Will Omar al-Bashir be sent to the ICC? 5 key questions.

Will Omar al-Bashir be sent to the ICC?

5 key questions that must be asked.

 According to AFP (15 February), residents of a Darfur camp for internally displaced persons were “overjoyed” at the pledge by Sudanese authorities to handover Omar al-Bashir to International Criminal Court (ICC). The IDPs were quoted saying that the pledge would "rebuild trust" with the leadership in Khartoum, and that al-Bashir’s extradition to The Hague is a necessity for conflict resolution and reconciliation.

 However, the chairman of Sudan’s Sovereign Council, Abdelfattah El Burhan, clarified that the appearance of al-Bashir and other suspected persons before the ICC does not necessary mean they will stand trial at the court in The Hague. (16 February, Radio Dabanga).

 Sudanese Information Minister Faisal Mohammed Salih then told Reuters (February 17) that military and civilian rulers would need to approve al-Bashir’s extradition. Salih added that alternative possibilities include al-Bashir’s trial in a hybrid court, or that he will appear before the ICC in Khartoum.

 However, the ICC and Sudanese government later denied reports that an ICC delegation arrived in Khartoum to discuss al-Bashir’s extradition to the ICC. (18 February, Radio Dabanga).

 With uncertainty as to how, or if, al-Bashir will face justice before the ICC, five key questions must be asked.

 1.     Are the genocide charges weak?

 The Director of the World Peace Foundation Alex de Waal (14 February, BBC) questions former ICC prosecutor Luis Moreno-Ocampo’s allegations that al-Bashir “carefully nurtured a genocidal plan against Darfur’s black African tribes.” Instead, de Waal attributes the atrocities committed in Darfur to “a panicked overreaction to an insurgent threat, carried to a brutal extreme.” As a result, de Waal suggests the al-Bashir’s extradition to the ICC will be a process “fraught with difficulties.”

2.     Is the military willing to handover al-Bashir?

 Columnist Bobby Ghosh (12 February, Bloomberg) raised the prospect of al-Bashir’s loyalists in the military and Islamist groups resisting al-Bashir’s extradition to the ICC. Alex de Waal further noted that army commanders within Sudan’s transitional government “could be antagonised” by the ICC charges, citing the potential complicity “many” soldiers who served in military campaigns that witnessed “egregious” violations of human rights (14 February, BBC).

 In particular, de Waal pointed to the potential complicity of Himedti, the deputy chairman of Sudan’s sovereign council. Currently the commander of the Rapid Support Forces (RSF) militia, Himedti previously led the Janjaweed militia accused of abuses in Darfur.

 However, the military’s potential willingness to handover al-Bashir to the ICC may also reflect its attempts to empower itself at the expense of its rivals for power within Sudan’s security apparatus. Sudan analyst Jonas Horner of the International Crisis Group stated that al-Bashir’s potential handover is re-enforcing splits between the military and Islamists who lost power since al-Bashir’s downfall. (21 February, Deutsche Welle)

 Senior fellow at the Atlantic Council think-tank Cameron Hudson (12 February, Foreign Policy), suggested that growing relations between the Sudanese government and the ICC reflect the Sudanese Armed Forces’ (SAF) attempted isolation of Himedti, concluding that military leaders may be playing the strategic long game that “marginalises the RSF and secures their survival under a new political dispensation.”

 3.     Are civilians wiling to handover al-Bashir?

 The civilians of Sudan’s transitional government may also be unwilling to handover al-Bashir. Bobby Ghosh (12 February, Bloomberg) argues that Sudan’s political balance may result in civilian politicians agreeing to a compromise that keeps al-Bashir away from the ICC in exchange for speedier political reforms.

Ghosh raises the prospect of the Sudanese sovereign council opting to pursue al-Bashir for numerous other crimes committed during his presidency –“keeping him in Sudan for months, even years.” Therefore, an alternative possibility is that al-Bashir is tried in Sudan for atrocities committed in Darfur.

 4.     Could al-Bashir be tried in Sudan?

 Ghosh notes that Sudan may establish a special domestic court for Darfur crimes, which may attain the first right of refusal to try al-Bashir (12 February, Bloomberg). Alternatively, an ICC may come to Sudan. Sara Abdelgalil, a spokesperson for the Sudanese Professionals Association (SPA), said such a court would help restore a Sudanese judicial system “wrecked by [al-Bashir’s] regime.” (21 February, Deutsche Welle)

 Indeed, Iffat Rahman, a Representative of the African Bar Association, argues that a Sudanese legal system that can enforce international criminal law “will be pivotal for Sudan’s success” and “will meet Sudanese people’s desire for justice.” (21 February, Sudan Tribune).

 However, David L. Phillips, a Director of the Program on Peacebuilding and Rights at Columbia University’s Institute for the Study of Human Rights, notes that Sudan’s national courts lack the capacity for accountability (19 February, Sudan Tribune). This leaves the question as to how Sudan’s judicial system can gain the capacity and legitimacy to bring those guilty of (alleged) atrocities in Darfur to justice.

5.     How could a Sudanese court try al-Bashir?

 Phillips (19 February, Sudan Tribune) suggests that the Sudanese government should invite hybrid courts with international judges and prosecutors in order to dismantle Omar al-Bashir’s “corrupt system.” Similarly, while suggesting that Rahman suggests Sudan will should lead the way in strengthening its legal system, it will need international assistance in doing so. Rahman calls for Sudan to seek US and UK assistance in developing and funding a national court.

 In addition, Rahman calls for the African Union, major regional and economic powers to help Sudan establish a victims trust fund and a commission of inquiry for Sudan. (21 February, Sudan Tribune).