The U.N.'s Confusion Over Sudan's Omar al-Bashir

Should Sudan's president go to prison--or be left alone? Ashraf Shazly / AFP-Getty Images

Sudan is a topic that probably shouldn't be brought up in polite company at United Nations headquarters in New York City's Turtle Bay, considering the headache the country's leaders are causing U.N. officials. The problem isn't just that the upcoming referendum on South Sudan's independence, scheduled for January 2011, could be a flash point and reignite a civil conflict that last raged for 22 years and claimed 2 million lives. Nor is it that the perpetrators of the alleged war crimes in Darfur, which claimed 300,000 lives, are still in charge of the Sudanese government. For the United Nations, the trouble is that the organization's own imperatives—peace and justice—are squarely at odds in Sudan, a fact highlighted by its uneasy relationship with its own brainchild, the International Criminal Court. When it comes to Sudan, no one can seem to agree on what should be done or who should do it.

The ICC first got involved in Darfur in 2005, but the tensions have bubbled up most visibly in the last month. Although the court currently has three arrest warrants out for Sudanese officials, including President Omar al-Bashir, on war-crimes charges, U.N. Secretary-General Ban Ki-moon gave his tacit blessing when Al-Bashir was reelected in highly irregular elections in mid-April. A month later, Ban's two top officials in Sudan caused a storm when they showed up to applaud for Al-Bashir at his inauguration, a decision denounced by human-rights groups as a violation of the U.N.'s own rules. Delighted by the clear signs of internal division, Sudan's U.N. ambassador gloated after the ceremony that the ICC is "doomed to fail like the League of Nations."

In the last week, U.N. officials in New York heard from both sides of that divide. ICC prosecutor Luis Moreno-Ocampo, who issued the arrest warrants, briefed the U.N. Security Council on Friday, essentially reminding them that they were the ones who put him on the Darfur case in the first place. Whether or not to prosecute Al-Bashir and the others is a decision to be made by judges, he said, and that decision "will not be changed by political negotiations." A few days later, the Security Council heard from the head of the U.N. mission, the chiefs of the joint U.N.–African Union peacekeeping and mediation teams, and Thabo Mbeki, the former South African president, who chairs a separate AU group on Sudan. They expressed grave concern over a surge in violence in Darfur in recent months, which the peacekeepers reported has made it all but impossible for them to fulfill their mandate there. But in the end, when it came to acting upon Moreno-Ocampo's requests to turn up the pressure on ICC outlaws, the council president told reporters, basically, nope.

That shouldn't be a surprise. Never mind the squabbles between or within national administrations on what the ICC's place in the world should be; even within the United Nations bureaucracy itself, the answer is a resounding maybe. Paralysis was written right into the job descriptions for the various arms of international bureaucracy, each tasked with vastly different—and occasionally conflicting—mandates. The Security Council, which orders up humanitarian and peacekeeping missions, is a political body. The ICC, although commissioned by the U.N. general assembly, is an independent judicial body. And even in their founding documents, the struggle to merge those two ideals—the political and the judicial—is apparent. According to a paper the U.N.'s legal affairs office published in the International Organizations Law Review in 2006 (and provided to NEWSWEEK by Human Rights Watch), U.N. officials don't have much—if any—obligation to support the ICC. Hence the situation in which top U.N. officials attend the inauguration of a suspected war criminal indicted by a U.N. court.

It would be tough to argue that cutting off contact with Sudan's sitting head of state would constitute a full commitment to the U.N.'s humanitarian mandate, especially considering they have thousands of peacekeeping forces on the ground and the very real possibility of a renewed war between north and south Sudan after the referendum on independence in January 2011. To U.N. officials, part of their mandate involves keeping themselves on the Sudanese government's good side, especially since that government has already demonstrated a nasty habit of expelling U.N. officials when they disagree with him. When U.N. Secretary General Ban Ki-moon argues that sending his top officials to Bashir's inauguration is "exactly within the framework of their mandate," he's right, in his own way.

Sudanese leaders, for their part, are all too happy to support the framing of the issue as an either-or problem. "The choice is between following Moreno-Ocampo's politically motivated and destructive adventures or to lend the council's focus and support to the Darfur peace process currently underway in Doha and implementation" of the north-south peace agreement, Sudan's U.N. ambassador Abdalmahmoud Abdalhaleem told Reuters on Thursday. That Al-Bashir has promised to respect South Sudan's referendum in January has only heightened the impact in Turtle Bay, since mediators are wary of pursuing any policies that might derail that support. Al-Bashir's arrest would be at the top of the list.

That, perhaps, is where Moreno-Ocampo's late-Friday briefing of the Security Council comes back into the picture. Floundering without U.N. support has forced him to become more clever about addressing the Security Council's referendum jitters. (It's worth noting that this may not be his strongest suit. One critic calls him the Argentine equivalent of Judge Judy.) Last month, Moreno-Ocampo filed to the court a request for a finding of "non-cooperation" for the government's refusal to arrest Ahmad Harun and Ali Kushayb, two lower-level Sudanese government figures wanted for 51 counts of crimes against humanity and war crimes since 2007. He got what he asked for; on May 25, after three years of inaction by the Sudanese government, the ICC took the unprecedented step of formally reporting the Sudanese government to the Security Council for refusing to cooperate in the pursuit of alleged war criminals. This may seem like a formality—and it is, since it obviously didn't take three years for anyone to figure out that Al-Bashir was snubbing the ICC. But in taking the focus off the Al-Bashir warrant, Moreno-Ocampo likely realized he overreached on his expectations for both Sudan and the Security Council. Instead, giving everyone an easier request to work with, he's going after the low-hanging fruit.

It's hard to imagine the Security Council setting aside its realpolitik calculations before the January referendum, even as the violence in Darfur picks up again. Indeed, as the council president announced Monday after the briefings, they have no plans for "concrete actions" to respond to Moreno-Ocampo's requests. Still, it's easier for the Security Council to embrace the pursuit of Harun and Kushayb, since they could make the issue part of their post-referendum peace negotiations with Al-Bashir, who could choose to throw his deputies under the bus in order to save his own hide. That's a strategic bet the Security Council would have to place, the basis of which would rest on their trust in Al-Bashir. One could call it smart strategy. One could also call it appeasement.

For more on the violence gripping Sudan, see this interview with ICC prosecutor Luis Moreno-Ocampo, photo essay on the victims in Darfur, and essay on how advocacy groups have packaged the tragedy.