Inching Closer: Could Omar al-Bashir finally be prosecuted by the International Criminal Court?

Former Sudanese President Omar al-Bashir, in the dock during proceedings in Khartoum over corruption-related crimes (Photo: Reuters / BBC)

“I reiterate that the government is fully prepared to cooperate with the ICC to facilitate access to those accused of war crimes and crimes against humanity.” So declared Sudanese Prime Minister Abdalla Hamdok on 22 August 2020. Some are surely asking: haven’t we have heard this type of talk from Sudanese officials before? Yes, we have. What we have not seen is any trials of any perpetrators involved in atrocities in Darfur – or the rest of Sudan. Will this latest round of rhetorical commitment to justice translate into actual accountability?

Not long after former Sudanese President Omar al-Bashir’s unceremonious fall from power in April 2019, officials in the country stated their interest in Bashir ‘appearing’ before the ICC. The announcement was met with a feverish reaction: a decade after the ICC issued warrants for his arrest, would Bashir finally find himself before judges in The Hague? The answer, we now know, was: no. In fact, Sudan’s new rulers hadn’t said the country’s former head of state would be sent to the ICC. Rather, they appeared interested in having the ICC put Bashir – and others wanted for atrocities in Darfur – on trial in Sudan itself.

This is also how the Prime Minister Hamdok’s remarks should be understood. He did not say that Sudan was prepared to ship off defendants to the ICC, but that Sudan is now ready to cooperate with the Court to facilitate “access” to those accused. Some, like Bashir and former ministers Ahmad Harun and Abdel Rahim Mohammed Hussein, who are also implicated in the commission of atrocities in Darfur, are currently under arrest in Sudan.

So, what does Hamdok’s commitment to cooperate with the ICC mean? Is it an empty gesture?The short answer is no. This is the first time that someone as senior as the Prime Minister has spoken out in favour of cooperating with the ICC. His comments also come in the wake of protests in which the subject of ICC justice has gained some traction, as well as the recent revision of laws that precluded Sudanese authorities from cooperating with the ICC. As one human rights advocate recently observed, the reforms are “a welcome signal that Sudan’s leaders take seriously their public promises to cooperate with the court on outstanding arrest warrants”. The regular and repeated declarations of support for the ICC from within the Sudanese government also makes it harder to backtrack on their pledge to ensure those targeted by the Court for atrocities in Darfur will be prosecuted.

What justice for Darfur might look like remains murky. The same options on the table exist now as they did when the government first suggested it would work with the ICC. The Court’s Prosecutor, Fatou Bensouda, recently stated that she is not aware of the government’s plans. She has spoken of difficulties in her interactions with interlocutors in Sudan due to the COVID-19 pandemic and the inability of her staff to visit Sudan. So far, authorities have not tipped their hand as to whether they would surrender Bashir, Harun, or Hussein to The Hague if the Court is unwilling or unable to hold proceedings on Sudanese territory. Nor have they indicated any interest in investigating and prosecuting those responsible for international crimes in Darfur themselves; Bashir has been tried in Sudan, but only for corruption and related crimes.

To be sure, after decades of Bashir’s rule and Sudan’s designation as a pariah state, Khartoum wants the benefits that international rehabilitation can bring. Cooperating with the ICC would appear to be part an effort to look like a member of the international community in good standing. But the desire to ‘come in from the cold’ may also be a reason why Sudan has chosen a half-foot-in-half-foot-out approach to the ICC, committing to cooperation, but not spelling out what that would look like. Governing authorities may want to leverage their cooperation for other benefits, including on financial, diplomatic, and trade matters, from states that would like to see Bashir prosecuted by the Court. Skeptics might also suggest that while Sudan’s rulers are interested in the cooperating with the ICC, they will only do so if their leadership is protected from investigation and prosecution by the Court.

