fact, no State Party to the ICC can act upon the warrant, because Bashir is a sitting head of state. Obviously, that doesn’t deprive the ICC of the right to try him. ( Art. 27(2) of the Rome Statute expressly states that head-of-state immunity won’t bar the court from exercising jurisdiction.) But it does prevent the Court’s warrant from having any legal effect outside of Sudan, because Articles 98(1) and 59(2), respectively, bar arrests that violate international law, and provide a basis for arrestees to challenge their detention in court.

More testimony relevant to Darfur case

"Late Dr. John Garang de Mabior Leader of SPLM/ offered to the NCP a proposition to utilize ten thousand SPLA Soldiers and SAF to resolve the issue of Darfur."

From a recent article in Sudan Tribune. If Garang offered neutral troops from SPLA to enforce a cease-fire, and al-Bashir refused, this corroborates the presumption that al-Bashir had interests in destroying "in part" the ethnic groups that he was targeting.

Some commentators have claimed that al-Bashir had other goals in mind besides destroying in part these ethnic groups. I wonder what those goals could be and how they would be consistent with refusing to deploy forces at his disposal to ensure a peace. Presumably the alternative hypthesis is that al-Bashir wanted to defeat the counter-insurgents. But if he had means at his disposal to defeat the counter-insurgents without doing great harm to the civilians members of ethnic groups of the insurgents, why did he not avail himself of this opportunity? He was afraid that doing so would result in a diminishment of his power as President. But this is not a valid reason for him as head of state. As head of state he cannot justify the killing and destruction of members of an ethnic group by his eprsonal fear of losing power, only by his fear of the State itself losing power. But by this time Garang and SPLA were fully on the apth to becoming partners in the government.

From the comments on lefaso.net

"De quelle fausse amitie parle-t-on entre le Burkina et le Soudan ? Que chacune recolte ce qui’il a seme. Bechir peut narguer le monde entier aujourd’hui et continuer ses shows publics, mais tot ou tard on connait deja la fin de cette histoire. Il finira en prison. Tous les jours pour le voleur, mais un jour viendra celui du proprietaire. A bon entendeur, A salam."

See the article here.

How to proceed with the arrest warrant?

Either make a deal.
1. Start secret communications with leading regime insiders and Salva Kiir and Riek Machar to make a deal. Salah Gosh flew to Washington in a CIA plane, for goodness sake. It can be done.

2. The deal can be that the arrest warrant is quashed- the Security Council can do whatever it pleases- in return Darfur is turned into a trustee type zone under UNAMID supervision, with elections along with national elections, free and fair, on January 9 2010. Al-Bashir goes to Doha for 5 years. A Truth Commission is established, and general amnesty issued for those who come forward to confess full nature of their crimes.

3. A $1 billion trust fund is set up to enable restitution and resettlement.

Or start some crafty planning to arrest al-Bashir.

1. Start secret communications with leading regime insiders and Salva Kiir and Riek Machar to make a deal. Salah Gosh flew to Washington in a CIA plane, for goodness sake. It can be done.

2. The deal can be that arrest warrant is executed by regime insiders in return for immunity. Security Council issues sealed instructions to ICC prosecutor to not pursue other cases in Sudan. Al-Bashir goes to Dock for 5 years as trial drags on. All other crimes left to the dustbin of history, as in the North-South war of 1983-2005.

3. A $.001 billion trust fund is set up to enable comfortable retirement for regime insiders.

Skeptics? Let's go down the list. Mobutu, Idi Amin, Fujimori, Mengistu, Pinochet, Nixon, Nimeiri, Cedras (where is he, anyway), Duvalier, etc.

And so the choice is....Idris Deby or Omar Hassan al-Bashir

Both routinely violate human rights.
Both routinely are corrupt.
Both routinely flout international agreements.
Both routinely use proxy militias to prosecute wars across their borders.
One routinely directs war crimes and crimes against humanity on massive scales in order to stay in power.
One is a regional threat to millions of persons.

So... seems to me only one choice. Go with Deby, and enter an alliance of convenience to ensure humanitarian corridors to Darfur and pressure on the Khartoum regime. The alternative? Stay the arrest warrant and work with al-Bashir. It is that stark.

Interview with JEM leader Khalil Ibrahim in Doha in Feb. 2009

More de Waal

Sorry, but his rhetoric just requires commentary.

"It’s really regime change by judicial activism, and they’ve recognized it as that and of course they’re digging in."

