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Opinion

In Free Fall: The Tale of Omar al-Bashir and the ICC

On April 11th, 2019, Sudan was transformed. Crowds cheered at the sight of the deposed leader who ruled with an iron fist for thirty years. Yet a civilian government and democratic elections were still out of reach, despite popular demands. After al-Bashir’s overthrow, the ruling transitional military council was unwilling to share power and was later implicated in the massacre of peaceful protesters in Khartoum. However, an unexpected turn occurred when the same military council signed a constitutional declaration agreeing to share power with civilians. The climate shifted significantly. When the newly formed Sovereign Council announced it “would allow those indicted by the ICC to appear before the court”, the possibility emerged that al-Bashir would be tried in the Hague.  Nonetheless, the Sovereign Council’s commitment to international accountability remains ambiguous. As always, the devil is in the detail.

The end of al-Bashir’s regime was determined by political and social factors, anchored on economic instability. As a fruit of a coup himself, al-Bashir fragmented the security forces to protect his regime and ensure they depended on him financially. The Sudanese army was weakened, Sudan’s Secret police empowered, and regional militias supported. However, after the economic crisis, when those mentioned above secured financial independence, al-Bashir became dispensable in the event of a disaster.

Economic strength was also key in maintaining social order. al-Bashir lowered prices of basic commodities to appease protesters in periods of heightened dissatisfaction. But these measures were contingent on resource abundance. After the rise of oil prices and oil-rich South Sudan’s secession, al-Bashir lost his leverage. As a result of the unchanging economic situation, combined with a mobilization of protesters centred around a message amplified beyond the original complaints about bread prices to demands for the fall of the regime, al-Bashir stood on feeble ground. 

Once al-Bashir was convicted on corruption charges, demands for justice grew. Yet these requests sat at odds with the Sovereign Council’s military limb. Among them lay General Dagalo, leader of the Rapid Support Forces, a paramilitary group which originated from a regional militia responsible for the Darfur genocide. It is then questionable how such paradoxical leadership could lead Sudan towards accountability. Considering how the former military council, implicated in the June 3rd massacre committed by the Rapid Support Forces, was granted immunity alongside the newly formed government in the Sovereign Council’s formation, answering it is a tall order. Despite arguably being a necessary trade-off between divergent aspirations, it marks a recurring theme, where instead of agreeing on the best way forward, policies will be constrained to their lowest common denominators. Its effect: the delivery of partial justice. 

At first glance, the announcement was a victory for the ICC. Al- Bashir is the first sitting president indicted by the court, but for almost 10 years he travelled freely since his arrest depended on other states parties’ cooperation. Yet the announcement’s vagueness is worrying. Whether appearing before the court means extradition to the Hague, the establishment of a hybrid court, or an ICC court in Sudan, is uncertain. Besides the concerning lack of precedence that the latter option holds, given the fact that Sudan would be in compliance with the ICC and its principle of Complementarity by prosecuting crimes internally, is concerning.  Beyond scepticism of the Sudanese judiciary’s capacity to deliver justice, Sudan’s 1991 penal system lacks provisions addressing crimes against humanity and genocide, meaning domestic prosecutions cannot fully encapsulate what transpired in Darfur. This recent development raises broader considerations surrounding the court’s perceived legitimacy. The fact that state-consent is central to the ICC is its greatest strength and weakness. While it legitimizes the court for not infringing state sovereignty, it also renders obtaining those accused contingent on state’s political whims. Behind veiled demands for justice, lies a political weapon enabling rulers to eliminate opposition leaders.  

Whatever the conditions, prosecuting al-Bashir would be a win for the ICC. It is part of the court’s underlying logic: to ensure that ruthless leaders, high or low-ranking, do not abuse their power to commit grave atrocities. However, once wounds are re-opened by revisiting the past, it is unclear whether this will enable the Sudanese to heal them. Sudan’s best chance at an impartial trial is through the ICC. Yet the difficulty of securing a guilty verdict will be amplified by the legal challenge of proving the ‘intent to destroy’ needed to secure a genocide conviction. Lastly, it is important to stress how the crimes of Darfur are a mere snapshot of a wider picture. Crimes were since committed in Darfur, the Nuba mountains, South Kordofan and Khartoum on June 3rd. Will a conviction for the now woefully incomplete time frame quench the Sudanese’s thirst for justice?

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