Opinion: Why We Shouldn't Jail Sudan's President

Should the president of Sudan, the notorious Omar al-Bashir, go to jail? This week the International Criminal Court at The Hague issued a warrant to arrest the Sudanese president for his role in the death of 300,000 people and the displacement of millions more during the six-year conflict in Darfur. It is the first time the court has charged a sitting head of state, and given the vile crimes committed in Darfur, a conviction would at last give the victims and their families some measure of justice. (Article continued below...)

But policymakers ought to think twice before following through on the ICC's decision. While the warrant sends a clear signal to Bashir and others with blood on their hands that justice will be served, it has already halted further progress at the Darfur peace talks that have been underway in Qatar between Khartoum and the most powerful rebel group, the Justice and Equality Movement. While these talks have to date yielded little more than a good-will agreement to end the conflict, it appears that thearrest warrant for Bashir has shattered even these fragile gains, as the rebel group announced in the wake of the ICC warrant that it is pulling back from further negotiations. Bashir too may now see little to gain from them.

The warrant could also endanger the United Nations peacekeepers and humanitarian workers who have done so much to reduce the suffering in the region. Although the horrors continue in Darfur, they are nowhere near the level that existed before these workers were allowed to operate. Soon after the ICC ruling, Sudan announced that it was expelling many aid groups, which will clearly jeapordize the delivery of much-needed humanitarian assistance. The UN could be next.

Finally, and most ominously, the warrant could undermine the 2005 Comprehensive Peace Agreement (CPA) between northern and southern Sudan, which brought to an end a civil war that lasted 20 years and cost more than 2 million lives. This landmark deal is fraying badly already. Elections scheduled for 2009 are behind schedule, and implementation of wealth and power-sharing provisions have stalled. Bashir fought many in his party to sign the CPA, and leaders in the south now worry that the indictment will jeopardize the 2011 referendum giving it the right to secede from Sudan. Collapse of the CPA would almost certainly lead to renewed conflict between north and south, with fragmentation and bloodshed that could rival the violence of Darfur at its worst.

So what to do? Africa's regional leaders may provide the answer. The African Union has for some time been pushing to have the indictment deferred by the U.N. Security Council, which it has the authority to do under Article 16 of the ICC charter. Support for deferral is widespread among African leaders, many of whom view the court with some suspicion because every ICC indictment handed down since its inception in 2002has been against Africans. The Arab League, the Non-Aligned Movement, the Organization of the Islamic Conference and the semiautonomous government of Southern Sudan have also voiced support for a deferral.

Getting this deferral will require at least nine votes on the U.N.'s 15-member Security Council. It would also need to survive a veto from the five permanent members. U.S. support—or, at the very least, acceptance—would be crucial for the measure to pass, and after earlier declaring its support for the ICC's indictment, the Obama administration is now reportedly reconsidering its stance.

That might be unpalatable to many of Obama's supporters and the human-rights community. But deferring the warrant would be contingent upon concessions from Bashir and his party—namely, agreements to work to hasten the implementation of the CPA, hold elections this year and work with the UN and international mediators toward peace in Darfur, starting immediately with a ceasefire. Backed by strong U.S. leadership, a conditional deferral must also be accompanied by a reinvigorated peace effort in Sudan, refocusing the international community on the CPA and pressing all parties for a negotiated settlement in Darfur.

There are valid concerns that Bashir would renege on his agreements. As the Bush administration discovered with Sudan, matching words with deeds can be a constant source of frustration and disappointment. But if this happens, the United States could always push to reinstate the indictment and use the warrant as leverage to compel Khartoum to act and honor its commitments.

This is not the perfect solution—foreign policy rarely offers them. But clear priorities and tough compromises will be necessary to prevent the worst from happening in Sudan. A conditional suspension of the ICC's warrant for Bashir is the best way to prevent a collapse of the CPA, protect those still in need and force Khartoum to act toward ending the conflict in Darfur.

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