Sudan, the International Criminal Court and Omar Al Bashir

In 2019, as a result of mass mobilization and popular protest against Omar Al Bashir and his administration, Sudan embarked on a process of transition. Currently, there is a transitional administration in place – a civilian and military administration – with a new cabinet announced early this year, as a result of the Juba Peace Agreement of 3 October 2020, relating to Darfur and other conflict areas.

The news from Sudan on 4^th August 2021 – that the cabinet has voted to sign and ratify the Rome Statute, the treaty establishing the International Criminal Court – is significant. While there are still some steps to go before Sudan can become a state party – such as approval by the governing Sovereign Council – this confirmation comes after many mixed messages regarding the International Criminal Court over the past year. There are also other implications of the announcement, some of which are addressed here. 

Trials in Sudan – 1989 Coup and Corruption 

Since the popular uprising, Omar Al Bashir has been in custody in Khartoum and on trial for crimes under Sudanese law, including corruption and the 1989 military coup. He was convicted for corruption in December 2019 and is now standing trial for crimes associated with the military coup he initiated in 1989, that enabled him to seize power. The trial commenced in July 2020 along with 27 other former officials. Charges also include those related to the killing of demonstrators at the time of protests in December 2018. A conviction for some of the charges could entail the death penalty. There have been delays in the trial proceedings however, including possible recusal, and a postponement of the trial to a few days from now, 10 August 2021. 

Clearly, these cases do not address the charges against Al Bashir or others in his administration, relating to the international crimes in Darfur. Sudanese law did not include provisions for such international crimes till a few years after the 2002 atrocities in Darfur, making them difficult to prosecute in this domestic context. 

Sudan and the ICC – Past and Present  

There is a complex legal and political backdrop to the cabinet announcement on the ICC. Recall that allegations of crimes in Darfur, including genocide, resulted in the first Security Council referral to the ICC on 31 March 2005 by virtue of  Resolution 1593, with the Security Council acting under Chapter VII of the UN Charter. After opening investigations in June 2005, the Prosecutor of the International Criminal Court issued arrest warrants against Omar Al Bashir in 2009 and 2010. Other warrants have also been issued relating to various government officials and members of the ‘janjaweed’ militia, incriminated in the crimes in Darfur. There were many firsts – the first UNSC referral, as well as jurisdiction over a non-state party (which now also exists in the case of Myanmar).

There has been much diplomatic and legal wrangling arising from the referral, including allegations of a bias against African states, African Union threats to withdraw en mass from the Rome Statute, plans for an advisory opinion to the International Court of Justice on head of state immunity, as well as non-cooperation by state parties to the Rome Statute in the matter of arrest and transfer of Al Bashir during state visits. 

At the International Criminal Court, apart from Al Bashir, there are others that are also the focus of the investigations. There are currently six cases, with five warrants of arrest issued, one accused in custody, and four individuals at large (including Al Bashir). Of these, all except for Banda are in the custody of Sudan and can be surrendered to the court.

The case that is now moving forward in relation to Darfur is that of Ali Muhammad Ali Abd-Al-Rahman or ‘Ali Kushayb’, who surrendered himself voluntarily to the ICC in June 2020. The charges against him were confirmed by a pre-trial chamber in July 2021, and include 31 counts for crimes committed between 2002 and 2003. Ahmad Muhammad Harun was jointly charged along with Ali Kushayb, but the cases have been separated. The Prosecutor, in her last address to the UNSC on 9 June 2021, expressed the wish for the transfer of Harun to the Hague, in order for the case to be joined with Ali Kushayb.  

The then Prosecutor Fatou Bensouda also signed an MOU with the Sudanese government in February 2021, which pledged greater cooperation and access to ICC teams for the investigations.   

Conclusion 

There were conflicting messages regarding whether Al Bashir would be handed over to the ICC for trial – early on, indications in the affirmative, but more recently, a reluctance to see him stand trial for international crimes. However, this announcement gives rise to two possibilities – it does not necessarily follow from the announcement that Al Bashir will be handed over, but it may be part of the rationale and laying the groundwork (in political terms) for a handover. Strictly speaking, ratifying the Rome Statute is not a precondition to handover, given the investigation against Al Bashir was the result of a Security Council referral, and there is already an obligation to cooperate (see, para 2 of UNSC Res 1593). This ratification will be for any future international crimes and will be prospective from the time of ratification. While this development is to be commended, there is still the need for continued engagement and cooperation by Sudan, and specifically, for the handover of those in state custody, including Omar Al Bashir.