James Nyawo joins JiC for this post on where former Sudanese President Omar al-Bashir should be tried. James is currently a Visiting Researcher with Global Sites of International Criminal Justice (JustSites) at Copenhagen University. He is a lecturer at Kenyatta University, Nairobi, Kenya.
Choosing the location of atrocity crime trials can have far-reaching consequences. For victims and societies emerging from autocratic and brutal regimes, local trials can have therapeutic effects. On the other hand, trials held outside of the country and context where crimes were committed, for instance in the International Criminal Court (ICC) in The Hague, are not impeded by local power battles and dynamics. Choosing the location of trials is also linked to the financial cost of legal proceedings, international trials often being more expensive. Besides such consequences, the choice of the location of atrocity crime trials can send specific signals to different stakeholders. All of this is being played out right now in Sudan, where authorities must decide where from President Omar al-Bashir should be put on trial: in The Hague or in Sudan.
Following World War Two, the Allies selected the war-damaged Nuremberg, which had been the central nerve for Nazi propaganda rallies and where the infamous Nuremburg Laws of 1935 had been passed, as the location for the International Military Tribunal. The trial and the location not only symbolized the death of official Nazism but also marked the genesis of the remembrance and re-membering process of the German and European society. The choice of Nuremberg as the location of the trials had symbolic meaning and aimed at establishing the crimes of the Nazi regimes firmly in the eyes of the German and European people.
More recent experiences of establishing international tribunals, demonstrates, however, that it is not always possible to conduct international or national prosecutions in the states where atrocities occurred. States torn by war may lack the necessary judicial infrastructure, logistics and security. For instance, although the Rwandan authorities wanted the International Criminal Tribunal for Rwanda to be established in Kigali, a compromise had to be reached for it to be established in Arusha, in neighboring Tanzania. This was done because an international tribunal based in Kigali might have sent wrong messages of bias against the Hutu ethnic community. Given Arusha’s proximity to Kigali, it made the Rwanda Tribunal accessible to Rwandan survivors and the local media.
The delegates at the Rome Conference which negotiated the Rome Statute did not spend much time deciding on the trial location for ICC suspects. Such burden was lessened when The Netherlands offered The Hague as the seat for the Court. Since The Netherlands was the only state to make such an offer, the seat of the (ICC) was established in The Hague, amidst other international legal institutions in a city that brands itself as the “international city of peace and justice”. Since coming into operation two decades ago, the Court has heard all of its cases in The Hague. It has chosen to remain remote and detached from the where crimes were committed and where survivors of atrocities are located. The Court has been criticized for delivering ‘distant justice’ which makes social and general deterrence difficult to maximize. In light of this criticism it is highly puzzling that Article 3, which authorizes the ICC to “sit elsewhere, whenever it considers it desirable,’’ has largely gone under the radar among the Court and academics. Bashir offers a good opportunity for the ICC to revisit its policy on trial location.
Since the removal of former President Omar Hassan Bashir and his government from power in 2019, there have been sustained efforts to have Bashir and other suspects transferred to The Hague and face trial for atrocity crimes committed in Darfur. The transitional government in Khartoum has indicated its initial readiness to hand Bashir over to the Court. One would hope that this is not a public relations stunt by the new leaders in Khartoum.
The time is ripe for the ICC to invoke Article 3 paragraph 3 and prosecute Bashir and other high-profile Sudanese suspects in Khartoum. There are several advantages to this: First, Omar Bashir has mocked the ICC as dead, a description that does not seem to have dampened the push to hold him criminally accountable. Witnessing him face trial by the Court in Khartoum might reignite broader hope and belief that all leaders can be held accountable, especially locally in Sudan.
Second, a trial in Khartoum could serve as a form of legal diplomacy between the Court and the African Union (AU). The two institutions have had a turbulent relationship following the Court’s intervention in Sudan. This turbulence was particularly evident when, in 2010, the African Union Assembly rejected requests from the Court to open a Liaison Office in Addis Abba, Ethiopia, where the AU is headquartered. The AU also threatened to request its members who are State Parties to the Rome Statute to withdraw from the treaty, however an African exodus from the statute did not take place. Conducting trials in situ in Khartoum is likely to be acceptable to the AU. In 2009 an AU High Panel for Darfur proposed a similar approach through the establishment of a hybrid court. As a regional body founded on pan-African values, the AU supports African leaders facing trial on African soil. The decision could open a window for the two institutions to re-engage and strengthen ties.
