Wednesday, September 30, 2020

Sudan: Prospects of Justice after the Downfall of Al Bashir

Sudanese Protesters During 2019 Protests

Sudan is one of the largest and diverse countries in Africa. It has also witnessed the longest civil war on the continent. Ever since 1989, it has been synonymous and has come to be known as a country suffering from violence and grave human rights violations including genocide, war crimes and crimes against humanity.  From this period it has also been governed by the most notorious Islamist political party, which has essentially relied on the principle of divide and rule. As a result, millions of innocent people have either been killed or forcibly displaced or fled the country over the past three decades.

Most recent events in Sudan defy logic and reason if one takes into account the country's background and historical context. The recent demonstrations have been the most massive demonstrations that modern statehood has ever experienced. The attempt to peacefully overthrow the Islamic regime in Khartoum started in 2013 and led to more drastic demonstrations in December of 2018 when more than 80 protesters were killed and hundreds injured.  

Al Bashir, the now ousted president of Sudan has always been a prominent figure in the infamous international Muslim Brotherhood organization and a pivotal leader in the branch of Sudan’s so-called National Islamic Front. Currently Al Bashir is wanted by the International Criminal Court (ICC) for serious and grave crimes committed in the Darfur region where since 2003, notwithstanding the thousands of refugees in neighbouring countries, more than 300,0000 people have been killed, and over 2.3 million internally displaced.

As one of the longest serving presidents on the African continent it was the Muslim Brotherhood that brought Al Bashir to power over 30 years ago in a coup originally orchestrated by the well-known brotherhood leader Dr. Al Turabi. The Muslim Brotherhood was a highly organized and elitist organization and its Sudanese branch was established by a group of students in 1949. Sudan has since been ruled for 30 years by the Muslim Brotherhood organization whose values have become deeply embedded and entrenched in almost every area of the Sudanese society.

The Challenges

The challenges facing Sudan in terms of peaceful transition were myriad. Firstly, existing political parties that were oppressed for the past thirty years were now dealing with the biggest demonstrations taking place in the 21st century. These political parties have faced continued threats from the Muslim Brotherhood and were particularly fearful that a new military coup would ensue. It was thus initially considered unlikely that a transitional agreement would be reached whereby a competent leadership would take over power during take over during the transitional period. Without credible leadership it remained questionable whether issues of peace and justice could be adequately and effectively addressed.

Secondly, in terms of grave crimes and gross human rights violations committed in Darfur, including the Blue Nile and Nuba Mountains, victims have been waiting for justice for a very long time and the question on everyone's minds was how would it be possible to deliver justice adequately and effectively enough, in the given situation. The conflict has seen millions of people who have been forcibly displaced into IDPs, and thousands who have fled the country with over a million that have been killed in the above mentioned regions over the last two decades. The challenge was how to deliver justice to such a significant number of victims and how to ensure for the effective prosecution of thousands of perpetrators in light of a weak, incompetent and corrupt judicial system?

Finally, there was the difficulty of achieving lasting peace in the destroyed regions in the country. Given the fact that several rebel forces with different capacities and interests were functioning in and out of these regions for roughly almost two decades the difficulty was further compounded by the necessity of securing a comprehensive peace agreement that would encapsulate the crimes committed by these armed forces and groups.

The Situation Until Recently 

After nearly thirty years of oppression, appalling injustice, and poverty that resulted in generations who were deprived of their inherent rights such as the right to vote, the right to life and the right not to be tortured, a major shift in political power took place in Sudan when protests began in December of 2018. People from different walks of life protested continuously for eight months in an attempt to put an end to the vicious and historical cycle of civil war, poverty, and oppression.  Sudanese people were for the first time very vocal on their natural rights and recognized the collective power they held which would enable them not only to overthrow the existing dictatorship but also assist them in deciding on the future of their country.  

The thirty years of Muslim Brotherhood dictatorship was not only devastating to the Sudanese people, but it also destroyed almost every element of civil society and civic administration in Sudan leading to weak political, legal and educational systems consistent with the Brotherhood ideology.

