Sudan’s transitional government announced on Feb. 11 that the Sudanese individuals “who have been indicted by the [International Criminal Court] (ICC),” will “have to go [to the Court].” Presumably, this statement refers to the three individuals reportedly in the custody of the Sudanese government: former President Omar al-Bashir, former Minister of Defense Abdel Raheem Hussein, and former Minister of State for the Interior in charge of the management of the “Darfur Security desk,” Ahmad Harun.
The announcement came as the transitional government in Khartoum is in peace talks with rebel groups in a bid to end a longstanding conflict that has involved a bitter civil war, allegations of various international crimes (including genocide), and the secession of South Sudan in 2011.
While an encouraging development for those who wish to see al-Bashir and other key members of his regime prosecuted for their roles in atrocities in Darfur, the details regarding when and if these individuals will be extradited to the Hague to stand trial remain unclear.
Al-Bashir seized power through a coup in 1989 while Sudan was embroiled in the second of two brutal civil wars (1955-1972 and 1983-2005). The second civil war pitted the al-Bashir regime, based in Khartoum in the north, against southern rebel groups, especially the Sudanese People’s Liberation Army (SPLA). For decades, many described al-Bashir’s regime as a kleptocracy, wherein al-Bashir and a small group of ruling elites “amassed personal fortunes by looting the country’s considerable natural resource wealth and state assets.” Although the country experienced deprivation, violence and repression regularly before 2003, al-Bashir’s regime gained a new level of international notoriety during that year, when a group of civil society actors formed the Save Darfur coalition and began organizing mass protests in the U.S. and elsewhere.
Save Darfur was able to gain attention as the world observed the 10th anniversary of the Rwandan Genocide by successfully pushing various high-profile figures, such as then-Secretary of State Colin Powell, to label the ongoing violence in Darfur as a genocide. Against this backdrop, the United Nations Security Council took the rare step of referring the situation to the ICC, an institution Sudan is not a State party to, for investigation in 2005 via Resolution 1593.
Things began to turn, if slowly, for al-Bashir as pressure mounted on various fronts. First, the regime entered into a peace agreement in 2005 providing that, inter alia, the people of southern Sudan would decide after six years whether to remain within Sudan or to opt for independence. The southern Sudanese population overwhelmingly voted for independence, resulting in the creation of the new country of South Sudan in July 2011. Neither the 2005 peace agreement, nor the creation of an independent South Sudan definitively ended the conflict. Sudan did, however, lose the vast majority of its oil fields to South Sudan, creating serious economic challenges for the regime.
In April 2008, then-U.N. Undersecretary-General for Humanitarian Affairs John Holmes estimated that 300,000 people had died in Darfur since 2003 and 2.7 million more Darfuri civilians had been displaced.
In March 2009, ICC Pre-Trial Chamber I issued a warrant of arrest for al-Bashir, charging him with the war crimes of directing attacks against civilians and pillage, and the crimes against humanity of murder, extermination, forcible transfer, torture and rape, but it declined to charge him with genocide. Following a successful appeal by the prosecution, on July 12, 2010, Pre-Trial Chamber I issued a second warrant of arrest for al-Bashir, adding charges of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups. Even for the ICC, the charges against al-Bashir were especially big news and deeply politicized. The Save Darfur movement had given the issue extreme social visibility, and al-Bashir made history as both the first sitting head of State indicted by the Court and the first person charged with genocide at the ICC.
In the decade since the ICC issued the second arrest warrant for al-Bashir, even as the regime’s power base began to weaken, there has been little to suggest that he or anyone else from his regime would actually be arrested and sent to the Hague to be tried. Indeed, for years, al-Bashir openly flouted the warrant by continuing to travel outside of Sudan, including to the territory of ICC State parties. For example, in 2015, al-Bashir left South Africa on his presidential jet in the middle of the night after being informed of his potential arrest and mere hours before the South African courts ruled that the South African government had a duty to arrest him.
The final stages of al-Bashir’s fall from power, following nearly 30 years of control, unfolded relatively swiftly. Despite the easing of economic sanctions in 2017, the Sudanese economy continued to struggle in recent years. The regime cut government subsidies, currency was devalued, and the price of food and other necessities rose. Eventually protests against the al-Bashir regime gained traction, triggering violent backlashes against protesters by the regime in late 2018. Eventually, al-Bashir was ousted from power through a coup – the same means he had used to seize power in 1989 – on April 11, 2019 by the Sudanese military. In August 2019, the military ceded (some) power to the newly formed Sovereign Council of Sudan, an 11-person coalition of military figures and protest leaders given a three-year mandate to govern the country while it transitions to democracy.
