Home | Comment & Analysis    Friday 21 February 2020

Why a national court may be good option for Sudan’s al-Bashir

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By Iffat Rahman

My friend on the Hill forwarded me a request to attend an event with Prime Minister of Sudan, Abdallah Hamdok. It was one of his several visits to DC and the purpose was clear: to get Sudan removed from the U.S. terrorism list. For the first time in more than three decades, Sudan’s leader was visiting Washington, D.C. and it was a big deal. Within months of the visit, the world welcomed with the announcement of Sudan’s transitional government agreed to hand over al-Bashir to the International Criminal Court (ICC) for alleged war crimes in the western Darfur province. However, I was not too convinced. The current situation in Sudan is far too complex and Sudan faces severe challenges.

When the revolution happened last year, many of us who have been following Sudan closely were surprised that Bashir was removed from power so quickly. During the revolution, the African Union quickly stepped in to address the crisis. And AU’s effort must be commended on the United Nations Security Council in order to get the UNSC to move on Sudan. However, when the UNSC failed to agree on a statement condemning the killing of civilians by Sudanese security forces, the African Union suspended Sudan’s membership. The AU went beyond and AU demanded that “the immediate resumption of negotiations, without preconditions, between all Sudanese stakeholders” required the military to hand in power otherwise, the AU would, “automatically impose punitive measures on individuals and entities obstructing the establishment” of a transitional authority. A few scholars have speculated that the reason the AU reacted so fast regarding Sudan because it could destabilize the region, especially, Chad. For those of us who follow or work on Africa, this was not surprising. Others have speculated that the AU did not want another Libya in hand. Even after the important role the AU played in Sudan, there was no announcement from the African Union on the matter related to the ICC. Some of the sceptics rose that there is also a possibility that the charges at the ICC may not stick.

Given the circumstances, one of the best things for Sudan would be carried out a hybrid or an independent court in Sudan. Both of these options will require assistance from the international community. An example could be drawn is the Special Court for Sierra Leone which was established by an agreement between the UN and the Sierra Leonean government on 16 January 2002 and the Court was located in Freetown and the US and the UK were the main backers of the court. The Court was limited to the Sierra Leonean context and International tribunals are extremely expensive. The international community may be reluctant to create a new standalone justice system to address the gross international human rights violations that took place in Sudan. The best option for Sudan would be to develop a court within the national system and ask the US and the UK to assist in setting the process to minimize the cost of the court and draw up an agreement to fund the court. While international courts are essential, establish domestic legal systems that can prosecute, and enforce international criminal law will be pivotal for Sudan’s success and Bashir gives the perfect reason as to why Sudan should move forward with this.

Ideally, international criminal law cases should be in the domestic courts in the impacted country itself and here, Sudan sits on the fertile land where it can demonstrate to the world that Sudan is well capable taking care of its business. On a practical level, these trials would allow easy access to evidence and victims. Given the current circumstances and Sudanese people’s desire for justice, the government of Sudan should think about is implementing universal jurisdiction, which relates to the ability and obligation of national courts to investigate and prosecute war crimes, crimes against humanity, torture and genocide. Canada provides an excellent example of a State that provides domestic exercise of universal jurisdiction, in its Crimes Against Humanity and War Crimes Act of 2000. While the concept of universal jurisdiction is different from the jurisdiction of the ICC, it could, theoretically, allow bypassing ratification of Rome Treaty should the Military Council and the Civilian government cannot come to an agreement while satisfying IIC’s requirement. The US War Crimes Act of 1996 is another great example of where national courts are empowered to prosecute “grave breach in any of the international conventions signed at Geneva 12 August 1949 or any protocol to such convention to which the United States is a party.”

Sudan should also think about fund a victims trust fund for the victims and ask the international community to provide funding for the victims as soon as possible and start a commission of inquiry for Sudan. African Union can play a fundamental role in setting these two things for Sudan similar to the role it had taken on Chad where it allocated $5 million to the Trust Fund for reparations for victims. The trust fund should be voluntary and major economic powers and regional powers should be requested to contribute in order to make sure victims get reparations. There are wonderful options available to Sudan and Sudan should take full advantage of these options and lead the way in seeking justice for the victims while strengthening its legal system.

Iffat Rahman is a Representative of the African Bar Association, specialized in anti-terrorism with a focus on Libya and Cameroon. She was previously based at the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda and the Khmer Rouge Tribunal.

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