Could Bashir be headed to the International Criminal Court?

After 30 years as president of Sudan, Omar al-Bashir is out of power. It is difficult to overstate how remarkable it is to write those words. After four months of popular protests, Bashir has been deposed and, according to the Sudanese military, is currently in detention.

The question on the minds of observers is: what happens next? Who will replace Bashir and where will the former president end up? Could it be in The Hague to face justice at the International Criminal Court (ICC)?

Bashir has had arrest warrants issued against him for over a decade. In 2005, the United Nations Security Council referred the situation in Sudan’s Darfur region — where, under Bashir’s watch, hundreds of thousands were killed or displaced from their homes — to the ICC. Over the next four years, the court issued two arrest warrants against Bashir for the alleged crimes he is responsible for in Darfur. Collectively, the warrants charge him with the unholy trinity of the court’s core crimes: war crimes, crimes against humanity and genocide.

Unsurprisingly, Bashir has rejected the very premise of the ICC and, despite the arrest warrants, has been able to secure diplomatic support from various states around the world, as well as from the African Union, and travel abroad regularly — including to a number of ICC member-states.

Many hope that his luck has finally run out.

However, while recent events are undoubtedly remarkable and demonstrate the power of people coming together to demand change, the situation in Sudan remains precarious. Despite heaps of evidence, we often forget just how dangerous and volatile transitional contexts can be in the wake of the removal of a head of state. This is perhaps especially so when a state’s military subsequently takes over, which is currently the case in Sudan despite protestors clamouring for a civilian government.

Proponents of international criminal justice often believe that getting rid of a political leader will invariably lead to peace. But that is not enough. Getting rid of Bashir will rid Sudan of its figurehead, but not of a system that is replete with perpetrators of atrocities. The figures that are currently serving as Sudan’s ‘new’ leaders were core members of Bashir’s regime. They are not ‘nice guys’ with democratic or peace-loving credentials. As international justice expert Thijs Bouwknegt points out, the first to take over was the head of the military, General Awad Ibn Auf, who faced American sanctions from 2007 to 2017 and has been referenced at least five times in the warrants of arrest for Bashir, regarding his own alleged role in atrocities in Darfur. Auf has now stepped down and retired, but it remains unclear who will ultimately come out ‘on top’ in Sudan. It would be wrong to assume that they will invariably be proponents of international justice and human rights.

Right now, the safety of civilians needs to be prioritized. There remains a real risk of civil strife and potentially civil war.

When it comes to the ICC and its interventions, there is also an ever-present need to see the forest for the trees. Observers should avoid over-emphasizing the role or impact of the ICC simply because it is what observers and proponents of the court focus on. According to Alex de Waal, perhaps the most important writer and researcher on Sudanese politics and history outside of the country:

"One thing that the opposition has not demanded is that Mr Bashir be handed over to the International Criminal Court (ICC), where he faces prosecution for crimes committed in Darfur 15 years ago. For them, the fate of the country is bigger than bringing one man to justice."

This is not to say that the ICC or its warrants against Bashir are irrelevant. On the contrary, reports suggest that a council set up to elect — or, more likely, select — someone as interim leader of the country is apparently looking for someone specifically not wanted by the ICC. But it is important to stress that the ICC has had a minimal impact on developments on the ground in Sudan to date.

Preparing for the improbable

It is unlikely that Bashir will be surrendered to the ICC any time soon. For that to happen, two conditions would need to be satisfied: one, Sudan’s new leadership would have to be convinced that it is in their interests to get Bashir out of the country, and two, their preferred destination for their former boss would have to be The Hague.

Right now, that is not probable. Amidst rumours that Bashir might receive exile from another country or be surrendered to the ICC, Sudan’s army stated that Bashir will not be extradited anywhere, including to The Hague, for at least two years — and that he will face trial in the country. It remains to be seen whether they can deliver on this pledge. If they do, then perhaps those years can buy the ICC some time to prepare for his potential future surrender.

Is the ICC ready for such a possibility? In response to a question posed on Twitter about whether ICC prosecutor Fatou Bensouda was prepared for Bashir’s potential surrender, one former staff member of the court was blunt: the “answer is no the ICC is not ready…There is no case ready against Bashir.”

It is something of an open secret among ICC observers that the court’s case against Bashir is — or at least has been — rather weak. The investigations into Darfur and the evidence collected against Bashir transpired during a period where case construction was considered poor, leading to a number of high-profile acquittals and the collapse of numerous cases at the ICC, including that of Kenyan President Uhuru Kenyatta. In this context, it is also notable that ICC investigators have never been to Darfur; unsurprisingly, Khartoum never wanted them there. They have thus had to rely on testimony and evidence provided to them outside of Darfur, including in refugee camps in bordering Chad.

Moreover, in 2014, Bensouda “hibernated” her investigation into Darfur (resulting in a group of victims withdrawing from the case against Bashir). However, in 2016 — in response to Bashir’s diplomatic visit to South Africa — the investigation was made active again. This likely means that the prosecutor’s case against Bashir is stronger than before. But it is not clear that it is strong enough. Any prosecution of Bashir would be, by some margin, the ICC’s most difficult trial to date, precisely because he is charged with genocide. Convicting him would require not only showing that he is responsible for acts of genocide, but that he intended to exterminate groups in Darfur in whole or in part.

Political volatility and uncertainty can, however, create opportunities. The current upheaval in Sudan could create fertile ground for ICC investigators to approach disgruntled or disenchanted figures around Bashir who deem it useful to send evidence of the former president’s atrocities to the court. There is no certainty that this will happen and, as a reminder, the current regime has, for now, ruled out any surrender to the ICC.

The history of political transitions — and the ICC’s own record — suggest that things can change in a hurry. But as it stands, and despite what many observers of international criminal justice may hope, surrendering Bashir to the court does not appear to be a priority for either the people rallying in Khartoum or the country’s new leadership. That could quickly change. If it does, the ICC needs to be ready.