In terms of Sudan’s national legal system it has been significantly altered to fit the Brotherhood ideology with Sharia law being the prominent and primary law in Sudanese society. Based on the nature and scope of the crimes committed in certain regions such as Darfur; the Sudanese legal system as it stands would in its current state be incapable of addressing crimes of such a magnitude. From the crimes codified and criminalized there is no mention of the crimes of genocide, crimes against humanity or war crimes in the Sudanese legal system leaving no space and indication in the existing legal system on how to address these grave crimes. The legal system in other words would therefore be incompetent and unable to guarantee the fundamental rights of both the victim and defendant. For example problematic issues would arise as to the integrity of judges, transparency and the feasibility of ensuring a robust and fair criminal trial. 

Future Transition and Hope in the Country

Following the ousting of Al Bashir in April of 2019, Sudan embarked on a transition to civilian rule over period of 39 months.  The current transitional government has been mandated through a Constitutional Declaration to reach a comprehensive peace agreement and to deal with the numerous conflicts and systematic problems within the county. Also there has been provision made for an independent commission on transitional justice to investigate the issues thoroughly. Currently there has been criticism and divergent views on how to achieve justice in Sudan and progress has been slow in developing a robust transitional justice mechanism capable of adequately addressing justice concerns in the country. In order to ensure for a robust and adequately functioning transitional justice mechanism past experience from other transitional justice contexts dictates and reveal that within the framework of such a mechanism prosecutions are critical. Aligned with effective prosecutions local justice initiatives that resonate with the local population must be capitalized on for legitimacy and maximum purpose. Additionally capacity building and the strengthening of national institutions remain critical as well as recognition of the relevance of truth telling and reconciliation processes. In achieving such a model it is incumbent upon those driving such a process to have the political will and a measure of independence to see an adequate level of justice done. It is only with these elements in place that true freedom; peace and justice may be achievable for the people and survivors in Sudan.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.



Wednesday, August 19, 2020

The Blame Game: The ICC, UNSC or States Parties?

Over the last couple of years, the International Criminal Court (ICC) has been criticised as biased, selective, and has been queried about its targeting of only weaker States, such as African States. The purpose of this blog is to address the question viz. what are some of the current problems or tensions underlying the failure of states parties to cooperate with the ICC in good faith as enunciated and expected under the Rome Statute? This blog piece starts by assessing the reasons behind the failure or the unwillingness of some States parties to cooperate with the Court as stipulated in the Rome Statute. Furthermore, part of this analysis will explore the tension between the Court and African States regarding cooperation.  

The Court has often reiterated that it is a judicial entity and not a political body in any sense. For instance, in 2006, former president, Philippe Kirsch, of the Court publicly stated that "there is not a shred of evidence after three-and-a-half years that the Court has done anything political. The Court is operating purely judicially". However, some argue that in the context of the political concept of a friend-enemy dichotomy, the Court has used this dichotomy as a weapon in political struggles. The Court has jurisdiction over the most serious crimes of concern, and as such the Court labels some suspects as the enemies of mankind, whilst others who cooperate with the ICC they are portrayed as the friend of humankind. Furthermore, the Court has provided the opportunity to label certain political actors as not merely its enemies but as the abusers of universal norms and the enemies of mankind.

Moreover, one of the major criticisms has also been about the selectivity of situations to prosecute. Some scholars argue that most of the cases investigated by the Court has been selected by the prosecutor based on his or her discretionary power, except the situations of the western region of Sudan-Darfur, and self-referral situations, such as Uganda, Mali, and Congo as well as Central Africa. Since the Prosecutor does not have the obligation to accept a self-referral, it is equivalent to the situation selected by prosecutor, as in the case of  Kenya. The issue of independence of the prosecutor has been questioned, due to the fact that that the Office of the Prosecutor has mainly focused on African cases and overlooks other international crimes committed in different parts of the world such as Israel, Iraq or Afghanistan and others.

In this regard it would be reasonable to distinguish between the Court as an independent entity and the prosecutor as an individual with their own ambitions and perspectives. One might argue that the prosecution has the discretionary power, and thus, such power could be politically misused. In effect, the exercise of the prosecutorial discretionary power might often be associated with political considerations. However, it does not change the fact that there remains a distinction between the Court as an entity and individuals in persons. For instance, the former AU commission chairperson Jean Ping coined this well when he said, “frankly speaking, we are not against the ICC. What we are against is Ocampo’s justice”.

