CRIMES COMMITTED IN DARFUR AND THEIR INVESTIGATIONS BY THE ICC
In April 2003, the Sudan Liberation Army attacked the airport in El Fasher to bring an end to the marginalisation of Darfur. Following this, Al Bashir’s government launched a counter-attack to defeat the rebel group, targeting Darfurian civilians particularly from the Fur, Masalit and Zaghawa tribes. The Janjaweed militiamen who led this counter-attack mutilated and raped women, tortured and killed men, and looted and destroyed homes. From April 2003 to December 2004, this “ethnic cleansing” led to the death of more than 200,000 civilians and the displacement around 1.9 million civilians.
The UN Security Council (UNSC) referred these crimes to the International Criminal Court (ICC) Prosecutor on 31 March 2005, acting under Article 13(b) of the Rome Statute and Chapter VII of the UN Charter. Following the Prosecutor’s investigations, the ICC Pre-Trial Chamber I issued two arrest warrants against Al Bashir for war crimes and crimes against humanity, and genocide. Al Bashir was the first president in office to be charged by the ICC, and the first person indicted for genocide.
However, the Sudanese authorities refused to cooperate with the ICC; and the African Union (AU), the UNSC, and the EU did not force his surrender. Al Bashir therefore continued to hold power, and was re-elected as president of Sudan in 2010 and 2015. The Sudanese army finally deposed and arrested him on 11 April 2019 after four months of peaceful demonstrations. His arrest and the establishment of Sudanese Transitional Council (STC) and Sudanese Sovereign Council (SSC) in August 2019 offered hope to Sudanese citizens that Al Bashir would be quickly surrendered to the ICC, but he remains detained in Sudan.
THE AFRICAN UNION AND ITS REFUSAL TO ARREST AL BASHIR
After failing to prevent the ICC from issuing the first arrest warrant against Al Bashir, the AU called its member states not to cooperate with the ICC for his arrest and surrender, invoking the immunity clause in Article 98 of the Rome Statute. The ICC did not approve of this, citing Article 7 of the Charter of the Nuremberg Tribunal. Some AU member states went on to host Al Bashir without arresting him – including Chad in July 2010, Nigeria in July 2013, South Africa in June 2015, and Egypt in November 2018.
The AU justified its decision to protect Al Bashir by arguing that the ICC unfairly targeted Africa. This sense of discrimination stemmed from all ICC investigations at that time being into African countries – even though three of these countries’ governments had referred themselves to the ICC. Nevertheless, the AU Assembly adopted a decision encouraging its member states to withdraw from the Rome Statute, like South Africa. This decision was non-binding, however; and some countries, including Nigeria and Senegal, opposed it.
THE UN SECURITY COUNCIL AND ITS LACK OF A FOLLOW-UP MECHANISM
Although the ICC Pre-Trial Chamber referred the states’ refusal to surrender Al Bashir to the UNSC, the UNSC did not discuss potential sanctions for their behaviour. Some UNSC members such as New Zealand and France tried to find a solution by proposing a follow-up mechanism, but this proposal did not receive support from Russia and the United States.
Russia’s President even hosted Al Bashir twice to discuss their economic and political partnership. Russia has had a difficult relationship with the ICC since the Prosecutor issued a report regarding the armed conflicts in Crimea and Eastern Ukraine since 2014. The US, too, stayed silent on the proposal of a follow-up mechanism. The US administration has tried to undermine the work of the ICC after Prosecutor requested and received authorisation to open investigations into the alleged crimes against humanity and war crimes committed in Afghanistan since 2003. The US announced the implementation of sanctions against ICC officials engaged in the investigations, which the ICC denounced as an attack on the rule of law and court proceedings. Although sixty-seven state members stood behind the ICC, the US blocked the assets of the ICC Prosecutor, and the ICC Head of the Jurisdiction, Complementarity and Cooperation Division, and prohibited them from entering the country.
THE EU AND ITS DOUBLE-SPEAK
The EU supported the ICC’s first arrest warrant against Al Bashir, criticized the states who did not surrender him to the ICC, and refused to participate in meetings if Al Bashir was present. They also did not provide direct financial support to the Sudanese government through the Cotonou Agreement, instead channeling the funds through development agencies and NGOs to provide support to refugees living in Sudan, internally displaced persons, and the communities hosting these vulnerable groups.
However, the EU member states did not stop their relationship with Al Bashir’s government. For example, they signed the Khartoum Process for irregular migration in 2014. The Sudanese Rapid Support Forces (RSF) – composed of former Janjaweed paramilitaries – also appear to have received up to five million euros of training and equipment from the EU to efficiently block the passage of migrants at the border between Libya and Sudan, to stop their eventual migration to Europe.
It must be noted that the RSF’s original mission was to help Al Bashir retain power through violence. For example, the RSF targeted Darfurian civilians in large-scale attacks between February to May 2014. Following the commission of these crimes, the ICC Prosecutor described the RSF as “the newest iteration of the Janjaweed”. The EU was therefore fully aware of the RSF’s background before signing the Khartoum Process; and, even after the Process was signed, the RSF continued to attack Darfurian civilians.
The question begged to be raised: did the EU indirectly fund the RSF’s attacks on civilians? The EU has denied this, but is unable to guarantee that the RSF did not receive a part of EU funds to curb irregular migration at the border between Libya and Sudan. The EU only suspended the Khartoum Process after the RSF violently cracked down on protestors in June 2019.
THE CHANGING OPINION OF THE STC AND THE SSC
The STC and the SSC have changed their opinion on Al Bashir’s surrender to the ICC. In November 2019, the head of the SSC stated that they would not hand Al Bashir over, but turned around and agreed to the surrender in February 2020. The STC and the SSC also promised to allow the ICC Prosecutor to easily access Sudan and Darfur. Sudan’s main opposition coalition supported the change of heart.
One of the reasons for the STC and SSC’s hesitancy is their risk of implication in Al Bashir’s crimes. Five of the eleven members of the SSC are military personnel – including the commander of the RSF – who allegedly contributed to his crimes. Therefore, if Al Bashir is tried by the ICC, they may risk indictment themselves.
Another reason for their hesitancy is that China, an important economic partner of Sudan, does not support the ICC. China is not a state party to the Rome Statute and is not likely to anytime soon – particularly when some argue that the forcible sterilization of Uighurs women amounts to genocide.
CONCLUSION
Al Bashir’s case and the many actors’ roles within it has illustrated the complex balance between the ICC’s judicial aim and the political interests. It has shed light on the ICC’s dependence on states for arrests and funding.
In retrospect, the ICC should have given a stronger guarantee of independent and impartial investigations to build a better relationship with the AU; for example, through investigating US and Russia for crimes committed in Afghanistan and Ukraine respectively. The UN SC should have created a follow-up accountability mechanism for the states that failed to surrender Al Bashir, if Russia and the US had not been guaranteed to use their veto power to stop such a move.
The necessity of finding a balance between the ICC’s judicial aim and the political interests is still crucial in Darfur, as presidential and legislative elections should occur in 2022. The ICC Prosecutor’s visit to Sudan in October 2020 was at least a positive step in favor of Al Bashir’s surrender to the ICC.
*This article was adapted from the author’s dissertation for the Degree of Master of Laws in Human Rights, Manchester Metropolitan University, September 2020.
Quentin is writing his dissertation about the International Criminal Court and the Darfur case as part of his Master of laws at Manchester Metropolitan University. Since his volunteering experience with migrants in Calais in 2015-2016, he has been committed to defending their rights. He is also campaigning with Oxfam and Amnesty International about human rights and environmental issues.