During the summer of 2008, Britain, France, and the United States discussed the possibility of delaying the Internatoinal Criminal Court (ICC) investigation into Sudanese President Omar Hussein al-Bashir -- if Bashir's government played ball in Darfur and Southern Sudan. According to a series of cables released by WikiLeaks on Tuesday, the three powers considered enticing Sudan's president with an Article 16 deferral of his indictment -- a U.N. Security Council resolution that could suspend the investigation for up to 12 months. According to an August 2008 cable, "If 'played right,' the UK [United Kingdom] assessed the leverage of an Article 16 deferral could provide an opportunity to ameliorate conditions in Darfur and possibly the [implementation of the] Comprehensive Peace Agreement (CPA) [that ended conflict between northern and southern Sudan]."
The cables begin in June 2008, a month before the ICC prosecutor requested an indictment for Sudanese president but after charges had already been laid against him. On the 15th of that month, British diplomats in meetings with U.S. officials suggested that the possibility of an Article 16 deferral should be among the options considered for dealing with Khartoum, though the country would need to do so very quietly. A comment at the end of the cable claims,
"As an architect of the ICC and one of its most staunch supporters, HMG is in a difficult position over the ICC's potential indictment of Bashir, which it sees as unhelpful. Although there is no clear end-game in mind, HMG seems happy to walk the fine line of pushing GoS engagement with the ICC while also looking to make Bashir's potential indictment the element that changes the dynamics on Darfur and encourages CPA implementation. HMG's public message on the ICC will likely remain supportive, while the UK will likely pursue a more flexible policy at the UN and in its dialogue with Khartoum."
By August 28, 2008, when British, French, and U.S. officials gathered to discuss the Artical 16 deferral, the British position had crystalized. London could support the idea of a deferral on several conditions: that the Sudanese government cooperate in Darfur and Southern Sudan and that the deferral be reviewed every four months, not every twelve (so as to continue to push Khartoum to continue complying.) British diplomats allegedly told U.S. counterparts that the most effective timing of such a deferral would be in advance of the ICC judges' pre-trial ruling on whether to indict Bashir. French diplomats indicated that they would also be willing to consider the Article 16 deferral as well, if Sudan met clear benchmarks for progress.
The U.S. position is slightly less clear. Americans noted that "even with significant progress, there is no guarantee that the USG would support an Article 16 deferral."
None of this ever came to fruition. Although the African Union and the Organization of the Islamic Conference have both requested an Article 16 deferral for Bashir, none of the three powers in the cables have. And the ICC moved forward with its indictment, issuing an arrest warrant for Bashir last spring.
Still, to see this unfolding behind the scenes offers interesting lessons -- first about just how far the powers were willing to go to push Sudan's government, but also about the politics of the first such indictment issued against a sitting head of state. A staunch supporter of the court, Britain found itself considering delaying an investigation to advance political negotiations with Khartoum. Meanwhile, the United States -- which is not a signatory to the court -- was eager for the ICC investigation to move forward because of "the importance the U.S. places on accountability in Darfur, irregardless of the fact that the ICC is the venue," according to the August 2008 cable.
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