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Sudan: Why the ICC is at a crossroads with Omar al-Bashir’s case

By Achraf Tijani
Posted on Friday, 2 July 2021 09:02

Omar al-Bashir, 20 March 2008 in Damascus. Ammar Abd Rabbo/ABACAPRES

After deciding to acquit both DRC's former vice-president Jean-Pierre Bemba and Côte d’Ivoire’s former president Laurent Gbagbo, the International Criminal Court (ICC) is about to try Sudan's former president Omar al-Bashir for genocide. It's the perfect opportunity for The Hague’s judges to silence their critics.

One of the ICC’s missions is to try the perpetrators of war crimes, torture and extra-judicial executions. But in the 19 years of its existence, The Hague’s judges have still not convicted a single government official.

Among the defendants was:

  • Côte d’Ivoire’s former president Laurent Gbagbo, who led the country from 2000 to 2011 and was acquitted after nearly 10 years of proceedings.
  • Before him, there was Jean-Pierre Bemba, the DRC’s former vice-president, who was acquitted in 2018, two years after he was first found guilty of war crimes and crimes against humanity.

This is certainly what Sudan’s former president Omar al-Bashir, who was ousted from power during the country’s 2019 protests, is also hoping for. The former ruler of Khartoum’s troubles are just beginning. On 28 June, the Sudanese government approved his transfer to the ICC, where he is being prosecuted for war crimes, crimes against humanity and genocide.

Alongside him are former humanitarian affairs minister Ahmed Haroun and his internal affairs counterpart Abdelrahim Mohamed Hussein, who are accused of inciting attacks on civilians, as well as Ali Kushayb, commander of the Janjawid tribal militias, who was recruited, armed and financed by Khartoum.

The “devils on horseback”

The “devils on horseback” were in charge of terrorising the populations that resisted the central power, mainly non-Arabs. They did this by raping, pillaging, looting and exacting. According to the UN, the conflict killed more than 300,000 and displaced over 2.5 million displaced.

The council of ministers’ approval does not mean that the people concerned will be transferred to the North Sea. In fact, it is a political decision that represents only one step in a process that began in March 2009, when the first arrest warrant against Bashir was issued.

The ICC, which had the wind in its sails at the time, made an important decision in the history of this international jurisdiction. It was the first time that a sitting president was subject to such a measure.

If Bashir is indeed transferred to the Netherlands, it may also be an opportunity for the court, currently chaired by Poland’s Piotr Hofmański, to put an end to the criticism that regularly targets it. The ICC is often accused of being unfairly biased against African individuals, while not holding geopolitical powers such as the US, Russia, China and Israel accountable to the Rome Statute.

The Criminal Court’s lack of credibility

At the same time, since the birth of the ICC in 2002, all those indicted for international crimes have been African, which has resulted in some countries on the continent expressing anger at Bashir’s prosecution. In fact, Burundi, South Africa and Gambia have threatened to withdraw from the Criminal Court in the past.

These threats reflect a lack of respect for the ICC. Its lack of credibility was also highlighted when, despite the arrest warrants issued against him, Bashir was able to travel to South Africa and Jordan without worrying too much, which indicates that these states are only committed to following the ICC’s decrees on paper.

This jurisdiction relies on state cooperation, but once in the courtroom, procedural flaws and local authorities’ lack of collaboration in the progress of investigations can alter its efficiency.

On 9 June, a week before leaving office, Fatou Bensouda, the former ICC prosecutor general, alerted the UN Security Council of the need to hold those responsible for war crimes in Darfur accountable. This injunction demonstrates the Court’s fragility in the face of political pressure.

Will this be the first time that a former head of state is condemned by The Hague’s judges for the atrocities he committed? The Gambian magistrate certainly hopes so.

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