Brains Like a Shoe

First posted at Save Darfur…

Are African countries that are state parties to the Rome Statue of the International Criminal Court playing a shell game with Sudanese President Omar al-Bashir?  Since the issuance of his arrest warrant by the ICC in March 2009, Bashir has repeatedly received invitations from African leaders to attend summits and conferences that eventually result in the dispatching of non-fugitives of international justice to serve in Bashir’s stead.  Were these recent invitations from countries like Uganda and Nigeria in good faith?  Or have there been pre-arranged deals cut that a public invitation would be extended with the understanding that Bashir would not accept them?

Last week provides the most recent example of a possibly well-choreographed diplomatic dance.  On Thursday, Amnesty International broke the news that the African Union had invited Sudanese president Omar al-Bashir to participate in the AU Peace and Security Council meetings on Darfur in Abuja, Nigeria.  They urged the AU to rescind the invitation and, if Bashir made the visit, the Nigerian government “to arrest President Omar al Bashir and hand him over to the ICC.”  After a day of headlines and ambivalent statements from Nigerian and AU officials about their commitments to fulfill obligations under international law, the Sudanese government announced on Friday that Second Vice President Ali Osman Taha would lead Sudan’s delegation to the AU meetings.

But it’s not just international or Western human rights groups that are offended by the invitations issued by African capitals.  Last week, an uproar on the matter occurred for the second time this year in Uganda before Bashir turned down an invitation to attend the Special Summit of Heads of State and Government on Refugees, Returnees and Internally Displaced Persons in Africa.  The Sudanese government eventually sent only two junior officials in a pattern of events that closely mirrored another Ugandan invitation in July.  At that time, a senior Ugandan foreign affairs official told Reuters:

“The invitation still stands … (but) we will handle it through diplomatic channels to avoid embarrassment and inconvenience to anybody…It’s a codeword for an agreement that President Bashir delegates another senior cabinet-ranked person. That was agreed.”

Likewise, the Nigerian based NEXT online news portal quoted “reliable diplomatic sources” in Abuja as saying that the government does not want to break ranks with the AU yet seeks to fulfill international obligation:

“My reasoning is that [the] government is merely inviting Sudan as a country with a veiled message that someone higher in the Sudanese government but not Bashir would be the welcomed guest,” said the source.

What would be the motivations behind such deals? By extending the invitations to Bashir, these governments can play to a vociferous current in pan-African politics that rejects the ICC proceedings on Darfur and case against Bashir.  In July, the AU approved a resolution to abstain from cooperation with the ICC over extraditing Bashir.  Many at the time complained that such a resolution was pushed unfairly by Libyan leader Colonel Muamar Gaddafi. Yet by going along with the resolution, many African leaders have placed themselves in a position where in order to reflect African solidarity and preserve the legitimacy of an AU decision purportedly made on behalf of the entire continent, they must make decisions regarding Bashir that may lack support amongst their own constituencies. By reaching pre-arranged deals with Bashir that he will not take up their invitations, these countries could be craftily avoiding the full weight of international pressure calling for their enforcement of international law.

In the cases of Uganda and Nigeria, what is ‘good’ for the AU does not seem to translate necessarily into what is in the national interest, as expressed by local civil society and media.  For instance, Nigerian human rights groups have said that they would protest any visit by Bashir. “The invitation is an insensitive display by the president of Nigeria,” said Innocent Chukwuma, head of the CLEEN Foundation.

As for President Bashir and the National Congress Party (NCP), the invitations from other African heads of state send the public message that the Sudanese president still retains legitimacy in the eyes of his continental counterparts.  It helps, furthermore, Bashir and the NCP make the case domestically that the president can still carry out the full function of his responsibilities – a matter questioned by some within the NCP since the issuance of the arrest warrants.  In fact, Bashir and the party’s chief interlocutor with the international community, Ghazi Salah Al-Deen, in a moment of honesty acknowledged last month that the court’s decision is “limiting the movement of the president…He has to study of course any particular (travel plan) on its own merits.”

All of this diplomacy is testing whether a head of state can effectively perform his functions while wanted on an outstanding arrest warrant. Are these countries really ignoring the decision of the ICC, or are they diplomatically circumventing it in order to avoid acting in what may be their own national interest?  Countries are parties to the ICC because they have determined, independently of the AU, that its presence serves a warranted and legitimate role in the promotion and protection of international law. Some, including Uganda, have openly acknowledged the potential role of the Court in addressing their own crises.

Even if these countries know that Bashir will pass on their invitations, Nigeria and Uganda degrade the force of public condemnation and isolation that the ICC arrest warrants have had on President Bashir and the NCP.  Of course, the stances of these countries are better than non-ICC members like Egypt, Ethiopia and Eritrea that have welcomed and hosted Bashir.  Yet these countries should be clear about their commitments to fulfill international law and follow the lead of South Africa and Botswana. If it turns out that they are intentionally playing such a shell game with Bashir, they must realize that they are directly weakening the efforts of those within Sudan fighting to make Bashir’s arrest warrant – and inability to perform his position – an important issue in the upcoming national elections.