It is evident that there is a moral ambivalence in international politics and the Court is not an exception in this regard. Behind the creation of the Court, there have been genuine forces tirelessly working and hoping for a just and more balanced world. Furthermore, politicians are the same whether Europeans or Africans; they may cooperate with the Court whenever it serves their interests and similarly can turn against the Court when it proves to be not in their favour. For instance, one may think of the decades of work that has gone into the establishment of the International Law Commission, the advocacy efforts NGOs in support of the Court, and the intellectual legal debate that resulted in the Rome Statute. There is no doubt that the content of the Statute is one of the greatest achievements in international legal history.

In conclusion, although criticisms against the Court are important, it should be borne in mind that the Court is not operating in isolation. The Court significantly impacts the field of international law and itself is impacted by the failure of the international community particularly states to cooperate with it in every instance. For this reason, the lack of enforcement mechanisms is something that the whole international legal order struggles with. The possibility of armed conflicts ending in the near future seems remote, and if history teaches us one lesson it is that at the end of every armed conflict the international community is either left powerless and thus seemingly  indifferent. It is imperative that the deterrent effect of the ICC is not diminished or downplayed in order for justice to prevail.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.



Tuesday, September 3, 2019

Is the Al Bashir Case at the International Criminal Court Beyond Any Compromise?

The purpose of this blog post is to assess the probability of a compromise in the case of Al Bashir in light of articles 16, 65 and 53 of the Rome Statute. Despite the prominent developments in the field of international criminal law, the failure to prevent such serious crimes such as genocide, war crimes and crimes against humanity remains salient. The reason behinds this failure is the fact that the deterring effects remain hardly unseen and the response of international criminal justice to these atrocities has not been not comprehensive. Primarily, Al Bashir's case is a legal one, and it can only be settled on legal grounds. On 31 March 2005, Resolution 1593 was adopted by The UNSC under Chapter VII of the UN Charter to refer the situation in Darfur – Sudan to the Prosecutor of the International Criminal Court (hereinafter the Court) based on article 13 (b) of the Rome Statute. On 14 July 2008, based on article 58 of Rome Statute the Prosecution filed an application requesting the issuance of an arrest warrant against the president of Sudan Al Bashir for his alleged criminal responsibility concerning the crimes committed in Darfur against the tribes of Fur, Masalit and Zaghawa including genocide, crimes against humanity and war crimes between the period 2003 to July 2008.
Since 2003, more than 300,0000 people have been killed, and over 2.3 million have internally displaced in Darfur. Now, crimes are not only committed in Darfur but throughout Sudan. According to Amnesty International, since the uprising began in Sudan on 19 December 2018, more than 45 people have been killed, 180 have been injured, and over 2,600 people have been unlawfully detained. It is accurate though the prosecution of grave crimes such as genocide, war crimes and crimes against humanity is essentially symbolic more than administering genuine justice to a massive number of people.
Several weeks ago, rumours circulated among Sudanese activists and politicians regarding the possibility of a political compromise that could involve dropping charges against AL Bashir in exchange for Bashir to step down and for the sake of stability in Sudan. These speculations have come out as a result of an interview with a prominent Sudanese/ British national and businessman, Mo Ibrahim, where he stated that "Sudan's president Omar Al Bashir should step down in exchange for war crimes by the ICC being dropped".
The indictment of Al Bashir has divided the Sudanese into camps. On one side, the Darfuris, who have suffered a great deal of injustice, are asking for justice. For this group, Al Bashir’s prosecution is symbolic. Some Darfuris may have no idea where the Hague is, but the importance for them is that Al Bashir will be prosecuted by very powerful people.
On the other side of the debate, the elite in Khartoum think that having Al Bashir standing trial on foreign soil is a humiliation to the entire nation since there still remains the possibility of having him justly prosecuted in Sudan. The issue has become sensitive to the extent that some politicians in the North can't even express their positions explicitly because in doing so they seem complicit with Al Bashir.

