Back in March of 2005, the United Nations Security Council referred the bloody and tragic situation in Darfur to the International Criminal Court (ICC). Since then, not one alleged perpetrator of atrocities committed in Darfur has been held to account. After the ICC issued warrants of arrest for then-President Omar al-Bashir, the Court and its personnel were considered persona non grata and demonized by Khartoum. That has all changed in the span of just over a year, with the collapse of the Bashir regime and a new Sudanese government coming in from the cold while warming up to the ICC. This rapprochment was on full display last week when, for the first time ever, the Court’s Prosecutor visited Khartoum. There are still hurdles before Bashir is prosecuted for his alleged crimes in Darfur, but it was big week for the ICC – and momentum appears to be in justice’s favour.
The visit of Fatou Bensouda, the ICC’s chief Prosecutor, was momentous. Over the past fifteen years, Sudan had been an ardent opponent of the ICC, organizing like-minded countries and even member-states of the Court to castigate the institution as a plaything of Western imperial powers. Bashir flouted the two warrants issued against him for war crimes, crimes against humanity and genocide, travelling to dozens of states – including members of the Court that a legal obligation to arrest and surrender him to The Hague. His travels created a legal and political headache for the Court. Bashir’s 2015 visit to South Africa even precipitated a decision by Pretoria to withdraw its membership to the ICC something which, to the relief of the Court’s officials, has not transpired.
But then Bashir fell from power, ousted not by the international community or because of the ICC’s charges against him, but by Sudanese people power. Citizens had grown tired of his iron-fisted rule and took to the streets to show it. Almost immediately, the prospects of the ICC prosecuting Bashir – as well as the other Bashir regime officials it had targeted for prosecution – was raised by Sudan’s new governing authorities. One alleged perpetrator, Ali Muhammad Ali Abd-Al-Rahman, voluntarily surrendered himself to the ICC and will be put on trial in the coming months. Others are in detention in Sudanese prisons.
And then the ICC Prosecutor landed in Khartoum. For many it must have seemed a mirage, but the potential of Bashir facing trial by or at the ICC now feels distinctly real. As I have written before, prosecuting Bashir for atrocities in Darfur will be a herculean task. He is charged with genocide, a notoriously difficult crime to prosecute because it requires proof that the perpetrator had the requisite intent, as well as took the requisite genocidal acts, to wipe out a recognized group in whole or in part. It has long been an open secret that the Prosecutor’s office did not have an especially strong case against Bashir, unsurprising given that no ICC investigators have ever stepped foot on the Sudanese territory of Darfur.
Some believe that the case against Bashir has been strengthened over the last few years. The best evidence for Bashir’s alleged crimes, however, may not be in Darfur but in Khartoum. If Bashir waged a genocidal campaign, he orchestrated it from the Sudanese capital. While witness evidence collected in refugee camps in neighbouring Chad and satellite imagery showing the wanton destruction of Darfuri villages may help, what would knock the case out of the proverbial park would be documentary evidence indicating that Bashir specifically ordered genocidal acts in Darfur. To get that kind of evidence, it will be essential that the Prosecutor and her team receive effective cooperation, a word that the ICC Prosecutor used nine times in her statement during her visit, from the highest levels of Sudan’s new government.
The Khartoum visit wasn’t all picture perfect. Bensouda was photographed meeting and shaking hands Mohamed Hamdan “Hemeti” Dagolo, a senior military figure who sits on Sudan’s sovereign council and who many have accused of direct participation in the atrocities committed in Darfur. The ICC Prosecutor is no stranger to meeting with figures who have blood on their hands, a presumably ‘pragmatic’ approach to building good will and solidifying cooperation. If Hemeti participates in building a case against his former boss and perhaps even testifies against Bashir, Bensouda’s photo op with him may be forgiven, if not forgotten. But many worry that such meetings only legitimate a figure who previously led the Rapid Support Forces which “engaged in looting, killing, and rape in Darfur”. They also fret that such glad-handing makes bringing the likes of Hemeti to account more difficult.
Still, the ICC Prosecutor must surely happy with her visit to Khartoum. Besides the historic nature of visiting Sudan, this was the first major visit that she has undertaken since the United States issued sanctions against her and her colleague, senior ICC staff member Phakiso Mochochoko. Both Bensouda and Mochochoko were on the trip to Khartoum.
Washington’s vitriolic campaign to slander and slug the ICC with sanctions has been coordinated Israel. Yet the trip took place at precisely the same time as efforts to normalize relations between Sudan and Israel came to fruition,with the diplomatic encouragement of Washington. That the ICC Prosecutor could meet with the Sudanese leadership just days before it was announced that Sudan and Israel had normalized relations indicates that the Court can continue to do its work and that Sudan will not be dissuaded from, or punished for, cooperating with the ICC. To be sure, the vindictive sanctions have affected the Prosecutor and will only thwart the work of the Court. But at least the institution will be able to do some of its work in some places, some of the time – without harassment from Washington.
Will Bashir be brought before the ICC? That question remains to be answered. The same options that I outlined earlier remain on the table: a domestic prosecution, the creation of a hybrid court mixing elements of international and national law, or proceedings by the ICC, either in The Hague or perhaps, though unlikely, seated in Sudan.
The ICC Prosecutor’s visit to Khartoum was another step towards justice for atrocities in Darfur, however imperfect that path may be.
A version of this article was originally published at The National.
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