Sudan Takes Two Big Steps toward Normalizing Relations: USS Cole and Bashir

Sudan’s transitional government took two significant steps toward improving its international standing and normalizing relations with the United States by first agreeing for ousted president Omar al-Bashir to “appear” before the International Criminal Court (ICC) and then reaching a settlement agreement on Feb. 7 with the victims of the 2000 USS Cole bombing in Yemen. While the announcement for Bashir to appear before the ICC was a genuine surprise and rightly attracted considerable media attention, the government’s settlement agreement with the victims and families of the Cole attack will do more to improve U.S.-Sudan relations. Most importantly, this settlement addresses the primary obstacle to removing Sudan from the State Sponsors of Terrorism (SST) list—the foremost foreign policy objective of the transitional government, which eventually took control of the country following Bashir’s removal from power in April 2019. After 30 years of corrupt, authoritarian rule, the successful democratic transition of Sudan requires improved economic conditions more than any other single factor. Removing Sudan from the SST list will not provide an immediate fix, but it will move Sudan towards a surer economic footing and a more stable future.

USS Cole Settlement Agreement and SST List Removal

The foremost foreign policy objective of the transitional government is seeing Sudan removed from the SST list. Sudan’s inclusion on this list denies the country access to the Heavily Indebted Poor Country Initiative, a program developed by the World Bank and the International Monetary Fund to assist the world’s poorest countries with unmanageable or unsustainable debt burdens. It also damages Sudan’s ability to receive desperately needed loans to help rebuild the country after decades of armed conflict. And while U.S. officials put forth several conditions for the transitional government to meet before it would remove Sudan from the SST list, reaching a settlement with the victims of those killed and injured from the Cole attack was the top priority.

The attack on the USS Cole occurred on Oct. 12, 2000, in the Yemeni port of Aden. A small boat laden with explosives detonated next to the Cole while it was refueling in port. The attack killed 17 U.S. sailors and injured 37 more. Al-Qaeda claimed responsibility for the attack and although the individuals involved in the attack were not Sudanese, the U.S. claimed that Sudan supported al-Qaeda. The Sudanese government, even under Bashir, denied any link to the bombing. Al-Qaeda leader Osama bin Laden lived in Sudan in the early 1990s, but the Sudanese government expelled bin Laden in 1996, four years before the attack on the Cole.

Victims and families of those attacked sued Sudan under the Foreign Sovereign Immunities Act, which normally bars such claims, but provides an exception for claims related to countries designated as state sponsors of terrorism. Last year, the U.S. Supreme Court overturned a 2012 ruling that awarded the Cole victims $314.7 million on procedural grounds. The Court ruled 8-1 that the plaintiffs failed to initiate the lawsuit properly by notifying the Embassy of Sudan in Washington, D.C. instead of the appropriate government agencies in the Sudanese capital Khartoum. The Trump administration backed Sudan and supported the Court’s ruling, as the US also rejects judicial notices sent to its embassies.

The Sudanese government continues to deny any responsibility for the attack and emphasizes that it agreed to this settlement only to satisfy the U.S. condition for its removal from the SST list. A Ministry of Justice press release announcing the settlement agreement made this point very clear, stating:

“The Government of the Sudan would like to indicate that it was clearly stated in the concluded settlement agreement that the government is not responsible for this act or any other acts of terrorism and that it has entered into this settlement out of its keenness to settle all historical terrorism claims that have been left behind the defunct regime, and only in order to meet the prerequisites set by the American Administration for removing the name of the Sudan from the list of states sponsors of international terrorism, so that relations with the United States of America and the rest of the world could be normalized.”

The African Union urged the U.S. to remove Sudan from the SST list during its annual summit in Addis Ababa on Feb. 9 and 10. United Nations Secretary-General Antonio Guterres attended the summit where he reiterated the need to remove Sudan from the SST list. Numerous Sudanese civil society leaders and prominent Sudan analysts already have called for the U.S. to remove Sudan from the SST list, arguing that Sudan’s continued economic crisis will undermine the country’s democratic transition and strengthen the position of the military and security forces, thus risking a return to authoritarian rule.