Article 16 of the Rome Statute:

Under article 16 of the Rome Statute, the UN Security Council (hereinafter UNSC) has the authority to suspend investigations or prosecutions at any time for one year, and then the suspension is renewable. The Court also has the discretion to decide whether or not to continue the prosecution or not. Article 16 has been questioned by international non-governmental human rights organisations, in the sense that it considerably hinders the independence of the Court. So far, article 16 has not been judicially construed. It might be possible that if the UNSC invoked article 16, the Court could challenge the validity of such a resolution.
 The Office of the Prosecutor has reviewed article 16 in a policy paper within the context of the Rome Statute and accordingly recognised the role of the UNSC. However, based on its discourse, the prosecutor has concluded that there is a difference between the interests of peace and the interests of justice insinuating that there is a shared responsibility with the former concerns belonging to the UNSC and the latter to the Court.
Therefore, it is unlikely that the UNSC will invoke article 16, notwithstanding the fact that the situation in Sudan could constitute a threat to international peace and security. First, article 16 it has never been invoked by the UNSC. Second, it would serve no purpose regarding Al Bashir stepping down because it does not mean that the charges will be dropped, but instead be stopped for one year or more depending on the circumstances. Al Bashir has no reason to step down while knowingly the case is going to be opened a year after, when he has no government to defend him.  

Article 65 of the Rome Statute:

According to article 65 of the Rome Statute, there is a suggestion for plea-bargaining. However, what is deemed as plea-bargaining under this article is not precisely the same plea-bargaining in the sense of the American concept.  According to Black’s Law Dictionary, Plea-bargaining is "an agreement set up between the plaintiff and the defendant to come to a resolution about a case, without ever taking it to trial". Under this aforementioned article, Al Bashir could potentially plead guilty in exchange for a light sentence or more serious charges being dropped. However, given the nature and the character of the court, plea-bargaining is hardly viable. In effect, during the drafting of the Rome Statute there had been a debate concerning the guilty plea as a procedural technique, but there was no suggestion on its applicability before the Court. There might have been some negotiations between the Prosecutor and the Defense counsels, but this has never been revealed in the public record. Deciding a case based on a guilty plea might be sufficient. Nonetheless, for the victims, this might signify a sense of compromise rather than seeking justice. For instance, in both tribunals namely, the Yugoslavia Tribunal (ICTY) and Rwanda Tribunal (ICTR), although some defendants have pled guilty to serious crimes such as genocide and crimes against humanity no charges were been dropped, or sentences shortened considerably. During the ICTY trials, it has been concluded that plea-bargaining is incompatible with the objectives of international criminal justice. However, the question remains as to whether or not Al Bashir will ever plead guilty by trusting the Court.

Article 53 of the Rome Statute:

Under article 53 (1) (c) of the Rome Statute, the Prosecutor has the power to determine whether or not to stop the investigation or prosecution. However, this applies only when there exisits substantial evidence and a reasonable belief that the prosecution or investigation concerned might not serve the interest of justice. It has been a decade since the indictment and arrest warrant. The defendant continues to commit more crimes against the Darfuris and Sudanese in general. Hence, from a legal perspective, article 53 provides no possibility for dropping the charges or stopping the prosecution. Thus the Prosecutor will likely not rely on article 53.


From a legal point of view, given the current circumstances and the nature of the crimes committed, the Prosecutor has no reasonable legal grounds to stop the prosecution in the case concerned.  Plea-bargaining might be a reasonable option for certain crimes, but not for serious or heinous crimes that involve a vast number of people who have been longing for justice for an incredibly long time. As a result it is unlikely that there will be any compromise, in particular, a legal one.
Based on the promise the Court has given to the victims, the primary reasons for the referral of the case to the court, the deterioration of the situation in Darfur in particular, and Sudan in general: If the UNSC invoked article 16, it would not only contradict itself, but it would be blatantly disregarding the tenets of international law. Furthermore, if this happens, it will create assumptions that the court is another neo colonialist tool.
Additionally, the Court is different from other ad hoc tribunals. While the Court is deemed to be an independent legal entity, the ad hoc tribunals are part of the UN organs because the UNSC has established them. Furthermore, the Court has from the very beginning maintained the approach that it is an independent entity and it has the mandate that authorises it to try any individuals no matter how powerful they are or what their backgrounds might be regardless. Notwithstanding this, the Court has been highly criticised, fundamentally for its universal nature and the downgrading of cultural differences.
Be that as it may, it is safe to say that the criticisms, the shortcomings of the Court and the withdrawing of some states parties are all part of the Court’s processes of development. In such a complex, globalised world, where states are still deemed to be the primary subjects, it is unrealistic to have an International Criminal Court without such imperfections.

Guest Post by Mohammed Elgizoly Adam.  Adam holds a Masters (LL.M) in Public International Law from Utrecht University. His experience includes working in the development sector in Darfur and Khartoum as well as working as a journalist for Free Press Unlimited (Radio Dabanga) in The Netherlands.