Does de Waal know the loaded meaning of "judicial activism" in the U.S. or is he being coy? For the life of me I can't understand how a prosecutor of the ICC, and a panel of judges, given the statutes and mandates, upon a case referred to them by the Security Council, can come to the decision they did, of issuing an arrest warrant, and have that be characterized as "judicial activism."

Presumably he means that the *timing* of the decision was fully in control of the ICC, and so their "active" choice of the timing was their "activism."

So the positions seems to be one of the following:
1- They should have waited until an opportune moment. (I'd love to know what that moment should have been.)
2- They should have rejected all of the charges.
3- They should have secretly hosted negotiations with al-Bashir, extracting compliance with CPA and DPA in return to non arrest- like a consent decreee I suppose.

Frankly I am not sure why all of these are not still "live". The more I think about the ICC the more I realize that I know very little about international criminal law. Can the prosecutor and judges "drop" the charges, the way that happens in the U.S.? Can al-Bashir clog up the system with dozens of procedural motions, without presenting himself to the court? Can a consent decree still happen? Can a bona fide national judicial process still replace the ICC process? Can al-Bashir defend himself in absentia?

more de Waal

De Waal:

ON THE POSSIBILITY OF WAR: Anybody who has any familiarity, who has lived in Sudan, knows that what you do is you negotiate, you give [the Sudanese leaders] a soft landing, a place to land. And huge progress has been made in the last few years most notably in the north-south peace agreement in bringing down the levels of violence in Darfur by 90 percent by doing precisely that. If you put their backs against the wall as was done 15 years ago, when you isolate them internationally, turn them into pariahs, then they’re going to fight, and millions will die.”

I can't understand what he means by 15 years ago- 1993? The Khartoum regime was hosting Osama bin Laden, preparing for an assassination attempt on Hosni Mubarak, etc. etc. Oh yeah, using famine as a weapon in the South. Yet somehow it was the international community (Prendergast and Rice?) that "made them do it"?

Al-Bashir etc. came to power in 1989 with the very precise intent of becoming international pariahs. This was their aim- they were not forced into that, backs against the wall! They overthrew a (reasonably) democratic government of precisely the sort that De Waal now thinks cannot come into being because of the ICC arrest warrant. They summarily executed 19 army officers they thought might generate trouble later on. They scuttled the proposed peace move with the south, who were not even asking for what the NCP finally conceded after 16 more years of war.

I understand de Waal's point, but this is such an inartful way to say it. The point has nothing at all to do with Sudan. It isn't a special Sudanese quality to not want to be held accountable for war crimes and crimes against humanity, as if it were some quaint cultural relic like exagerated hospitality. It is a general point that bargaining with dictators is always about choosing among bad options for the non-dictators and for those rules by the dictators. Bush/Cheney choose a very bad option in Iraq. One of the systems we have for avoiding being paralyzed by those bad options is to install automatic procedural institutions that structure the choices and enable actors to make choices without having to make impossible calculations. More importantly, we recognize that these procedural institutions embody important values in and of themselves. The ICC is one such institution. So is the Security Council. We know that many times these institutional processes will result in really bad outcomes, ones that seem worse than other plausible outcomes. We can be very saddened by that while still maintaining that this is the right thing to be doing.

The ICC and elections

From de Waal

ON THE UPCOMING SUDANESE ELECTIONS: “[I]t’s absolutely correct that [the ICC is] on a collision course with the elections. The vision of the elections and the comprehensive peace agreement was that this was the opportunity, the first step in democratic transformation. No one had any illusions that this was going to be the be all and end all, these were not going to be like U.S. elections, but they were going to be a step in that direction. And President Bashir was even contemplating stepping down. . . . I can’t say for sure whether that was true or not but certainly now Bashir has absolutely no option but to fix that election so that he wins. . . .

I think the statement need some reconsideration. I don't see how the ICC could avoid issuing an arrest warrant at some point, once the case was referred in 2005 by the Security Council (which followed directly from the 2004 Antonio Cassese-led UN Commission of Inquiry, which followed from war crimes and 2.5 million displaced in six months... in 2003-4). Al-Bashir perhaps thought that he would not himself be a target, but this would have been a mistake any number of people (including Salva Kiir) would have disabused his excellency of. Plainly he was going to be indicted. So not clear how the timing of the ICC arrest warrant affects the electoral outcome. Al-Bashir could never relinquish power.

