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Esleman Abay

Esleman Abay

How Sudan’s ‘rogue’ state label shaped US responses to the Darfur conflict: what’s the problem and who’s in charge?

Maria Gabrielsen Jumbert

Pages 284-299 | Published online: Mar 2014

Abstract

Few conflicts have been subject to as much international attention and efforts at resolution as the conflict in Darfur between 2004 and 2009. In spite of these attempts, the situation in Darfur today can at best be qualified as an unresolved conflict. This article closely examines the ways in which the Sudanese state has been perceived and qualified in order to determine how the conflict was understood and how the state was approached by outsiders. As is shown, despite frequent descriptions of the nation as a ‘fragile’ or ‘failed’ state, throughout the conflict Sudan has primarily been approached as a ‘rogue’ state. The article argues that this distinction has led to the prioritisation of certain strategies based on ‘protection’ and ‘punishment’ over attempts to resolve the underlying causes of the conflict, something a more sophisticated understanding of the Sudanese state’s internal weaknesses and instability might have allowed.

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Introduction

Sudan has been plagued by civil wars and domestic conflicts ever since its independence in 1956. The last fully fledged war broke out in Darfur in 2003 and came to international attention in the spring of 2004. As a result of comparisons to the conflict in Rwanda 10 years earlier and descriptions of the war as the ‘twenty-first century’s first genocide’, Sudan quickly became the subject of widespread activist mobilisation – first and foremost in the USA but also in several European countries – and of high-level diplomatic engagement. What effects can the perception of state capacity and responsibility in such conflicts have on the type of international involvement that is triggered? More specifically, how do the varying discourses on state ‘fragility’ and the more defiant variant of state ‘rogueness’ (to be investigated more closely in this article) shape the international responses to such conflicts? This article addresses these questions by examining in particular how the US responses to the Darfur conflict were shaped by varying and sometimes contrasting perceptions and qualifications of the Sudanese state.

The conflicts in South Sudan and Darfur both progressed from being widely ignored by the ‘international community’ to becoming highly internationalised. The central explanatory factors behind the timing, level and type of international responses to these conflicts are the mobilisation of activists, the broader international contexts and the way the conflicts have been qualified.1 The qualification component will be examined in detail here, with the underlying assumption that how a conflict is understood and thereby qualified by external actors with various mandates to respond to such crises plays a significant role in the type of international response that is triggered.2 The case of Sudan is relevant here for two main reasons. First, Sudan has been the subject of a number of international ‘responses’ to its internal problems, ranging from development aid, humanitarian assistance and diplomatic support for its peace negotiations to international and regional peace keepers – not to mention the various international sanctions and different forms of pressure and threats that have been applied. By positioning these reactions in the larger debate concerning fragile states (defined as incapable or unwilling to govern according to certain standards), an investigation of the relationship between these responses and the dominant perceptions of the Sudanese state might also tell us something about the way the fragile-state discourse functions. Second, despite appearing on various lists and rankings of ‘fragile’ and ‘failed’ states, Sudan was generally approached as a ‘rogue’ state throughout the Darfur conflict. Although these concepts may have a similar function of legitimising external interference, the term ‘rogue’ carries a different connotation, as it emphasises the state’s defiant posture and often presumes a certain level of control. As will be argued here, how a state is qualified can have consequences for the ensuing international response.

The article will focus on the specific approach of the USA to Sudan during the Darfur crisis for three main reasons. First of all, as in many other cases of external interventions in internal armed conflicts, the USA acted as a forerunner and tone-setter for other international responses to the crisis. Second, public engagement on Darfur was particularly strong in the USA, which pressured the administration to keep the issue high on its agenda and shaped the responses it formulated. Third, the USA has maintained an often paradoxical but special relationship with Sudan over the past two to three decades. Indeed, it is within US policy towards Sudan that the broader contradictions in the international responses to Darfur are most evident.

To begin with the article describes the outbreak of the conflict and the first attempts to resolve the crisis. It then turns to an examination of how Sudan has been characterised as a ‘fragile’ or ‘failed’ state in various policy studies and aid organisation reports, although the label of ‘rogue’ state has had the greatest impact on US responses to the conflict. After a review of the special and tumultuous relations between Washington and Khartoum, the article shows how the ‘rogue’ label has coloured two of the most important responses to the conflict: the efforts to send peacekeepers to the region and the UN Security Council referral of the crisis to the International Criminal Court (icc). In the final section the ‘rogue state’ image of Sudan is contrasted with a perspective emphasising the country’s weaknesses and internal instability; arguably this latter view would have more effectively revealed the underlying causes of the conflict, which are still unresolved.