Justice Richard Goldstone this past week released his much anticipated report to the United Nations Human Rights Council that investigated human rights abuses committed during the Gaza conflict in January.   The report found that both the Israeli Defense Force and Hamas were responsible for war crimes – and, as expected, Goldstone’s findings immediately precipitated an acrimonious exchange of verbal crossfire between partisans on each side of the Israeli-Palestinian divide.

While I admittedly have not had time to track all of the attacks and counterattacks, what I find interesting – and disappointing – is the way that this vitriolic debate immediately began to resemble the uproar that ensued after the International Criminal Court in March issued an arrest warrant for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity committed in Darfur.

Daniel Levy of the New American Foundation (a former Israeli negotiator) has written an extensive and incisive analysis of the post-Goldstone report reactions:

Most of the pushback and the vituperative attacks have come from the Israeli side, and indeed while comprehensive, the preponderance of the report does deal with Israel’s actions. This is no coincidence. The overwhelming majority of causalities and destruction were incurred on the Palestinian side (which is not to detract from the fact that all loss is tragic). The report is forthright in acknowledging the power dynamic at work…This relationship of power is crucial – too many Israelis and Palestinians have effectively dehumanised the other, but the practical policy and operational consequences of that dehumanisation are very different for an occupying power as opposed to an occupied people. Since the report’s publication, and in the context of its pushback, Israel has bemoaned a different power dynamic, namely that investigations such as these are not conducted when it comes to, for instance, American transgressions in Iraq or Afghanistan.

Indeed, it is not a fair world: the Palestinians are to Israel as Israel is to America. Ironically, it is international human rights law and humanitarian law, the essence of this report, that exists to partially redress this unfairness.

The official Israeli response has followed a familiar if disappointingly ritualistic pattern. The emphasis has been on pre-emptively discrediting the report’s findings rather than substantively addressing them. Israel’s key claim – that the mission had concluded its findings in advance of its investigation – would appear to be true, only in reverse: namely that the Israeli government had decided on its response to the report in advance of its publication.

Official Israel refused to co-operate with the mission, refused to meet with its members or grant them official entry into Israel (or to the West Bank or Gaza via Israel), and had even banned the media from being in Gaza at the time of Operation Cast Lead. Israeli officials have marched in lock-step in their assertive rejection of the report, from the avuncular figure of Shimon Peres right down to the pugnacious ex-bouncer foreign minister, Avigdor Lieberman (lambasting the report from, of all places, Serbia – no sense of irony was detected).

In drawing comparisons with the reaction of the Sudanese government to the ICC indictment (and of many opposed to the indictment), let’s start at the end of this section of his analysis and work our way up.  First, the Sudanese government also refused to cooperate with ICC Prosecutor Luis Moreno-Ocampo – and then challenged his understanding of the facts by stating that Ocampo had never visited the scene of the crime.  Second, the Sudanese government has never responded substantively to the charges against it – instead, it has since 2005 attempted to discredit the ICC by questioning the motives of the prosecutor and the countries and NGOs in support of the proceedings.  Third, like the Israeli government this week, the Sudanese government has argued that international justice is “unfair” – specifically that the ICC only targets African countries and ignores the human rights violations of more powerful countries, namely the United States and Israel.

The Goldstone report and its recommendation that international venues of justice take up the Gaza case, if the Israeli and Palestinian authorities themselves continue to refuse to do so, actually weakens this last line of argument from Bashir and the National Congress Party. On this point, Goldstone himself in the New York Times defended the role of the international community in investigating egregious crimes like those committed in Darfur and Gaza – and challenged western governments to be even-handed in their responses to both:

Absent credible local investigations, the international community has a role to play. If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act…Pursuing justice in this case [Gaza] is essential because no state or armed group should be above the law. Western governments in particular face a challenge because they have pushed for accountability in places like Darfur, but now must do the same with Israel, an ally and a democratic state.

Finally, regarding the Goldstone report, Levy also discusses “the tension between the demands of seeking justice now and of influencing the course of future events.”

I anticipate that the constellation of political forces will mean that this does not reach international criminal proceedings, and I have no desire to see Israelis appearing before such tribunals. But what this report does, and this is one of its most significant contributions, is to point a finger at a failure and in fact an illegitimacy to the overall policy that guided Israel’s actions in Gaza. The report finds that the manifestations of human rights violations in Gaza were the structural byproduct of policies that encouraged the targeting of civilians – namely, an expansive definition of the so-called infrastructure of terrorism and an intentional price-tag of disproportionality.

In the case of Sudan, the debate over “peace versus justice” is the “tension” between now and the future – that is whether you can pursue both goals at the same time or, if by pursuing justice before the attainment of peace, one actually forsakes the possibility of peace, at least, in the present.   As we wait for another round of Darfur negotiations to begin, this question for Sudanese and the international community remains unresolved.