The critics of the arrest warrant usually suggest that the timing was poor, rather than that the case itself would not stand. (BTW, I think is less obvious, since Al-Bashir has a plausible defense, if he can find the witnesses, that he was conducting a counter-insurgency, and as Donald Rumsfeld put it, "stuff happens". In other words, al-Bashir's defense is essentially very similar to Bush/Rumsfeld. Which defense would you be willing to bet on, in a proper court of law?)

But here de Waal is suggesting that the scenario might have been

1) ICC holds off
2) Al-Bashir steps down in 2010
3) ICC issues arrest warrant in 2011
4) New democratically elected government refuses to hand over al-Bashir (as part of the deal for free elections, though how al-Bashir, with no personal militia, enforces the deal is beyond me)
5) Second democratically elected government hands over al-Bashir to Senegal, in 2015 when he is ~75
6) Senegal puts al-Bashir in guesthouse with deposed former Chadian president Idris Deby.

Tell me what has changed with the arrest warrant issued now? The entire scenario is exactly the same.

Jan Pronk's expulsion from Sudan in 2006

One side of the CPA and DPA- Al-Bashir/the NCP- simply refused to abide by the agreements and genuinely work towards peace, and Pronk increasingly called them on it.

October 22, 2006

KHARTOUM, Sudan (CNN) -- The government of Sudan on Sunday gave the top U.N. official in the country three days to leave, marking the latest hurdle in international efforts to bring peace to the nation torn apart by civil war. Sudan expelled Jan Pronk, the top U.N. envoy to Sudan, who has openly criticized Khartoum as well as rebel groups on his Web log. .... Pronk told Sudan's foreign ministry that all parties involved in the Darfur conflict, including the government, should comply with the Darfur peace agreement, Achouri said. Full article here.

The damning entry from Pronk's blog (Oct. 14 2006):
First, the SAF has lost two major battles, last month in Umm Sidir and this week in Karakaya. The losses seem to have been very high. Reports speak about hundreds of casualties in each of the two battles with many wounded and many taken as prisoner. The morale in the Government army in North Darfur has gone down. Some generals have been sacked; soldiers have refused to fight. The Government has responded by directing more troops and equipment from elsewhere to the region and by mobilizing Arab militia. This is a dangerous development. Security Council Resolutions which forbid armed mobilization are being violated. The use of militia with ties with the Janjaweed recalls the events in 2003 and 2004. During that period of the conflict systematic militia attacks, supported or at least allowed by the SAF, led to atrocious crimes. Moreover, a confrontation with Chad is not impossible. It seems that SAF is receiving support from Chadian rebels on Sudanese soil, while the NRF/JEM/G19 coalition is supported by Chadian authorities.

I posted this at the Wronging Rights discussion

Which is very interesting, and is available here.

Humanitarian Relief wrote:
"What if a conference in Juba takes months to reach a conclusion? What if it never reaches a conclusion at all? What should we do in Darfur in the meantime, to ensure that aid reaches those most in need?"

Exactly. The right thing to be doing now is constructing scenarios and weighing options. It is March, the worst of the dry season. If food, water, fuel shipments cease, people will start moving. Larger congregations about El Fasher and Nyala, and movements to El Obeid and Khartoum. More than likely the relief operations will then follow them. The government will control the process more, but when there are 200,000 persons in camps outside of El Obeid, government will rather skim off relief aid than spend its own money. Is that not right? Government could make people go to Chad/South Sudan, trying to destabilize those areas. People could move to rebel controlled territory, making war even more complicated.

CPA is law of the land during the transition period, but if NCP does not honor CPA, then the guarantors assumed an obligation to be involved in continuing negotiations. Civil society from north (and south) may then finally get a chance to reopen negotiations. Bargaining is back in full swing. CPA deal was indeed a monumental but fragile undertaking, and NCP has shown they were never really good faith partners. Yes of course the political dealings are incredibly messy and always lurking is violence. But that was part of the CPA anyway- Abyei was destroyed just 9 months ago, a full 2 years into the CPA!