To the frustration of many, after being asked about the settlement agreement and what it means for Sudan’s removal from the SST list, U.S. Secretary of State Mike Pompeo only stated, “The Sudanese reminded me that they would love to get off that list and we always measure twice and cut once before we remove someone from a list like that.” Even during the final years of the Bashir regime, the State Department and other U.S. agencies publicly acknowledged Sudan’s positive cooperation on counterterrorism, despite its woeful human rights record. For example, the State Department’s Country Reports on Terrorism 2017 acknowledged that Sudan worked with the U.S. on counterterrorism despite its SST designation, stating, “The Government of Sudan continued to pursue counterterrorism operations alongside regional partners, including operations to counter threats to U.S. interests and personnel in Sudan.”

Since the 2017 report, hundreds of Sudanese citizens have given their lives to oust a brutal authoritarian leader. Sudanese citizens struggle daily to undo the effects of the Bashir regime and thus far, the transitional government has met every challenge for achieving a more stable and democratic country. Given the past crimes and remaining elements of the Bashir regime, the U.S. is correct to go slow and appraise the situation carefully. At the same time, it is equally important to embrace this once-in-a-generation opportunity to give the Sudanese people a fighting chance for a democratic state. And until the economy improves, the risk of an authoritarian relapse remains. To paraphrase Pompeo, measuring twice is fine, but conducting endless assessments as the rest of the international community urges progress suggests that maybe you do not know how to use your own measuring tool.

Bashir to “Appear” before the ICC

The other major news from Sudan last week was the announcement that the transitional government would allow Bashir to appear before the ICC. This announcement came during peace negotiations between the transitional government and the Darfur armed opposition groups in the South Sudan capital of Juba. On Feb. 11, the Sovereign Council leading Sudan’s transitional government announced that all individuals with arrest warrants from the ICC would appear before the Court and later confirmed that this included Bashir.

In addition to gaining favor with the international community, the Sudanese government hopes that allowing Bashir to appear before the ICC will serve as a confidence-building measure to move these armed opposition groups closer to accepting a peace deal. Moreover, several commentators suggest that trying Bashir could improve the ICC’s standing. David Crane, formerly the chief prosecutor of the Special Court for Sierra Leone that tried and convicted Liberian President Charles Taylor, argued that Bashir standing trial before the ICC could provide a legal and symbolic victory. However, as Randle DeFalco discussed, the details for Bashir appearing before the ICC are vague and exactly what this promise entails is unclear.

How the transitional government handles Bashir and exactly what a handover to the ICC might mean remains uncertain. But in any legal proceedings, the government’s cooperation with ICC investigators will be crucial, as most observers believe that the ICC has not worked on the Bashir file since Chief Prosecutor Fatou Bensouda announced that lacking the ability to visit Sudan and gather evidence to move the case forward, she needed to hibernate the investigation. A Sudanese court has already found Bashir guilty of corruption. Bashir also faces charges over the death of protesters during the April 2019 demonstrations that led to his removal, and the transitional government opened its own investigation of Bashir and other high-ranking officials in December for their roles in the atrocities committed in Darfur.

Within Sudan, the Forces of Freedom and Change, the wide-ranging coalition of civil society and political actors that largely organized Sudan’s revolution and ensured a power-sharing agreement with the military after Bashir’s ouster, supported extraditing Bashir to The Hague in November. It took the military element of the transitional government longer to support this decision. Lt. Gen. Abdel Fattah al-Burhan, Chair of the Sovereign Council and de facto leader of the military element of the transitional government, alluded to Bashir’s surrender to the ICC after military and security forces initially rejected this possibility. Still, it is unlikely that the ICC will receive custody of Bashir, or the other Sudanese officials currently subject to ICC arrest warrants, until the government and the Darfur armed groups conclude a peace deal.

