Bashir to The Hague?

The announcement by the Government of Sudan that it intends to hand over former President Omar al-Bashir and three other individuals to the International Criminal Court is dramatic, surprising, and welcome to the vast majority of people in Sudan who long for justice. But it is also problematic.

Accountability for crimes committed over the last thirty years has been one of the central demands of the Forces for Freedom and Change, which led the non-violent popular uprising that overthrew the regime of President al-Bashir in April last year. Al-Bashir and others have been charged and convicted of corruption by Sudanese courts, and are under investigation for violating the democratic constitution by mounting their military coup in 1989.

Although the civilian-led government of Sudan, and the FFC have frequently spoken about the possibility of handing al-Bashir over to the ICC, this indication was received with caution. The current government is a cohabitation between civilians and soldiers, and many of the soldiers have served in military campaigns that have witnessed egregious violations of human rights, notably in Darfur but also elsewhere in the country. Prominent among these is Gen. Mohamed ‘Hemedti’ Dagolo, leader of the Rapid Support Forces. Although not personally named in investigations into those responsible for atrocities during the height of the war in Darfur in 2003-05, Hemedti was a brigade commander of the Janjaweed, closely associated with mass killing, displacement and rape. Additionally, seven weeks after the overthrow of al-Bashir, armed men from the Rapid Support Forces and security services unleashed a violent attack on civilian protesters in Khartoum, killing over 100.

The transitional government in Sudan is undoubtedly committed to transitional justice, but the extent and timing of its pursuit of this goal is a matter of delicate political judgement. The government’s priority has been maintaining the stability of the country, and there are legitimate fears that surrendering the former president to The Hague might jeopardize that stability.

Two factors appear to have contributed to today’s announcement. One is the peace talks between the Sudanese government and the armed opposition in Darfur and elsewhere. The Darfurian opposition have been adamant that the ICC arrest warrants should be served, and agreeing to that demand is an important step towards peace. The second is the need for the Sudanese government to increase its standing vis-à-vis the international community, especially the U.S., which has been demanding further action before it is ready to remove Sudan from the list of State Sponsors of Terrorism, a necessary (but not sufficient) step towards economic stabilization. The unexpected meeting between the Chairman of the Sovereign Council, Gen. Abdel Fattah al-Burhan, and Israeli PM Benjamin Netanyahu, should be seen in that light.

International human rights advocates will welcome the extradition of al-Bashir to the ICC. But they should also be careful what they wish for: the arrival of the former Sudanese president in The Hague will present a formidable challenge to the prosecutor. The Public Application for an arrest warrant against al-Bashir, presented by then prosecutor Luis Moreno Ocampo in 2008, is unlikely to convince the judges at the court. It is an incompetently prepared document riddled with errors of fact and analysis. The first stage of the trial of al-Bashir would be a confirmation of charges hearing, and the current prosecutor will need substantially to improve on her predecessor’s performance if the charges—especially the counts of genocide—are to go forward. The ICC cannot afford another high-profile failure. Former Pres. al-Bashir is undoubtedly responsible for grievous violations against the Sudanese people, and it would be doubly tragic of the ICC prosecutor were to seek to try him for a crime for which he is not actually responsible.

Photo: Protests near the site of Sudan’s military headquarters in central Khartoum. Photograph: Ashraf Shazly/AFP/Getty Images

Alex de Waal is a Research Professor at The Fletcher School, Tufts University, and leads the WPF research programs on African Peacemaking and Mass Starvation.

Considered one of the foremost experts on the Horn of Africa, his scholarly work and practice has also probed humanitarian crisis and response, human rights, pandemic disease, and conflict and peace-building. His latest book is New Pandemics, Old Politics: Two Hundred Years of War on Disease and its Alternatives. He is also author of Mass Starvation: The History and Future of Famine and The Real Politics of the Horn of Africa (Polity Press, 2015) Following a fellowship with the Global Equity Initiative at Harvard (2004-06), he worked with the Social Science Research Council as Director of the program on HIV/AIDS and Social Transformation, and led projects on conflict and humanitarian crises in Africa (2006-09). During 2005-06, de Waal was seconded to the African Union mediation team for Darfur and from 2009-11 served as senior adviser to the African Union High-Level Implementation Panel for Sudan. He was on the list of Foreign Policy’s 100 most influential public intellectuals in 2008 and Atlantic Monthly’s 27 “brave thinkers” in 2009 and is the winner of the 2024 Huxley Award of the Royal Anthropological Institute. Professor de Waal regularly teaches a course on Conflict in Africa at the Fletcher School, Tufts University.  During this course, students should gain a deeper understanding of the nature of contemporary violent conflict in Africa. Students will be expected to master the key theoretical approaches to violence in Africa, and to become familiar with a number of important case studies. The focus is on the origins and nature of violence, rather than policy responses and solutions. The course is inter-disciplinary and involves readings in political science, international relations, and social anthropology, while also touching on economics, environmental studies, and history. 

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