Yet disregarding whether Bashir ever ends up at The Hague, the arrest warrants issued by the three ICC judges for President Bashir, using Levy’s words, similarly “point[s] a finger at a failure and in fact an illegitimacy to the overall policy that guided” Sudan’s actions in Darfur.   Indeed, the Sudanese government’s deplorable mishandling of Darfur is summarized by the seven charges handed down by the ICC judges against Bashir: intentionally directing attacks against a civilian population, pillage as a war crime, and murder, extermination, forcible transfer, torture and rape as crimes against humanity.

In the coming days and weeks, I will have more to write on this subject – including looking at the U.S. reaction to the Goldstone report compared to its evolving position concerning the ICC proceedings on Darfur, how the Goldstone report places defenders of both Khartoum’s actions in Darfur and Tel Aviv’s execution of the Gaza war in rather difficult positions, and how the rebels in Darfur and Hamas have approached these mechanisms of international justice. Stay tuned.

First published at Save Darfur’s blog…

On Tuesday, I attended a talk in Washington on “Engaging on Human Rights in the Middle East: Multilateral Frameworks and the Role of the U.S.” organized by the Project on Middle East Democracy and the Heinrich Boll Foundation.  The event focused on the ways in which multilateral frameworks work to promote or to inhibit human rights reforms in the Middle East, including the techniques authoritarian regimes employ to undermine the effectiveness of multilateral organizations.

Moataz El Fegiery, Executive Director of the Cairo Institute for Human Rights Studies, spoke about the Arab League’s strategies and tactics to protect the violations of its members before the UNHRC, as well as other human rights bodies.  On Sudan, he discussed how the Arab and African blocs and other countries have consistently sought to restrict the mandate and block reports from UN Special Rapporteur for Human Rights in Sudan. Fortunately these countries lost a major battle in June when the UNHRC members – over the objections of the many African and Arab countries – voted to appoint an independent expert on the situation in Sudan.

In his comments, Joe Stork, Deputy Director of the Middle East and North Africa Division ofHuman Rights Watch, attempted to assess the Obama Administration’s record on human rights in its first eight months in office.  He noted that those driving American foreign policy have said the right things in regards to the importance of promoting human rights.  Specifically, he referenced Obama’s speech in Cairo and UN Ambassador Susan Rice’s recent speech at New York University.  Overall though, he said that “It’s too soon to tell” whether this rhetoric will actually translate into actual policies.

To follow up on this early assessment, I asked Stork during the question and answer period how advocates should evaluate success on the human rights front in the context of the Obama Administration’s engagement-first approach to foreign policy.  As we have seen, engaging with a regime like Sudan’s may mean pushing for gradual change over time despite the existence of grave human rights abuses today in places like Darfur.

Stork responded by saying that in his opinion engagement should always be the default position.  Therefore, he supports Obama’s preference for dialogue before confrontation.  At the same time, he acknowledged that the U.S. bilateral relations with any country will involve a complicated and competing set of interests and priorities – and human rights usually is not a first order concern.  His general advice, therefore, for American foreign policymakers is to choose the one or two most important human rights issues to push aggressively on in their negotiations with odious regimes.

Should we apply Stork’s advice to Sudan?

Whereas human rights have seemed so far to be one cornerstone of the Obama Administration’s engagement on Sudan, there is no doubt that many issues (such as regional stability and combating terrorism to name only two) factor into Sudanese-American relations as well.  From experience though, we also know that pushing for policies to change the behavior of the Bashir regime falls low on the U.S. priority list in its bilateral relations with other countries who possess significant leverage (see, for example, where Sudan fell on the agenda for the meeting between Mubarak and Obama two weeks ago, or the U.S.-China Summit in July).  As advocates for peace and human rights in Sudan, we must continue to demand that human rights issues in Darfur and throughout Sudan take center stage in America’s engagement of Sudanese leaders.  For guidance on the key issues in Darfur today, Bec Hamilton has written a good piece after just returning from Sudan. We must also keep demanding that the U.S. make human rights a higher priority in its relations with regional powerhouses like Egypt and South Africa, as well as global powers like China.

The U.S. should also ensure that non-strategic partners have support in their efforts to promote and protect human rights at home and abroad.  Countries like Zambia and Botswana have played an important role in advocating for justice in Darfur, with the former voting for the UNHRC independent expert in June and the latter objecting publicly in July to the African Union’s opposition to the ICC proceedings on Darfur.  With several other African cases at the ICC and ongoing efforts to promote justice across Africa and the Middle East, Obama’s approach to Sudan serves furthermore as both signal and strategy for dealing with other complex cases in an increasingly multi-polar world that still often looks to the U.S. for leadership.

It’s my belief that the Obama Administration can amplify its engagement efforts with Khartoum by putting peace, protection and human rights not only at the centerpiece of its relations with Sudan, but also making some of its specific concerns about the Sudanese regime’s egregious behavior a higher priority with others.  This does not mean that Darfur or Sudan should be the first priority when speaking to the Egyptians or Chinese, but even raising it to the top five or top ten could go a long way in building a coherent multilateral approach to ensure Sudanese leaders feel the necessary pressure to take the critical steps to end human rights abuses and resolve the country’s interlocking crises.