A remarkable transition is underway in Sudan. After months of protests, Omar Al Bashir’s autocratic regime finally collapsed this month. It is, of course, quite ironic that Bashir, who came to power after leading a military coup in 1989, was ultimately forced out by his own military comrades. The situation on the ground continues to evolve very quickly. Talks between a transitional military council and civilian protesters, who want a complete overhaul of the power structures sustaining the former regime and the formation of a civilian-led government, were suspended on April 21. The African Union (AU), the European Union and the U.S. had previously stepped in, urging a swift transfer of power to civilian authorities.
Bashir’s ouster has also triggered renewed interest in the International Criminal Court (ICC)’s Darfur investigation. In addition to the Bashir case, which generated the court’s first arrest warrant against a sitting head of state, the ICC has three other pending cases against Sudanese suspects. Moreover, the Bashir case has been at the heart of a serious disagreement between the ICC, the AU and various African states over the scope of immunity for heads of state, with legal and political consequences extending well beyond Sudan.
It is noteworthy that civilian protesters had not made any explicit demands regarding the ICC’s Bashir case, as Sudan expert Alex de Waal of the Fletcher School of Law and Diplomacy noted shortly after the ruler’s ouster. But while the ICC could still become an attractive alternative for a mix of political and security reasons, the international community should not assume that an international trial is necessarily the best way forward for Sudan.
What do We Know About Bashir’s Arrest?
One of the greatest mysteries of the transition thus far has been the fate of Bashir. Shortly after his ouster on April 11, reports emerged that Bashir may have gone, or would soon go, into exile. Saudi Arabia and Egypt were touted as possible destinations, most likely because they are not ICC states parties with corresponding obligations to surrender Bashir to The Hague.
Other unconfirmed reports suggested that Bashir and a number of high-ranking members of the ruling National Congress Party (NCP) had been arrested. Notably, among the detainees was Ahmad Harun, who recently had taken over from Bashir as NCP head and also faces an outstanding ICC arrest warrant.
Speculation about Bashir’s fate continued to mount. At first, it seemed that the entire coup, which was orchestrated by Bashir’s former allies, would amount to a cosmetic rebranding rather than a genuine transfer of power. Lt. Gen. Awad Mohammed Ibn Ouf, who assumed control of the transitional council briefly on April 11, had been Bashir’s minister of defense, and his human rights record left much to be desired. Equally important, the military announced rather quickly that Bashir would not be going to the ICC, which suggested that power could ultimately remain in ‘the family.’
But Bashir’s fate looks increasingly uncertain. Although the military initially conceded that Bashir would be tried in Sudan (which was itself a remarkable development), the charges were reportedly limited to corruption and other financial transgressions. After several days of uncertainty about his whereabouts, it was announced on April 16 that Bashir had been moved from the presidential palace, where he had been kept under house arrest, to Khartoum’s infamous Kobar prison, where he was to be held in solitary confinement. This may suggest that Bashir’s negotiating position, if any, is deteriorating.
Who Should Try Bashir?
That there is a real prospect of accountability in Sudan is remarkable. Few would have thought this possible just a few weeks ago. But this raises a host of difficult legal and political questions as well. In particular, Bashir’s ouster has generated intense speculation among international lawyers about the prospect of a future trial at the ICC. This is not surprising, but a few observations are in order.
First, it is the Sudanese people who have suffered under Bashir’s rule, so it is for them to decide what happens to Bashir. This may seem obvious, but things will likely get complicated when the dust settles in Khartoum and a serious discussion about accountability for past abuses begins.
There will be different views about where and how to hold Bashir accountable, although many reports suggest that Sudanese have a preference for a domestic justice process. Indeed, civil society and academics have already begun to explore the possibility of setting up a domestic tribunal. However, these are still very preliminary discussions and, in any event, organizing a trial is not the most pressing issue facing the transitional authorities.