Politically, the cooperation between the civilian and military aspects of the transitional government on this issue could isolate General Mohamed Hamdan Dagalo, better known as Hemeti. Leader of the Rapid Support Forces (RSF), a paramilitary group reconstituted from the Janjaweed militias responsible for some of the worst violence during the Darfur crisis, Hemeti is now a member of the 11-person Sovereign Council overseeing the country until scheduled elections in 2022. Hemeti remains the most powerful figure in Sudan and the most likely to attempt to return the country to authoritarian rule. As Cameron Hudson notes, the military, which both resents and fears the RSF, likely realizes ICC investigations could lead to Hemeti and thus marginalize the RSF, hence its endorsement of this move.

Somewhat similarly, long protected by Bashir, Islamist parties have struggled to find a unifying political message after Bashir’s removal and the dismantling of his regime. Islamist political leaders, such as Ghazi Salah al-Din al-Atabani of the Reform Now Movement, have sought to distance their parties from Bashir, but not go so far as to alienate core supporters. This led Atabani to propose that a Sudanese court try Bashir, but with international supervision. Likewise, while seemingly unlikely, some commentators have speculated that the ICC could try Bashir in Sudan. Regardless of the legal venue in which Bashir ultimately finds himself, it is hard to overstate how extraordinary the possibility of Bashir facing trial at the ICC is after the former president did everything he could to flaunt the court’s arrest warrants for more than a decade.

Everything to Gain, Nothing to Lose

Following its formation in August, the Sovereign Council has worked tirelessly to improve Sudan’s standing within the international community and to normalize relations with the U.S. And while there has been important progress, the Trump administration’s lack of urgency to remove Sudan from the SST list threatens to stall the momentum of one of the most positive developments for peace and democracy during a time of widespread autocratic entrenchment and the erosion of democratic processes and the rule of law.

In Sudan, it is important to recall that the country’s economic crisis and the inability of many Sudanese to afford basic provisions provided the sparks for the revolutionary fire that ultimately toppled Bashir. Now, more than a year after those initial demonstrations in December 2018, the economy has scarcely improved. On Feb. 9, several cities saw protests over fuel and bread shortages, similar to those in 2018. Protestors remained in the street for multiple days in Atbara, the site of the initial 2018 demonstrations, as well as Kosti, Damazin, and to a lesser extent, the country’s capital Khartoum.

In an interesting coincidence, then-National Security Advisor John Bolton unveiled the Trump administration’s Africa Strategy only a few days before the December 2018 demonstrations began in Sudan. Bolton gave three guiding principles for how the U.S. would engage with African States. The first priority was advancing U.S. trade and commerce throughout the continent in a manner that benefited the U.S. and African countries. Discussing this priority, Bolton stated, “We want our economic partners in the region to thrive, prosper, and control their own destinies. In America’s economic dealings, we ask only for reciprocity, never for subservience.”

Until the administration removes Sudan from the SST list, neither the country, nor the Sudanese people, will thrive, prosper, or control their own destinies in a situation that looks a lot more like subservience than reciprocity.

 

[Editor’s note: Readers may be interested in another perspective by Hilary Mossberg and John Prendergast, “Sudan’s Push for Removal from U.S. Terror List: Not a Panacea”]

Image: Sudanese protesters wait at a train station in Khartoum to board a train to Atbara on December 19, 2019 to celebrate the one-year anniversary of their protest movement that brought down Omar al-Bashir last April after a thirty-year rule. Photo by ASHRAF SHAZLY/AFP via Getty Images

 

About the Author(s)

John Hursh

Director of Research at the Stockton Center for the Study of International Law, Editor-in-Chief of International Law Studies at the U.S. Naval War College. Follow him on Twitter (@JohnHursh).