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The delicate balancing act over Al-Bashir

Publish date: 24 February 2020
Issue Number: 861
Diary: IBA Legalbrief Africa
Category: Sudan

At the peak of the Darfur crisis in the mid 2000s, a cloud of fear hung heavy in many of the camps for internally displaced people. Reports emerged of women being raped or killed by the Janjaweed militia lurking outside, allegedly acting on behalf of the government under former Sudanese President Omar al-Bashir. In the mountainous terrain of Jebel Marra in the west, lie the scorched remains of the villages from which tens of thousands fled. In a Daily Maverick analysis, Karen Allen notes that they bear testimony to the alleged war crimes, crimes against humanity and genocide of which Al-Bashir is indicted. ‘To date no one has been held accountable for the estimated 400 000 killed and three m i l l i o n directly affected by the conflict as set out in the International Criminal Court (ICC) indictment. ‘The politics of the announcement are complex, bound up as they are with ongoing peace talks. But what lies at its core is the delicate balancing act between politics and the law, and the global appetite for individual criminal responsibility. The Al-Bashir case is totemic. The situation in Darfur was the first time the UN Security Council referred a case to the ICC. The case was brought in 2005 on behalf of Darfuris being allegedly targeted and persecuted by their head of state. The UN Security Council has only ever succeeded in referring one more case since – that of Libya in 2011.’ Allen notes that even if Al-Bashir is turned over to the ICC, the reporting so far indicates that it’s unlikely that the Sudanese authorities would consent to the prosecution happening in The Hague. ‘If a request were made to hold the trial in Sudan it would be problematic on several levels, not least because it is not a state party to the Rome Statute. Politically, the ICC would find itself dependent on the co-operation of the Sudanese Government to exercise its work. It isn’t clear whether the military component of the fragile administration would permit this.’

Full Daily Maverick analysis

In an analysis on the allAfrica site, Kerstin Carlson notes that there is also a strong argument to be made for Al-Bashir to be tried in Sudan, and not by the ICC. ‘This, of course, depends on whether Sudan proceeds with indictments for atrocity crimes against him and others in its own judicial system. If it does, the ICC should not exercise jurisdiction. As a court of last resort, the ICC is authorised to take cases only where states cannot or will not prosecute them. This is called “complementarity” and it is central to the court's organisation and legitimacy. Another important factor to consider is cooperation between Sudan and the ICC could come with unacceptable constraints. In the past, the ICC has been criticised for cutting deals with authoritarian leaders who, in fact, could just as easily stand in the dock as the accused they are handing over.’ Carlson warns that the ICC needs to be careful not to further destroy its credibility by cooperating with the sorts of bad actors who should be before a court themselves. ‘In my view, the ICC's best course is to monitor and support anti-impunity in Sudan. It already does this in another country, Colombia. The ICC has been working with the government and members of Colombian civil society to observe implementation of the 2016 peace accords and the transitional justice process. This flexibility has two advantages. It allows countries to craft their own paths forward following violence. It also keeps the resources, promises and threats that accompany international prosecution close and available, should domestic alternatives fail.’

Full analysis on the allAfrica site

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