I think the way you have framed the question: "How do we ensure aid reaches those most in need" is slightly leading... "How do we reach those most in need where politically feasible." By a most in need category, Congo had shifted to the priority some time ago. But it was not politically feasible then. If al-Bashir and regime decide they would rather kill the people in the camps than have peace, there is very little that humanitarian aid can do about that. Remember Bahr al_Ghazal in 1998
http://www.hrw.org/legacy/reports/1999/sudan/SUDAWEB2-73.htm
See film "Cry for Madiom"

This is where the rhetoric of "game-changer" I don't really agree with. For an illegitimate regime, it is never a "game", in the sense that they strategize to stay in power without any rules ("too many disagreements dishonored") The notion of honor gets conflated with masculinity- the only honor is strength (al-Bashir dancing - very overt display of masculinity). This is al-Bashir's only option- the hyper masculinized nationalistic (i.e. riverain Arab nationalism) young men (very similar to Henri Conan Bedie and Laurent Gbagbo in Cote d'Ivoire).

If al-Bashir wanted Sudan carved up with safe havens, then that is where he seems to be taking the country.

A good question is what the AU is now prepared to do. Al-Bashir intends to wreak havoc- will AU stand for that? One of their objections to the ICC arrest warrant is precisely to avoid being placed in this condition. Many African citizens are acutely aware of Darfur and acutely cynical of the AU. Burkina Faso, for example, home of present AU mediator Djibril Bassolet is extremely sympathetic to public, and extremely sensitive to ICC type issues (because of Charles Taylor and Prince Johnson complicated linkages).

So you got an analysis instead of constructive suggestions- sorry. economists can't even fix rich countries, how can we be expected to offer advice for the hardest of the hard?

But if I were an aid agency:
1) move quickly to Chad and South Sudan and begin pre-positioning supplies.
2) set up partnerships with new organizations so government can save face when allows aid to re-enter.
3) think about "witness" strategies if government tries to pull a north korea- impossible given porous borders and fluid population
4) give complete access to media in Arab World and Khartoum (there is a public image battle that started this week for the well-being of those in the camps)
5) think about mechanisms to deliver cash directly to camp residents (might even be less inefficient than present high overhead system)
6) provide training and "kits" for primary care clinics opened by locals in rebel areas. So staging "barefoot doctors" a la Eritrea.

How about you- what do you suggest? Your moniker suggests some expertise.

What is the tactical advantage to the Khartoum regime of ejecting the humanitarian operation?

We can view it, of course, as an angry emotional lashing out following the ICC arrest warrant. but the ICC arrest warrant has been a foregone conclusion for several years, ever sincde the case was referred to the ICC by the Security Council. Did anyone doubt the ability and willingness of the prosecutor to bring forth reasonable evidenc eof war crimes and crimes against humanity commited at the direction, or with complicity, of the president? As I noted yesterday, even the First Vice President of Sudan knew there were likely grounds for an arrest warrant.

So the interesting question is, what is the tactical advantage for the government, and why didn't the regime use this lever before the arrest warrant, to try to pressure for a pre-arrest warrant deferral. Possibly they calculated that a pre-arrest warrant deferral was less likely than a post-arrest warrant deferral.

So what is the tactical advantage? Like any game of attrition, demonstrating a willingness to suffer large losses is an essential way to establish credibility and show streangth. Here the game of attrition is with the SPLA. The regime wants to ensure that the 20009 election and the 2011 referendum happen in a way that they do not lose power. So they have to demonstrate to the SPLA that they are prepared for everything if they do not get their way. in a sense, they are preparing their minimal bargaining position- what they will not give up. So the ejection should be seen as a basic sttement: we will not permit free and fair elections, no way. And to show this, look what we are prepared to do.

Ejecting the humanitarian organizations carries considerable risk for Khartoum. It increases the gravity and evidence for the crimes that had been and will be committed. The public relations could backfire horribly for the regime in the Middle East. Al-Jazeera news has been somewhat sympathetic to the various Darfur reebel groups and the IDPs. A real catastrophe might put irreversible pressure on Egypt and the Gulf States to make al-Bashir back down.

Moreover, the worse are the conditions in the camps, the greater is rebel recruitment. Finally, large population movements to Chad or South Sudan, or Khartoum itself, can easily destabilize the tenuous civil peace in the north than keeps the regime in control of the streets of Khartoum.

Speaking of Chad and South Sudan, this may be one anticipated advantage by the regime: the large refugee flows out of Darfur may destabilize those two areas. Fits very comfortably with Khartoum's interests.

Another likely advantage scenario for Khartoum is reopening aid on terms much more favorable to and manipulble by Khartoum. Operation lifeline all over again.

An important advantage is a temporary window to commit large scale "clean-up" operations against problematic IDP camps and camp residents, and rebel movements, and rebel-sympathetic populations, without the scrutiny that the humanitarian operations were providing.

