The dramatic ouster of President Omar al-Bashir in a popular uprising on Thursday 11 April 2019 after three decades in power, has provided a new hope for his potential trial before the International Criminal Court (ICC) over his alleged role in Darfur crimes. Tajeldin A. Adam considers the potential for seeing Bashir in The Hague.
Since his indictment by the court through two successive arrest warrants in 2009 and 2010, Al-Bashir has avoided threats of arrest and travelled abroad regularly, visiting several ICC member states and others in continental Africa and beyond.
Between July 2010 and March 2017, Sudan’s former ruler who is currently being held in Kober prison in the capital Khartoum was able to visit countries such as Kenya, Malawi, Nigeria, Senegal, South Africa, Uganda and others. Al-Bashir similarly travelled to other states, including China, Iran and almost all Arab countries in the Middle East and North Africa. During one of these trips abroad, he claimed that the ICC “failed to arrest him, not because of lack of cooperation from his part, but because the Sudanese people refused his trial outside the country before a colonial court”.
For years, Al-Bashir enjoyed impunity and stayed away from international justice mainly by keeping power as Sudan’s absolute ruler. He consolidated his position at all cost and through all possible means. He weakened opposition parties and rebel groups, luring some to positions in government and sowing divisions among others. Most importantly, since late 2014, Al-Bashir gradually got rid of the old guard and potential successors from within his own ruling party, including the former deputy Ali Osman Taha and the influential presidential aide Nafi Ali Nafi.
At the same time, he drew the army closer to his side to ensure a strong military presence in key positions in the cabinet. For instance, Al-Bashir appointed his long colleague lieutenant general Bakri Hasan Salih as his deputy and retained the services of ex-Defence Minister Abdulrahim Mohammed Hussein, who is also wanted by the ICC for similar charges.
In late February this year, specifically two months following the start of the popular uprising, Al-Bashir imposed a one-year state of emergency in a final bid to contain the growing unrest in the country. More than any time before, Sudan’s ex-dictator unmistakably started to realise that the end of his time in power was imminent; the writing was on the wall. Thus, he needed to plan for an exit strategy. Knowing that other fellow African leaders such as Kenya’s Uhuru Kenyatta and the Ivory Coast ex-president Gbagbo have already appeared before the ICC, Al-Bashir may have realised that he really could face similar fate. To protect himself against this possibility, he left behind some allies who would help him in future battle against the ICC: he reshuffled the army and gave more powers to loyalists from his inner circle. Specifically, Al-Bashir appointed the former Defence Minister Awad Ibn Auf as his deputy and promoted the position of the current head of the Military Council Abd al-Fattah al-Burhan from the Commander of Ground Forces to the Inspector General of the Army. Continuing the same trend, Al-Bashir delegated his powers as the chairman of the National Congress Party- NCP to Ahmed Haroun, another close ally, and fellow ICC indictee for Darfur crimes. Sudan’s ousted leader in fact had little faith in the civilian leadership of his party. He harboured longstanding suspicions that civilian elites such as his former deputy Taha wanted to hand him over to the ICC as part of consensus with the international community.
As of now, some of the above-mentioned measures taken by Al-Bashir have proven to be in his favour, at least for now. Just a day after he was toppled, the head of the political committee in the Military Council (MC), General Omar Zan al-Abidine declared that the council would not send the former leader to be tried in the Hague. He stated: “we will not hand over the [former] president to be tried abroad during our time. …but whoever comes after us can determine what he sees fit.”
This swift refusal by Sudan’s new military junta is not something completely unexpected. They may want to spare themselves the embarrassment of handing over to the ICC their former patron who promoted many of them into senior positions. And, it’s unrealistic to expect any positive stand towards the ICC from today’s de-facto military rulers. Suffice to mention that both the new head of the MC Al-Burhan and his deputy Muhammad Hamdan Daglou, aka Hemmati, a former Janjaweed leader, were also implicated for their alleged roles in Darfur crimes. Al-Burhan held the rank of major at the time, reportedly trained and led government sponsored militia attacks against civilians in central Darfur during the peak of government counter insurgency campaign in 2004. He was allegedly involved in a mass killing incident that targeted a group of civilians in a valley near the village of Dilayij in central Darfur. One of the victims who survived the killings narrated that the attackers were led by two commanders, one of them was Al-Burhan and the second was Ali Kushayb, the notorious Janjaweed leader who was also indicted by the ICC in connection to Darfur atrocities.
Potential Space for Cooperation
However, despite the presence of these factors, the MC may be thinking that the ultimate decision on potential cooperation between Sudan and the ICC should be left for a future (civilian) government to make. What could make this possible is the massive space that Al-Bashir’s disappearance from the Sudanese political theatre helps to provide, which opens a genuine prospect for all ICC indictees, including Al-Bashir, to face international justice.
Achieving this target requires some concerted efforts by all stakeholders in order to be realised. There is a unique opportunity for the international community to help the Sudanese people to steer their country towards the path of democracy, rule of law and human rights for all groups. Victims of mass murder, rape and displacement in Darfur and elsewhere in the country need assurances that the long-waited justice will be delivered to them as part of a comprehensive plan for a lasting political stability for the country.
During the four-month nationwide protest against Al-Bashir’s regime, it was encouraging to see hundreds of young Sudanese, and some politicians, calling for the former dictator to be held to account, including his trial before the ICC. The brutal crackdown against peaceful protesters in the regime’s base of support in Khartoum and further in the north of the country had somehow created empathy and understanding of the horrors suffered by other fellow citizens in Sudan’s peripheries in places such as Darfur, Nuba Mountain and Blue Nile provinces. This is a good platform to advocate for justice as a prerequisite for peace and tolerance for the whole country.
Doubts over Domestic Capacity
Despite the claim by the ruling MC and some of the demised regime’s sympathisers on holding domestic trials for war crimes suspects, serious doubts remain over the country’s capacity to prosecute such cases, even if political will was there. To begin with, Sudanese domestic laws require a major overhaul to encompass international crimes and crimes at the centre of ICC’s investigations on Darfur. Such an overhaul must be very convoluted and lengthy process if ever to be carried out. For instance, the current Sudanese penal code contains no specific provisions on dealing with war related crimes of rape and sexual violence which were widely committed in Darfur. Rape is often confused with fornication or adultery, which is proven by testimonies of four witnesses to the actual act of penetration, rather than applying the normal evidentiary standards. Moreover, for obvious reasons, Sudan hasn’t conducted any meaningful investigations on Darfur for future litigation and currently possesses no database or a ready-made mechanism for dispensation of justice for Darfur victims. This is a huge task to be left for the current political players who are now vying to control the empty space left by the fallen regime.
Justice for Victims
In this context, the international community can play an indispensable role in ensuring that criminal justice would be an integral part of future Sudan. The African Union, the European Union and the troika countries (US, UK and Norway) have taken clear positions on the importance of a peaceful and inclusive transitional process in Sudan. These positions should be translated into further actions to address the issue of justice for victims of the most deplorable crimes. The age-old impunity in Sudan must go away, along with the man who enabled and protected war criminals and allowed such impunity to take root. Justice for hundreds of thousands of victims who were murdered and abused in state-sponsored violence is a moral obligation and a test for all of us. They simply can’t wait any longer.