Despite the tectonic political changes in Khartoum and despite ongoing negotiations with rebel forces, which included an agreement to ‘hand over’ Bashir to the ICC, mass violence in Darfur continues, with civilians facing the brunt. Parallel to demands for ICC justice, Sudanese protestors have also demanded justice for the deaths of at least 120 demonstrators during the popular uprising that ousted Bashir from power. Authorities have promised accountability for the killings as well as alleged sexual assaults and rapes committed by security forces. But some of those same authorities are themselves implicated in atrocities. Awad Ibn Auf, one of Sudan’s coup leaders, for example, has been sanctioned by the United States and “helped to stand up the infamous proxy militia force known as the Janjaweed, who brutalized the Darfuri population.” Another figure, Mohamed Hamdan “Hemeti” Dagolo, “terrorized Darfur” and now is “calling the shots in Khartoum”.

Ultimately, what the ICC needs most is cooperation from Sudanese authorities. It remains unclear whether ICC prosecutors are ready for Bashir to show up in The Hague. It has been an open secret for many years that prosecutors were not prepared for Bashir to be handed over to be tried for genocide, a notorious difficult crime to prove in court. Of course, that was before Bashir was overthrown and before ICC investigators had access to evidence in Darfur and the rest of Sudan. Now, with Sudan’s cooperation and access to potential defendants, ICC investigators and prosecutors could encourage some of those languishing in jail to testify against Bashir or plead guilty while supplying the Court with invaluable evidence and testimony. That would prove a coup of its own for prosecutors.

It might thus be wrong to suggest that Khartoum is dithering on justice only out of a sense of self-interest. Bashir’s prosecution would be the ICC’s biggest, most difficult, and most dramatic to date – by far. The Court’s prosecutors might be quite happy, then, for the wheels of justice to grind slowly but surely. It gives them ample opportunity to prepare for Bashir’s trial – wherever it may take place.

A version of this article was originally published in The National. 

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Darfur, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, Sudan. Bookmark the permalink.

3 Responses to Inching Closer: Could Omar al-Bashir finally be prosecuted by the International Criminal Court?

  1. El roam says:

    Important post. Just worth to mention, how important it would be, to hand him over to the ICC, and not try him in Sudan. As we can recall, South Africa, member (by all means) to the Rome statute, has failed at the time, to hand him over to the ICC, while he was attending, the AU summit there. South Africa is the main state and leading state in that continent. That wasn’t even recklessness. It was deliberate act (not to hand him, and letting him avoid arrest). Even the Supreme court there, called for police investigation into such disgrace. Now:

    Following that event, South Africa initiated process of withdrawal from the Rome statute, soon followed by other African states.As such:

    When and if he would be handed over, and to the ICC, and not even by state party to the Rome statute, it shall maybe, restore confidence and reverence to that institution (ICC).

    Thanks

  2. Lydia Huang says:

    Important updates on this event, thanks for the post. Just a couple things worth considering. While It is great to see that the Sudanese government are finally starting to act on their promises, it does still lack concrete actions/plan. I could see why they would delay it for now and use it as an leverage to gain more benefits on other international matters or even just more recognition. But by doing so, they are (arguably) stripping the notion of justice away from the victims and using them for other means. Would that be fair? Also while Omar al-Bashir is trialed (or waiting to be, I guess) some perpetrators are sanctioned because they are still in power (as mentioned in the 3rd last paragraph), then would this simply be a game of the victors? only those defeated will be trialed while those who won are sanctioned? Is that still accountability across the board?

    Great article overall btw. Informative and thought provoking!

    • Mark Kersten says:

      Thank you for the reply, Lydia.

      I agree details on a concrete plan are thin. But I don’t think that’s too unusual at this stage, especially with some many priorities facing the transitional council and Sudan’s civil society.

      I think there is always a risk of a degree of victor’s justice, but any action to bring senior-level perpetrators in Sudan to account would be welcome. I think a proper, fair trial of Bashir could potentially heal many wounds.

      Thank you again!

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