Finally, the action generates lots of rationale for the "ICC is to blame" talking point.

Interesting words from Salva Kiir...

At least as reported by Sudan Tribune:

President Kiir disclosed that SPLM had wanted the NCP-led government to remove 51 people allegedly implicated in inflicting genocide on their own people in Darfur and Southern Sudan since the founding of NCP, but the ruling party has refused to comply.

Both NCP and the SPLM party led by Kiir are partners in a Government of National Unity since signing the 2005 Comprehensive Peace Agreement, so SPLM had wanted to avoid embarrassment from the ICC but NCP refused to comply, instead believing they could manipulate SPLM members into accepting their defiance of the court, suggested Kiir.

He further referred to the expulsion order made last week against 13 foreign aid organizations, noting that they are welcome to relocate in southern Sudan since they would be serving the same Sudanese who are said to be marginalized by the Khartoum government

Salva Kiir will eventually be testifying at the trial- though maybe not given that the genocide charge is not on the table- or will it be now that kiir is apparently "offering" new evidence. Look at it this way: The VICE-PRESIDENT of the country told the President he was concerned about genocidal actions by those under the control of the President, and the President rebuffed him. Sounds like intent to me. Will Salva Kiir "take the 5th" when the prosecutor asks him about the conversations regarding the 51 "people allegedly implicated in inflicting genocide"?

Lack of creativity a problem

I keep reading people like de Waal and the folks at Wronging Rights mock the ICC arrest warrant as akin to the naivete of the college student's Save Darfur's movement. In the book of these folks, anyone who has a role to play should *not* play that role, but should instead evaluate the potential consequences of their actions in their role, and then they alone should weight the calculus (always utilitarian, interestingly) of moral weight and decide what to do. These critics think that the utilitarian calculus in Darfur is obvious: Darfuris will be hurt by the arrest warrant, in the millions, and the benefits are... well, they never usually say what the benefits are, leaving the impression the only benefit of the arrest warrant is smugness.

They often point to the arrest warrant as changing the game, but never analyze how exactly it changes the game in Khartoum, and especially in relation to Khartoum and its neighbors, and Khartoum and the SPLA. Mind you, I don't know how it changes the game, and neither do game theorists. But I do know it changes the game in complicated ways, and there is no way to make a satisfactory calculus of the longer-term implications. Does the arrest warrant now prevent al-Bashir from attacking South Sudan or Chad? Maybe. There are dozens of similar considerations to weigh. Was Moreno-Ocampo supposed to have weighed all these considerations, and then also weigh his professional obligation as a prosecutor in a court, on a case referred to him by the Security Council, and known how to decide? Do any of the critics honestly think that in an advanced moral/ethics philosophy class for graduate students we would arrive at a conclusion on this question?

Finally, the minimal ethical seriousness of the critics is somewhat shocking. these are people whose jobs are to be thinker- their comparative advantage is in thinking. And so their ethical responsibility is to be contributing to a creative and helpful civil discourse about how to bring about a resolution to the challenges faced by the pursuit of justice (and the arrest warrant) and the continuing efforts to ensure a transition to an independent South Sudan following the referndum of 2011.

In that spirit, let me suggest one creative, perhaps crazy, policy change for various powers. Fly to Juba, and start having honest diplomatic discussions for ways to break the deadlock. leverage the SPLA- strengthen the SPLA, invite northern opposition leaders. many French West African countries went through sudden reversals of political fortunes when France suddenly declared that they would no longer support dictators. national conferences were organized, and some dictators were suddenly peacefully deposed. Others (like Blaise Compaore in Burkina Faso) managed to survive the winds of change, but were chastened. Is now the opportunity to help make that happen in Sudan? Will al-Bashir refuse to let opposition leaders travel to Juba? Will he refuse to allow a reconciliation conference? Will he refuse to allow a Sudanese solution to the probelm? Will he refuse a deal where a new government of national unity in Sudan promises to vigorously defend al-Bashir agains tthe charges, and agrees that if found guilty even after a vigorous defense, he will be imprisoned in Khartoum according to terms set by the government of national unity?

Is it genocide now? Is it genocide now? Is it genocide now?

So the irony of the expulsion of aid agencies from Darfur is double.