Outbreak of the Darfur conflict and international attempts to resolve it

The conflict in Darfur started in February 2003, when the Darfur Liberation Front (later the Sudan Liberation Army, sla) attacked Gulu, the capital of the district of Jebel Marra, followed by an unprecedented attack on government forces in El Fasher on 25 April.3 The Sudanese army was profoundly humiliated by these strikes and by later additional setbacks in other confrontations with the rebels. The Darfur rebel uprising represented a particularly tough blow for Khartoum, as the region had traditionally provided a pool of manpower for the nation’s military ventures elsewhere in the country; this made it more difficult to deploy regular forces to crush the insurgency. Consequently the Darfur problem was handed over to Sudanese military intelligence, which devised a counter-insurgency strategy based on air attacks, military intelligence and the local Janjaweed militia.4 The government persistently denied its support of the Janjaweed; however, the Arab militia continued to receive arms, artillery and communications equipment from government sources and soon gained the upper hand in Darfur. Similar strategies had been used during the war in the south with the Muraheleen militias, as well as in the conflict in the Nuba mountains in the 1990s; both cases led to massive human rights violations and displacements. By early 2004 thousands of people, mostly from the country’s non-Arab tribes, had been killed and over a million were displaced.5

The international spotlight was turned on Darfur in April 2004, following declarations of concern from high-ranking UN officials and US lobbyists, which compared what was happening in Darfur to Rwanda on the eve of the 10th anniversary of the genocide in the Great Lakes region.6 The UN negotiated an agreement with Khartoum on humanitarian access in July 2004.7 Starting in the autumn, peace talks were held in Abuja under the auspices of the African Union (au), gathering together the main Darfuri rebel groups and representatives from the Sudanese government. The Darfur Peace Agreement (dpa) was finally signed in May 2006; however, it was widely considered to be flawed even before its implementation began, as only one of the three rebel leaders had signed it.8 It had little legitimacy within Darfuri civil society and the discrepancies in signing only caused further internal fighting among the various rebel groups.9 In the period that followed, the Western powers engaged with the issue (primarily the USA and the UK but also countries such as France and Germany) no longer saw a need to improve the political solution to the conflict, focusing instead on sending a UN peace-keeping mission to the region. The year following the signing of the dpa was chiefly characterised by a tug-of-war between Khartoum and the UN and Western powers, involving an attempt to make the country accept a UN-led peace-keeping mission in place of the underequipped, au-backed African Mission in Sudan (amis). In June 2007, after much international pressure, the Sudanese government finally accepted a joint proposal from the UN and the au for the deployment of a hybrid mission in Darfur. This paved the way for the adoption of Resolution 1769 on 31 July, which entailed the deployment of 26,000 soldiers within the UN African Union Mission in Darfur (unamid).10 On 31 December 2007 unamid formally took over from amis.

In parallel the Darfur crisis was placed on the judicial agenda as the result of a series of events. First of all, the International Commission of Inquiry into Darfur concluded that, although the intent of genocide could not be proved, the commission could not exclude the possibility that ‘acts with genocidal intent’ may have been committed on an individual basis.11 ‘Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case-by-case basis’,12 the authors of the report stated. This assertion was noted by French diplomats, who drafted the proposal for UN Resolution 1593, which on 31 March 2005 referred the situation in Darfur to the icc prosecutor.13 The prosecutor’s announcement of his decision to indict the Sudanese president in the summer of 2008 had a tremendous effect on the other international initiatives attempting to put an end to the conflict.14

While the activist movements for Darfur were gaining momentum in summer 2004 (with the foundation of the Save Darfur coalition in the USA), the government in Khartoum was in the final phase of its peace negotiations with the Sudan People’s Liberation Movement (splm) to end the civil war between North and South Sudan. While Khartoum has generally been represented by international activists as incapable and unwilling to negotiate, at that time it was actually responding to international pressure by seeking to put an end to the years of war in South Sudan.15 Significant concessions were granted to the South Sudanese, thanks in part to the mediators’ leverage, but also to the Sudanese government’s desire to emerge from international isolation and improve its relations with the West (especially with the USA). However, over the years any normalisation of relations became an increasingly distant prospect because of the Darfur crisis.

Sudan as seen through the ‘fragile’ and ‘rogue’ state labels

As outlined in the introduction to this issue, the concept of ‘fragile’ states is one of a range of more or less similar concepts – including ‘weak’, ‘collapsed’ and ‘quasi-’ states – some of which have a more academic basis, while others are more policy-oriented. It is primarily the political salience of this concept and its derivatives that we are interested in here. In 2013 the oecd defined ‘fragile’ states as follows: ‘A fragile region or state has a weak capacity to carry out basic governance functions, and lacks the ability to develop mutually constructive relations with society. Fragile states are also more vulnerable to internal or external shocks such as economic crises or natural disasters’.16 A total of 47 states were identified as fragile by the oecd in 2013; among these, Sudan is listed as one of the countries of particular concern, as it faces a combination of diminishing aid and slow growth. Sudan was among the top 10 recipients of official development assistance in both 2005 and 2010, and the country received a record high share of the total humanitarian assistance to fragile states in 2005.17 In a report commissioned by the Canadian International Development Agency (written by David Carment and Yiagadeesen Samy from Carleton University) Sudan is identified as one of the nations currently caught in a ‘fragility trap’, a category consisting of those states that have appeared most frequently in the list of the top 20 fragile states over the past 30 years.18 In short, Sudan has been classified as among the worst-off even among fragile states, beginning in the period before it started producing and exporting oil and extending beyond the secession of South Sudan, which deprived the country of a large share of its oil resources.

