The United Nations Security Council is no stranger to intractable international disputes. But soon Sudan will present it with a different kind of problem, one it has not faced in its 62-year history.
It will be asked to decide whether the prosecution of a head of state for atrocities against his own people should be put on hold in the larger interests of international peace and security. The leader in question is President Omar al-Bashir, and the Security Council must use this opportunity to promote peace and justice there by requiring the Sudanese government to demonstrate significant progress on these fronts before it considers any deferral of the prosecution.
Currently, three judges of the International Criminal Court (ICC) are considering an application by the ICC's prosecutor, Luis Moreno-Ocampo, for an arrest warrant against Bashir on charges of genocide, crimes against humanity and war crimes.
A decision is not likely for some weeks yet. However, before the decision is handed down, Sudan or one of its allies is likely to ask the Security Council to put the prosecution on hold. Already Sudan is lobbying member states for such a deferral, and its call has been echoed by the African Union (AU) and the Arab League.
What authority does the Security Council have to intervene, and should it intervene even if it has the power to do so? Article 16 of the ICC's constitution, the Rome Statute, explicitly provides that "no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council… has requested the Court to that effect". The request can be renewed each year.
This provision does not set out the grounds on which the Security Council should make its decision, and the debates by the drafters of the Rome Statute do not provide much guidance on this issue. In simple terms Article 16 was a compromise between those who believed that on occasion a degree of limited impunity may be an acceptable price to pay to achieve peace, and those who believed that there could be no peace without justice.
In this instance, the Security Council must not forget that Sudan's regime has conducted a systematic campaign of violence in Darfur over the past five years that has resulted in the deaths of hundreds of thousands of people and the displacement of millions more.
The regime has repeatedly flouted the Security Council's Darfur resolutions on everything from the deployment of peacekeeping missions to cooperation with the ICC. And it has consistently delayed the implementation of key provisions of the Comprehensive Peace Agreement (CPA), the 2005 deal that ended Sudan's separate 20-year north-south war.
As a threshold issue, any request to defer the prosecution of Bashir should not be considered by the council before the regime takes significant steps to cease all state-sponsored violence, and implements genuine and credible measures to bring peace to the whole of Sudan.
To put the prosecution on hold without demanding real progress towards peace would make a mockery of the council's peace mandate, and the court's justice mandate. Hence, those now arguing that a deferral is necessary to bring peace to Sudan must demonstrate real progress in that direction as a condition precedent to any Security Council consideration of the issue.
The benchmarks against which the regime should be judged need to include the following:
- Unconditional peace talks with Darfur rebel groups, and a clearly-demonstrated willingness to achieve a ceasefire in Darfur.
- The improved effectiveness of the security committees in Darfur responsible for monitoring and responding to security issues and incidents, by broadening their participation to include representatives of the UN peacekeeping mission, UNAMID, the AU/UN Special Representative and the Sudan Peoples' Liberation Movement (SPLM).
- Reconstitution of Darfur as a single administrative region based on its 1956 borders, and the replacement of the local government leadership, including the judiciary, with non-partisan technocrats to govern the region until elections are held.
- Restoration of the historical land ownership rights.
- A resolution acceptable to internally displaced people regarding their return or resettlement.
- Removal of the obstacles and restrictions that have hampered the deployment of the UNAMID peacekeeping mission and delivery of humanitarian assistance, with peacekeeping troops to be given unfettered access to those areas within their geographical responsibility.
- The surrender of the state minister for humanitarian affairs, Ahmed Haroun, and Janjaweed commander Ali Koysheb to the ICC in accordance with the arrest warrants issued by the court; also the creation of robust justice and reconciliation mechanisms within Darfur to address the grievances of, and provide compensation to, all victims of the conflict.
- Expedited implementation of the CPA, including demarcation of the internal borders of 1956, establishment of an independent National Electoral Commission and follow through on the agreements on the regions of Abyei, South Kordofan/Nuba Mountains and Blue Nile.
- An improved democratic climate in advance of the national elections, through the reform of national security and intelligence law and the media laws.
If there is measurable progress on all of these benchmarks, then it will be open to the UN Security Council to defer the prosecution of Bashir. But it would still have to decide whether doing so is in the larger interests of peace and security.
Of course, the founders of the ICC contemplated that deferrals would sometimes need to take place, hence the inclusion of Article 16. And the requirement that deferrals be renewed annually makes the article a potentially powerful tool for peace, since it is a means to pressure Khartoum to comply with its promises and not trash them as soon as they are made, as it has done so often in the past. And as demonstrated by the recent arrest of Bosnian Serb leader Radovan Karadzic some 13 years after his indictment, international justice has a very long reach.
Deciding whether to defer the prosecution of Bashir in the interests of peace is likely to be a very difficult decision for the Security Council. It will have to weigh the benefits of significant and measurable progress towards peace over the longer term and less certain prospects of justice. Even contemplating a deferral without significant progress on all of the benchmarks would make peace and justice the big losers.
Nick Grono is deputy president and Fabienne Hara vice-president of the International Crisis Group.