On Monday, August 19, former Sudanese President Omar al-Bashir appeared in court in Khartoum on charges of “possessing foreign currency, corruption and receiving gifts illegally.” The case opens at a tense moment in Sudan. After months of protests, the transitional military council that took over after al-Bashir’s ouster signed an agreement on the transition with the Forces of Freedom and Change (FFC) on August 17. While the fact that an agreement has been reached is a hopeful signal, its promises are far from becoming a reality, and the future of the country is not yet assured.
The issue of accountability is likely to be a bellwether of broader democratic transformation. The Constitutional Charter mandates transitional authorities to “[h]old accountable members of the former regime by law for all crimes committed against the Sudanese people since 30 June 1989” and calls for an investigation of the June 3, 2019 massacre of protesters. Civil society organizations have also called for comprehensive accountability for gross human rights violations over the past three decades. Is al-Bashir’s trial an early sign that the transitional authorities are taking this seriously? Alternatively, is it intended to distract from calls to hold those still sitting on the sovereign council accountable? Moreover, what will be the balance between national and international proceedings?
Al-Bashir is, of course, the most visible target of accountability calls. The former leader, who has also been indicted by the International Criminal Court (ICC) on charges relating to the conflict in Darfur, is currently being held in Kober prison, notorious for housing political prisoners throughout his rule. Although the trial against al-Bashir on corruption charges has opened, corruption is far from the only thing for which Sudanese want accountability. Seizing on the political space opened up by the uprising, some prominent civil society leaders have already presented formal documents requesting that al-Bashir be investigated in relation to a number of other criminal activities in national courts in Sudan. Some of these relate to the coup that brought al-Bashir’s regime to power in 1989, while others relate to the deaths of protesters. According to a Sudanese lawyer involved with bringing the files, prosecutors indicated that they have accepted evidence and were opening investigations. It is unclear, however, how seriously the new transitional authorities will pursue these charges.
An additional question is to what extent al-Bashir’s National Congress Party Islamist cadres will be held accountable. Former Minister of Defense Abdel Raheem Mohammed Hussein and former Minister of State for the Interior Ahmad Mohammad Harun, also charged by the ICC, are reportedly in custody (although there is some concern about the lack of independent verification of these arrests). Other key insiders of the regime – such as Mohamed Hamdan “Hemeti” Dagolo, notorious leader of the Rapid Support Forces – are still represented in the sovereign council. However, activists are calling for accountability for these actors as well. The New York Times recently quoted a Darfuri activist saying, “We should not forgive what he [Hemeti] did. Anyone who committed a crime should be subject to trial. We won’t accept anything else.”
Another debate centers on whether accountability should be pursued domestically, internationally, or some combination of the two. Some activists are eager to push domestic processes as far as they can go, while others still look to the ICC, which issued an arrest warrant against al-Bashir a decade ago. Some are focused on particular criminal actions for which there are no charges at the ICC, like the high profile killing of Dr. Babiker Salama, a 27-year-old doctor killed coming out of a house after treating wounded civilians, and prefer domestic courts for this reason. Others see the domestic courts as more appropriate because, in the words of one activist, “People don’t want to hand him to The Hague because they see it as putting him up in a five star hotel.”
Indeed, in Sudan, al-Bashir is likely to be subject to harsher prison conditions and stricter penalties, including the death penalty, than he would at the ICC. Others simply see domestic courts as the only viable option in light of military opposition to handing al-Bashir over to the ICC.
At the same time, the cases at the ICC have not gone away. In addressing the Security Council in June 2019, ICC Prosecutor Fatou Bensouda said, “Now is the time for the people of Sudan to choose law over impunity and ensure that the ICC suspects in the Darfur situation finally face justice in a court of law.” She reiterated that Sudan is under a legal obligation to hand al-Bashir over unless they can convince the ICC’s judges that they are willing to prosecute the same individuals for the same conduct in domestic courts.
Other activists, particularly those from Darfur, spoke of their desire to see al-Bashir tried in The Hague. Currently, the charges being investigated in Sudan do not relate to crimes committed in Darfur. “What about the crimes committed against us?” a Darfuri activist said of domestic proceedings. “We want to see accountability for the crimes committed against us.”
There would be a number of obstacles to prosecuting Darfur crimes at the national level, including domestic immunities and the fact that international crimes were only integrated into the Sudanese criminal code in 2010, long after the bulk of crimes committed in Darfur took place. Although other countries have found creative ways around such obstacles, Sudanese are wary. As one activist put it, “I think that it is clear, if we are talking about international crimes, it is only the ICC that has jurisdiction.”
Others are soured by a lack of confidence in the Sudanese justice system. Although a new, reform-minded Minister of Justice has been named, systemic change is a long term project. As one activist said, “Let’s push for them to be handed over to the ICC. The situation in Sudan is still not clear. We don’t have confidence in the system, there is a risk that he may be released, or that he might only serve a month.”
Still others have suggested the two systems could accommodate one another, allowing al-Bashir to be tried in Sudan for some actions and at the ICC for others. Of course, such a dual process would require accommodation between the two systems, and it is not clear how that would work, especially given the tense historical relationship between the ICC and Sudan.
The next hearing in al-Bashir’s corruption trial is scheduled to take place Saturday, September 7.
Olivia Bueno is an independent consultant who has reported on the impact of the International Criminal Court in Africa for several years. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.