One derivative of the concept of ‘fragile’ states is the notion of ‘failed’ states. Although this is more controversial than the ‘fragile’ state concept, it is also more widely used in policy and media contexts. In a ranking prepared by the Fund for Peace (an independent Washington-based think-tank), which has been published every year since 2005 by the magazine Foreign Policy, Sudan is ranked third on the 2013 Failed States Index, the same rank it has achieved four years in a row. In the 2013 ranking it is joined for the first time by South Sudan, which is ranked fourth.19 This ranking draws on 12 different political, social and economic indicators. Sudan scores high on all indicators, and especially high on ‘Massive Movement of Refugees or Internally Displaced Persons’, ‘Vengeance-seeking Group Grievance’, ‘Security Apparatus’, ‘Rise of Factionalized Elites’ and ‘Intervention of External Actors’ (between 9.8 and 10 points out of 10). Since scholarly work on the concept of ‘fragile states’ has often criticised the way the term seems to function as a means of discrediting the state in question and legitimising various forms of intervention,20 it is interesting to see here that the level of external interventions is being used as an indicator of state failure. The oecd report emphasises that fragile states deserve particular attention, not only because they are home to most of the greatest poverty and development challenges, but also because they present the highest risk of violent conflict. It is therefore argued that investing in and providing foreign assistance to fragile states represent a form of prevention, invoking Collier and Hoeffler’s contribution to this debate.21 From this perspective fragile states have governance structures that are too weak to allow them to maintain a monopoly on violence, increasing the risk of a general disintegration and fragmentation of society and almost inevitably leading to the spread of violence.

However, in the international mobilisation and diplomatic activity intended to halt the conflict and violence in Darfur, Sudan has generally been approached as a so-called ‘rogue’ state, that is, as a state that is defiant and disrespectful of international norms, but nevertheless a strong state with direct control over and responsibility for violence. The concept of ‘rogue states’, first formulated by the Clinton administration in 1994, is essentially a politically motivated qualification; the term was officially abandoned in favour of the more toned-down concept of ‘states of concern’ in 2000,22 although its political saliency has enabled it to survive in media and policy reports. The list of ‘rogue states’ generally corresponds to and is often used as a synonym for the US State Department’s list of State Sponsors of Terrorism, first established in 1979.23 However, this list is more formal, as a country’s addition to it requires the approval of the Secretary of State and will be followed by a series of economic sanctions. The concept of ‘rogue states’ is both more controversial and more loosely applied. One common denominator of the different usages seems to be that they designate certain states as not complying with international norms; as Rose defines them, they are ‘a class of states that combines the seeming irrationality and fanaticism of terror groups with the military assets of states’.24 Irrationality and military strength are certainly two key aspects of this concept which have coloured the US-led international responses to Darfur: Sudan has been approached as a state that possesses sufficient control over military assets to be held responsible for the conflict, yet is seen as irrational enough to make negotiations seem pointless.

The idea of Sudan’s ‘rogueness’ is formally related to its inclusion on the State Department’s list of State Sponsors of Terrorism. The perception has further manifested itself in the debate over the possible genocide in Darfur, and more specifically among those who believe such genocide occurred. The question of a potential genocide in Darfur first emerged when the region was compared with Rwanda in April 2004. Proving the genocidal aspect of the war crimes committed required the politicians, ngos and opinion leaders who believed this to be the case to show that there was a form of state control over the violence in order to demonstrate its ‘intent’.25 As Scott Straus points out, two primary reasons motivated activists and other observers of the crisis in Darfur to insist on the qualification of ‘genocide’. First, they believed that the situation corresponded to the definition of genocide because ‘the violence targeted an ethnic group for destruction, was systematic and intentional, and was state supported’.26 Indeed, a common thread throughout the narratives of the Darfur conflict formulated by the advocacy movement was that the violence was state-controlled, and therefore the state was the only one that could stop it.27 Second, proponents of the use of the term ‘genocide’ believed that it was a prerequisite for any international intervention to stop the violence. As Salih Booker and Ann-Louise Colgan (from Africa Action, an advocacy group specialising in Africa-related issues) wrote in The Nation, ‘We should have learned from Rwanda that to stop genocide, Washington must first say the word’.28 This reflects not only the idea that certain qualifications lead to certain responses, but also the approach that became dominant in the grassroots mobilisation for Darfur in the USA: organisations felt that it was important to impress this qualification of the crisis upon their elected representatives in order to trigger a sense of responsibility, compelling them to ‘do something’ – at least, that is what the groups hoped would happen. This resulted in a pressure-based approach involving threats of sanctions against the regime in Sudan, rather than support for the ‘fragile’ state structures to facilitate the management of the country’s internal chaos; such support might have been the expected response if it was only the ‘fragile state’ qualification that had been considered. This interpretation of the nature of the problem in Darfur has been largely neglected in the analysis of the Darfur conflict.