In the first instance, the expulsion is made legally possible (in a manner of speaking) by the reluctance of the ICC judges to accept the indictment for genocide. If the indictment for genocide had been upheld, expulsion of aid agencies serving the targeted populations would have been strong evidence of continuing specific intent. What other explanation for the expulsion than, now that there is no longer any danger of criminal liability, aid can be withheld and the targeted groups more quickly destroyed. In the sense, it might be worthwhile for Prosecutor Moreno-Ocampo to notify Sudanese government officials that executing the expulsion order might warrant charges against those individuals (like Ali Osman Taha).

In the second instance, nothing seems more likely to generate intense pressure for China and Russia to back away even further from the regime than a redoubling of the humanitarian catastrophe in Darfur. Al-Bashir really does seem intent on a Mugabe-style "go out in flames" strategy. The differences though are important: Mugabe is not an indicted war criminal, and yet he still pursued the strategy (for reasons absolutely no one can figure out). And al-Bashir has the lurking bulk of the SPLM hovering over his shoulder, always at the ready. As more and more northern politicians defect to SPLM, that will be the en of al-Bashir. Morgan Tsvangirai has no army.

Will they stoop to nothing?

The closest comparator to the al-Bashir regime is the Mugabe regime in Zimbabwe. Here is their latest outrage. Lest anyone forget what happened to the wife of the opposition mayor of Harare, please read here. This is why an arrest warrant for al-Bashir, and continuation of the work of the criminal court, is essential.

3/9/2009: PM Tsvangirai has said, at his wife's funeral, that the collision was an accident.

Obama policy on Sudan/Darfur

1. Quickly coordinate expelled aid agencies to relocate their personnel and programs to South Sudan. The need for humanitarian assistance is huge in South Sudan, and now that a dangerous war criminal faces an arrest warrant in Khartoum it is more important than ever for South Sudan to be stable and prospering. Plus, relocation is an immediate way to pressure/leverage northern Sudanese already suffering as the economy goes into a tailspin. Also, will make invasion of South Sudan by Khartoum more difficult, as there will be hundreds of foreign aid workers in the country. Finally, will give Salva Kiir and SPLA even more leverage over what happens in the country.

2. Relocate embassies and aid missions to headquarter in South Sudan. Make a simple statement about solidarity with southern Sudanese by allowing personnel who do not want to live in ordinary living conditions in the south the chance to be located elsewhere. Accept that personnel in South Sudan will have lower productivity because they are not 24/7 in air conditioned cocoons. Yes, it will be uncomfortable.

3. Immediately create dozens of Youtube videos to explain the nature of the ICC charge and recast nationalism as not equal to al-Bashir. "I am Sudanese, and I think al-Bashir must prove his innocence before a court of law." Make sure Sudanese voices are heard on al-Jazira making the simple argument that a war criminal who organizing the killings of Muslms should not be a head of state in the Islamic World.

4. Ramp up monitoring of situation on Sudan/Chad border, providing much asisstantance to refugees and making sure Sudan proxy forces are not allowed to attack N'Djamena. Use diplomatic contacts to leverage greater liberalization and respect for human rights in Chad in return for protection.

5. Create an international team of Arabic-speaking scholars on sovereignty to begin advising the GOSS on its constitutional role in the so-called government of national unity, on the modalities of the 2011 referendum, and the verification of the census.

6. Use leverage on GOSS to insist on transparency in governance and zero-tolerance for corruption. South Sudan must be ready to take the reins of power in Khartoum when the al-Bashir regime falls apart.

7. Offer witness protection and asylum in South Sudan to witnesses who will give new or strongly corroborating evidence against al-Bashir.

8. Reprint in Arabic the prosecutor's application for arrest warrant, with introduction by leading Sudanese thinkers opposed to the Khartoum regime, and circulate widely in Arabic speaking region, especially in Southern Sudan and Darfur, areas where Khartoum has little ability to control reading. many of these books will find their way to Khartoum population.

The arrest warrant against al-Bashir

Now that the ICC has delivered its indictment, the hand-wringers are saying, "Nothing is the same." Everything is the same, of course, right now. What the ICC has done, however, is change all of the end games. The hand-wringers analogize with Milosevic and Taylor and Pinochet. These cases, they say, posed no public danger. So no one who had power had to change their strategy. Al-Bashir, however, still has the capacity to inflict grave public danger. The hand-wringers see changing the end game has only one effect: al-Bashir will never relinquish power and will use violence to maintain that hold. In a sense, they argue, the following:
1) al-Bashir will now never relinquish power
2) the key to holding power is to keep all potential threats weak
3) therefore all efforts at peace-making will be undermined

Notice some interesting aspects of the faulty syllogism. Just for one, read Moreno-Ocampo's indictment: point 2) is precisely Moreno-Ocampo's argument for the specific intent of genocide in the Darfur case. al-Bashir deliberately used his forces to keep his enemy weak (indeed to destroy them in part). So the hand-wringers acknowledge that al-Bashir is genocidally-inclined, but having an arrest warrant for such a person is counter-productive. Go figure!

