Round Table on the Responsibility to Protect and the Prevention of genocide
Expert Round Table
Address by Al Sadig Al Mahadi to the Round Table
Good afternoon, dear friends,
I thank the three organizers of this Round Table: the Special Advisor to the Secretary General of the U.N. for the Prevention of Genocide, the Inter-Africa Group, and the International Peace Institute, for inviting me to participate in this gathering concerning this important subject.
Before I go into the subject there are two related subjects which I would like to clarify.
First: I have yesterday criticized Ethiopia’s mission in Somalia. I did so not for want of friendship to Ethiopia, but to indicate that in the circumstances, that involvement will be counter productive and fulfill the desires of Ethiopia’s enemies to land attrition upon it. I also criticized the American encouragement of the Ethiopian involvement as expressed by the White House spokesman.
The whole enterprise has radicalized the Somali Resistance, provided it with external support, and isolated the Somali Government. It should be rolled back and the peoples of Somalia encouraged to reach National Accord.
Second Point: I have been asked to give a summary briefing about developments in the Sudan.
In spite of great achievements in Sudan’s modern history, namely, the country’s Independence, and the peoples successful attempts to restore democracy through peaceful uprisings, and a record of economic development and the maintenance of a welfare state for a long time since Independence. The country witnessed a series of failures:
- During the three democratic periods, the failures were mainly of omission:
In the West, democracy was developed through a long period of gestation during which they developed Nation-States, viable economies, and a high degree of education and literacy. We had to transplant democracy without these antecedents. Also our national cohesion was very underdeveloped with people’s allegiances to tribe, sect, and region being paramount. The political systems which we imported though well supplied with the principles and structures of a modern democracy, failed to see the need for balances to accommodate ascriptive diversity.
- During the three despotic regimes, the failures were of commission:
The regimes tried to force cohesion identity by state action. A process which reached its zenith in the ideology and practice of the “Salvation Regime” which took power in a coup d’etat in June 1989.
Consequently a multifaceted polarization ensued:
- Polarization within the North.
- The North South conflict deepened further informed by the JIHADIST slogans of the regime.
- Distance between the Sudan and its neighbors.
- Distrust between Sudan and the dominant players in the international community.
Such developments isolated the Regime which sought to review its policies ushering into a new phase defined by the Peace Agreements.
The Nifasha Peace Agreement was the main basis which described the new political system and the new Constitution.
The Nifasha Agreement realized certain achievements, namely, cease fire between Government of Sudan and the SPLA, Protocols of Power and Wealth Sharing, self determination for the South, a program for democratic transformation, and so on. The benefits which the Agreement specified for the South were blessed by all political opinion in Sudan. However, there were several reservations about it, namely:
- It assumed that the country’s problems are only North/South to the neglect of North/North, and South/ South problems.
- It assumed that the GOS represented the whole North, and the SPLM represented the whole South to the neglect of other political forces in the North and the South.
- It was described as Comprehensive Peace Agreement at a time when other war fronts were active in Sudan.
- It laid a precedent for power and wealth sharing and prevented the emulation of that precedent in the settlement of other regional disputes.
That is the main reason why what was on offer for the Darfur armed parties was far below expectations and only half of the two Darfurian parties was prepared to sign the Darfur Peace Agreement.
In fact, matters in Darfur worsened as a result of the Agreement. The Eastern Front Peace Agreement faired no better.
Therefore, the political set up in Sudan under the Peace Agreements failed to establish comprehensive and just peace, failed to set up an inclusive Government of national unity, and failed to create conditions which make unity an attractive choice for the Southerners when the plebiscite for self- determination takes place.
The relationship between the two signatories to the Nifasha Peace Agreement, the so celled C.P.A. were locked in continuous tension. After a particularly nasty episode of conflict in September 2007, they decided to open up contacts with the other political parties. Contacts with the Umma Party led to a document of national accord between the Umma party and the ruling National Congress Party. It was agreed that a National Agenda to revisit the Peace Agreement, to guarantee basic freedoms, to offer what it takes to settle the Darfur crisis, be discussed in an all Party National Conference to which all groups of political and civil opinions will be invited.
But before further steps, two events provided a new focus of political concern, they are, the attack by JEM forces in the Sudanese capital in 10/5/2008, and the memorandum of the Prosecutor General of the I.C.C to the court to issue a warrant of arrest to the Sudanese head of state.
The two events made the search for national consensus even more urgent.
The current Sudanese Peoples’ initiative is a call for an all Sudanese Party Conference to address all the country’s national problems giving priority to the Darfur crisis. After an opining session in Khartoum 16/10/2008, the conference moved to a resort outside Khartoum – Kenana- where it held a three day conference resulting in the formation of a Presidential Council composed of party leaders, ex-heads of state, and others to act as a national leadership council. It was also decided to address all the issues raised by the spokespersons of the different parties in the plenary session, and to give the issue of Darfur priority. Seven committees to discuss all the details about Darfur were established. The committees will report to the Presidency Council, and the Council will in due course address the other national issues including a search for consensus over what position to take vis – a -vis the I.C.C.