Since being ousted from power, there has been much speculation concerning whether al-Bashir might be prosecuted, domestically or by the ICC, for some or all of the atrocity crimes he (along with a handful of others) has been accused of. Initially, the Military Council that ousted al-Bashir in April 2019 stated that it would not extradite al-Bashir to the ICC. Later in 2019, al-Bashir was prosecuted by domestic courts in Sudan, except not for international crimes. He was tried for, and convicted of, corruption charges by Sudanese courts, stemming from a $25 million (£19 million) cash payment he received from Saudi Crown Prince Mohammed bin Salman, and sentenced to two years in a social reform facility (under Sudanese law, individuals over 70 cannot be placed in regular jails or prisons).
What Exactly is Being Promised Now?
Early news reports and headlines this week stated that Sudan had announced it would “hand over” al-Bashir to the ICC. However, although government spokesman Mohammed Hassan al-Taishi has been quoted as saying that the Sovereign Council “agreed that everyone who had arrest warrants issued against them will appear before the ICC,” he did not say when or how this would happen. In a series of tweets, Sudanese journalist Yousra Elbagir stated that, in speaking with Sudanese officials, she was informed that presently, the “Sudanese government has no intention of extraditing ex-President Omar Al-Bashir to the Hague.”
Instead, the Sudanese government appears to be seeking to negotiate for al-Bashir, Hussein and Harun to “appear” before the ICC, without being physically extradited to the Hague. As Elbagir reports, it could be problematic for domestic politics in Sudan should the suspects be prosecuted outside of the country.
If true, these reports create a series of political, logistical, and legal questions. Article 17 of the Rome Statute of the ICC renders a case “inadmissible” when it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” Yet, this is only the case when such actions are found to be, in good faith, actually working to move the case forward towards accountability. Apparently, Sudan has begun discussions with the ICC to have the Court sit in situ within Sudan, to create a hybrid ICC/Sudanese chamber of the courts, or other options, all of which would physically take place within the country. These are novel, as of yet untested approaches, and bring to the fore a host of issues related to what Phil Clark has referred to as the “distant justice” of the ICC in its African cases.
Moreover, Sudan is still not a State party to the ICC. One would presume that, should the ICC consider some sort of jurisdictional/geographic compromise in order to move forward with the case, that it would likely predicate cooperation on Sudan becoming a State party.
The other major factor at play that muddies yesterday’s announcement is the ongoing peace talks with rebel groups in Sudan. The creation of the Sovereign Council was not a panacea for all of the country’s longstanding ethno-political conflicts. In peace negotiations, rebel groups have demanded that those indicted by the ICC for alleged atrocity crimes in Darfur be tried. As such, how these ongoing talks continue to evolve and play out are likely to shape the government’s position in relation to how, when, where (and potentially even if) al-Bashir, Hussein and Harun are tried.
The “G-Word” and Other Issues to Watch
One of the main reasons the plight of those living in Darfur gained as much global attention as it did was that the situation was characterized as genocide. However, of the three men currently held by the Sudanese government, only al-Bashir has been charged with genocide, a notoriously difficult crime to successfully prosecute. Some, such as Sudan expert Alex de Waal and veteran international criminal law prosecutor Andrew Cayley, have suggested that characterizing the violence committed in the region as genocide may strain conventional understandings of the term and may require difficult-to-obtain evidence. When and if al-Bashir is tried, these challenges may require a tempering of expectations concerning the genocide charges.
Another issue to watch is the ongoing process of Sudan seeking to be de-listed in the U.S. as a state sponsor of terrorism. As Mark Kersten observes, it does not appear to be a coincidence that shortly before the Sudan government announced its intention to have al-Bashir “appear” before the ICC, U.N. Secretary-General Antonio Guterres called for Sudan to be removed from the U.S. list of state sponsors of terrorism, which would further ease sanctions on the country. Given the longstanding U.S. opposition to the ICC, especially under the Trump administration, it will be interesting to see how this dynamic plays out moving forward.
A final issue to remember is that even if al-Bashir and others are tried on charges of various war crimes, crimes against humanity – and in the case of al-Bashir, genocide – actual convictions remain both a long way off and far from certain. The ICC Office of the Prosecutor has, to date, had no opportunity for its own investigators to visit the region and collect evidence in a safe and stable environment and it is unclear whether the Office of the Prosecutor is prepared to even prosecute cases against al-Bashir, Hussein and/or Harun at this juncture.
Overall, given the lack of clarity and specificity in yesterday’s announcement, it should be viewed as but the most recent development in a series of longstanding, multifaceted and still-ongoing efforts to secure individual criminal accountability for the suffering and mass death of civilians in Darfur since 2003. Given the fact that al-Bashir is currently 76 years old, and the track record of former heads of state such as Pol Pot, Pinochet and Mugabe (to name but a few examples), dying before they could be prosecuted, only time will tell if such efforts will prove successful.