The ‘genocide’ qualification was easy to impose, not only because of the evidence (or the interpretation thereof) on the ground, but also because of the already existing perceptions and qualifications of the regime in Khartoum. As Alex de Waal wrote in 2004 about Darfur, referring to the violence perpetrated in earlier conflicts in South Sudan and in the Nuba mountains, ‘it is genocide by force of habit’;29 however, he would later qualify his claim regarding the genocide in Darfur.30 Although the comparison with Rwanda on the eve of the 10th anniversary of the genocide there played a crucial role, it would have been difficult to sustain the genocide narrative about Darfur if there had been no historical precedent or deep-rooted perception of Sudan as a rogue state capable of committing terrible acts against its own civilian population.

Khartoum’s unstable relations with Washington

In the 1980s Sudan was an ally of the USA in its policy of containment, representing a useful buffer zone against Libya in the west and Ethiopia in the east. However, the new Islamist military regime that seized power in 1989 attracted US attention and disfavour when it chose to declare its support for Saddam Hussein after his invasion of Kuwait in 1991.31 The fact that in the 1990s Sudan became a refuge for a wide range of leading Islamist figures, as well as presumed terrorists, increased the Americans’ new concerns regarding the country. During the summer of 1992 the Sudanese army assassinated two Sudanese employees of usaid, who were accused of cooperating with the spla in South Sudan.32 Matters worsened after the attack on the World Trade Center in New York on 24 June 1993: five of the arrested suspects were carrying Sudanese passports.33 It was following this attack that Sudan was first included on the US list of State Sponsors of Terrorism. In February 1996 the US Embassy in Khartoum was closed; there has been no US ambassador there ever since, only an interim Chargé d’Affaires following the start of the Naivasha peace talks in 2002.34 Despite the country’s recent history, which included hosting Osama Bin Laden throughout a large part of the 1990s, Sudan was not mentioned among the countries in George W Bush’s ‘axis of evil’ in 2001.35

A new opening towards cooperation between the two governments was made in 2001 during the first months of the Bush administration, with the first manifestation being an increase in collaborative efforts between the secret services of the two countries.36 In the meantime the new Assistant Secretary of State for African Affairs, Walter H Kansteiner, who had worked in African Affairs at the State Department during a previous Republican administration, was focusing on investments in emerging markets. He is described by former colleagues as having returned to the State Department with a strong orientation towards furthering US business interests.37 His team resolved to try a new approach with Sudan, as the previous administration’s policy had not made much progress. They also identified Sudan as a case in which they could potentially be forced to react in ways counter to their interests as a result of pressure from certain constituencies (mainly the Black Caucus and the Christian right) unless they thought through and carefully prepared their preferred approach.

Consequently they decided to propose that the Sudanese engage in new attempts at cooperation and negotiations with the South Sudanese, while threatening to resort to even harsher sanctions and tougher pressure if the cooperative efforts failed. In a speech in Washington on 3 May 2001 Bush publicly denounced the crimes and atrocities perpetrated by the Khartoum regime.38 According to a former State Department official, a secret meeting was arranged outside Nairobi shortly afterwards with a delegation from the Sudanese government (including the foreign minister and a senior general) and a delegation from the Africa bureau team of the US State Department.39 The options were presented and the Sudanese were given a week to consider the offer; they were informed that, if they did not respond, it would be taken as a sign that they had opted for the confrontational path. The Sudanese reportedly answered 48 hours later, favouring the negotiation option; first talks with the parties were organised that summer. As Kansteiner stated in testimony before the Senate Foreign Relations Committee Subcommittee on African Affairs a little over a year later, ‘The government [of Sudan] appears to have calculated that it could not be against us’.40 The 9/11 terrorist attacks added more force to the US threats, and the Sudanese government further stepped up its collaboration with the cia.41

