After decades of authoritarian rule, Omar al-Bashir is likely to stand the ICC trial. Is this the dawn of a new rule-based democratic Sudan?
A Cauldron of Cultural, Social and Political Churnings
Genocide and human rights violation have unfortunately been a central part of the country's history. Sudan, once the largest and most diverse state in Africa, was embroiled in internal conflict for decades in its oil-rich south and in Darfur. The civil war fought between the predominantly Muslim north, and Christian south eventually led to an UN-brokered partition in 2011. Last year, Sudan was amidst massive protests that ultimately toppled President Omar al-Bashir and thus began its transition to democracy.
President al-Bashir’s three-decades-long era was a rule defined by war. He is accused of orchestrating war crimes in the western region of Darfur through a group of government-armed and funded Arab militia known as the Janjaweed. The Janjaweed systematically carried out the mass slaughter and rape of Darfuri men, women and children that displaced more than two million people and killed around 300,000. Under international pressure, a hybrid peacekeeping mission, the United Nations -African Union Mission in Darfur was set up in 2007 to bring an end to the killings.
The discovery of massive human rights violations in Darfur prompted the International Criminal Court (ICC) to issue a warrant against President Bashir for crimes against humanity. Despite two warrants in 2009 and 2010, President Bashir continued to rule with impunity, winning sham elections in 2010 and 2015. Emboldened, he continued to make diplomatic visits to various countries.
In 2019, after months of public protests, he was finally overthrown by the military. The military formed a transitional government led by Prime Minister Abdalla Hamdok.
2019 was a tumultuous year for Sudan with the protests, the military coup d’état and the new government. The chaos has slowly turned into sweeping changes being made by the country. The recent announcement to cooperate with the ICC in prosecuting al-Bashir and four others for the atrocities committed in Darfur as part of a peace deal with the rebel groups is a landmark moment in its political history.
The ICC: Its Relevance in the 21st Century
The infamous Nuremberg Trials held to punish the Nazi war criminals laid the foundation for the establishment of the ICC. 120 countries signed the Rome Statute in 1998 informally agreeing to the concept of an International Court, which would conduct trials on four types of crimes: genocide, crimes against humanity, crimes of aggression and war crimes. The Court, located in The Hague, Netherlands, has 18 judges who have a 9-year term.
The ICC has jurisdiction in countries that have ratified its treaty on crimes committed after 1 July 2002. Presently, 137 countries are signatories, but only 122 are party to the treaty. The U.S., while a signatory, is not a party. India, along with China and North Korea, has not signed or ratified the Rome Statute.
The ICC is presently involved in Uganda, Democratic Republic of Congo, the Central African Republic, Kenya, Ivory Coast, Libya and Sudan. Historically, the ICC has a poor reputation in Africa. It has been accused of targeting African states while overlooking others. It has indicted more than 40 individuals all from African countries. Even in the case of al-Bashir, most African countries refused to arrest and surrender him to the ICC. In fact, the African Union (AU) urged member states not to comply with ICC’s request to arrest al-Bashir and even threatened sanctions.
Will Justice be Served in the case of al-Bashir?
Sudan is not a party to the Rome Statute. However, given that Sudan has agreed to send al-Bashir for trial, this may be a unique and historical case. al-Bashir, long evading justice, may yet answer for his crimes.
A series of encouraging changes being implemented in Sudan gives hope that finally, the long-suffering nation is governed by the rule of law. The notorious Public Order Act, which restricts civil liberties and freedom of movement for women, has been overturned. It has requested a UN political mission to improve its political and economic situation.
The country faces several challenges: the military remains in control despite the civilian government in power. Given the resurgence in pro-democracy movements across the world, there are chances for new reforms to survive. If they can forge a new relationship based on accountability and responsiveness, then the transition may stand a chance.
The dynamics between the government and military is unclear, and the sustainability of the present decisions as well. The move to present al-Bashir for trial could potentially lead to either stability or further conflict.
There is opposition amidst members of the African Union as it will set a precedent for other rulers who have been dismissive of human rights during their rule. They may yet succeed in pressurising the fledgeling Sudanese civilian government to try al-Bashir domestically.
Since its inception, the ICC has faced considerable setbacks, including a debate over its legitimacy. The constant criticism is that, on a case to case basis, the ICC oscillated between too little authority making it ineffective (against powerful states) and too much authority threatening state sovereignty (when the accused was from a small country). It has to establish its credibility by not appearing to be manipulated by major powers.
The case history of ICC clearly shows its focus has been Africa and mostly the poorest nations. War crimes and human rights violations are rife in many parts of the world but go unpunished. ICC must have a more balanced and judicious approach.
Amidst all hot spots in Africa, Darfur is the longest and the darkest. The trial of Omar al-Bashir could potentially be looked at as reparations to the Darfurians for the wrong-doings and genocide of an entire community. Hopefully, it could lead to closure to the instability and conflict inflicted upon Western Sudan since 2003.