Last week, the Sudanese government arrested one of the leaders of the janjaweed militia that is responsible for the horrific violence in Darfur. Ali Kushayb, known as the "colonel of colonels," was taken into custody last Monday as Sudanese officials planned to investigate his role in the country's notorious western region.
At first blush, the arrest seems like a positive step in the peace effort that has known little progress since fighting began in Darfur back in 2003. Last year, the International Criminal Court (ICC) charged Mr Kushayb with crimes against humanity and demanded that Sudan extradite him for prosecution. Sudan refused, repeating its claim that the country will conduct its own trials for war crimes suspects.
The decision to corral Mr Kushayb signals a shift in the coöperative will of the Sudanese government. Nevertheless, the arrest is a product of political self-interest. On July 14, chief prosecutor for the ICC, Luis Moreno-Ocampo, leveled ten criminal charges against Sudanese President Omar al-Bashir, including genocide, war crimes, and crimes against humanity. This indictment, coupled with increasing international pressure to tamp down violence in the region, has forced the Khartoum government to change its tack with the ICC.
Several analysts have noted, however, that Mr Kushayb's arrest is effectively a compromise on a compromise. In August, France apparently offered to defer Mr Bashir's prosecution in exchange for the arrest of Ahmad Harun, a government minister facing an ICC indictment on war crimes. Under Article 16 of the ICC's Rome statute, the five permanent members of the UN Security Council (P-5) have the authority to freeze a prosecution for 12 months. Unwilling to detain a ranking government official, the Sudanese government looks to buy time with a militia leader.
The distinction between Messrs Harun and Kushayb is important, if largely academic. On the one hand, there is massive collusion between government officials in Darfur and the brutal janjaweed forces, which act as an inchoate paramilitary unit. One might confuse an indictment against a militia leader with the incrimination of the state apparatus. And yet, Mr Bashir refuses to acknowledge the responsibility that members within his own government have in the violence. Khartoum is at once complicit in the Darfur attacks and largely unable to bring its perpetrators under control.
There is now considerable discussion on the merits of an Article 16 deal. In recent months, both France and Britain have given tentative support for such a proposal, although both countries insist on high standards of coöperation from Mr Bashir's government. The US, which never signed the ICC treaty on principle, has pushed for a harder line against Khartoum, and both presidential candidates have promised to confront the genocide in Darfur.
Advocates of the Article 16 proposal suggest that the indictment further isolates Mr Bashir. In response, the Khartoum government might limit the access of African Union-UN peacekeepers in Darfur, expel humanitarian aid workers, and reconsider the tenuous Comprehensive Peace Agreement (CPA) signed in 2005. The CPA, which forged a deal between the Government of Sudan and the Sudan People's Liberation Movement, ended nearly 20 years of civil war between the north and south.
Critics argue that these concerns assume the existence of a functioning peace process. That is to say, P-5 should only freeze Mr Bashir's indictment if the current diplomatic trajectory is worth saving. Recent attacks on the Kalma refugee camp and across North Darfur suggest that the current strategy is ineffective, if not entirely in vain. In addition, human rights groups are concerned that an Article 16 deal would only embolden Mr Bashir's intransigence.
Mr Moreno-Ocampo's decision to prosecute the Sudanese president is as historic as it is controversial. The move represents the ICC's first indictment of a head of state. Recall Liberia's former president Charles Taylor and the late Serbian president, Slobodan Milosevic were both tried by ad hoc war crimes tribunals. With respect to Mr Bashir's case, legal scholars are analyzing a new theory of liability, called "joint criminal enterprise" (JCE). From this perspective, it may be difficult for the Office of the Prosecutor to marshall specific evidence that Mr Bashir is directly linked to the genocide, but he may be held responsible for acts by another.
In the process, Mr Moreno-Ocampo is changing the focal point of his indictments. The ICC has directed much of its attention to Africa (causing more than a little unease among the African Union), but had yet to levy charges against the state. In previous indictments in Uganda, the Democratic Republic of the Congo, and the Central African Republic, Mr Moreno-Ocampo went after rebel leaders and did not challenge government officials. The decision to indict Mr Bashir is likely the result of pressure from the US, UK, and France to address the deteriorating situation in Darfur.
Nevertheless, the 1998 Rome statue requires the prosecutor to determine if the actions of the court are in the interest of the victims. Under Article 53, Mr Moreno-Ocampo is obligated to refrain from prosecution if there is substantial evidence that the Darfur victims would suffer on account of judicial action. Against the backdrop of these stipulations, debates about the "peace-and-justice" balance continue to swirl around the ICC.
On Sunday, Mr Moreno-Ocampo told Al Arabiya news channel that the ICC has taken preliminary steps toward opening investigations of war crimes in Georgia and Afghanistan. The potential legal action could implicate local officials as well as international parties in Russia and the United States. Mr Bashir's indictment has proven to be a complex foreign policy issue for each member on the Security Council. Should the ICC turn around an indict any Russians or Americans, the court's proceedings will surely receive even greater scrutiny by P-5.
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