Second, and relatedly, this is not just about Bashir. An entire regime has fallen. Other NCP stalwarts have already been arrested and further arrests are likely. Moreover, many Sudanese and foreigners propped up this regime, which means that there will inevitably be a protracted and messy debate about accountability for past abuses and the way forward. The ICC and other international actors should be able to play a constructive role in this discussion, but – as explained below – this will require humility and foresight.
Third, for the time being, international actors, including the ICC, should not call for Bashir’s surrender to The Hague. This will be difficult to accept for some, especially given the ICC’s current problems. It is true that, after the controversy surrounding the ICC’s refusal to authorize an investigation regarding potential war crimes in Afghanistan, a high profile ‘genocide trial’ in The Hague could bolster the Court’s credibility. But there are strong legal, prudential, and policy arguments in favor of domestic justice.
Mark Kersten and other researchers have warned that the ICC’s cases against Bashir and other Sudanese suspects have weak evidentiary foundations because the Prosecutor has yet to ever conduct investigations in Sudanese territory. Before the ICC and others start to reflexively call for Bashir’s surrender to The Hague, the Prosecutor must make sure she can actually prove her case in court. Given the recent controversies in the cases of Jean-Pierre Bemba and Laurent Gbagbo, two high-profile trials which ended disappointingly for thousands of victims in the Central African Republic and Cote d’Ivoire, the last thing the ICC needs is another acquittal for lack of evidence.
Equally important, despite its pending arrest warrants against Bashir, Harun, and Hussein, the ICC does not have jurisdictional priority in Sudan. It is quite possible that a new Sudanese government will launch admissibility challenges, requesting the Court to defer to Sudan’s domestic proceedings. If this happens, the Court will find itself in a Libya-type conundrum. It is too early to know how the Prosecutor would approach such a challenge, but the Court’s complementarity case law makes it clear that, even if Sudan makes a good faith effort to prosecute Bashir and others, ICC judges can insist on their surrender to The Hague.
This temptation should be resisted. If Sudan ends up making a good faith effort to prosecute Bashir and others domestically (this remains a big ‘if’), ICC judges must devise a more persuasive complementarity jurisprudence to accommodate this. Recent developments in the Simone Gbagbo case suggest that some ICC judges may finally be willing to properly consider domestic accountability preferences. It is too early to know if the ICC will abandon or adjust its unpersuasive complementarity jurisprudence, but one would hope that the Court will recognize that a domestic trial of former regime officials would mean much more to the Sudanese people than an international trial ever would to the international community.
For now, that international community has shown commendable restraint in not calling for Bashir’s immediate surrender to the ICC (with the notable exception of Human Rights Watch). As noted above, the EU, U.S. and AU have issued public statements, but only the EU makes an oblique mention of the ICC. The Court itself has not weighed in. This is wise. The situation is far too volatile, and the stakes much too high, for the ICC and other international actors to start pressuring the transitional authorities for Bashir’s immediate surrender. Such pressure could easily backfire, for instance by strengthening the position of hardliners within the military.
While the best course of action is to prepare and wait, the ICC may not have the luxury of waiting too long. The current transitional authorities or their successors may proactively request the ICC to take Bashir, Harun, and Hussein. Depending on how political conditions in Sudan evolve, removing these figures from the domestic political scene may prove to be the more convenient domestic political course of action. We have seen this dynamic in relation to other ICC countries, most notably in the DRC and Uganda, where governments have used the ICC to remove political and military opponents. If only to avoid mistakes of the past, the ICC should proceed with great caution before it accepts any domestic request to prosecute Bashir and other Sudanese suspects.
After decades of authoritarian rule, Sudan is on the brink of making history. Civilian rule may soon be restored, and there will certainly be a role for the international community in facilitating a peaceful transition. While accountability should be an integral part of the transition, it should not be reflexively assumed that international trials are the best way to achieve this. The ICC and other international actors must play a constructive role in encouraging Sudan’s transition to democracy, including a reckoning with past crimes.