Will Sudan’s Bashir Be Handed to the ICC at Last?

For a decade, Sudan’s former President Omar al-Bashir flouted arrest warrants from the International Criminal Court for his alleged role in the genocide of Darfur, in a case that became a symbol of the body’s ineffectiveness. Bashir even toyed with appearing at the annual United Nations General Assembly in New York in spite of the warrants.

So the surprise announcement that Sudan may cooperate with the ICC’s arrest warrant and turn Bashir over was a stunning example of how quickly the tides of justice can change. “Over the course of a few months things have happened so fast that Bashir could end up in The Hague,” said Oumar Ba, a professor of international relations at Morehouse College. “It shows how the international criminal justice system is tethered to local and global politics.”

The Feb. 11 announcement by Mohamed al-Hassan al-Taayeshi, a member of Sudan’s ruling Sovereign Council, was part of broader peace negotiations with Sudan’s rebel groups in Darfur. Aspects of the statement were vague. It described how Khartoum would allow those indicted by the ICC to appear before the court. It was not immediately clear what that “appearance” might look like, but experts speculated that it could mean a trial based in Khartoum and not The Hague, which could set a new precedent for the court. 

The initial reaction from observers in Khartoum was confusion. “It’s coming as a surprise,” said Hala al-Karib, the regional director of the Strategic Initiative for Women in the Horn of Africa. “We did not hear formally for the prime minister or from the Sovereign Council, so we are not quite sure.”

But Kenneth Roth, the head of Human Rights Watch, told Foreign Policy that he held a “very positive” meeting on Wednesday with Sudan’s military chief, Abdel Fattah al-Burhan, who went further than the Taayeshi statement. According to Roth, Burhan said the Khartoum government would “focus not only on Darfur but crimes that have been committed across Sudan.” 

“We could not have hoped for a better meeting,” Roth told Foreign Policy in an interview from Khartoum. “But these are just statements and these are not actions. We have to see how he lives up to these statements.”

A request for comment from a military spokesperson was not immediately returned.

Fighting between ethnically African rebel groups and Arab tribes backed by the government began around 2002 in the Darfur region of Sudan. The U.N. says as many as 300,000 people died in the conflict.

Starting in 2009, the ICC issued arrest warrants for Bashir that included accusations of crimes against humanity, murder, extermination, war crimes, and other heinous acts. Bashir repeatedly denied the claims. The case could not go forward, because the ICC does not try people who are not present.

Despite marches on the national mall in Washington, D.C., and a campaign to “Save Darfur,” it was a group of doctors, lawyers, and pharmacists inside Sudan who eventually took down Bashir. 

Mass protests—orchestrated by a network of professional unions—and a military coup ended Bashir’s 30-year rule in April 2019, and the country’s new government was eager to repair its battered global status. “I have already talked to a number of friends and colleagues particularly at the [United Nations] Office of the Human Rights Commission in Geneva,” Sudanese Prime Minister Abdalla Hamdok told Foreign Policy in August 2019, just days after he was inaugurated. Hamdok described South Africa’s model of justice and reconciliation as a model he wanted to follow in Sudan. 

“Nobody is naive here. But there is a remarkable transformation in this country because of popular mobilization,” Roth told Foreign Policy. 

Roth said he had also met with Hamdok, Sudan’s civilian chief, who said the ICC could set up an office in Khartoum to continue its investigation. That additional support may prove crucial to the fate of Bashir.

Experts said that the 2009 ICC arrest warrant for Bashir from then-Chief Prosecutor Luis Moreno Ocampo was hampered by the court’s inability to travel to Darfur and gain primary evidence. “The Office of the Prosecutor relied mostly on NGO reports from organizations which were later expelled by Bashir. The prosecutor relied also on the testimonies of refugees and satellite images,” said Morehouse College’s Ba, the author of a forthcoming book on the ICC. “It’s not clear yet whether the prosecutor has strong evidence incriminating Bashir for the specific crimes for which he is charged.”

In 2014, the new prosecutor at the ICC, Fatou Bensouda, said that she was forced to “hibernate” the body’s investigation into the crimes committed in Darfur to focus on “other urgent cases.” Since then, it is believed that the court’s investigation into Bashir’s actions has been inactive.

Khartoum’s willingness to engage with the ICC marks a new opportunity for the world court, which has been hamstrung by numerous flouted arrest warrants, failed prosecutions, a lack of funding, and opposition from leading world powers including the United States (even though Washington accused Bashir’s government of genocide in 2004). 

“The court needs to get this right: It must reengage with victims and affected communities and publicize its work effectively so that justice is visible to the people affected by the crimes,” said Alice Mogwe, the president of the International Federation for Human Rights, a watchdog group.