Sudan’s political elite and popular forces have scrambled to debate a recent announcent that former President Omar al-Bashir and 51 of his aides might be handed over the Internatioinal Criminal Court in The Hague to stand trial for charges related to human rights violations, crimes against humanity and genocide in Darfur region.

The extraordinary announcement was made by Mohammed Al-Hassan Al-Taayishi, a member of a delegation Sudan's Transitional Sovereign Council sent to negotiate with the representatives of the armed opposition movements in Juba, the capital of South Sudan, last February (2020). The announcement triggered a nation-wide debate between the opponents and proponents of the potential move focusing on three main talking points:  The extent to which the transitional authority’s intentions to hand over Al-Bashir were truthful; the feasibility of this step in ensuring the rule of law and justice; and its role in ensuring a peaceful transition towards building a new political order and bringing peace to the country.

Al-Bashir’s Extradition: Both Sides of the Argument

Supporters of Al-Bashir's extradition emphasize that the potential move has become necessary to the country's justice system. They also believe that the Muslim Brotherhood's control over Sudan's judicial system will allow the former president and his aides to escape justice. This was evident in the post-December 2018 revolution farcical trial of members of the previous regime, including Al-Bashir himself, on charges related to public money.

Additionally, the supporters of the announcement believe that the ICC is impartial, fair and capable of providing compelling and sufficient evidence to establish the truth of the charges against the defendants. They also argue that the trying the accused in Sudan will require security, financial and logistical preparations beyond Sudan's capabilities, in light of the deep economic crisis the country has been going through. Therefore, they believe that referring Al-Bashir and his aides to the ICC will spare Sudan the burden of trials, put an end to social injustice, eliminate impunity, and do justice to the victims. Furthermore, if the current transitional authority carries out the trials, it will divert its attention from other priority issues, which were stipulated in the August 2019 constitutional document. In particular, the document calls for promoting peace, addressing deteriorating economic and social conditions, drafting a new constitution and preparing for elections.

Therefore, they consider the extradition of the accused to the ICC is a necessary condition to ensure a peaceful transition to a new civil order, block members of the previous regime from returning to politics, or leading a counter-revolution against the transitional government.

Al-Bashir’s Extradition Opponents

Opponents of al-Bashir’s extradition consider that his extradition to the ICC will diminish the country's sovereignty and place it under an international judicial tutelage, especially as Sudan is not a party to the Rome Statute of the ICC. They also question the integrity of the court itself, asserting that it is not a haven for the weak and the oppressed, and that it has fallen into the grip of major countries and has become a hostage to their policies. This judicial system - according to these - is no longer in itself immune to suspicions, as it currently faces accusations of financial corruption, double standards, fabrication of evidence, and indoctrination of witnesses, which, in the eyes of some, turned it from an international justice body into an instrument of suppression against states that do not align with the United States and its allies.

To justify their argument, the opponents argue that most of the cases dealt with by the ICC relate to leaders and officials in eight African countries: Sudan, Kenya, Democratic Republic of the Congo, Central Africa, Libya, Ivory Coast, Mali, and Uganda. They also add that the court's investigation of the Bosnian Serb leader Radovan Karadzic and its chief of staff, and its demand to try the Israeli leaders for the crimes they committed against the Palestinian people, are no more than a desperate attempt to appear neutral, rather than seeking to reveal the truth and redress the victims.

They underline the need to abide by the decision of the African Union issued during its emergency summit in May 2013, which demanded its members not to cooperate with the ICC, in light of the refusal of three permanent members of the Security Council (the United States, Russia and China) to join its statute. They cited the withdrawal of three African countries from the court, namely: Burundi, South Africa, and The Gambia whose national Fatou Bensouda serves as the Prosecutor of the ICC.

The Trial: Possible Scenarios

Given the current circumstances, there are three scenarios for the trial of former Sundanese presidents and his aides:

First Scenario: A Domestic Trial

This scenario might materialize if the announcement about Al-Bashir's extradition to the ICC turns out to be nothing but press statements that are not likely to be translated into concrete action on the ground. This scenario assumes that there are no real intentions to extradite Al-Bashir, especially since such a move may open the door to renewing the accusations against some influential members of the Sovereign Council, led by Vice-President of the Council Mohamed Hamdan Daglo Hamidati, of being involved in violations and crimes committed in Darfur by the Rapid Support Forces he commanded.

The current Sudanese administration also has many pressing issues that it must address, according to the constitutional declaration, and it does not have the luxury of time to engage in political and media side battles, especially in light of the uncertainties and ongoing controversy regarding the integrity and impartiality of the ICC. It also may not have the capabilities and resources to face the prospects of the counter-revolution that could be led by supporters of Al-Bashir and the symbols of the previous regime if he is handed over to the court. Indeed, some aspects of a counter-revolution have been already seen on the ground, namely the attempt on the life of interim Prime Minister Abdullah Hamduk on March 9th.

Second Scenario: Handing Over Al-Bashir to the ICC

The chances of this scenario are linked to two main factors; the first of which is the continuing and increasing pressure of the political and armed opposition on the transitional authority in Sudan to hand over Al-Bashir. The opposition Revolutionary Front demands the extradition of Al-Bashir to the ICC and considers this issue a red-line it can not back down from. Most members of the Forces of Freedom and Change back the front's demand and see Al-Bashir’s extradition as a strong indication of the transitional authority’s credibility in continuing to remove the national salvation regime.

The second factor is the acceptance of the transitional authority to hand over Al-Bashir, with the aim of strengthening relations with the United States and the international community, and demonstrating the seriousness of the new Sudan to uphold human rights, reject terrorism and cooperate with global counter-terror efforts. The handover of Bashir may represent another important step in the path aimed at removing Sudan from the U.S. list of countries sponsoring terrorism, and then opening the door to receiving development aid and loans from international financing institutions, and to benefit from U.S. foreign debt relief.

Third Scenario: ICC-Sponored Domestic Trial

The transitional authority may resort to trying Al-Bashir and other defendants before national courts, while assuring the internal opposition and the international community regarding the impartiality and integrity of the trials, by cooperating with the ICC, utilizing its expertise, and agreeing to invite representatives of the ICC to monitor the conduct of trials in Sudan.

Prospects for this scenario to materialize seem to exist in light of the desire and capacity to enforce it. Such desire shows that the Sovereign Council and the Council of Ministers of Sudan agree on the necessity of conducting the trial, enforcing justice, and responding to opposition pressure. As for the capacity, it can be established on the fall of the national salvation regime and the possibility of implementing the anti-terrorism law in Sudan, issued in 2010, as the most important reference/ legal framework that can be invoked to conduct trials.                    

This third scenario seems to be the most likely, as it represents a balanced solution for completing the Sudanese revolution and establishing justice and the rule of law on the one hand, and easing off external pressure on the transitional authority on the other hand. External powers are pressing Sudan to cooperate with the ICC and affirm its respect for human rights as a prerequisite for breaking out of international isolation, lifting sanctions, and obtaining the necessary political and economic support to secure a peaceful transition to a new Sudan.

* Director of the African Research Center at Cairo University.

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