Over the next few years, until the signing of the Comprehensive Peace Agreement in January 2005, the USA closely monitored the negotiations between the government of Sudan and the splm. A major motivating factor enabling the Sudanese government to move forward with the negotiations was the prospect of normalised relations with the USA, through the lifting of sanctions and removal from the list of State Sponsors of Terrorism. However, these hopes were dashed by the outbreak of fully fledged war in Darfur in 2003 and the massive protests triggered by that conflict, both inside the USA and internationally. Among the first in the USA to learn about this outbreak of violence in Darfur were the then heads of usaid, the group’s administrator Andrew Natsios and the assistant administrator Roger Winter.42 As they would later explain, they had already told Ali Osman Taha, the Sudanese vice-president, that, despite earlier promises to normalise relations on the condition of a peace agreement in the South, this would no longer be sufficient. They made it clear to Taha that normalisation would also depend on the resolution of the Darfur conflict.43 It remains uncertain to what extent Khartoum understood the new conditions being set for normalisation: they were voiced by high-ranking officials of the usaid humanitarian agency but not by officials from US intelligence organisations or the State Department – ie not by those who would, at least in Khartoum’s perspective, be the only representatives capable of lifting the sanctions on Sudan. In addition, the fact that the international diplomats involved in Sudan seemingly dealt with South Sudan separately from Darfur may explain why Khartoum thought it could get away with conducting two very different ‘policies’ in the two regions. The disappointment of the political elite in Khartoum, who had been banking on a new era of reconciliation with the USA, could be measured in their subsequent reticence to accept any form of interference in Darfur – whether by journalists, who provided more material to the activists, or by peacekeepers, as the activists demanded.

Not unexpectedly the Sudanese government firmly rejected the allegations that genocide had been underway in the Darfur region since 2003, and strongly opposed the efforts to place negotiations under UN auspices and mount a UN peacekeeping operation – both of which were seen as attempts to launch a Western intervention in Darfur. Khartoum expended extensive effort on keeping the resolution process within an African framework. A comprehensive rhetoric of anti-imperialism and anti-interventionism supporting ‘African solutions to African problems’ was developed and has been skilfully deployed ever since. In a telephone interview with the Voice of America News in 2004 Foreign Minister Mustafa Ismail claimed that ‘The people of Sudan are against any foreign intervention’.44 The tone was noticeably tougher two years later in June 2006, when President al-Bashir called the prospect of a UN peacekeeping mission in Darfur a ‘neo-colonialist’ intervention. ‘These are colonial forces and we will not accept colonial forces coming into the country’ (Mail & Guardian Online, June 21, 2006) al-Bashir stated when a joint UN–au mission met in Sudan to plan for the UN peacekeeping force.

Despite having been an important and loyal collaborator in the US war on terror, Sudan has not been removed from the US Department’s list of State Sponsors of Terrorism. Its renouncement of international terrorist networks and its active collaboration in US counter-terrorism efforts could indicate that it no longer merits a place on that list. However, its continued inclusion has allowed the USA to maintain leverage over Sudan when pressing for an end to the conflict in Darfur or for compliance with other requests related to governance and human rights. In any case it would have been impossible for the US government to lift these sanctions in the midst of the public indignation over the alleged war crimes in Darfur. The cooperation between the cia and Sudanese intelligence services has been kept out of the public eye, in part because of the sensitivity of the work, but also because such joint efforts would not be viewed positively in the USA.

The ‘rogue state responsible for genocide’ narrative: how it affected the responses to the Darfur conflict

The Sudanese regime in power and the state apparatus it controls have been accused of responsibility for the alleged genocide in Darfur. In both ngo reports and assessments made by the icc it is generally the culpability of the president that is asserted, which is in line with the Court’s definition of the individual responsibility of heads of state when it comes to war crimes.45 It is first and foremost the perception of Omar al-Bashir and his ruling elite as having perfect control over the state apparatus that has led to an approach to the conflict based primarily on threats of sanctions unless the violence is stopped by this same state apparatus. In the following section the ‘genocide’ qualification of the conflict and the ‘rogue’ state label will be examined to determine how they affected the efforts to send peacekeepers to the region and the referral to the icc.

unamid’s peacekeeping effort: intervening to protect and pacify

It is not difficult to understand how the situation in Darfur, portrayed as a conflict in which a strong state was attacking its own civilian population, which lacked any means to defend itself, rapidly became a major interest for the advocates of the responsibility to protect (r2p). The debate on r2p was well underway when the international community became aware of the Darfur conflict in 2004.46 And when the r2p principle was adopted during the UN World Summit in New York in September 2005, the Darfur crisis was already high on the political agendas of the UN and those countries most involved in the r2p process. The Darfur crisis quickly came to be seen as a litmus test for the relevance and ability of the r2p to serve as a guiding principle for the international community in its search for more appropriate and efficient ways of responding to such internal crises.47 The underlying concept of the r2p is that, when internal violence reaches a certain level, and when the state is either unwilling or incapable of stopping this violence, the responsibility shifts to the ‘international community’.48 This idea has been omnipresent throughout the US activist campaign for Darfur under the Save Darfur banner. As David Lanz wrote in 2009, ‘There is therefore a tendency to portray the people affected by conflict as helpless victims, who need to be saved from the outside – hence the name Save Darfur’.49 The focus on the need to ‘save’ Darfur thus effectively reinforced the calls for a peace-keeping force. In short, the ‘rogue state responsible for genocide’ narrative had two underlying concepts: first, that there was a need to save the victimised population and, second, that the state – or in this case the head of state – had to be punished for the crimes committed rather than made a partner in negotiations.

