Victor Peskin, Eric Stover, and Alexa Koenig join JiC for this piece on the prospect of holding deposed Sudanese President Omar al-Bashir to account at the International Criminal Court. Victor is an associate professor in the School of Politics and Global Studies at Arizona State University and a senior research fellow at the Human Rights Center, University of California, Berkeley. Eric is the faculty director and Alexa is the executive director of the Human Rights Center. Peskin, Stover, and Koenig co-authored Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg to the War on Terror (University of California Press, 2016).

(Sudanese protestors rally against the regime of Omar al-Bashir in 2019. Photo: Sky News)

Sudanese President Omar al-Bashir has long been the bane of the International Criminal Court (ICC). For the last decade, the Court has sought his arrest and transfer for atrocity crimes in Darfur. But with Bashir’s dramatic ouster last month, his detention by the Sudanese military, and ongoing protests urging a transition to civilian rule, could his days of evading international justice soon be over? Justice advocates certainly hope so. But are their expectations misguided?

At the behest of the UN Security Council, the ICC launched an investigation of atrocities in Sudan’s Darfur region, which resulted in Bashir being charged with war crimes, crimes against humanity, and genocide for the slaughter of some 300,000 people and the displacement of another 2.5 million. Initially, the ICC appeared to enjoy the backing of the 120-plus ICC member states and even the support of the United States, China, and Russia, who are not members.

While activists and Darfuri victims applauded the decision of the ICC’s first chief prosecutor, Luis Moreno-Ocampo, to target Bashir, there was also pushback. His indictment of the head of state of one of Africa’s most strategically important states sent shock waves through the region while discomfiting Western officials who had sought Bashir’s cooperation to end the war in Darfur, allow peacekeeping missions, and facilitate humanitarian relief. Consequently, the international community never mustered the political pressure to bring the Sudanese leader to trial.

Moreno-Ocampo, meanwhile, lost his best chance to apprehend the Sudanese leader when he failed to use a sealed arrest warrant. Once the warrant became public, Bashir strategically avoided travelling to ICC member states that might have arrested him. However, he made numerous visits to African ICC member states, like South Africa and Nigeria, that were legally obligated to transfer him to The Hague but instead welcomed him with open arms. Bashir also travelled with seeming impunity elsewhere in Africa, throughout the Arab world, and to his patrons in Beijing and Moscow.

Even worse for the ICC, the Bashir indictment – and a subsequent indictment of Kenyan President Uhuru Kenyatta – prompted the African Union to call for an end to ICC prosecutions of sitting heads of state. Soon thereafter, Kenya launched a campaign urging the 30-plus African state parties that belonged to the ICC to withdraw their membership. To date, Burundi is the only African country that has withdrawn, but the threat of a mass exodus still looms. Accusing the ICC of anti-African bias, some states have argued that the Court is nothing more than a political tool deployed by the West to topple African leaders. This claim of Western control now has greater resonance in light of an April 12 ICC pre-trial chamber ruling denying Chief Prosecutor Fatou Bensouda’s request to investigate crimes in Afghanistan, including those by US armed forces and the CIA. The pre-trial chamber blocked the Afghanistan investigation, citing the low prospects of American cooperation from an avowedly obstructionist Trump administration, arguably incentivizing other countries to refuse to assist ICC investigations.

In the initial wake of the ICC indictment, Bashir became a pariah, at least in the West. But as the years passed, his notorious image began to fade. Global attention to the crimes of the Khartoum regime had been buoyed by the activism of the prominent U.S.-based Save Darfur movement and celebrity figures like George Clooney. For a time, as Rebecca Hamilton wrote in a recent commentary in Foreign Policy, “Bashir’s face appeared on wanted posters on subway platforms and online platforms were designed to track Bashir’s movements.” But activist scrutiny of Sudan has since subsided.

Until anti-government protests broke out in December, several Western states were even warming up to Bashir in an effort to secure Khartoum’s assistance in combating terrorism and curbing the flow of refugees crossing the Mediterranean. Late in the Obama administration, the U.S. lifted some sanctions on Sudan despite on-going government atrocities, including a 2016 chemical weapon attack that reportedly killed some 200 Darfuri civilians including scores of children. Bensouda grew so disillusioned with the Security Council’s lack of support that, in 2014, she suspended her investigation of the Bashir case, prompting the Sudanese president to declare victory.

What does the fate of other fallen leaders tell us about Bashir’s future? 

What are the ICC’s chances of prosecuting Bashir now that he is reportedly confined to a jail cell In Sudan’s notorious Kober prison? Examining the fate of other heads of state can illuminate the conditions that could possibly lead to an international trial of the deposed Sudanese leader.

