Send Omar al-Bashir to The Hague

The first Canadian diplomat stationed in Sudan on why the coup in that country must not derail efforts to bring the former president to justice

By: /
19 November, 2021
Sudan's ousted President Omar al-Bashir arrives at a courthouse to attend his in July 2020. Mohammed Abuamrain/AFPTV/AFP via Getty Images)

Nearly three years ago hundreds of thousands of ordinary men and women put their lives on the line in Sudan and brought an end to years of repellent military dictatorship in their country. Mercifully few lives were lost, and the widely reviled President Omar al-Bashir was confined to prison in Khartoum.

After months of negotiations between the still powerful military and the coalition of trade unions and professional associations that had orchestrated the popular mobilisation, a hybrid civilian-military body known as the Sovereign Council was established in July 2019 with the mandate of overseeing a process of political transformation and economic recovery that would, it was hoped, culminate in elections in 2022. The council would initially be headed by a general, Abdel Fattah al-Burhan, who would hand overall leadership to a civilian on November 17, 2021.

Things have not gone smoothly. America lifted sanctions and offered Sudan critical debt relief, but economic recovery has been disappointing: inflation reached a dizzy 387 per cent in August 2021. Tensions within the council climbed as the November 2021 deadline approached. The civilian half of the council, led by Prime Minister Abdalla Hamdok, struggled to loosen the grip of the army from sectors of the economy it had been using as cash cows. The military, for its part, resisted accountability for any of its abuses, including a massacre of civilian protesters immediately prior to the formation of the Sovereign Council in 2019.

On October 25, those tensions came to a head. Only hours after America’s top regional envoy exhorted Burhan to re-commit to the democratic transition, the general unilaterally dissolved the council, placed Hamdok and other key civilian figures under arrest and announced that elections would now be postponed until July 2023.

This de facto coup drew immediate condemnation from many countries — including Canada. Following a full-court diplomatic press by America and others, regional neighbours chimed in with their own denunciations, Egypt being the notable exception. The African Union suspended Sudan’s membership. The World Bank and the European Union announced they are pausing aid distribution. America is doing the same.

What happens next will be determined largely by the extent to which the much-tried people of Sudan, reeling from COVID and economic hardship, are prepared and able to mobilise once again. Demonstrations thus far have been largely peaceful and impressive in scale, notwithstanding a total internet blackout imposed by Burhan and his supporters.

A further determinant will be how much America is willing to exert pressure on Egypt, so as to complete the diplomatic isolation of Burhan and his clique. Other mediation efforts have been launched, including by the United Nations. Diplomats being what they are, these efforts are aimed at reaching a compromise. But it’s doubtful protesters on the street are any longer interested in that. Civilian-military partnership having manifestly failed, they want full civilian rule.

The moment is delicate. With fewer international allies than they had hoped and facing a truculent public, Burhan and his allies may feel that they now have nothing to lose by unleashing the full force of the military on unarmed demonstrators.

It is in Canada’s interest as much as anyone’s that Sudan resume and complete its transition to democracy and stability. The protesters who brought down the dictatorship, and those who are once again in the streets, are a beacon of hope on a continent where both are in retreat. There have this year been attempted or successful coups in Guinea, Mali and Niger. South Sudan is locked in a spiral of corruption and violence, with famine a perennial threat. Ethiopia is in a state of full-blown civil war. Demonstrators on the streets of Khartoum, as well as Hamdok and his civilian colleagues, deserve our enthusiastic support.

*  *  *

Reversing the coup, however, will not be enough. For democracy to become fully sustainable in Sudan, there must be accountability. And so we come to a man in whose fate Canada has a particular stake: Omar al-Bashir. 

“For democracy to become fully sustainable in Sudan, there must be accountability.”

Canada played a pivotal role in the establishment of the International Criminal Court in the 1990s. We were the fourteenth state to sign the Rome Statute — the court’s foundational instrument — and by passing the Crimes Against Humanity and War Crimes Act in 2000, we were the first to embed its provisions in domestic law.

