On February 11, the transitional government announced that several suspects indicted by the International Criminal Court (ICC) for crimes perpetrated in the Darfur region of Sudan should stand trial in The Hague. Although the authorities have not yet formally announced final details, it is presumed that the statement that those “who had arrest warrants issued against them will appear before the ICC” refers to four accused reportedly in the custody of the Sudanese government, including ousted President Omar al-Bashir, former Minister of Defense Abdel Raheem Hussein, and former Minister of State for the Interior in charge of the management of the “Darfur Security desk,” Ahmad Harun.
The announcement came during peace talks in Juba, South Sudan, between the Sudanese interim government and several armed opposition groups, many of whom are from Darfur. The two sides are working to resolve a longstanding conflict that has involved a brutal civil war, myriad mass atrocities (including genocide), and the secession of South Sudan in 2011. Government spokesman Mohammed Hassan al-Taishi was quoted as saying that the interim government had agreed to turn over the suspects. “Justice cannot be achieved if we do not heal the wounds,” al-Taishi told the BBC. He was also quoted as saying, “We agreed that everyone who had arrest warrants issued against them will appear before the ICC. I’m saying it very clearly.”
The details of if, when, or how these individuals will actually be extradited to The Hague to stand trial remain murky. Nevertheless, in light of the fact that many had written off the possibility of holding Bashir to account as a lost cause, this marks a tremendous breakthrough for the international justice movement and the people of Darfur.
Following global outrage over the atrocities that Bashir had orchestrated against civilians in Darfur, the UN Security Council took the rare step of referring the situation of Darfur to the ICC in 2005, via Resolution 1593. Security Council referral granted the ICC jurisdiction over the matter, even though Sudan is not a state party to the Rome Statute establishing the ICC, thereby precluding the ICC from having traditional territorial jurisdiction. Following the referral, Bashir and other senior government officials were indicted by the ICC for crimes perpetrated in Darfur. During the military campaign that was unleashed upon the civilian population of Darfur beginning in 2003, government forces and allied militias slaughtered thousands of civilians, pillaged and burned villages in a ruthless charred earth campaign, displaced millions of people, and engaged in mass rape campaigns and other forms of sexual violence. In April 2008, the UN estimated that 300,00 people had died in Darfur since 2003 and 2.7 million Darfuri civilians had been displaced as a result of the heinous violations of international law.
In March 2019, Pre-Trial Chamber I of the ICC issued an arrest warrant for Bashir, charging him with the war crimes of directing attacks against civilians and pillage, as well as the crimes against humanity of murder, extermination, forcible transfer, torture and rape. Notably, it declined to charge him with genocide, despite indicting him for these other mass atrocity crimes. Following a successful appeal by the prosecution, on July 12, 2010, the pre-trial chamber issued a second warrant of arrest for Bashir, adding charges of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups. This was a tremendous victory for international justice, making Bashir the first sitting head of State indicted by the Court and the first person ever charged with genocide at the ICC.
While Bashir’s indictment was celebrated widely as a counter-impunity success, the limitations of global justice institutions soon became apparent, given the lack of enforcement mechanisms in place to actually haul Bashir into court. For more than a decade, Bashir, Haroun and others lived as fugitives of international justice. Bashir flouted the arrest warrant, openly traveling outside of Sudan, including to the territories of other State parties to the Rome Statute. During that time, he continued to helm his kleptocratic regime, perpetrating further unconscionable abuses in Darfur and other hot spots, including South Kordofan and Blue Nile.
Fortunately, his rule of terror came to an end in 2019, when Bashir was ousted by a military coup, following a powerful people’s revolution. In August 2019, the military ceded some power to the newly formed Sovereign Council of Sudan, an 11-person coalition of military figures and protest leaders put in place to govern the country for a three-year period while it transitions to democracy and civilian rule.
Since Bashir’s overthrow, there has been widespread speculation as to whether he would be prosecuted, either domestically or by the ICC, for the atrocity crimes he had orchestrated. Initially, the transitional military council responsible for his takedown stated that he would be prosecuted domestically in lieu of extradition to the ICC. Later in 2019, he was tried and convicted on corruption charges by Sudanese courts, stemming from a $25 million cash payment he had received from Saudi Crown Prince Mohammed bin Salman, and sentenced to two years in a social reform facility (since under Sudanese law, individuals over 70 cannot be placed in regular jails or prisons). His conviction on such limited charges, as well as the accompanying meager sentence, was a true blow to the Darfuris and those passionate about securing accountability for the crime of crimes.
This week’s announcement gives hope that the door is not closed to true accountability. However, much still hangs in the balance. Reports suggest that the Sudanese government may be negotiating for Bashir to “appear” before the ICC without being physically extradited to the Court. This may involve the establishment of a hybrid institution within the borders of Sudan, a novel move that has allegedly been under discussion. The fact that the suspects’ extradition seems to be a carrot in peace talks means that how these ongoing talks continue to evolve will play a critical role in how, when, where (and potentially even if), the accused face trial at the ICC. However, General Abel Fattah al-Burhan, who chairs the Sovereign Council, told Human Rights Watch: “We agreed no one is above the law, and that people will be brought to justice, be it in Sudan or outside Sudan with the help of the ICC.”
Despite the international enthusiasm it sparked, Tuesday’s announcement must be viewed in the context of longstanding and multifaceted efforts to secure individual criminal accountability for the suffering and mass killings of civilians in Darfur since 2003. Victims and their families have been waiting for 15 years for this moment of hope. The need among Darfuris for justice, as a means of recovery and restoration of dignity, runs deep and strong. The hundreds of thousands of Darfuri refugees still in the camps — some of whom benefit from Jewish World Watch’s on-the-ground projects — still view justice for their people as critical to their return to their homeland.
Hopefully, these recent events demonstrate a clear way in which Sudan’s current leadership is breaking with the country’s genocidal past. It marks yet another step in efforts by the current transitional government to promote a new vision, make amends with the past, and re-establish connections with the international community.
Sudan’s recent efforts towards transformation have prompted discussions of normalizing state-to-state relationships, including calls for Sudan to be removed from the US State Sponsors of Terrorism List, which places severe financial restrictions on the country. On February 10, while addressing the African Union summit in Addis Ababa, UN Secretary-General Antonio Guterras called for Sudan’s removal from the list, in order to embrace Khartoum as it slowly returns to the international fold. To facilitate removal from this list, Sudan announced on February 13 that it would pay a $30 million settlement to the families of 17 US Navy sailors killed in the 2000 bombing of the USS Cole.
While the announcement of cooperation with the ICC should be met with a healthy level of caution — given the lack of clarity of what the transitional authorities actually have in mind — it is important for the United States to support Sudan at this critical juncture, where it is making clear and concerted efforts to break with its nefarious past as an international pariah. Policies that continue to punish Sudan — like its recent addition to the expanded travel ban — are counterproductive to the rebuilding of this atrocity-plagued nation. The U.S. government must support this critical step towards international justice. It must provide necessary logistical and financial backing to the ICC, as well as other justice-seeking and evidence-gathering initiatives, in order to ensure that the promise made earlier this week is delivered upon for the people of Darfur and Sudan, as a whole. The extradition of Bashir and his cronies will pave the road to stability and transformation of Sudan. Washington and the rest of the international community must remain vigilant until the extradition is actually implemented and Bashir physically stands trial.