If the fate of other presidents and prime ministers are any indication, then time may be on the ICC’s side. Since the emergence of the first contemporary international criminal tribunal in the early 1990s, six sitting heads of state (besides Bashir) have faced international indictment. And with the exception of Libyan leader Muammar Gaddafi – murdered by rebels in the bloody climax of the country’s civil war and NATO-led air war – all but one of these suspects has been tried internationally. Three were arrested and transferred into international custody. Kosovo Prime Minister Ramush Haradinaj resigned his leadership position and surrendered to the International Criminal Tribunal for the Former Yugoslavia in The Hague. Kenyan President Kenyatta retained his leadership position while appearing voluntarily for pre-trial and trial proceedings at the ICC. Yet only one of these six leaders has been convicted – an outcome that underscores the difficulty of substantiating criminal accusations against state leaders implicated in orchestrating atrocity crimes far from the actual scene of the crime. Among the contemporary international criminal tribunals, the ICC has struggled the most in securing convictions of heads of state, as seen in the collapse of the prosecutions of Kenyatta and former Cote d’Ivoire President Laurent Gbagbo. This poor track record and the difficulty of substantiating genocide charges has, as Mark Kersten recently observed, raised questions about the preparedness of the prosecution to effectively tackle the Bashir case if and when he ends up in The Hague.

Still, deposed heads of state facing international indictment have lived on borrowed time once they lost power. In office, an indicted leader has a state security apparatus to shield him from arrest and often the diplomatic leverage to forestall international pressure for his handover. During armed conflicts, diplomats tend to be singularly focused on persuading an indicted head of state to curb abuses and end conflict. In certain circumstances, the international community may seek to negotiate a leader’s departure from power by promising a secure exile. In these situations, international justice takes a back seat to diplomatic deal-making.

Once out of office, however, an indicted former leader can become suddenly vulnerable. An electoral or battlefield victor often harbors a desire to see its defeated rival prosecuted in the international dock. Yet desire and interest do not necessarily coincide. A new government may forego punishing its enemies to avoid a political backlash or facilitate a transition to civilian rule and a new democratic order. Often new regimes or governing coalitions carefully navigate the question of transitional justice so as not to antagonize a still powerful military or other influential supporters of a fallen regime. This is particularly likely when constituencies linked to suspected war criminals exercise enough political influence, either within or beyond government, to jeopardize the new leadership’s fragile hold on power.

But even when a successor government or a third state vows to shield a toppled leader from handover there is no guarantee that such protection will last. In the cases of Liberia and Serbia, fallen leaders initially enjoyed protection only to face accountability when political circumstances changed. In both countries, as discussed below, the key change occurred in the international arena. Powerful states altered course by deciding to exert effective pressure leading to the handover of a deposed leader. When a successor government is reluctant to hand over a fallen leader — either due to being implicated in atrocity crimes itself, sympathetic to those with blood on their hands, or fearful of the political backlash of cooperating with an international tribunal — then only strong international pressure can push that suspect into the dock. The fates of Charles Taylor and Slobodan Milosevic illustrate this point.

To avert ongoing bloodshed in the Liberian civil war, Nigeria, with American and British backing, granted Liberian President Charles Taylor exile in June 2003. But when Taylor ran afoul of the West for meddling in Liberian politics, U.S. and European leaders went from protecting the former president to seeking his international prosecution. Taylor was arrested in March 2006 as he sought to flee to neighboring Niger. He was then promptly sent to the UN-supported Special Court for Sierra Leone. A policy shift in Washington – driven by a bipartisan Congressional consensus to see the former Liberian leader stand trial – resulted in diplomatic pressure on Nigeria to turn on Taylor. Once out of power, the former Liberian strongman would become vulnerable to changing political tides that swept him from his luxurious villa along Nigeria’s Atlantic coast.

In another illustrative example, seven months after Cote d’Ivoire’s President Laurent Gbagbo fell from power, the new Ivorian government transferred him to the ICC. Gbagbo had been in domestic custody since his arrest by UN troops and Ivorian opposition forces at the end of the country’s civl war. The political logic behind Gbagbo’s transfer is straightforward, particularly because the new leadership had vanquished his forces in a civil war. Yet, some victorious regimes would rather prosecute members of a defeated government domestically to establish their legitimacy and deliver justice where it can be more readily seen by the populace. In fact, in Cote d’Ivoire, the Alassane Ouattara government later insisted on its right to prosecute Gbagbo’s wife rather than hand her over to the ICC. Similarly, had Gaddafi lived, the new Libyan government would have probably sought to put him on trial in Tripoli. The government chose to prosecute Gaddafi’s son (and potential heir apparent) Saif al-Islam Gaddafi, along with Gaddafi’s former spy chief, Abdullah al-Sanussi, instead of handing them over to the ICC. Under the Court’s complementarity provision, a state can prosecute suspects indicted by the ICC if the state can substantiate its capacity to hold a credible trial.

In Serbia, state authorities sent former President Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in June 2001. This came nine months after he relinquished power following an electoral defeat and three months after he had been put under house arrest in Belgrade. After his fall from power, the question was not whetherMilosevic would face justice, but where. The new democratic government led by the center-left reformer Zoran Djindjic initially wanted to see the former authoritarian leader stand trial in Belgrade, for crimes against the Serbian people – namely, political assassinations and corruption – rather than for the more serious international crimes perpetrated against opposing ethnic groups throughout the former Yugoslavia.

