Monday, July 21, 2008

India, the ICC, President Bashir, Oil, and Indian Soldiers

Last week the prosecutor of the International Criminal Court presented his case against President Al Bashir of Sudan for genocide, crimes against humanity, and war crimes in Darfur. The prosecutor is requesting an arrest warrant from the ICC’s judges. This is the first time that a sitting head-of-state has been prosecuted under the Rome Statute. In 2005, a senior Sudanese government official and a Janjaweed leader had arrest warrants issued for them by the Court. The government of Sudan, who is not a party to the Rome Statute, has refused to turn over these two men and says that they will not turn over their President. They have also said that Bashir’s prosecution has only made peace less likely and exasperated an already explosive situation.

So, what does this have to do with India? As those who have read my previous post on this issue or kept up on Sudan-India relations know, India is rather uniquely positioned towards Sudan. India’s ONGC is one of the largest investors in Sudan’s oil fields (and thereby one of President Bashir’s chief business partners). At the same time, India has a military presence in Sudan under the auspices of a United Nations Peacekeeping force to keep peace between the north and the south. (China, the other major backer of Sudan’s oil industry, has also dispatched soldiers to the country under the United Nations as peacekeepers, but in the West in Darfur).

Given these facts, does this mean that India might be put in the awkward position of having its soldiers ordered to attempt to capture the Sudanese President so that he can be shipped to Europe to be tried for genocide? Well, not likely, but also not impossible.

India, China, Sudan, and the United States are not parties to the Rome Statute so technically they have no real obligations under the statute (something the U.S. likes to point out frequently). The case of Sudan though is the first case that was referred to the ICC by the Security Council (China, the US, and Russia all went along with this in the end under tremendous public pressure). As this article points out the UN Security Council resolution that made this referral “urges” all states (even those who did not ratify the Rome Statute) and international organizations to cooperate with the ICC on this matter. This could theoretically mean that Indian forces on the ground under the UN peacekeeping force could be called upon by the ICC to aide in apprehending these suspects in Sudan.

Still, given that three years have passed since arrest warrants were issued against the first two suspects in Sudan and UN peacekeeping forces haven’t been called upon to arrest them, it is unlikely that an arrest warrant issued for President Bashir will change the situation. Further, the “urge” language in the original UN Security Council resolution does not seem binding and the rest of the referral is quite vague on what state or UN peacekeeping forces obligations would be. It would likely take another more specific Security Council resolution before UN peacekeepers were expected to take any affirmative steps to capture President Bashir or the other two suspects.

ONGC’s oil operations in Sudan now seem more a liability than ever though, even if it hasn’t necessarily approached the level of legal liability. It certainly seems against the spirit of the Rome Statute and arguably the Security Council referral to keep doing business with President Bashir and his government if an arrest warrant is issued against him. Still, it seems highly unlikely that this relationship will expose Indian leaders or officials in ONGC to the ICC’s jurisdiction. The Mint recently had two good articles on ONGC in Sudan. One detailed the efforts of divestment groups in the West to pressure ONGC and India to be more responsible players in Sudan. The other reports that ONGC abandoned its business interests in the United States before investing in Sudan because it feared it would become open to liability in the U.S. once it began business in Sudan. Other recent articles have reported on how ONGC may be forced out of its holdings in the Alberta tar fields (a largely untapped oil reserve about equivalent to Saudi Arabia’s) because of Canadians upset about ONGC’s business in Sudan.

Even if there is no legal liability, the position India now finds itself in is clearly awkward and it will be interesting to see how or even if India responds to any arrest warrant issued for President Bashir. So far India's policy towards Sudan has been to publicly neither condemn or condone the government's actions, but just remain silent.

4 comments:

Anonymous said...

India cannot take a stand that will affect its relations with African nations. If it condemns
Sudan that will have repurcussions for its relations with other african countries.African nations perceive such moves by ICC or similar bodies as ploys to promote indirect intervention by USA and
Europe. OAU did not accept the
charge of genocide against Sudan.
China is wooing African nations
with soft power and any attempt by
India to condemn Sudan will be useful for China to further its
interests. Moreover there are issues on the powers of ICC to issue such a warrant.So I think GOI is keeping silent weighing the options at this juncture.

Nick Robinson said...

Thanks for your comment. I agree with you that India is probably weighing its options silently to wait to see how any actions it takes will affect its power in Sudan in relation to China. It probably feels it has nothing to lose in Sudan by remaining quiet. If Bashir stays they keep the oil. If Bashir is toppled or civil war breaks out India was probably going to be at the whims of evolving local politics no matter what they said now and no matter who is in charge later (I personally don't think this assessment is quite right, but it's not an unrealistic take on events). Their stand of silence though is certainly begining to hurt them in the West though, but that might be a sacrifice India is willing to make if it really believes it is in a great game in Africa with China.