However, the public and activist pressure on the question of peacekeepers was intense, and this had a direct effect on the shaping of policy priorities in Washington, as well as in other Western capitals. As a State Department official explains, an estimated 90% of the time he and his colleagues spent on Sudan in the period 2006–07 was occupied by issues of peace keeping.50 The pressure from the activist constituency to send peace keepers was so strong that it became the priority issue for members of Congress, who in turn set the order of priorities for the executives at the State Department. These latter officials, closely following the situation on the ground, expressed a desire to invest more effort in facilitating a re-launch of the peace talks. However, the pressure to focus on the peace-keeping issue overshadowed any other idea, especially less concrete and less visible ones, as a former UN official explains.51 Demands for a peacekeeping force were not actually focused on installing a force to keep the peace, as many observers rightly pointed out: there was no peace to keep.52 They should instead be understood as a continuation of earlier demands for military interventions or a no-fly zone to stop the perpetrators of violence,53 in combination with the realisation that any such ‘intervention’ without UN backing would be unrealistic. The request that the ‘international community’ intervene to stop the genocide (as voiced by the Save Darfur coalition and its various advocates) was thus a response to a ‘genocide’ that had to be stopped, as well as a reflection of the situation in Rwanda and regret that the UN had not intervened there.

The icc process as convenient for the USA: justice without intervention

Another process of qualification involving the conflict in Darfur and the determination of the appropriate solutions to be applied has been the criminalisation of the violence and the ‘judiciarisation’ of the solutions. Sara Dezalay describes how the law has increasingly become an instrument utilised to respond to conflicts,54 not only as a framework for understanding current armed conflicts, but also as an efficient method of circumventing the state and of legitimising different forms of international intervention. This process has accompanied rather than competed with the protection approach; however, in the later years of heightened international focus on Darfur – namely, before 2009–10, when the attention shifted to the secession process for South Sudan – the judicial approach to the conflict took centre stage. The international arrest mandate issued by the icc against President Bashir in March 2009 came at a moment in which little progress was being made on other fronts, as the deployment of unamid troops was going slowly and the first new talks since May 2006 had just been launched in Doha the previous month. It was symbolically the strongest international action against the Sudanese regime that Western leaders could imagine, and thus eventually served the function of lending greater weight to the endless threats against Khartoum. US politicians used this option strategically, telling their constituencies that their protests had been taken seriously, all the while freeing themselves from any responsibility in the icc process – to which the US is not a state party – vis-à-vis Khartoum.55

Underlying this international justice agenda is an increasingly accepted (though still contested by various international actors) international norm prescribing that certain war crimes and crimes against humanity be prosecuted in an international court and not through national mechanisms or in national courts considered incapable of dealing with the crimes committed.56 The existing international conventions on war crimes, crimes against humanity and genocide upon which the Rome Statute is based define certain crimes as ‘international’ on the basis of their ‘gravity’.57 The icc is intended to intervene only in cases in which national jurisdictions are for various reasons incapable of dealing with the crimes allegedly committed.58 Indeed, the Sudanese government’s main response to the indictment has been to try to establish a national judicial procedure to judge the war criminals, thus arguing for the disengagement of the icc. In an attempt to bridge these opposing approaches, the au presented a proposal to establish hybrid courts that would include international judges in the Sudanese trials; however, Khartoum has persisted in refusing any externalisation or foreign meddling in the process (Sudan Tribune, July 25, 2011).

The invocation of the icc led to a widening gap between the ‘peace’ approach and the ‘justice’ approach to the Darfur conflict.59 Proponents of the former argued that the arrest warrant for President Bashir represented an obstacle to peace negotiations, while proponents of the latter argued that peace without justice was worthless, focusing the culpability for the atrocities on the actions of the president. The fundamental issue revolves around the confusing messages conveyed by the USA and other international actors to the different stakeholders in the conflict.60 The pressure to resume negotiations (that is, maintenance of a transactional relationship with the Sudanese state), while simultaneously seeking to judge the representatives of the same state, proved to be only minimally productive on all fronts. This resulted in a no-win situation in which the different approaches to the conflict ended up as rivals, preventing any priority from progressing.

