By Luka Biong Deng
November 3, 2012 — On 26th March 2012, I wrote a piece titled “The Juba Summit: A Diplomatic and Moral Test for the New Nation” about the summit that was scheduled to take place in Juba early April. Since that time, a lot of developments happened between the two countries. The South was forced to shut down its oil production by the banditry actions of the regime in Khartoum over the Southern oil flowing for export through Sudan. Also the South was dragged into war over Panthou (Hegilig) and that caused loss of many innocent lives but gave good lesson to the regime in Khartoum that war is not a winnable option.
The regime in Khartoum also closed its border with the South and some innocent Sudanese traders who attempted to take goods to the South were killed by security agents of Khartoum. With disgraceful defeat in Panthou, Bashir became emotional and showed his true colour of racism by implicitly describing the people of the South not only as slaves but insects. As a result, the anger of the people of the South against Bashir reached the climax. It would require a lot of efforts and time to repair the enormous damage caused by Bashir in tainting the good relations between the two countries.
Despite this inexcusable deterioration in the relations between South and Sudan, some positive developments started emerging since the signing of the nine agreements. The two countries ratified these agreements with the South ratifying first. President Bashir ordered the opening of border trade with the South even before the ratification of the Agreements. The South ordered the oil operating companies to resume their operations immediately after the signing of the Agreements. The oil production in the South is expected to flow soon for export through Sudan. The currencies of the two countries gained strength after the signing of the Agreements and that signaled optimism in their economies. International and regional leaders welcomed the signing of the Agreements and appreciated the leadership provided by the two Presidents. In particular, President Bashir got appreciation for the first time even from the circles that would not expect any positive thing coming from Khartoum.
Despite these positive developments, the regime in Khartoum excessively overplayed their gains from these Agreements. On the 14 miles area, the regime in Khartoum assured the Rizigat Arab nomads that it has secured for them this area. Equally, it raised the expectations of Misseriyia Arab nomads by rejecting the AU Panel Proposal on the final status of Abyei. The Chief Negotiator of Sudan who was initially against the four freedoms emphasized the gains for the people of Sudan and wished if such four freedoms could be increased to forty freedoms. He further stressed that Sudan will gain during the next 3.5 years about $7 billion from the oil deal alone.
While the regime in Khartoum was rejoicing the benefits accruing to them from these agreements, some people of the South were feeling cheated from these agreements. This is further compounded by poor communication of the benefits of these agreements to the people of the South. The people of Awiel, the strongest hold of the SPLM, were outraged by the demilitarized zone that singled out the 14 miles area to be entirely demilitarized. The four freedoms were seen by many people of the South as surrendering again to Jallab domination. These disappointments were compounded by the lack of resolution of Abyei issue and the disputed and claimed border areas.
In general a good number of people of the South, particularly those in the major towns, are not happy with these agreements. It is only the recent decision by the African Union Peace and Security Council on the final status of Abyei and the disputed and claimed border areas that consoled most people of the South. This was reflected in the warm reception at Juba airport of the delegation of the South that attended the meeting of the AU Council. These hard feelings of the people of the South about Bashir and his regime in Khartoum may make them less likely to welcome him in Juba. This is further complicated by the fact that President Bashir is indicted by the International Criminal Court (ICC) that requests all member states of the UN to cooperate in apprehending and surrendering him for trial.
However, the South as the member of the AU has certain obligations in relation to the immunity of the indicted sitting head of state such as President Bashir. In particular, the South as member of the AU is expected to respect the principles of the African Union Constitutive Act as reiterated in Article 2 (1) of the Cooperation Agreement. This Act obligates all members of AU to comply with the decisions and policies of the Union. One of these decisions is that the AU has ordered all its member states not to cooperate with the ICC in apprehending or surrendering President Bashir over crimes against humanity in Darfur. Also the South has committed itself in Article 5(2) of the Cooperation Agreement to establish and sustain viable mechanisms for managing bilateral relations with Sudan through regular summit meetings of their heads of State.
Subsequently, the South is obliged by the Cooperation Agreement to welcome Bashir to Juba for a summit with President Salva and it cannot apprehend or surrender President Bashir to the ICC during his visit to Juba. Also the AU Council in its last meeting has asked the two countries to reach consensus within six weeks on the final status of Abyei and also to reach agreement within two weeks on the process for the resolution of the disputed and claimed areas. This summit between Presidents Salva and Bashir provides a golden opportunity for resolving once and for all the issue of Abyei and border.
However, the wrangling between the AU, members of AU signatories to the Rome Statute and International Criminal Court (ICC), particularly over the venue of the AU Summit, has created legal dilemma even for the AU members which are not parties to the Rome Statute of the ICC. In particular the case of Malawi, a party to the Rome Statute, that allowed Bashir to attend a meeting of the Common Market for Eastern and Southern Africa (COMESA) in Malawi in October 2011, triggered legal dispute. The ICC Pre-Trail Chamber held in December 2011 decided that Malawi had acted contrary to its obligations under the ICC Statute but it also dismissed the legality of the AU resolution that orders all its member states not to cooperate with the court in apprehending and surrendering the Sudanese President.
In particular the ICC Pre-Trail Chamber argued that the referral of the Darfur case to the ICC by the UN Security Council under Chapter VII of the UN Charter has the consequence that Sudan as a non-signatory to the Rome Statute is bound by the ICC Statute including the removal of immunity. The implication of this decision is that South Sudan as a non-signatory to the Rome Statute is to be regarded as being in the same position as a State party to Rome Statute such as Malawi. As a result, the newly elected Malawian President Joyce Banda refused earlier this year to welcome Bashir to attend the AU Summit in Malawi.
Although this decision by the ICC has been challenged by the AU Commission, it remains a legal dilemma to the new nation as non-signatory to the Rome Statute. Acting as if South Sudan is a party to the Rome Statute and in order to comply with the decision of ICC to arrest and surrender Bashir, the move by Dr Riak Machar, the Vice President of the South, to bring the visit of Basir to Juba to the attention of the ICC was a right decision. This is consistent with the clause of the Rome Statute that states “the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of a third State for the waiver of the immunity”.
Despite the legal and moral dilemma surrounded the visit of Bashir to Juba as well as the hard feelings of the people of the South about Bashir, this visit is to be seen as positive step in building confidence towards the genuine implementation of the Addis Agreements as well as finding solution to the disputed and claimed border areas and the final status of Abyei. President Bashir has a chance to show to the people of the South that he is genuinely committed to peace and good relations by talking a bold decision to resolve the issue of Abyei and disputed and claimed border areas. The people of the South would also expect Bashir to take the courage to apologize to them about his despicable racial statements.
Luka Biong Deng is a senior member of South Sudan’s ruling Sudan People Liberation Movement (SPLM) and the Co-Chair of the Abyei Joint Oversight Committee. He can be contacted at email@example.com. This article was published first by the New Nation Newspaper - New York, US