On African nations seeing the ICC as a ploy to gain influence over their internal affairs by Europe that is certainly a common criticism and one Sudan is trying to play in a big way right now. An interesting thing to note though is up until the Sudan case, one could easily argue the opposite - that African nations were using the ICC to drag Europe into their internal affairs in a way that European nations would prefer not to be. This is a link to wikipedia's entry on the ICC http://en.wikipedia.org/wiki/International_Criminal_Court. One thing you'll notice quickly from the map of ratifying nations is how many African nations have signed on to the ICC (as opposed to say Asian nations). Why did the do this? You can say they were pressured to, in the case of Rwanda you could say it was its history (Rwanda incidentally has been a big proponent of intervention in Sudan). In reality though it may be more realpolitik than those in Europe or elsewhere would like. Before Sudan the only cases in the ICC were referals by CAR, DRC, and Uganda (there's a helpful graph of this on the wiki page). All these referals were requests by these governments to investigate warlords or political opponents that had been giving these governments trouble for years (the Lords Resistance Army in Uganda being the classic example). These governments got the ICC to issue arrest warrants for these leaders, and this has helped marginalize these former political threats and put them on the run. Not a bad plan. I don't think African countries are nearly as passive in the ICC political game as some would like to make them out to be. I also think there are sharp divisions between different African countries on how much they support the ICC's greater ideals and how much they fear it as a second form of colonization (or would it be third or fourth by now?)

captainjohann said...

Hi Nick,
Bashir has not invaded another country without security council madate(in the guise of presence of WMD)and killing civilians in that country along with jehadies. It topples a dicatator Saddam who is much more generous than the Dicators like Saudi kings,Suharto,Marcos which US was supporting. today US is crying about Jehadies when during saddams' regime not a single bearded fellow or burqaclad women were there in Iraq.the 10 million Iraquies killed by USA, does it belong to what crime?Bashir is killing seperatists within his border though they are christians with his brutal Jamjawee islamic militia.The hyper power can do anything in this world but not other dictators.What type of law is this?

Nick Robinson said...

Captain Johann, thanks for your comment. You are right to point out that many criticize the U.S. of double standards. You explain this generally, but there is a specific way the U.S. has done this with Sudan and the ICC which I think is important to point out. The U.S. has consistently been against the ICC and tried to undermine it several times, and of course it is not a party to the Rome Statute. This is in part because the US fears that it's leaders could be brought to task in the ICC for their acts in places like Iraq. In the Sudan case, the US authorized the security council referal to the ICC, in effect trying to have it both ways - i.e. the ICC can prosecute Sudan via a Security Council authorization, but can't prosecute anyone in the U.S. because the U.S. hasn't signed on to the Rome Statute and the U.S. has veto power on the Security Council. Basically, the U.S. will use the ICC when it wants, but not otherwise.

The ICC can also be found to have a double standard on Iraq depending on how you analyze the situation. There were hundreds of complaints sent to the ICC Prosecutor about the invasion of Iraq. He decided though that determining the legality of an invasion is not within his mandate (which is true) and that although war crimes had likely been committed they weren't serious enough to merit an investigation(the wiki page I listed earlier has links to all this). The Prosecutor might actually have been right in his analysis given his mandate under the Rome Statute, and points to some severe problems with the Statute (at least for its legitimacy in the eyes of many). War is not illegal under the Statute, nor is killing as long as it is done within the broad confines of the laws of war. However, as we all know not all wars are as just as others. The ICC focuses on the process of killing not its justification. Developed countries generally fair better under these terms. The U.S. can arguably more easily target military targets because it has greater power (air superiority, etc.). An insurgent force or terrorist generally is in a weaker position and so tends to target soft targets like civilians. So are governments that are only barely clinging on to power over their country like Bashir's.

All this is not to stay that process in killing isn't important - I personally do think civilians shouldn't be targeted, genocide shouldn't be engaged in nor torture. It just points to some of the weaknesses in the ICC's mandate. These of course were all realized at the beginning of the ICC's creation, but these process issues about war or killing is what consensus could be reached on. The question is whether these justification issues that the Rome Statute didn't address will fester a sense of injustice that will ultimately fatally undermine the Statute.

Also, one final note, factually those who are getting killed in Darfur are mostly Muslims although there have been some deaths of christians and animists. Overall though this has largely been a battle of muslim vs. muslim - a conflict not defined by religion, but more different constructed senses of Arab and non-Arab identity and a long-standing feeling of purposeful economic neglect by Khartoum that many feel in Darfur.