“Anything is possible” if ICC indicts president

The issuing of an arrest warrant for Sudanese President Omar al-Bashir by the International Criminal Court (ICC) on charges of genocide, war crimes and crimes against humanity in Darfur – accusations the government rejects – would be an unprecedented event in the history of international justice. The court is expected to decide on the warrant in the coming weeks. What will be the ramifications in Sudan? Here are some possible outcomes being discussed by observers and analysts contacted by IRIN. As one western diplomat put it, "anything is possible".

Sudan's political developments directly affect both humanitarian needs and responses. The UN and its partners say they need US$2.18 billion in 2009 to supply four million people with food aid and more than 1.5 million additional people with safe water; to help 54,000 returnees and get more than 800,000 children into schools; to clear mines from more than 7,500km of roads and ensure more than four million people have access to basic healthcare.

State of emergency

Analysts say the government could dissolve parliament and declare a state of emergency. The government has denied it will take this approach, but is divided internally between moderate voices and more extremist hardliners. "It really depends on which version of [the ruling National Congress Party] survivalism prevails," says Eric Reeves, Sudan researcher at Smith College in Massachusetts.


Rumours of a coup have also been rife. One senior member of government says people within Bashir's inner circle "are conspiring against each other. Bashir has become a liability to the party. He must go."

Analysts say Ali Osman Taha, Vice-President, is the most likely candidate to succeed. Other names being circulated are Nafie Ali Nafie, presidential adviser and leading member of the National Congress Party (NCP), and Salah Gosh, head of the National Intelligence and Security Service.

Photo: ICC
ICC logo

But Reeves says none of them has enough support and they all know they too could be prosecuted by the court for their involvement in the Darfur conflict. As the diplomat said: "What's the point of leading a coup or getting rid of him if you're on the list as well?"

Rebel attack

The rebel Justice and Equality Movement (JEM), which launched an unprecedented assault on the capital in May 2008, has vowed several times to attack again. In December, it warned civilians to stay away from army bases as an attack was "imminent".

London-based El-Tahir El-Faki, speaker of JEM's legislative assembly, promises the group – considered Darfur's most powerful – will hand over Al-Bashir to the ICC. "If the indictment is issued, we will co-operate with the ICC to capture Al-Bashir by all means, even if we have to go into direct battle in any city in Sudan," he says. "We will do our utmost to hand him over to the ICC. He has to face justice."

The government fears an arrest warrant would empower the rebels. "The rebels will consider such a decision as some sort of support for them. They might heighten military activity and target cities," says Ali Sadig, spokesman for the foreign affairs ministry. "There is going to be some sort of chaos."

Several reports have pointed to increased mobilisation of government-allied militia in Darfur in recent weeks, and the National Intelligence and Security Service has said its forces are "on alert" to counter any attack.

US military intervention

Secretary of State Hillary Clinton said recently there was a need to "sound the alarm" again about Darfur. She said the US was considering several options, including a no-fly zone over Darfur and direct intervention in support of the struggling joint UN-African Union peacekeeping force, UNAMID.

Both Reeves and analyst Alex de Waal, of the New York-based Social Science Research Council, say this is unlikely, considering the US military's commitments elsewhere, the extent to which such an intervention would undermine the peacekeeping force, and the danger in which it would put American citizens in Sudan.

Increased sanctions by the US are possible.

Collapse of the 2005 peace agreement

One of the biggest fears among analysts and Southern politicians is the impact on the 2005 Comprehensive Peace Agreement, which ended more than two decades of the North-South war that left two million dead and displaced four million. According to De Waal, author of several books on Sudan, the indictment's main impact will be to slow down the political process. "The ICC will make it impossible for any other issue to be front and centre in Sudan and kill off possibilities of [the vision of a] New Sudan and the democratisation of Sudan."

Photo: Olivier Nyirubugara/IRIN
ICC Prosecutor Luis Moreno-Ocampo

The dominant party in the South, the former rebel Sudan People's Liberation Movement (SPLM), had initially urged the NCP to engage the ICC. But more recently, its leader, Southern President and national Vice-President Salva Kiir has taken a strong stand against the court, in fear of what its indictment would mean for the South.

"The problem we have here in South Sudan is what would happen to the CPA if Bashir is charged by the court?" Kiir was quoted as saying in local press. "What about the outstanding items in the peace agreement? Will they be implemented afterwards? Will we have a referendum in 2011? These are urgent questions that everyone should pay attention to."

