At the peak of the Darfur crisis in the mid 2000s, a cloud of fear hung heavy in many of the camps for internally displaced people as women returned from gathering firewood to their makeshift tented homes. This daily ritual became a terrifying dash as stories emerged of women being raped or killed by the Janjaweed militia lurking outside, allegedly acting on behalf of the government under former Sudanese president Omar al-Bashir.
And if one were to fly over the mountainous terrain of Jebel Marra in the west, the scorched remains of the villages from which tens of thousands had fled would bear testimony to the alleged war crimes, crimes against humanity and genocide of which al-Bashir is indicted.
Now that it seems al-Bashir could be handed over to the International Criminal Court (ICC), it is worth recalling that this is essentially a story of people and power. To date no one has been held accountable for the estimated 400 000 killed and three million directly affected by the conflict as set out in the ICC indictment.
The politics of last week’s announcement are complex, bound up as they are with ongoing peace talks. But what lies at its core is the delicate balancing act between politics and the law, and the global appetite for individual criminal responsibility.
It seems unlikely that Sudan would consent to al-Bashir’s prosecution happening in The Hague
The al-Bashir case is totemic. The situation in Darfur was the first time the United Nations Security Council referred a case to the ICC. The case was brought in 2005 on behalf of Darfuris being allegedly targeted and persecuted by their head of state. The UN Security Council has only ever succeeded in referring one more case since – that of Libya in 2011.
The al-Bashir case is also significant because it was the first time that a sitting head of state was indicted by the ICC. It became a political hot potato as arrest warrants for al-Bashir were blatantly ignored by several state parties to the Rome Statute – the founding document of the ICC – as opposition to the court in some quarters hardened.
The case also became something of a rallying cry for the African Union (AU), which believed the ICC was targeting Africa given the disproportionate number of cases from the continent.
Early indications are that the fragile new transitional administration in Khartoum may be willing to hand al-Bashir over – possibly in return for seeing Sudan removed from the United States sanctions list and to appease armed groups in Darfur. What does this mean for international justice and the future of the world’s first permanent war crimes court?
Can the ICC hold a trial in Sudan if the country isn’t a state party to the Rome Statute?
Even if al-Bashir is turned over to the ICC, the reporting so far indicates that it’s unlikely that the Sudanese authorities would consent to the prosecution happening in The Hague. If a request were made to hold the trial in Sudan it would be problematic on several levels, not least because it is not a state party to the Rome Statute.
Politically the ICC would find itself dependent on the cooperation of the Sudanese government to exercise its work, e.g. to access alleged atrocity sites that are remotely situated. It isn’t clear whether the military component of the fragile administration would permit this.
The ICC is also cash-strapped and is struggling to carry out existing investigations. It would have to borrow assets such as airplanes to do its job in Darfur. Although there is provision in the Rome Statute for supplementary funding by the UN Security Council, this is yet to be tested.
Another consideration is whether the ICC would consent to al-Bashir facing an ICC trial elsewhere. As Tom Maliti from the International Justice Monitor points out, ‘There are precedents for applications having been made for trials or parts of hearings to be held away from The Hague e.g. in the [Joshua] Sang and [William] Ruto case in Kenya, and in the case of Dominic Ongwen in Uganda, but all were rejected.’
Would a hybrid court to try al-Bashir make the world’s first permanent war crimes court redundant?
Would the al-Bashir case and that of the other four accused of crimes in Darfur (militia leader Ali Kushayb, Minister Ahmed Haroun, Abdallah Banda and Abdel Raheem Muhammad Hussein) be treated any differently? One option is to hold an ICC trial in Arusha, where the infrastructure of the International Criminal Tribunal for Rwanda has remained and where the African Court on Human and Peoples’ Rights is headquartered.
The idea of a hybrid court has also resurfaced having originally been mooted by the AU following a high-level panel led by former South African president Thabo Mbeki. Could such a court with both Sudanese and international judges sit comfortably alongside the ICC, or would it effectively make the world’s first permanent war crimes court redundant?
And how long would it take to set up? By the time any hybrid court were established, the political winds of change inside Sudan supporting a tribunal could have moved on.
What about resistance from the AU? Does the potential surrender of al-Bashir to the ICC by his own country remove the last vestige of regional opposition to the court? Scholar Dr Mark Kersten, writing extensively on ICC issues, believes dissent has surfaced and receded with the shifting political sands of the day. AU opposition to the court persists and has largely revolved around issues of state sovereignty in cases where sitting heads of state are indicted by the ICC.
But Kersten believes that throwing a deposed leader such as al-Bashir to the wolves of the ICC may no longer invite the same criticism. His may be a controversial view but Kersten argues that we are not yet at a point when ‘states no longer find it useful to outsource matters of international justice to the ICC.’
Perhaps tellingly, the AU has remained silent on the latest development regarding al-Bashir and the ICC. There are still a lot of caveats at play and the jury is out on whether the ICC’s prized case will ever see the light of day.
Karen Allen, Senior Research Adviser, Emerging Threats in Africa, ISS Pretoria