The newspaper article was published in The Observer on 14th September [read] suggesting UK and France are open to the idea, and quoted junior foreign minister, Mark Malloch-Brown, to back the story up.

A few days later Mark Malloch-Brown was interviewed at length by journalists at a press club in London and he clarified his position. As you would expect from him, the interview is considered and interesting – and can be viewed here. The comments on the ICC & Sudan start at 1:34:52.

In the interview he claims the newspaper article misrepresents the UK position, which he says strongly supports the ICC and the judicial process, and that he does not believe there should be ‘horse-trading’ over a deferral. So that sounds like he is against an Article 16 deferral.

However, he goes on to say that the Security Council attitude to a deferral would shift if there was evidence of fundamental change in Sudan – including dealing with the two existing suspects wanted by the ICC, properly facilitating UNAMID deployment and having a meaningful peace process for Darfur (these are not the exact words). He then compared the transformation needed in Sudan’s international relations to that made by Libya over the last few years.

It appears from this that the UK is open to supporting an Article 16 deferral, but will only do this if there is evidence of a fundamental change. The problem is that, as with Libya, fundamental change will take a few years to become apparent, verifiable and permanent – but the decision on Article 16 and the ICC needs to be taken over the next couple of months.

So the problem with Malloch-Brown’s approach (at least as described in this interview) is that it looks to a long-term transformation, but without visualising the short- and medium-term pathway to reach it. The question for the British therefore remains: what does the NCP have to do in the short-term as precondition for support for an Article 16 deferral, and what would be expected of the NCP in the 12 months following a deferral? If the UK had some clear ideas about that, there would at least would be a basis for some tough talking with Sudan’s ruling elite.

Malloch Brown is a highly skilled and credible diplomat – and I hope he is given a clear mandate to negotiate the UK’s approach to this difficult issue, with a simple brief: taking everything into account, do the best you can for the long-term welfare of the people of Sudan.

Moreover; the Sudan is unfairly accused of reneging on promises. Here we have an example of the West turning its back to a project which it helped to shape. The predicament is not President Bashir’s. It is the predicament of the UN which allows spin and manoeuvres to bestow so much power on an individual (whose credentials of wisdom are suspect as the ruling of the International Labour Organisation’s tribunal against the ICC on 9 July has implied).

The first poisonous fruits of the prosecutor’s indiscretion are already apparent. The rebels — who seem to have forgotten their dream as J. Flint suspects — have been emboldened and clearly intend to resist any meaningful negotiations and wait for their def acto ally (the ICC) to deliver!

Failing to recognize the ICC jurisdiction would mean that al-Bashir will not hand over to the ICC himself, Haroun, Kushaib or any other possible names. The best case scenario and a better strategy for him, therefore, is to delegate and authorize a team of sober experts from Sudan to open dialogue with the UN Security Council, directly, in order to reach a ‘final and binding settlement’ before it is too late. Seek deferral with those who have veto power. African, Arab or non-aligned voices would turn out to be ‘public relations’ only.

In an interview with “Al-Jazeera” (August 2008), prosecutor Ocampo mentioned that the application to the ICC for issuing an arrest warrant for the President of the Sudan is directed against the person of al-Bashir rather than against the state over which he presides, the Sudan. This distinction is misleading. It is an unnecessary distinction. The prosecutor was ‘politicking’ rather than arguing his case. That statement was the ‘weak link’ in the prosecutor’s interview. Ocampo’s argument is weakened, further, as he stated also in the application that al-Bashir wields absolute power and authority over the state apparatus as a whole; i.e., a classic ‘oriental’ despot, in an absolutist state of the 21st. Century. If one concedes that this is the case, then why propose the distinction, anyway?

The implication in this situation is that the Sudanese State form, problematic and exceptional since 1989, and the person of al-Bashir are indivisible. That the prosecutor is, in fact, not only leveling legal charges against a sitting Head of State but is also instigating forthwith the ‘New World Order’ to take punitive measures under Chapter Seven for capturing al-Bashir; i.e., for ‘regime change’, if the President does not recognize the jurisdiction of the ICC to adjudicate the case referred to it by the UN Security Council (UNSC).