Beyond state ‘rogueness’: exposing Sudan’s internal weaknesses

A closer examination of the Sudanese state reveals a system that does not retain the level of control assumed by the icc, either in its state apparatus or in the various political groupings within the ruling elite. The domestic conflicts in Sudan are often described as resulting from grievances in the marginalised peripheries and the concentration of power and wealth at the centre.61 Mansour Khalid discusses the ‘hegemony’ of the central government over the rest of the country, a government that is both ‘omnipotent’ (wielding unlimited power) and ‘omniscient’ (knowing all there is to know). However, the problems in the peripheries are based on the lack of rule and control rather than a strong state ruling by force, as Øystein H Rolandsen explains.62 He describes Sudan’s eroding state capacity as diluted into party structures, informal structures and militias in the peripheries, ruling through suppression more than anything else. Alex de Waal describes the Sudanese state as ‘turbulent’, a combination of ‘hyper-dominant’ and ‘unstable’. He identifies ‘the inability of any one elite faction to establish unchallenged political dominance over the state’ as a central feature of the Sudanese state: the ‘center possesses sufficient economic, social, cultural, and political infrastructure that it can support not one but multiple elite groups’.63 This is seen as the main reason behind the state’s incapacity to govern its peripheries or to achieve any sustainable peace, as it has prevented the state from becoming powerful enough to play a stabilising role when needed. Had these analyses of the role of the Sudanese state been considered, they could have pointed towards more useful conflict-resolution approaches for the parties involved.

The US approach to Sudan, based on the perception of it being a rogue state, has had two primary effects. First, it has revealed the ineffectiveness of constant pressure on Khartoum to put an end to the violence; the underlying assumption regarding this pressure was that the state could stop the bloodshed if it only wanted to, as Democratic Representative Tom Lantos wrote in early May 2004 (Boston Globe, May 4, 2004) and as George W Bush stated in his address to the UN in September of the same year.64 There is undoubtedly some diplomatic strategy here: this is what the US government is expected to say to the Sudanese. However, if this posing is not followed by other response mechanisms or diplomacy aimed at understanding the underlying causes of the situation, it has little chance of having any significant effect. The unfortunate result of threats of sanctions that were not always followed through (but also of carrots that were never given) was a disruption in the bargaining and transactional relation with Khartoum, whereby the ‘rogue’ state simply did not allow the pressure to affect its behaviour. In fact, this disruption has in many ways encouraged Khartoum to adopt a more defiant attitude. Further, the US approach to the Darfur conflict has not prioritised a thorough understanding of the root causes of the conflict. The prevalent reading of the Darfur conflict, centred on the Sudanese state’s rogueness, has maintained that the necessary steps were to ‘protect’ the victims and ‘punish’ the perpetrators, neglecting the search for a solution to the underlying causes of the conflict. The USA was certainly engaged in the Abuja negotiations in 2005–06 but in the end this process was focused more on a ‘deadline diplomacy’ strategy than on a holistic approach to the conflict dynamics.65 Despite recently renewed efforts by Qatar to host negotiations, the conflict in Darfur can today be qualified as unresolved at best.

Conclusion

The ‘rogue state’ discourse has perpetuated the image of a state that is unwilling to collaborate and only understands the language of threats and sanctions. This overlooks not only the internal dynamics in Sudan, but also the actual lines of cooperation between Khartoum and Washington. It also fails to take into account the fact that, over the years, Khartoum has developed a strong resistance to the endless threats of increased sanctions. The USA’s Sudan policy has been marked by constant tension between a willingness to cooperate with Sudan and a push for more threats and sanctions to punish it for the crimes committed in Darfur. Sudan still figures on the US list of State Sponsors of Terrorism, even though paradoxically it is in this field that the country has been the most cooperative, serving as an invaluable partner for the USA in its war on terror. A reading of the conflict based solely on the ‘fragile state’ label would not have revealed all the intertwined dynamics of the conflict either, but a greater emphasis on the Sudanese state’s internal weaknesses and instability could have led to a better understanding of the root causes of the conflict.

Notes on Contributor

Maria Gabrielsen Jumbert is Senior Researcher at the Peace Research Institute Oslo, Norway, where she coordinates the research group on Humanitarianism. Her research focuses on norm-production in international relations, the internationalisation of internal conflicts, surveillance of borders and humanitarian crisis, and the conflict dynamics in Sudan and East Africa. Her research has been published in the Journal of Modern African Studies, the Human Security Journal, and Espaces, Populations, Sociétés, among others.

Notes

1. The findings presented here are based on the research carried out for my doctoral thesis, including fieldwork in Sudan in 2007 and 2009 and in countries with intense social and diplomatic mobilisation concerning Darfur (USA, France, Norway), as well as on a total of over 100 interviews with government officials, diplomats and officials from international organisations, activists and civil society representatives in each country. Because of the sensitivity of the topics discussed, many of the interviews with government and UN officials have had to be anonymised. Gabrielsen Jumbert, “The Internationalization of the Sudanese Conflicts.”

2. Finnemore and Sikkink, “International Norm Dynamics”; Marullo et al., “Frame Changes and Social Movement Contraction”; and Carpenter, “Governing the Global Agenda.”

3. Flint and de Waal, Darfur.

4. Ibid.

5. Mans, “Briefing,” 291.

6. Kuper, “Sudan Violence”; and Power, “Remember Rwanda.”

7. Joint Communiqué between the government of Sudan and the United Nations on the occasion of the visit of the Secretary General to Sudan, 29 June–3 July 2004. Accessed October 1, 2013. http://www.un.org/news/dh/sudan/sudan_communique.pdf.