By that time, President al-Bashir was already steeped in war crimes and human rights abuses under the cover of Sudan’s second civil war. My instructions upon opening Canada’s first diplomatic presence in Sudan that year (with the intentionally vague title “head of office”) included “Avoid all possible contact with President Bashir.” On account of his deserved pariah status, we did not appoint our first resident ambassador to Khartoum until he was behind bars, 20 years later.

But it was al-Bashir’s counterinsurgency campaign in Darfur, starting in 2003, that drew the attention of the International Criminal Court.

In this western region of the country, he oversaw mass atrocities and crimes against humanity as state security forces and allied militias targeted members of the Fur, Zaghawa and Masalit ethnic groups, burning villages and killing tens of thousands. The UN Security Council could not ignore these crimes and in 2004 referred the situation to the ICC.

Did the campaign against these groups meet the threshold for genocide? Were the atrocities in Darfur committed with the intent of al-Bashir “to destroy, in whole or in part, a national, ethnical, racial or religious group” (as the ICC definition runs)? A succession of chief prosecutors at the court certainly thought so. Following a preliminary investigation, the court charged al-Bashir in 2009 and 2010 with five counts of crimes against humanity, two of war crimes and three of genocide.

Over the subsequent years, al-Bashir thumbed his nose at the ICC. He travelled to many countries whose obligation under the Rome Statute was to arrest him. Even South Africa, the country thought to have the most independent and effective judiciary on the continent, allowed him to attend an African Union summit on its territory.

It was Sudan that finally tried and convicted al-Bashir in 2019 — for corruption. The revelation that he had stashed more than $150 million in the Republican Palace cost him the support of some Sudanese who had argued he might have been misguided but always did his best for the country. A second and more controversial trial, of al-Bashir and 20 other officers, was then launched regarding the coup that had brought him to power in the first place, way back in1989.

The Sovereign Council meanwhile procrastinated over delivering him to the ICC to face the much graver accusations of war crimes, crimes against humanity and genocide, even though this was a popular demand of the masses that brought the council into being.

It is easy to guess why the council — or at least its uniformed half — hesitated. Al-Bashir’s testimony would likely implicate senior officers who remain in power. And it is not as though Sudan’s neighbours would cheer Khartoum for shackling al-Bashir and putting him on a plane to Europe. There are many Big Men in the region who have a lot to lose should justice for war crimes prevail, however delayed that justice might be.

Now we have the latest coup. It risks making al-Bashir’s rendition even more doubtful.  There is a range of possible outcomes to the ongoing saga, with full military control of the government at one end and full civilian control at the other. If the military consolidate their hold on power, al-Bashir will surely rest easy. Even if the civilians win the day, they will likely avoid any moves that might provoke the military again. 

Failure to follow through on delivering al-Bashir to the ICC would be a tragedy for his victims who deserve a reckoning before he dies of old age. Indefinite deferral would also be a setback for the International Criminal Court — which has been struggling to regain credibility after some notable failed prosecutions — and for the principle of transitional justice writ large. It would give consolation to tyrants everywhere, who would rightly deduce armed intimidation works.

Canada should prioritize using whatever influence it can muster to ensure al-Bashir is tried at the ICC. As a middle power and trading nation, Canada should try to strengthen the rules-based world order wherever possible, and nothing epitomises this order more than the International Criminal Court.

Pressure should also be exerted in Washington. Ongoing American intervention will be critical to achieving a peaceful resolution of the current crisis. There is no realistic prospect that the United States will publicly champion the ICC. Washington, after all, has not signed the Rome Statute. But after allowing the position to lapse under President Donald Trump, the State Department has appointed Morse Tan as ambassador-at-large for global criminal justice. A quiet chat with him would be a good place for Canada to start, followed by talks with other UN permanent members who are parties to the Rome Statute.

Much diplomatic effort will be directed in the weeks ahead toward convincing Sudan’s military leaders to cede or at least share power. Through all this, we must not lose sight of Omar al-Bashir. His victims deserve justice. Other tyrants with bloodied hands will sleep easy the longer he is able to evade it. 

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