It is logical from the President’s ruling party (the NCP) perspective, therefore, that the state apparatus as a whole is standing behind the President. However, internal divisiveness is reflected in the contradictory stance of SPLM who share power with al-Bashir but at the same time call for engagement with the ICC and recognition of its jurisdiction. Hence, the President’s position is rendered weaker due to this internal rift. This is also an instance where the prosecutor’s assumption of absolute power is false.

Voices from political opposition leaders, divided as they are, and the cries coming from DPA signatories and non-signatories who are carrying arms in Darfur – also divided as they are – fail to reflect the views of the silent majority of the Sudanese People. Only the privileged minority of the NCP governing elite in the echelons of the state apparatus do know what the state is doing to relieve al-Bashir of his predicament. The NCP governing elite has so far succeeded in insulating the ICC issue from the general public, limiting oration and demonstrations for popular condemnation to short-lived mob action by NCP cadres. The majority of the Sudanese people do not know what is happening, except from newspaper columns.

Vagueness and ambiguity from the P3
At this stage, the French and British are just not clear enough where they are setting the bar for an Article 16 deferral. The usually-clear Americans are wrong-footed by their opposition to the ICC in a way that confuses everyone else involved. That now has to change. They must decide now if they will countenance an Article 16 deferral in principle. If they will, the P3 now needs to be clear on pre-conditions that have to be met before a deferral can be agreed and then on conditions that should be met once the deferral is in place. When they say Sudan must ‘engage’ with the ICC, they need to be clear what that means: is it appointing a lawyer to represent them at the court or is it handing over Harun and Kushayeb? If the latter we can forget Article 16. Each day of continuing ambiguity and contradiction weakens the modernisers and plays into the hands of the hard-liners.

P3 clarity about their own objectives
The also need to be clear that this is not some sort of appeasing favour to a murderous regime. US, France and Britain all have long-held foreign policy objectives in Sudan and the wider region (mainly peace, stability, counter-terrorism, democracy and normalisation) and these are currently in jeopardy if the ICC effectively makes the regime an outlaw state. So the use of Article 16, with conditions, is about securing their own foreign policy objectives – but they are acting as if they have no stake in the CPA, the elections, a peaceful North South coexistence, human rights and humanitarian support in Darfur and so on.

Could the General Assembly help?
South Africa could, as you say, put the Article 16 issue on the Security Council agenda. But there are other approaches. One other possibility is a referral from the General Assembly under Article 11 of the UN Charter. This may be a little long-winded compared to South Africa simply tabling it, but it offers the GA the possibility to frame the ‘peace versus justice’ issue for the Security Council, without coming to a definite agreement on what should be done (which it wont be able to do). The GA could therefore help to legitimise the debate itself which will provide some important support in those countries where public opinion about this issue presents a challenge to good policy.

Could the Secretary General help?
Another, much bolder, approach would be for the UN Secretary General to bring the issue before the Security Council (using his authority under Article 99 of the Charter). This would involve him recognising that the Security Council resolutions that define the mandates for UNMIS and UNAMID may well be in contradiction with the resolution that authorises that ICC investigation – and therefore that a proper reconciliation is required and can only be done by the Security Council. The SG should go to the Security Council with a risk assessment covering the risks to the UNMIS and UNAMID mandates if the arrest warrants proceed. The UN secretariat has an inglorious history of adopting a bystander perspective in such difficult situations. But this has not served the UN well, or done anything to further its core mission of peace and human rights. This is not a time for UNMIS and UNAMID, and their New York leadership to be timid. Of course, the SG can’t make the decision for the Security Council – but he can at least represent the risks to UN and UN/AU missions in the country.

What are the risks?
There is some feeling among commentators in Khartoum that the potential consequences may be overstated and that the disruption to CPA and UN missions will be irritating rather than fatal. The government does have incentives to paint a bleak picture and to threaten dire consequences following an arrest warrant, and we must be mindful of bluff. The trouble is, I don’t think anyone knows what will happen – probably not the even the NCP leadership – and many changes could happen simultaneously with action and reaction spiralling out of control. I think it’s a real gamble with thousands of lives to take the more sanguine view – even if that turns out to be right.