On February 11, Mohammed al Taishi, one of the civilian representatives of the Sudanese sovereign council and its spokesperson, announced that the government would be willing to hand former President Omar al-Bashir and other suspects over to the International Criminal Court (ICC). “Our conviction as government, which made us to agree to allow those who have been issued arrest warrants to be taken before the International Criminal Court, this decision, is based on the principle of justice, which is one of the themes of the revolution,” he said. When asked if the decision would be accepted by the Sudanese people, he added, “We are doing what the Sudanese people asked us to do.”
This announcement, coming more than a decade after the ICC issued its first arrest warrant against al-Bashir, has prompted strong reactions from the Sudanese.
The declaration to cooperate with the ICC has brought significant new energy. “My first reaction was joy… millions of victims rejoiced,” says activist Hadia Hasaballa.
“As a Darfuri and a normal citizen, I feel like this is finally a victory,” said Majid Maali, a Sudanese lawyer.
“This has been a demand of millions of people who have been affected by the human catastrophe of the last 30 years in Darfur,” said Deputy Chair of the Darfur Bar Association Salih Mahmoud Osman.
“Despite feeling abandoned by the international community,” said Mossaad Mohammed Ali, Executive Director of the African Centre for Justice and Peace Studies, “victims in Darfur never stopped fighting to see the day justice triumphs over impunity.”
However, this energy is tempered by a series of questions. One is whether the ICC is the best forum for justice. “Some people think that he should go to the ICC because we don’t have the institutions to try him, other people think that he should face justice in Sudan,” said Sudanese activist Reem Abbas.
Some advocate for the ICC. “Let him be taken to the International Criminal Court because people were killed, people were burned, and we did not have a place,” said Miriam Saleh, a woman from Darfur who fled to Juba.
Others point to the limitations of the Sudanese justice system. Trying al-Bashir in Sudan raises jurisdictional issues. “At the time that these crimes were committed, war crimes, crimes against humanity, and genocide were not included in the Sudanese Criminal Code,” said Mohammed Ali. It would also raise issues of the capacity of the system. “Without reforming the whole system, we cannot do anything. We have hundreds of laws that need to be reformed, but we don’t even have a legislature to do this homework,” said Maali.
Advocates for accountability through the Sudanese justice system say there is a need to address actions that are outside the scope of the ICC’s jurisdiction, like corruption and killings of protesters. Others object to the ICC because they think that conditions at the ICC in The Hague, which has been described as a “five star hotel,” are simply too good for the former dictator. “I want his skin to be ironed in the heat of Kober prison, where he put so many activists during his reign. He should be tried in Sudan after the criminal justice system is reformed,” said Montasir Nasir Waren, Executive Director of the Nubsud Human Rights Monitors Organisation (NHRMO).
In between these positions, there have been proposals to try al-Bashir through a hybrid mechanism or for him to face sequential trials in both national and international courts.
Motivations behind the Announcement
Another issue that tempers enthusiasm is the sense that the announcement is politically motivated. “To me, it is clear that this is a bargaining chip,” said Maali. Activists agree that this announcement was the result of pressure from rebel movements and a desire to show concrete progress in the peace process. “The ICC was low-hanging fruit. Hemeti [Mohamed Hamdan Dagalo, deputy head of Sudan’s military council] sees it as removing his enemies,” said another Sudanese activist. “Even the rebels themselves are not genuine,” said Maali, pointing to human rights violations committed by these actors.
Others, including Waren, see this as linked to the recent meeting of sovereign council leader general Abdel Fattah al-Burhan with Israeli Prime Minister Netanyahu and the desire to secure the anti-terrorist credentials needed to remove Sudan from the state sponsors of terrorism list of the United States.
There is also awareness that this announcement is not definitive. “There is a possibility for him to be handed to the ICC, but this is going to be a long judicial process. My feeling is that he will be tried in Sudan,” says Munzoul Assal of the University of Khartoum.
Asked if the government would follow through on the handover, activist Abbas says, “It is hard to tell… I don’t think that there is consensus on the sovereign council on this issue.”
“The Attorney General made a statement yesterday saying that it depends on three things, the peace talks and what they will agree, on our ability to maintain the criminal justice system in Sudan, and the views of the victims in Darfur,” said Sudanese lawyer Ali Agab.
“Over the last couple of days, the former NCP people have been campaigning against handing Bashir over to the ICC. They say that this is against sovereignty and will undermine confidence in the justice system. They also warn that it could spark a violent reaction,” says Mohammed Ali.
Others are more positive about the prospects. “It has been very publicly announced. I don’t think that they will back away from this now, as it would disrupt negotiations with the rebels,” says Osman of the Darfur Bar Association.
Looking ahead, there is a sense that a range of opportunities would be offered if the ICC trial were allowed to proceed, both for Sudan and for the ICC. For Sudan, it offers an opportunity to see justice done and to promote transitional justice more broadly. Some see the engagement of the ICC in Sudan as a mechanism for reform and capacity building, particularly if it might be possible to hold proceedings inside Sudan. “This is an opportunity for the people to work closely together to reform the criminal justice system,” says Agab.
Support is needed, Sudanese activists say, both in reforming the laws and in building the technical capacity of Sudanese investigators and lawyers. Several people also pointed out that the ICC has documentation and evidence that might not be available in Sudan, which could be used to advance new cases, either within the ICC framework, at the national level, or in a hybrid mechanism. It is also an opportunity to elaborate more concrete strategies with regard to reparations. “We need to think about…compensation of the victims. Bashir will be in a prison, either in Khartoum or in The Hague, but what about the victims?” says Maali.
Some see this news as a test for the ICC itself to show that it can be effective. It will be a challenge to ensure that the court’s work is clearly presented and well understood. There were a number of suggestions for bringing the work of the court closer to Sudan, from better outreach, to establishing court presence in Sudan, to conducting some kind of hybrid trial. “We [the Sudanese people] should been the ones attending the trial and watching it on TV,” says Abbas.
Establishing a presence in the country and conducting ICC proceedings on the ground would offer practical advantages to the court in terms of access to the territory and new potential evidence. Agab also argues it could make the process more efficient, making it harder for the defense to present false or misleading evidence that does not accord with the experience on the ground: “If the ICC trials are held inside Sudan, it will be easier for Sudanese to monitor them.”
This announcement is just the first step, but it clearly represents an opportunity both for the ICC to deliver long delayed justice for victims in Darfur and to build momentum for broader transitional justice in Sudan. It remains to be seen whether the opportunities can be leveraged and the challenges overcome.
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.