Africa Confidential: Africa: Rewards and Realpolitik
Kenyan and Sudanese officials are claiming victory in their battle against the Prosecutor of the International Criminal Court.
France and the United States are seriously considering the African Union (AU)’s requests to defer the International Criminal Court’s prosecution of six Kenyan officials and Sudan’s President Omer Hassan Ahmed el Beshir, senior African and Western officials have told Africa Confidential. Support from those two Western states would almost certainly guarantee a vote in favour of deferrals at the United Nations Security Council; France and the USA have permanent seats and vetoes on the UNSC. Portugal, currently a non-permanent member, has diplomats now scrutinising the ICC dossier on Sudan.
Two of the other five permanent Council members – China, with its vast oil interests in Sudan, and Russia, Khartoum’s biggest arms supplier – clearly support a deferral if not a total withdrawal of the case against Omer. Curiously, Britain, the fifth veto-holding permanent member, appears to have remained outside much of the bargaining over Khartoum’s diplomatic opening, although it played a key role in mediating the 2005 Comprehensive Peace Agreement (CPA) between North and South Sudan.
A senior Sudanese diplomat told Africa Confidential that to avoid accusations of ‘double standards’, Western states would also have to back the deferral of the ICC case against the six Kenyan officials. They are charged with complicity in the political killings after the 2007 elections (AC Vol 51 No 25). The rationale behind granting Khartoum a deferral under strict and monitored conditions would be to change the dynamics of Sudan’s relations with Western powers, an official claimed in Addis Ababa. Like previous attempts to break the mould, it would be dependent on a change of political will in Khartoum. Yet the ruling National Congress Party (NCP) may prove even more intractable, in the face of growing pressure over food and fuel prices, and popular discontent over the partition of the country.
Heavy opposition
Any efforts by Western diplomats to push such a deal would meet heavy opposition from lobby groups. such as Human Rights Watch and Save Darfur, in the USA and Europe as well as many civic groups in Sudan and elsewhere in Africa. The protests may be still louder now as a deferral would strengthen Omer’s position within the NCP (aka National Islamic Front) and across the country just when the turbulence from Tunisia and Egypt is heading southwards. Opinion surveys formal and informal suggest substantial popular support for the prosecution of Kenyan and Sudanese leaders for war crimes, while the pressure for deferrals comes from the political elite.
Suleiman Baldo, Sudanese lawyer and Africa Director at the International Center for Transitional Justice in New York, argues that a deferral would reward Khartoum for undermining the ICC and for persuading other African governments to defy the Court’s rules, which make it mandatory to arrest indicted suspects in any country that has ratified its membership of the ICC.
He adds that those pushing for a deferral for not sabotaging the Southern referendum have misread the law: deferrals can only be granted to avert a future threat to peace and security. ‘A deferral of the Sudanese President’s case,’ says Baldo, ‘would be a serious blow to accountability and send the wrong message to regimes that abuse human rights, such as Côte d’Ivoire’s Laurent Gbagbo and Zimbabwe’s Robert Mugabe.’ However, a deferral would be a huge victory for AU Chairman and former Gabonese Foreign Minister Jean Ping, who has led a campaign against the ICC Prosecutor, Luis Moreno Ocampo, at times more vitriolic than the Khartoum regime’s tactics. Ping has claimed at successive UN summits that Ocampo’s indictment of Omer sabotages the AU’s initiatives to negotiate peace in Darfur.
Moreno Ocampo rejects such criticism and has told Africa Confidential that the charges of genocide, war crimes and crimes against humanity against President Omer were based on strict legal grounds and that it was up to the Security Council alone to judge the threat to any future peace talks. This week, the Office of the Prosecutor said there was no sign that the Council would approve any deferrals.
A prominent opponent of any bargaining over President Omer’s indictment, France’s Bernard Kouchner, was sacked from the Foreign Ministry by President Nicolas Sarkozy in December. We hear that the other strong opponent of such concessions, the US Ambassador to the United Nations Susan Rice, has maintained her view that strong diplomatic and legal pressure on the Khartoum regime is essential for progress.
