Why Sudan should not hand over Bashir to the ICC

Without doubt Sudan’s former president Omar Al-Bashir deserves to be tried for alleged war crimes. The question is should he face justice at home or should his fate rest in the hands of the International Criminal Court?

ICC warrants issued in 2009 and 2010 for the arrest of Bashir who maintained his powerful post for almost 30 years were never complied with. The charges were ridiculed by Bashir as lies not worth the paper they were written-on. The warrants did not deter him from travelling to friendly countries, among them Egypt, Kenya, South Africa and India, over the years without fear of ending up behind bars in The Hague.

His confidence derived from the fact that the African Union, the Arab League, Russia and China were opposed to the accusations against him. Egypt asked the United Nations Security Council to defer the warrants which the Organisation of Islamic Cooperation had termed unacceptable on the grounds that the ICC was guilty of selectivity and double standards.

Moreover Bashir trusted that the issue was resolved in 2011 when the Darfur Peace Agreement was signed providing compensation to the victims’ families, establishing a Darfur Regional Authority and giving representatives of Darfur a stake in the Federal government.

Ultimately he was held accountable by his own people who took to the streets in massive numbers beginning 2018 demanding the resignation of the man whose mismanagement had led to widespread poverty, hunger and corruption.

Facing Sudanese justice

His reign ended abruptly on April 17, 2019 when the Sudanese Armed Forces intervened and initially placed their Commander-in-Chief under house arrest before his transfer to prison. In December last year he received a two-year sentence for corruption and money laundering.

As soon as he was toppled the ICC once again hammered the case for its jurisdiction in relation to Darfur. Initially the new ruling transitional coalition between The Forces for Freedom and Change and the military indicated that he would be tried in Sudan but earlier this year they agreed to comply with the ICC’s demands once he had completed his sentence imposed by a Sudanese Court. Be that as it may Sudan’s Attorney-General says there is no need for the wanted suspects to be tried in The Hague when they could face Sudanese justice. His stance is understandable because packing Bashir off to be tried on foreign soil reflects poorly on the Sudanese legal system.

A delegation from the ICC is currently in Khartoum to thrash out the details of the former leader’s transfer to The Hague along with two former government officials wanted by the court. Here is where it gets confusing. The Public Prosecutor has began an investigation into the involvement of Bashir and 26 others during the Darfur conflict and just days ago he interrogated former regime members including the former regime’s defence and interior ministers. In this case should these investigation proceed to trial the ICC may have a long wait to receive their prize.

I am no defender of Omar Al-Bashir but I strongly believe that the Sudanese are perfectly capable of trying him for alleged crimes committed on Sudanese soil. Secondly, delivering him to The Hague is an assault on the nation’s sovereignty and a poke in the eyes of Sudanese prosecutors and judges.

Indicting only the Africans

Most crucially the ICC only targets individuals from developing nations with little military or diplomatic clout. I would bet my house that no American or Brit would ever enter its portals as so many African leaders have done. Just look at the Court’s record. Until today all those indicted by the ICC are Africans; six are currently being held in detention.

When the Court’s chief prosecutor Fatou Bensouda dared to put his head above the parapet accusing US forces and member of the CIA were guilty of torture, cruelty and rape against detainees, President Trump promptly banned Bensouda from entering the US and sanctioned all the ICC’s investigators.

The ICC is nothing more than an expensive joke. Likewise the UN Special Tribunal for Lebanon instituted following the assassination of the country’s former prime minister Rafiq Hariri and others on February 14, 2005. It took 15 years — yes 15 years — for the Tribunal to hold known Hezbollah members responsible, individuals that will be protected from ever facing justice.

Sudan is making a mistake. That act is nothing short of a humiliation. I have to wonder why the transitional authority would agree given that the court should be renamed the ACC, the African Criminal Court.

I can only imagine that the powers that be are under pressure to get sanctions lifted as well as being struck off the US Sponsors of Terrorism list that impedes foreign investment and bars the World Bank from helping to relieve Sudan’s unsustainable debts.

Linda S. Heard is an award-winning British political columnist and guest television commentator with a focus on the Middle East