War crimes charges rattle Sudan

The World Court could soon issue an arrest warrant for President Bashir on charges of genocide.

The arrest late Wednesday night of veteran Sudanese opposition leader Hassan al-Turabi, days after he called on Sudan's President Omar al-Bashir to turn himself in to face war crimes charges, is an indication of what may lie ahead in the capital, Khartoum.

The mood here has been growing increasingly tense since July, when the chief prosecutor of the International Criminal Court (ICC) sought an arrest warrant for Mr. Bashir on charges of genocide, war crimes, and crimes against humanity for his role in the Darfur conflict, which has killed up to 300,000 people and displaced close to 3 million others, according to United Nations estimates.

People here have been bracing themselves for a number of possible outcomes if the court decides to grant the warrant, as expected, in late January or February. "Anything is possible," as one Western diplomat put it.

Among the most pressing concerns is that an indictment of the notoriously volatile country's sitting president could worsen the war in the troubled Darfur region and jeopardize the tenuous peace between Sudan's Arab-dominated north and its Christian and animist south.

A possible coup?

A coup by members of Bashir's inner circle or Mr. Turabi himself – formerly a close Bashir ally until a split between him and the president in 1999 – is also among the possible scenarios.

Turabi says a coup is unlikely, but doesn't rule out the possibility. "Of course, there are all those suspicions," he told the Monitor in a recent interview before his arrest. "All these stories are being circulated."

As one senior government official explained, there are three groups of important players in Sudanese power politics: Turabi and his connections within security organs; Vice President Ali Osman Taha and Presidential Adviser Nafie Ali Nafie, also Islamists who are often credited as the real power behind the throne; and the less religious Bashir and some senior officers in the Army.

For Mr. Nafie and Mr. Taha, "Bashir has become a liability on the party. He must go," said the government source, who added that in any case, "all of them are conspiring against each other."

Such splits have always existed within the ruling National Congress Party (NCP), but according to Suliman Baldo, Africa program director at the New York-based International Center for Transitional Justice, the ICC has sharpened those internal tensions.

"It is accelerating the internal contradictions within the regime, to really spill out between those who are of a pragmatic nature, who want to be part of the world order and not face an environment of constant crisis and sanctions; and those in the regime who are very defiant and want to have that type of confrontation because they believe it reinforces their hold on power," says Mr. Baldo.

"It's too strong to say the National Congress Party is plotting against Bashir. But people are pondering ways out," said another Western diplomat, who requested anonymity. According to this diplomat, influential members of the ruling party – namely Taha and Nafie – are debating whether they should, in the case of an indictment, offer Bashir up to the ICC. For his part, Bashir is debating whether he could simply place them under house arrest and rule with the support of the military.

Could an arrest warrant trigger war?

A larger concern is the effect the indictment would have on the 2005 peace deal that put an end to more than two decades of civil war between north and south Sudan. That war killed close to 10 times the number of people who are estimated to have died in Darfur and threatens to restart at any time.

The deal calls for elections in 2009 and a referendum for southern secession in 2011, but those timelines – ambitious to begin with – will be even more difficult to meet in the case of an ICC indictment.

"The problem we have here in South Sudan is what would happen to the Comprehensive Peace Agreement if Bashir is charged by the court?" Salva Kiir, Sudan's vice president and president of the now semiautonomous region of Southern Sudan, was quoted as saying in the local press. "What about the outstanding items in the peace agreement? Will they be implemented afterwards?"

In November, Edmond Mulet, UN assistant secretary-general for Peacekeeping Operations, told the Security Council the warrant could derail the north-south peace process and said he was "concerned by suggestions of an uncontrolled reaction to an indictment by the population against the [UN peacekeeping] mission."

Another concern among many expatriates is an outburst of violence or attacks against them following an ICC indictment.

Last week, state media quoted the head of Sudan's security and intelligence apparatus warning that attacks by "outlaws" against "aliens" could not be ruled out.

Embassies, the UN, and nongovernmental organizations have beefed up security and are making contingency plans.

"We're planning for everything from [the government] carrying on normally to expelling the UN, rioting on the streets and killing of foreigners," one aid worker said.

A 'third way'?

These worst-case scenarios have led some actors to look for other options – a middle path that could achieve accountability without destabilizing Sudan.

Back in July, the African Union suggested that international legal experts help Sudan conduct its own investigations into crimes in Darfur through monitoring and oversight that would give the Sudanese judicial system more credibility. The government initially agreed, and then changed course, unenthusiastic about outside interference. More recently, leading Sudanese opposition figure Sadiq al-Mahdi similarly suggested a hybrid court – using both Sudanese and non-Sudanese judges – to try the president, possibly in-country. This model has been used in Sierra Leone and Cambodia.

"There is direct conflict between two basic rights: stability and justice," said Sadiq's daughter, Mariam Almahdi, communications assistant in the Umma Party. "That's why we adopted this third way."

But critics are skeptical of the time it would take to set up a new court and the reliance – even if only in part – on an "incompetent" and "unwilling" Sudanese judiciary, as Darfurian human rights lawyer Salih Osman calls it, to deliver justice. War crimes, crimes against humanity, and genocide are not part of the Sudanese penal code to begin with, he points out, adding that legal reforms would be necessary.

"The whole hybrid proposal is in serious doubt because of lack of commitment and good faith on the part of the government," added Baldo, of the International Center for Transitional Justice.

Regardless of how is he tried, there is a perception among some that "Bashir is finished," as the first diplomat put it.

But Bashir has proved to be a survivor. He has weathered the storm for 20 years despite many tests to his leadership: a civil war in the south, Sudan being shunned internationally as a pariah state and a sponsor of terrorism, financial sanctions, and this latest Darfurian rebellion.

"If he's able to get sufficient support across the Sudanese constituency, then why does he need the international community?" says Alex de Waal, program director at the New York-based Social Science Research Council, author of many books on Sudan and world-renowned expert on the country.

With much of the Arab and African world already taking a stand in support of Bashir and against the ICC, the Sudanese president would be free to travel within Africa with little threat of arrest.

What is more, Turabi, like other opposition parties and rebels, accuses the NCP of planning to rig next year's elections – a move that would allow Bashir to continue ruling, despite the arrest warrant, with a certain air of legitimacy.

"In this part of the world," says Turabi, "nobody is finished [just] because he will be proven to be a criminal."