The memorandum of the Prosecutor General has not yet been decided upon by the court’s judges who asked for further evidence to reach them on or before 17 November 2008.
There are at present three main positions towards the I.C.C.
- The NCP, the ruling party refuses to have any thing to do with the court, arguing that the Sudan has not ratified the Rome Statute and is not under the court’s Jurisdiction.
- Some opposition parties particularly the Popular Congress Party decided to comply with all the court’s demands.
- The Umma Party and other opposition parties while supportive of the I.C.C. and the UNSC Resolution 1593 maintain that the head of state will resist arrest leading to a new front of confrontation which will derail all the current accord processes.
It will make the head of state take measures against the International missions deployed in Sudan at present. Therefore, whatever retributive justice is realized it will disturb restorative justice. And even if the head of state surrenders himself, the present constitutional set up empowers the ruling party the NCP to appoint his successor. The present head of state is by all parameters a better choice than any of his would be NCP successors.
Those who seek regime change through the I.C.C measures are courting untold disaster for the Sudan. A far better course is to seek a soft landing through two avenues:
- The legal avenue which establishes an independent hybrid court involving convincingly independent Sudanese judges plus African and ARAB Judges to try all the accused by the application of international criminal law. The whole procedure to be established by a new legislation.
- The political avenue which involves a robust effort to make peace in Darfur, to rectify the other Peace Agreements, to guarantee basic freedoms, and to hold free and fair elections.
The said changes will result in the required change through soft landing.
I now turn to the subject of this round table which I am so keen to attend as I am so interested in the two subjects of genocide prevention and the responsibility to protect. Therefore, I look forward to a very rich brain storming as I appreciate the subjects and the serious mindedness of the organizers, brothers Abdu Mohmed, and Francis Deng.
This encounter is bound to be informative, to provide contact with experts, and to exchange ideas. However, I reflected upon the value added of the Round Table, and the follow up potential of it’s deliberations.
Towards that end, I propose to make a three faceted input.
First: At the National level: We should say in very clear terms that the most efficient means of genocide prevention and related crimes is to establish political systems which through their governance provide for the peaceful resolution of conflicts. Governance which ensures legitimacy and therefore prevent any violent challenges.
If and when violent conflicts take place, we should seek Peace Agreements which are comprehensive and viable in achieving their required targets.
Peace Agreements which fall short become mere sedatives, and become time bombs waiting to explode. We must lay down certain parameters for Peace Agreements, and expect them to be fulfilled.
We must advise states to shed the old constitutional Berlin walls which allow governments to commit crimes against their peoples, and hide behind the claims of sovereignty. The evolving international culture is that sovereignty belongs to the peoples not to governments.
No official should have immunity from prosecution against crimes of genocide, war crimes and crimes against humanity. No impunity should be tolerated.
We should seek to advise governments to update their national legislation to incriminate genocide, war crimes, and crimes against humanity.
Countries must be made to realize that there is a new paradigm for governance that cannot and should not be ignored.
Second: The Continental African level:. The African union has already enacted in item 4(h) of the African Charter, an African Right to intervene to stop genocide and related war crimes. We should specify in greater detail the conditions which warrant such intervention. It should not be the right to intervene in such circumstances, but the duty to do so.
We should advise the A.U. to set up a watch dog to report incidents of the crimes concerned. That the A.U. should compile an index of the culprit countries.
The A.U. suffers from a gap between what it proposes to do and it’s capabilities. This gap must be closed because otherwise it compromises the credibility of the Union. In the light of the existence of the I.C.C, it is necessary to develop the culture of accountability in all it’s aspects, because any shortcoming will be redressed by the I.C.C
The I.C.C is a very welcome evolution of criminal international law. Its mere existence will make the would be culprits more causious and encourage the evolution of national criminal legislation.
Finally, it is necessary to create an African fund to help cater for the needs of the victims of genocide, war crimes, and crimes against humanity.
Third: The International level:
- It is necessary that the international community make specific definitions of the terms; genocide, aggressive war, war crimes, crimes against humanity, terrorism, and all related terminology to acquire international recognition.
- The international community has already through the UNDP began issuing reports about human development. It is necessary to establish universal goals for human development in order to inform the processes of political reform.
- The U.N should mobilize support for national and African reforms and provide capacity building programs, advise and funding.
- The U.N to advocate the new culture of policies against genocide and related crimes, and the responsibility to protect.
- The U.N must by all means support the I.C.C as an independent complementary to national justice to hold genocide and related criminals to account.
- The A.U. and the U.N intervention must at all times avoid any measures of intervention if they result in state failure because state failure would by itself result in more atrocities.
All intervention, therefore, should seek to reconcile retributive justice with restorative justice.
- Under certain circumstances regime change is a necessary measure. However, any regime change imposed from outside will do a disservice and open up all types of unwelcome reactions.
The dynamics of Regime change must come from inside. The International community could set standards, encourage positive developments, refrain from cooperating with regimes which abuse Human Rights, reward states which observe the standards of good governance, and so on.
The external actors will not know how to effect the desired regime change, and even if they succeed to do so, they will not know how to build up the successor government.