The ICTY enjoyed legal primacy over the Serbian government and thus had the right to try Milosevic. But the question of who would prosecute Milosevic would ultimately be decided by politics, not law. In the end, international political support proved the crucial factor that led to his trial in The Hague. Washington had what Belgrade wanted – loan guarantees to help rebuild an economy badly damaged by Serbia’s disastrous wars of the 1990s. The U.S. threatened to block these loans until Djindjic sent Milosevic to the ICTY. The West’s interest in seeing Milosevic – whom it had waged war against in the 1999 NATO intervention during the Kosovo war – was clear for all to see.

Sudan’s uncertain transition and the fate of Bashir

 Bashir’s fate depends to a great extent on Sudan’s uncertain political transition. The military regime that deposed him vows to remain in power for two years, despite on-going mass demonstrations and strong calls from the African Union and Western states for a quick transition to civilian rule. It is hard to imagine the current military regime going back on its insistence that it will not send Bashir to the ICC. Key figures in the post-Bashir regime are deeply implicated in atrocity crimes in Darfur, even though it is only Bashir, two former government officials, and one member of the Janjaweed militia who face ICC charges.

If holding Bashir in Sudan somehow becomes a political liability for the military leadership, he could be sent to exile in a friendly state like Saudi Arabia that is not an ICC state member and, thus has no obligation to hand over the 75-year-old former president. Already, Uganda, whichisan ICC member state, has indicated its willingness to consider granting asylum to Bashir. For now, the international imperative is to press for a non-violent handover of power to a civilian government, and not a handover of Bashir to The Hague.

But what if a civilian government takes power, either in the short or medium term? Much would depend on the priorities and composition of that hypothetical government and whether or not members of the current military regime are granted control over important matters of state. But even if the military fully relinquishes power, a new civilian government may have little interest in risking the revolt that might occur if Bashir was transferred to the ICC. That is not to suggest that the still active protest movement that prompted Bashir’s removal is not interested in accountability. In Sudan, as in Serbia, a strong desire exists to hold the deposed leader to account. But if there is any judicial reckoning, it is more likely to occur in Khartoum and for the regime’s crimes against anti-government protestors and endemic corruption than for the international crimes committed in Darfur.

Alternately, a civilian government in Sudan may try to deflect calls to prosecute Bashir in The Hague by seeking a domestic war crimes trial under the ICC’s complementarity provision. In another scenario, the African Union could preempt the ICC by creating a hybrid AU-Sudanese court. This would emulate the AU-Senegalese court that successfully prosecuted former Chadian dictator Hissène Habré in 2016.

A domestic judicial reckoning might have occurred in Belgrade (and not at the ICTY) had there not been strong international political intervention to press for the handover of Milosevic. In the end, the U.S. devised a highly effective policy of sticks and carrots to compel Serbian authorities to transfer Milosevic. In the following years, the European Union conditioned Serbia and Croatia’s advancement toward Union membership on its progress in transferring prominent suspects to the ICTY. Crucially, the West had both the interest and the means to compel the new leaders in Belgrade to cooperate with that UN tribunal.

The impressive international commitment to the ICTY has been almost entirely absent in the ICC’s beleaguered intervention in Sudan. And, at least for the time being, there is little reason to suspect that this will change. In the Serbian context, the world’s most powerful country and the key regional organization, the European Union, pressed for the handover of the deposed leader. The West possesses important leverage with Khartoum. Washington could use the leverage of promising to lift remaining sanctions and remove Sudan from the U.S. list of state sponsors of terrorism to press for Bashir’s arrest. But the U.S. under President Trump and National Security Adviser John Bolton has cast itself as a mortal enemy of the ICC and is unlikely to use its leverage to push for Bashir’s transfer to the international court. Moreover, the key regional organization, the African Union, has long sought to derail the Court’s quest to prosecute Bashir, deriding it as a Western attempt to subjugate Africa.

Now that it has won a major victory with the ICC pre-trial chamber’s rejection of an Afghanistan investigation, would the Trump administration aid the Court in Sudan? Doubtful. And would the African Union, after years of condemning the ICC’s indictment of Bashir as an attempt to undermine African sovereignty, press a post-Bashir government to transfer him to The Hague? Alsodoubtful. Doingso would seemingly contravene the AU’s policy of urging member states not to send Bashir to the ICC. In fact, the pre-trial chamber’s decision to block the Afghanistan investigation is likely to fuel the AU’s long-standing claim that the Court is fixated on targeting African suspects. It is possible, however, that the AU will feel less of a need to protect Bashir now that he has been toppled.

In this climate of intense American opposition and African dissatisfaction with the ICC, it becomes more difficult to envision concerted international pressure on a military or civilian government in Khartoum to hand over Bashir. Instead, it seems more likely that he will continue to evade the ICC by remaining in Kober prison, face domestic prosecution for crimes that do not include those committed in Darfur, or be sent into exile. It is less likely but still possible that a civilian government, either alone or in conjunction with the African Union, could prosecute Bashir for Darfur atrocities. Of all the scenarios, it is least likely that the former Sudanese president will face trial at the ICC. But the endgames of the Slobodan Milosevic, Charles Taylor, and Laurent Gbagbo cases remind us that Omar al-Bashir may yet land in the international dock.