Justice for Darfur: Sudan Prepares to Hand Over Former President to the ICC

February 24, 2020 by Editor

By: Christina Peck

On February 11, 2020, Sudan’s Sovereign Council—the joint ruling body of the interim Sudanese government—announced that former President Omar al-Bashir will be handed over to the International Criminal Court (ICC) for his involvement in the Darfur genocide. The Darfur genocide led to the deaths of 300,000 people and caused nearly 2.5 million more people to be displaced.

“We agreed no one is above the law,” General Abel al-Burhan, the head of the Sovereign Council said of the decision. “[P]eople will be brought to justice. We will cooperate fully with the ICC.”

Sudan is not a signatory to the Rome Statute, the agreement that grants jurisdiction to the ICC. However, in March 2005 the United Nations Security Council (UNSC) referred the Darfur genocide to the Court, subjecting Sudan to the ICC’s jurisdiction.

Now, fifteen years after the start of the ICC’s investigation, the case is taking a major step forward because of the Sovereign Council’s decision to transfer five Sudanese citizens, including al-Bashir, to the ICC. This decision was made possible following the protests in late 2018, leading to al-Bashir’s ouster and subsequent imprisonment in April 2019, and the creation of the Sovereign Council.

The charges against al-Bashir include two counts of war crimes, three counts of genocide, and five counts of crimes against humanity for actions in the Darfur genocide.

The precise timeline for the hand-off to the ICC remains unclear. According to a source in the Sovereign Council, al-Bashir is still wanted in Sudan for other crimes, including involvement in the 1989 military coup that helped bring him to power. This could slow down the transfer. However, General al-Burhan says the extradition is a sign to “the armed groups that we are serious and want to achieve peace as soon as possible.”

The ICC has not released an official comment on the extradition aside from stating that “there is an obligation for Sudan to cooperate” with the arrest warrants it issued in this matter. The arrest warrants for al-Bashir were issued in 2009 and 2010.

This hand-off would mark the second time the ICC has received the extradition of a state’s leader and serve as an important moment of legitimacy for the ICC. Many nations, including those on the UNSC that referred the Sudan matter to the ICC, are not themselves subject to ICC jurisdiction. The United States, China, India, and Russia are among those that have refused to join. The refusal of so many nations to abide by the ICC has given the court a reputation of toothless-ness. This is perhaps why al-Bashir had no hesitation traveling the globe with active arrest warrants, including to a celebration of Kenya’s new constitution in Nairobi a month after his 2010 warrant was issued or to the 2018 World Cup in Russia.

While the extradition of al-Bashir to the ICC will serve to legitimize the Court in some circles, it will do little to undercut the critique that the Court focuses too much on African nations. Indeed, African displeasure with the ICC peaked in 2016 when South Africa, Burundi, and Gambia announced plans to withdraw from the Court’s jurisdiction. Only Burundi has actually withdrawn from the ICC.

If Sudan follows through and hands over al-Bashir it would be a remarkable statement of faith in the ICC. Though the best way for the ICC to increase its legitimacy among African nations will be by continuing to pursue investigations outside of Africa