8. Nathan, “The Making and Unmaking,” 431.

9. Interview, Hassan Abdel Atti, independent consultant, Khartoum, 21 November 2007.

10. unsc, Resolution 1769 (2007), S/RES/1769, 31 July 2007.

11. Report of the International Commission of Inquiry on Darfur, 161.

12. Ibid.

13. unsc, Resolution 1593 (2005), S/RES/1593, 31 March 2005. See also Gabrielsen Jumbert, “1593 (2005).”

14. Gabrielsen Jumbert and Lanz, “Globalised Rebellion.”

15. Interviews, Tom Vraalsen, former Special Envoy of the UN Secretary General for Humanitarian Affairs for the Sudan, 28 February 2006; and Hilde Frafjord Johnson, former Norwegian minister of development, 23 May 2006.

16. oecd, “Fragile States 2013,” 15.

17. Ibid.

18. Carment and Samy, “Assessing State Fragility.”

19. Foreign Policy/Fund for Peace, “2013 Failed State Index.” Accessed October 1, 2013. http://www.foreignpolicy.com/articles/2013/06/24/2013_failed_states_interactive_map.

20. See the Introduction by Grimm et al., and Rocha de Siqueira, this issue.

21. oecd, “Fragile States 2013,” 35; and Collier and Hoeffler, “Aid, Policy and Growth.”

22. Marquis, “US Declares ‘Rogue Nations’.”

23. US Department of State, “State Sponsors of Terrorism.” Being listed here leads to a series of sanctions imposed by the USA, primarily ‘restrictions on US foreign assistance; a ban on defense exports and sales; certain controls over exports of dual use items; and miscellaneous financial and other restrictions’.

24. Rose, “Defining the Rogue State.”

25. Interviews, Sam Bell, National Advocacy Director at the Genocide Intervention Network, Washington, DC, 14 April 2008; and John Prendergast, co-founder, Enough Project, Washington, DC, 22 May 2008.

26. Straus, “Darfur and the Genocide Debate.”

27. Blayton, “Human Rights Reporting on Darfur,” posted on Alex de Waal’s ‘Making Sense of Darfut’ blog, 21–24 August 2009. See also Murphy, “Narrating Darfur.”

28. Booker and Colgan, “Genocide in Darfur.”

29. de Waal, “Counter-insurgency on the Cheap.”

30. de Waal, “Genocide by Force of Habit?”

31. Marchal and Osman, “Les ambitions internationales.”

32. Petterson, Inside Sudan.

33. Marchal and Osman, “Les ambitions internationales.”

34. US Department of State, “Chiefs of Mission by Country, 1778-2005, Sudan.”

35. George W. Bush, “State of the Union Address”, 29 January 2002.

36. Rose, “The Osama Files.”

37. Interview, former State Department official, Washington, DC, 23 May 2008.

38. Aba, “George W Bush.”

39. Interview, former State Department official, Washington, DC, 23 May 2008.

40. Kansteiner, “The Administration’s Commitment to Sudan.”

41. Daly, Darfur’s Sorrow.

42. Roger Winter first mentioned Darfur in testimony before the US Congressional Committee on International Relations in May 2003, describing it as a ‘new conflict zone that is not being adequately addressed’. Andrew Natsios visited Darfur a few months later. Flint and de Waal, Darfur.

43. Ibid.

44. Ryu, “Sudan Government Rejects Foreign Military Intervention.”

45. Aballe, “Globalisation de la justice.”

46. International Commission on Intervention and State Sovereignty, “The Responsibility to Protect.”

47. Loconte, “The Failure to Protect.”

48. Bellamy, Responsibility to Protect; Hehir, The Responsibility to Protect; and Chandler, “Unravelling the Paradox.”

49. Lanz, “Save Darfur,” 674. Author’s emphasis.

50. Interview, former State Department official.

51. Interview, former UN official, New York, 24 April 2008.

52. Seymour, No Peace to Keep.

53. Flint, “Darfur’s Outdated Script.”

54. Dezalay, “Lawyering War or Talking Peace?” Report of the International Commission of Inquiry on Darfur.

55. Interview, former UN official.

56. Vinjamuri and Snyder, “Advocacy and Scholarship”; and Caney, Justice Beyond Borders.

57. Koller, “La Cour Pénale Internationale.”

58. Aballe, “Globalisation de la justice.”

59. Natsios, “Waltz with Bashir”; de Waal, “Sudan and the International Criminal Court”; and Enough Project, “Enough Project Praises icc Action.”

60. Lanz, “Conflict Management and Opportunity Cost.”

61. Johnson, The Root Causes; Daly, Darfur’s Sorrow; and Sørbø, “Local Violence.”

62. Rolandsen, ‘Sudan.”

63. de Waal, War in Darfur, 4.

64. George W. Bush, “Address to the United Nations,” 21 September 2004.

65. Nathan, “The Failure of the Darfur Mediation.”

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