Third, a trial in Sudan would enable the majority of Sudanese and African media houses access to the proceedings. If such a high-profile trial was held in The Hague, only a limited number of African journalists and media outlets are likely to have access to the proceedings due to both financial constraints and visa entry limitations. In addition, African media houses can broadcast the proceedings in local languages which would be a huge outreach boost for the Court in the continent from where its largest number of active investigations and preliminary examinations comes. Bringing the trial to Africa is likely to raise public awareness of the Court and its operations in and outside of Sudan.
Lastly, Sudan is emerging from a long period of international isolation and economic stagnation. It needs to repair its international image and find its footing as a member of international community. The trial of some of the high-profile suspects for Darfur atrocity crimes in the Court will be an opportunity for Sudan to cement its commitment to fight impunity. In a historical parallel, following the Nuremburg Trials, the German Government also set up its own Central Agency for the Investigation of Nazi Crimes and continued prosecutions (denazification) of individuals who had not faced trial at Nuremburg. In a similar vein, Omar Bashir’s trial is likely to yield general evidence, which could be used to open wider investigations and prosecutions in Sudan.
Justice does not only have to be done but must also be witnessed by the victims as being done. Darfurians and Sudanese citizens in general, may or may not have dreamt of a day when they would see Omar Bashir face trial for the atrocities committed in Darfur. But such an opportunity has presented itself following his ousting in 2019 and the ICC now has an opportunity to demonstrate its global maturity and correct its image as a ‘Western Court’. The Court should prosecute Omar Bashir and his officials from the locality of the former Presidential Palace along the famous Nile Street.
Justice in Conflict 
Important issue indeed.
Yet, one may strongly disagree here with all due respect:
The respectable author of the post, express or presents such arguments through the lens of domestic benefits. But, there is another sphere to consider here, and it is obviously, the international sphere:
First, conducting the trial in the Hague, would also have important symbolic value. Those are international norms that stand to trial. Norms which are considered as jus cogens. Beyond any cultural and national subjective perception as such. Making it in the Hague, would emphasize it, let alone, while other international courts or tribunal, are routinely situated or located there.
As well in terms of media and coverage of the story or trial . Say more Sudanese, one would claim then, less international audience naturally.
Also, one should consider the workload of judges. Sitting in Sudan, would affect them or their workload in other cases one may assume naturally.
And with all due respect, recently, that wrong perception, that it is a Western court, has faded out. Fatou Bensouda and others, just to be reminded, not only have been harmed by US sanctions on them (lifted by Biden) but:
Despite the decision of pre trial chamber at the time, not to permit investigation (formal one) in Afghanistan, she has appealed at the time, and the appeal chamber, reversed that decision. So, how Western court ? daring to challenge the mighty superpower? It has more than bit relaxed such senseless perception.
Thanks
Thank you for this post. And thank you for drawing attention to the (lack of) use of Article 3 paragraph 3.
I find your points interesting, however, I worry that the “Western Court”-image will not subside merely by moving the locality of proceedings. The criticism is after all not based on its location, but the political interests which (alledgedly) influence the prosecutorial choices. Likewise, as I understand the support of the AU for African leaders facing trial on African soil, it is not to be taken so literally as to be merely concerned with the location of such trials. I fear that the ICC swooping in to Khartoum will not make any individual trial or the Court as a whole seem less ‘Western’ to its critics. In fact, as I see it, situating ICC proceedings in an African, rather than an international setting (as pointed out by El roam above) could potentially contribute to highlight its ‘otherness’ or ‘westernness’.
In this vein, I do not agree that it can be concluded that the AU is likely to find it acceptable for the ICC to conduct trials in situ in Khartoum, based on the AUs support for a hybrid tribunal in 2009. Hybrids is another can of worms, but such proceedings may address the ‘Western’ problem to a certain extent, in that it would – at least in part – be founded in the laws and values of the affected community. I fail to see how this could be accomplished in a comparable degree by the ICC being situated in Khartoum, as its proceedings would still be removed from local context – albeit not physically, I grant you.
As a small sidenote, whether local criminal trials (or indeed criminal trials in general) have a therapeutic and healing effect for victims and communities remains a contested issue and I find it problematic that this is described as a given.
Again, thank you for an interesting post. I look forward to a discussion on why the ICC refrains from operationalising Article 3 paragraph 3 and whether they should do so.