Notice also that 1) isn't quite true. al-Bashir is a person, and so his expected biological lifespan is about 20 more years. he will relinquish power at that point!

Notice that 3) does not follow from 2). Whether al-Bashir will be more secure in his hold on power under peace or insecurity is an empirical question. Al-Bashir is a president in Africa, and so he has always known that the chances of him living to the end of his biological life are very small. he may be impressed by Sudanese exceptionalism- no Sudanese presidents have been killed during or after office, but he surely knows this is still low odds. Many African leaders are killed in office (Sankara, Kabila, Viera, Doe, Lumumba, Habyarimana). (see Arthur Goldsmith)

Commentary on the indictment

My Colleague at Santa Clara Beth van Schaack and I wrote an oped that appeared in the SF Chronicle. Here is the text:

Indictment of al-Bashir: A moral and legal victory

Michael Kevane,Beth Van Schaack

Thursday, March 5, 2009

President Omar al-Bashir of Sudan has finally earned his day of infamy: On March 4, he became the first sitting head of state to be indicted for war crimes and crimes against humanity by the fledgling International Criminal Court . He joins Slobodan Milosevic of Yugoslavia, Charles Taylor of Liberia, and Jean Kambanda of Rwanda as heads of state subject to international justice for their international crimes. The fact that al-Bashir - sitting at the apex of a corrupt and brutally repressive state - is being prosecuted internationally is more important than the outcome of any particular charge in the indictment. While we believe his arrest will be easier than many think, the indictment alone represents a moral victory and an important milestone in the movement for international justice.

Notwithstanding that the United Nations Security Council orchestrated the referral of the crimes in Darfur to the ICC, diplomats are still scratching their heads over how al-Bashir can be arrested. The practicalities of his arrest will be aided by political factors that have been building against him: Al-Bashir will likely be handed over by members of his own regime. He commands no personal militia, unlike Ugandan Joseph Kony, who has evaded arrest by the ICC by hiding out in the dense tropical no-man's-land at the Congo-Uganda-Sudan border with his loyal private army.

Al-Bashir has become an extraordinary liability to the top powerbrokers of northern Sudan. Their oil revenue has been decimated by the collapse in oil prices. Their livestock and agriculture export fortunes are also collapsing as Middle Eastern demand for Sudanese exports dries up. Suddenly, reconciling with southern Sudan, the source of the oil revenue and a potential rival to the Muslim north, seems like a good strategy. Southern Vice President Salva Kiir will surely demand respect for international law as a pre-condition to continued North-South harmony. Al-Bashir's regime also remains under threat from rebel groups in Darfur, who have so far managed to resist Khartoum's counterinsurgency campaign.

These sources of instability are directly attributable to al-Bashir, and his inner circle will likely throw him to the ICC to enable them to remain in power. Indeed, there is every possibility that the same regime leaders who turn over al-Bashir will also give up his two fellow at-large indictees, Ahmed Haroun (who ironically serves as minister of state for humanitarian affairs) and Ali Kushayb (a janjaweed militia leader). In all likelihood, al-Bashir's co-defendants will turn against him as other subordinates have in past international prosecutions in exchange for some prosecutorial leniency.

The prosecutor has so far presented a very strong case against al-Bashir, and the indictment accordingly charges him with responsibility for a horrific array of crimes: murder, rape, attacking civilians, torture, and pillage. But even if ICC prosecutor Luis Moreno-Ocampo does not ultimately persuade the judges of al-Bashir's guilt on all counts in the indictment, he will have accomplished several important goals. A head of state who presided over war crimes and crimes against humanity will have been arrested and removed from power. The trial will create a set of evidentiary, legal and political precedents. After years of war and repression, Darfurian victims will finally have their day of justice.

Michael Kevane is chair of the economics department at Santa Clara University. Beth Van Schaack is a law professor at Santa Clara University.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/03/05/ED771697DT.DTL