This post was first published at Justice in Conflict blog
The world watched with interest when it was announced that Sudanese authorities were planning to “hand over” Omar Al Bashir, the ousted president, to the International Criminal Court.
It has been more than 10 years since the ICC issued the first of two warrants for Al Bashir. Despite outstanding obligations on states to co-operate with the Court and surrender Al Bashir to The Hague, he travelled widely, including to member-states of the ICC. Justice for Darfur was neglected. States such as South Africa hosted Al Bashir and threatened to pull out of the ICC when the Court admonished their invitations. European nations worked closely with the regime in Khartoum to stanch immigration from Africa. Powerful actors, including members of the UN Security Council that had referred Darfur to the ICC in the first place, went silent on justice for Al Bashir.
But then Al Bashir fell from grace in the eyes of his countrymen and women. The Sudanese – though notably not the international community – had enough of him. Many citizens have since pushed for the former leader to be punished for his involvement in atrocities. They might just get their wish.
Now, the question is not “will Al Bashir be brought to justice”, but where and how. According to Sudan’s justice minister, the country is considering numerous options: “One possibility is that the ICC will come here so they will be appearing before the ICC in Khartoum, or there will be a hybrid court maybe, or maybe they are going to transfer them to The Hague. That will be discussed with the ICC.”
A trial at the ICC
When Sudan announced that Al Bashir would be tried by the ICC, many initially assumed that the former president would be prosecuted in The Hague. This would be a remarkable U-turn for a state that has historically been among the most ardent antagonists of the Court.
However, it appears that some Sudanese officials are concerned that Al Bashir might testify against them if he goes before ICC judges. But an ICC trial in The Hague remains a possibility: for Sudan, shipping Al Bashir off to another continent would rid them of a potential headache and garner “brownie points” for supporting international justice efforts, in line with Khartoum’s desire to rehabilitate its global image.
If Al Bashir does end up in The Hague, however, the ICC had better be ready. His prosecution would be the most complex in the Court’s history. It would be the first time that a perpetrator stood before ICC judges facing charges of genocide – a charge that is notoriously difficult and time-consuming to try. If Al Bashir is handed over, investigators would have to kick their activities into high gear and would need the co-operation of Khartoum.
An ICC Trial in Sudan
The Court has considered holding some in-country hearings on multiple occasions, including in northern Uganda, the Democratic Republic of Congo and Kenya. On each occasion, the ICC declined doing so, primarily for security and financial concerns. The ICC is extremely risk averse and would refuse to put staff in danger.
Moreover, in addition to accommodation and travel, security costs would likely be prohibitory. Allocating so much of the Court’s limited funding to so-called in situ trials might not be of interest to ICC staff or to the states that fund it. The Court needs to spread what little money it has to progress investigations, including those related to the Rohingya crisis, Venezuela and Ukraine.
Another possible downside of an ICC trial in Sudan is that it would deepen the dependence of the Court on Khartoum and potentially undermine efforts at holding other perpetrators to account. There are widespread allegations that some members of the transitional government in Sudan are themselves responsible for mass atrocities in Darfur. One sure-fire way to keep the ICC from investigating them is by making the Court dependent on their co-operation in the collection of evidence, security and logistics.
A Domestic Prosecution in Sudan
A third option would be for Al Bashir to face justice in a Sudanese court. Al Bashir has already been prosecuted for corruption and related offences in Sudan, though it should be stressed that prosecutions for international crimes are far more complex and difficult than those for crimes that are domestic in scope.
The biggest advantage of a domestic trial is that it would be most accessible to victims and survivors of Al Bashir’s crimes and it would require adaptations of Sudan’s domestic legal structures that could potentially represent improvements on the country’s judicial landscape.
However, domestic prosecutions in transitioning states are vulnerable to political manipulation. If Sudan’s new government wanted to exert pressure on judges and prosecutors to avoid investigating or prosecuting certain figures or crimes, it would be easiest to do so with a domestic court and local judges. That seems to be on the mind of many Darfuris, whose advocates have clamoured for an ICC prosecution and are likely to see any domestic trial of Al Bashir as corrupt and illegitimate.
A domestic trial seems unlikely, as prosecuting Al Bashir in Sudanese courts would not get the kind of attention or international kudos that a prosecution by the ICC would. Khartoum desperately wants to “come in from the cold” of political isolation and has sought to reconcile with members of the international community. An international prosecution of Al Bashir would help in that regard.
Prosecuting Bashir at a Hybrid Court
Prosecuting Al Bashir at a hybrid court dedicated to atrocities in Darfur and elsewhere may represent an acceptable middle ground. Hybrid tribunals blend international and national elements, including staff and law. Such courts have previously been created in Sierra Leone, Lebanon and Cambodia and have numerous advantages.
In a hybrid court system, international and domestic officials work together with the aim of holding perpetrators to account, learning from each other and bolstering domestic capacity to prosecute international crimes in the future. If designed well, such tribunals can also have a positive impact on local legal cultures, encouraging respect for human rights and the rule of law. Hybrid courts are often located in-country or nearby, and can also have specialised outreach offices embedded in them, facilitating access to proceedings for the interested communities.
Though hybrid courts have become fashionable in recent years, they are not perfect. They are often funded voluntarily, permitting funding states to pull on the purse strings and influence decision-making. Like all international courts, they are also limited in what they can achieve: few manage to prosecute more than a handful of perpetrators – and some do not even manage that.
Still, a well-designed and implemented hybrid court in the region could be a winning solution for atrocities committed by Al Bashir and his henchmen. Importantly, such a court could be set up to investigate and prosecute crimes not only in Darfur but elsewhere in Sudan and South Sudan. Not only is that likely to get the approval of Darfuri victims and campaigners, but the idea of a hybrid court has also previously received the blessing of the African Union and Washington.
As Darryl Robinson has written, there is no “Goldilocks” zone in achieving accountability for mass atrocities. All of these options have advantages and drawbacks. What is remarkable is that there is a genuine conversation about the best means to mete justice in Sudan. It is no longer about when it will happen but how.
Mark Kersten is a consultant at the Wayamo Foundation, a Senior Research at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).