Op-Ed: Sudan’s Bashir one step closer to the ICC

By Pieter Scribante, Economist and Political Analyst, NKC African Economies

On Tuesday, February 11, Sudan’s transitional government and rebel groups from Darfur agreed, in principle, that the individuals who are wanted by the International Criminal Court (ICC) should appear before the tribunal.

This announcement was made on Tuesday in Juba, the capital of neighbouring South Sudan, where government authorities and the Darfur rebels are engaging in peace talks.

Former President Omar Al-Bashir, who was deposed in a military-led coup in April 2019, is the most high-profile among the individuals wanted by the ICC: He faces charges of war crimes, genocide, and crimes against humanity committed in Darfur.

However, as things currently stand, the government has no intention of extraditing Mr Bashir to The Hague. Al-Hassan Al-Taishi, a member of the Sovereign Council, stated that during the negotiation in Juba, the two sides agreed on a mechanism that would include “the appearance of those who face arrest warrants before the ICC”.

However, this agreement does not specify when and how Mr Bashir, and the other parties involved, will be tried.

Thus far, Mr Bashir has only been prosecuted domestically on charges of money laundering and corruption, with further charges pending. He has survived international prosecution due to disagreements within the Sovereign Council. Prime Minister Abdalla Hamdok and the Forces of Freedom and Change (FFC) – the civilian coalition in the Sovereign Council – have expressed their support for sending Mr Bashir to The Hague.

However, President Abdel Fattah Al-Burhan and the military bloc of the Sovereign Council vehemently oppose this. The senior military officers held powerful positions under Mr Bashir and likely fear the repercussions if he is convicted and the implications of their complacency and cooperation.

Currently, the government maintains the stance that Mr Bashir should face the ICC, but it has no intention of sending him out of the country.

The government favours a compromise in which the trial will take place in Sudan, through a hybrid ICC/domestic court. This has the benefit of smoothening the peace talks in Juba, gaining international support for Sudan, and allowing the government to keep a firm hand on the prosecution.

However, there are several problems with this plan. Sudan is not a signatory of the Rome Statute and does not recognise the ICC’s authority, thus the Court does not have jurisdiction in the country. Additionally, a trial of this nature is highly unorthodox. It is unlikely that the ICC would agree to a hybrid system – which could potentially include Sudanese officials – as it risks diminishing the reputation and verdict of the Court.

While the agreement between the Sovereign Council and the rebels in Darfur is extraordinary, it does not necessarily mean that Mr Bashir will have his day in court for his crimes committed in Darfur.

It is unclear how this will play out, and currently, this is just an agreement in principle. Sudan is under no legal obligation to hand Mr Bashir over to the ICC. Moreover, the ICC has not agreed to the hybrid system nor to a domestic prosecution.

However, this move has gained international attention and support for Sudan. This coincides with UN Secretary General António Guterres’s call to remove Sudan from the US State Sponsor of Terrorism List (SSTL) and “to mobilise massive international support to enable Sudan to overcome its challenges”.

This latest development plays directly into the government’s strategy of bringing peace to the Darfur region and riding a wave of optimism, which could help the ongoing talks with the US and increase the chances of being removed from the SSTL.