COMMENT Prof. Dr Kaime and Lena Scheibinger, 4 June 2020
Significant step in the al-Bashir indictment
In February 2020, the Sudanese government indicated its intention to hand over Omar al-Bashir, the country’s former strongman to the International Criminal Court in The Hague to face charges of war crimes and crimes against humanity. Arrest warrants against al-Bashir had been issued by the ICC in 2009 and 2010 making him the first sitting head of state to be indicted by the ICC. However, al-Bashir refused to recognize the authority of the court and Sudan declined to hand him over. For ten years since the first warrant, al-Bashir continued to represent Sudan as head of state and a significant number of African Union members, who are also members of the ICC, flatly refused to execute the warrant. However, al-Bashir’s removal from power in April 2019 following mass protests and a military coup against his government changed the political pendulum in in Sudan. The willingness of the transitional authorities to surrender the former strongman to the ICC should be rightly regarded as a major development in finally holding al-Bashir accountable for his crimes. It is further evidence that crimes against humanity and massive violations of human rights will not stay without any consequences.
Achieving justice for victims
Even though the details on how and when the handing over will take place are still unclear, the news of the possible transfer to the ICC is a big step forward to towards ending impunity in Sudan. However, this is only the beginning and more needs to be done. The trial of those who are responsible for the atrocities committed in Darfur constitutes an indispensable prerequisite for achieving justice and peace for the victims of that conflict. In this regard, it is not sufficient to bring only the former president to court but also to ensure that everyone involved in the massacres in Darfur is prosecuted either by the country‘s own judiciary or, in case that the national institutions are unable to fulfil this mandate, to make ready plans for trial by an international court or a special tribunal following the model of the reconciliation process in Rwanda after the 1994 genocide or the Special Court for Sierra Leone after the civil war.
The ICC and transitional politics in Africa
If al-Bashir is indeed eventually handed over to ICC by the Sudanese government, it will not be the first time that the ICC process has been used to get rid of difficult political problems by a governing regime. In Ivory Coast, the government quickly transported Laurent Gbagbo to the ICC to face a longstanding warrant that had been on ice whilst in power. The same modus befell Charles Taylor of Liberia and Jean Pierre Bemba of the Democratic Republic of Congo. Whilst this type of approach lends itself to uneven results as far as ending impunity is concerned, human rights defenders must ensure that they take full advantage of political changes in countries where perpetrators of mass human violations have hitherto been protected by the state apparatus. Meticulous documentation of crimes and the safe recording of victims and potential witnesses and other evidence will be key in any eventual prosecution as the al-Bashir case will likely demonstrate.
Thoko Kaime holds the Chair of African Legal Studies at the University of Bayreuth and Lena Scheibinger is student assistant at the Chair. They are both scholars of African law and politics