However, other US diplomats, such as President Barack Obama’s Special Envoy for Sudan, General Scott Gration, who was in Ethiopia for the Summit, argue for a generous range of incentives for Khartoum to ensure it does not try to derail the next five months of tough negotiations over terms for the North-South separation. We hear that the option of a deferral has been raised at several meetings on Sudan at deputy secretary level in Washington over the past three months.
Attacks in Darfur
Khartoum’s forces are again in the ascendancy in Darfur, following an upsurge in fighting in December and the temporary move of much of Darfur’s armed opposition to Southern Sudan. Now there are AU-backed plans for a new track of peace talks on Darfur involving civil society and local chiefs, which would proceed in parallel to the tortuous and unproductive negotiations between the NCP and some armed factions in Qatar.
Reports of a softening of the Western position follow two years of intensive lobbying by the Khartoum government, culminating in an official visit to Paris and Washington by Foreign Minister Ali Ahmed Kurti in late January to discuss normalisation of relations. He met US Secretary of State Hillary Clinton, who told him that with Khartoum’s formal acceptance of the referendum vote in favour of secession, Washington may start the process of removing Sudan from the State Sponsors of Terrorism list.
Ali Kurti’s trip to Paris also yielded results. Before Sarkozy left to address the AU summit on 30 January, his office in the Elysée Palace said that following the referendum, there were grounds to revisit the terms of Western relations with Khartoum, including the handling of the ICC’s prosecution of President Omer.
Diplomatic and commercial interests overlap for many of the foreign powers involved in Sudan, not just China and Russia. Britain’s Rolls Royce and Weir Pumps have faced protest campaigns against their business ties with the Khartoum regime. Britain’s new Conservative-led coalition government has repeatedly said it is enthusiastic about developing trade.
Following the Southern referendum, France’s biggest oil company Total plans a new joint venture with Qatar Petroleum in the South’s giant Block B in Jonglei State; drilling will start in April. Currently, the North produces about 135,000 barrels a day or about 30% of Sudan’s total production. Many major oil fields straddle the North-South border and companies try to promote long-term cooperation agreements between North and South.
After the AU Summit ended on 31 January, Gration and Clinton’s principal deputy, US Deputy Secretary of State, James B. Steinberg, flew to Khartoum for follow-up meetings with Foreign Minister Kurti. An NCP core member and founder of the People’s Defence Force militia which have wrought such devastation in the Nuba Mountains, South and Darfur, Kurti told journalists that he hoped US-Sudan relations would be normalised soon after the results of the Southern referendum.
Normalisation would take several months at least, given the complexity of the issues. There are plans for Western demands to be measured against a checklist for Khartoum of outstanding CPA issues: the peaceful resolution of the dispute with South Sudan over the status of Abyei, demarcation of the North-South border, an equitable formula to share the costs of and revenue from oil production (most wells are in the South but the export pipeline terminal is in the North) and mutual agreement over citizenship rights (AC Vol 52 No 2).
Some Western officials said that negotiations for a deferral of the ICC prosecution would be possible but others strongly resist that. At the Summit, Western diplomats went into some detail, we hear, in discussions with AU Chairman Ping, about how the terms and conditions of Kenyan and Sudanese deferrals could be structured. At a meeting on the implications of Sudan’s partition, African heads of state issued a ‘solemn declaration’. Noting the ‘personal and unwavering commitment of President Al Bashir to sustaining peace between northern and southern Sudan and do all he can for the early resolution of the crisis in Darfur, we, once again, call on the United Nations Security Council immediately to invoke Article 16 of the Rome Statute and suspend any actions against President Al Bashir by the International Criminal Court.’
Unlike previous AU requests regarding the arrest warrants for Omer, this one will at least prompt debate at the UNSC, rather than automatic refusal. The same, we hear, is likely of the AU’s second resolution on the Court, which ‘supports and endorses Kenya’s request for an endorsement of the ICC investigations and prosecutions in relation to the 2008 post-election violence under Article 16 of the Rome Statute.’
The Kenyan government’s argument differs from Sudan’s claim that the ICC indictment undermines peace efforts and instead asserts that deferral should allow for a ‘national mechanism to prosecute the cases under a reformed judiciary’. This option conforms with the ICC’s principle of complementarity, under which national or local courts are encouraged, where able, to take on cases that may otherwise be tried at greater cost at the Hague.