Southerners have repeatedly warned that a collapse of the agreement would necessarily mean a return to war. But the government promises it will continue to implement the agreement and co-operate with the UN peacekeeping mission in the South, as long as the latter is willing. "As long as those two missions [UNMIS and UNAMID] are ready to continue business as usual, the government will be committed to that," Sadig said.

Backlash against foreigners

In late 2008, some government statements hinted that UN peacekeepers would be kicked out in the case of an indictment, though the government later denied such accusations. Embassies, NGOs and UN staff have beefed up security and developed contingency plans, trying to ensure their programmes can continue if they are forced to leave the country. Evacuation plans are also in place.

UN Under-Secretary-General for Humanitarian Affairs John Holmes said in a recent interview with Newsweek, "you can't imagine nothing will happen."

At a recent demonstration supporting Gaza, one protester called for attacks on foreigners. A few days later, security chief Gosh warned that attacks by "outlaws" could not be ruled out. Sadig said the government would do its best to control people, who he expected would protest outside UN buildings and embassies of countries that support the ICC.

Dilemma for UN

"[The indictment] is going to be as much of a problem for the internationals as it is for Sudan," says De Waal. The UN and those countries that are party to the Rome Statute of the ICC will face a dilemma, he says. "How are you going to co-operate officially with a government whose head of state you have an obligation to arrest? How do you send an ambassador? How do you have an aid programme? How do you have a military cooperation agreement – which is what the UN has to have because it has troops here? How do you sit down across the table with military officers whose commander-in-chief has been indicted as a war criminal?"

What might be more likely than forced expulsion of foreigners, De Waal says, are self-imposed restrictions. Lawyers are studying this "terrain incognito".

Crackdown on rights activists

A very likely outcome, analysts say, is an increased crackdown on rights workers. In November, three local activists were detained, they say, for allegedly raising awareness about the ICC, sending the court reports and defending the cause of Darfur. One, Monim Elgak, says he was tortured while in detention. Another, Amir Mohamed Suliman, says that while such detentions are not unusual in Sudan, they have become more common since the prosecutor's request for an arrest warrant. "Now it's a campaign," he says. "This situation changed our work to be very difficult."

Mohamed Alsary Ibrahim, is on trial for allegedly trying to pass sensitive documents about Darfur, leaked by a contact in Sudan's police force, to the ICC. He denies this. Hassan Turabi, head of the opposition Popular Congress Party, was detained on 14 January after urging Al-Bashir to resign and hand himself over to the court in Sudan's interest. Media reports have said he too could be put on trial.

Shrinking humanitarian space

NGOs already face huge difficulties obtaining visas for staff and getting travel permits. "Even to transport fuel, every single time, you need a half-dozen signatures," one aid worker said. Officials from the Humanitarian Aid Commission have raided aid workers’ offices, demanding to see confidential emails and files, though the government denies the accusations.

Photo: Heba Aly/IRIN
Displaced women at a camp in North Darfur: Humanitarian actors fear an ICC indictment will only make their work more difficult

Humanitarian actors fear an indictment will only make their work more difficult. "I don't think there will be violence in the street," the aid worker said. "I think it'll be more of a clampdown on space for humanitarian agencies to operate. I think that's pretty much guaranteed."

Business as usual

However, these are all unlikely worst-case scenarios. "The most likely outcome is that the government – either because they can't agree internally or because they think it's the best course of action – actually does nothing, and continues as before," De Waal says.

He points to the exclusion of Sudan from the International Monetary Fund years ago. "Everyone thought that was the end of the story for Sudanese finance. It wasn't."

Almost the entire Arab and African world supports Sudan against the ICC, arguing it is a biased and political tool that only targets Africans and infringes sovereignty. Al-Bashir would likely be able to travel freely in the region without fear of arrest, and could, De Waal claims, simply carry on with an arrest warrant over his head indefinitely.

For its part, the government has been defiant. Sadig says: "We will disregard the ICC decision. We will not co-operate. We will not think of handing over the president. We will be very much occupied with internal issues. We will just forget about the ICC."

And even in the case of a coup and new leadership, says Reeves, little would improve in Darfur.

"Grimly, there is little reason to suppose that even the indictment of Al-Bashir for genocide would be the occasion for the kinds of action that will sustain and protect the 4.7 million civilians affected by this conflict who remain at the mercy of Khartoum's cabal of génocidaires," he wrote in The Guardian in December.