Sudan’s government has not yet handed over its former President Omar Al-Bashir to the International Criminal Court (ICC) for trial following atrocities perpetrated during the conflict in Darfur despite the executive’s promises. Here is why.
It is necessary to clarify the reasons why Al-Bashir, a former President of a country who is not Party to the Rome Statute (1), establishing of the Court, is indicted with the most severe crimes at the ICC. In order to explain this, it is to be recalled the procedure of activation of the International Criminal Court trough the United Nations Security Council (UNSC). As a matter of facts, the UNSC can refer a situation to the Court when gross violation of international human rights law are occurring in a country who is not Party of the Rome Statute nor when the author of brutal crimes is perpetrating such acts in the territory of a State who is a member of the ICC.
As a matter of facts, the United Nations Security Council referred the situation in Darfur to the ICC Prosecutor on March 31, 2005, with Resolution 1593(2005) (2). The International Criminal Court opened its investigations and, finding that there was evidence of the perpetration of the crimes for which the Court has jurisdiction, the ICC issued the first arrest warrant (3) against the then Sudanese President (in addition to other arrest warrants issued against other members of the incumbent government and leading members of the rebel groups involved in the conflict in Darfur: the government-affiliated Janjaweed, the Justice and Equality Movement – JEM – and Sudan’s Liberation Army – SLA –). This notwithstanding, Al-Bashir held power until 2019, when a coup d’État overthrew his regime, despite a second arrest warrant issued against his regards (3).
ICC’ jurisprudence affirms, in the Court’s Statute, that a Head of State or Government charged with the most heinous crimes, such as those of which Al-Bashir was accused, is punishable even if the individual is still holding Office. However, Al-Bashir never came before the ICC. The reason of such impediment is attributable to various key factors. First and foremost, Sudan’s non-cooperation with the Court in handling over its President to a Court of which the country was not (and still is not) a Member and, second, the non-cooperation of ICC’s State Parties. In point of facts, the Court’s Members, especially the African States, convinced and angered that the ICC only prosecuted individuals from the African continent, decided not to cooperate with the Court by not executing its request for the arrest of Al-Bashir when he traveled through their territories. Cooperation with Member States proved to be (and still is) the only way for the ICC to act effectively in the execution of its arrest warrants since, the Court, has no armed or police forces of its own but must rely on those of its State Parties. These aspects are the reason why Al-Bashir was never handed over to the Hague Court while he was still in power.
When in 2019 the coup deposed Al-Bashir, he became a fugitive for about one year. However, evidence suggests that, since July 2020, Sudan’s ex-President has been detained in the country’s capital, Khartoum, and is currently on domestic trial for charges relating to the 1989 military coup that brought him to power (4). Moreover, to the Court’s knowledge, Al-Bashir is not being charged for the criminal conduct of which he is accused by the ICC. The reason for this is correlated to the motivation why the perpetrator has not been handled over to the ICC despite the change of leadership at the executive. The cause is attributable to the fact that, currently, there are members of the de iure transitional government that are responsible for crimes perpetrated in Darfur as much as Al-Bashir is. Such individuals fear that by handling over the ex-President to the Hague’s Court, he would name names of the executive in charge, and thus they, in turn, will be sued.
This notwithstanding, in order to appease the Office of the Prosecutor of the International Criminal Court, on August 4, 2021, the Sudanese Cabinet had unanimously decided to become a State Party to the Rome Statute of the ICC (5). As a result, Sudan would be required to hand over all suspects accused of heinous crimes perpetrated in Darfur to the Court, including the former President. Yet, the decision had to be approved by the Sovereign Council (the cabinet composed of military and civilians ruling the country since the 2019 coup). However, what happened, was that in October 2021, Sudan experienced a new coup by which President Al-Burhan dissolved the Sovereign Council and established an entirely military led government, enunciating elections to be held in July 2023.
To this day, the situation in Sudan remains tense. Following the coup, protests have not yet subsided: these are still ongoing and are being brutally suppressed by the armed forces. Sudan has not ratified the Rome Statute yet and there appear to be no signs of the executive taking such direction. It is clear that the government has no interest in ratifying the Rome Statute in that the ICC would gain competence in investigating crimes for which the Court has competence occurred in Sudan since the entry into force of the Rome Statute, which was on July 1, 2002. Therefore, the ICC could investigate not only the crimes committed in Darfur, but the heinous crimes perpetrated in other regions of the country as well, especially the brutal acts perpetrated during the conflict with the Sudan’s People Liberation Army (SPLA) in the south of the country, ended in 2005, as well as wrongful acts perpetrated recently with the suppression of the protests that have pervaded Khartoum and other major Sudanese cities since the 2019 coup.
References:
- https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf
- https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/292/73/PDF/N0529273.pdf?OpenElement
- https://www.icc-cpi.int/darfur/albashir
- https://www.icc-cpi.int/sites/default/files/2022-08/220117-otp-report-unsc-darfur-eng.pdf
- https://sudantribune.com/article212400/
By The European Institute for International Law and International Relations.