After representations by Kenyan Vice-President Stephen Kalonzo Musyoka, the AU Peace and Security Council and the East African regional Intergovernmental Authority on Development called the Summit to send the deferral request to the UNSC. Yet Kenyans and outsiders ask why it was only after the ICC had charged six Kenyan politicians and officials that President Mwai Kibaki’s government announced it would set up a credible judicial process and said that the ICC process was an affront to national sovereignty (AC Vol 52 No 1).
Well before Ocampo laid the evidence before the Court’s Pre-Trial Chamber in mid-December, the government had been struggling to put off the trial. It says it has cleaned up its judiciary and should be allowed to handle the cases itself but few take that argument seriously. It is intertwined with the pivotal Kikuyu, Kalenjin, Kamba (KKK) political alliance, and the prospects for the presidential election in 2012.
Inconvenient indictments
Two accused KKK leaders want to be candidates – the PNU’s Kikuyu Finance Minister Uhuru Kenyatta and the Orange Democratic Movement (ODM)’s point-man in the Rift Valley, William Ruto. Postponement would enable them to stand. The ICC should decide by March if the cases warrant prosecution or not, hence the urgency. Vice-President Musyoka, a KKK man (he says the ethnic term is ‘hate speech’ and should be banned), has lobbied hard for deferral and claimed to have Burundi, Djibouti, Ethiopia, Malawi, Rwanda, South Africa, Sudan, Tanzania, Uganda, Zambia and Zimbabwe on board. Ethiopia and Libya supported it. Nigeria said there should be ‘African solutions to African problems’. Only Botswana said it was against deferral. Musyoka was backed by the PNU’s chief strategist, Peter Kagwanja, whose wife is Kenya’s Ambassador to Ethiopia and attended the critical meetings in Addis Ababa where the AU decided to back deferral for Kenya.
Prime Minister Raila Odinga backed the case for cooperating with the ICC, along with fellow ODM party members Miguna Miguna and Mutakha Kangu. Odinga has changed his mind several times but has now lined up behind the ICC since his falling-out with President Kibaki and the ODM’s Kalenjin leaders (led by Ruto). Musyoka says he argued for postponement as Kibaki’s emissary; Odinga claims the cabinet agreed on referral to the ICC.
The AU had already decided in December to stop cooperating with the ICC, having previously opposed its indictment of Omer. It wants UN bodies other than the Security Council to be empowered to call for cases to be deferred. The AU’s first request to the Council to sideline the ICC’s action against the Sudanese President has received no reply.
To defer the cases against its ministers, Kenya would have to show that the ICC prosecution was a threat to peace and security, and to win the agreement of the UNSC’s five permanent members (P-5). Of the P-5, only China supports Kenya, saying it ‘is opposed to interference of her internal affairs by external forces’. Kenya has no chance at the UN. Alternatively, Kenya or any of the suspects could argue that the case should not go to the ICC as the country’s own judiciary is capable of handling the cases itself. Steinberg met Kibaki on 3 September to discuss the ICC issue and made clear that Washington would support the use of Kenyan courts to try the cases only if they met the highest standards of international justice.
Kenyan politicians argue that they should get the cases back from the ICC into their own judicial system since their courts are being cleaned up: Kibaki had nominated a new Chief Justice, Alnashir Visram; new Attorney General, Githu Muigai; and new Director of Public Prosecutions, Kioko Kilukumi. However, the nominations worried lawyers and civil rights groups – especially since Kibaki had recently had a meeting with Kenyatta and Ruto in the Rift Valley town of Eldoret – and on 3 February, the nominations were revoked by the High Court.
Part of the opposition to ICC trials of Kenyan politicians comes from the suspects and their supporters, who will lose their standing. Part of it is the dent to national pride. Obama’s planned homecoming visit to Kenya in July highlights this loss of national face. That has spurred some Kenyans to step up pressure on judicial reform, given Obama’s fairly unsparing criticism of the political culture of his father’s homeland. Internationally, Kenya’s manoeuvres look like an attempt to protect the guilty and may still prompt further indictments by the ICC. Court officials recently revisited Kenya, to look at the question of seizing suspects’ assets should they be indicted. Musyoka and his team will have to speed up their efforts if they are to divert the ICC juggernaut.