Sudan’s President Omar al-Bashir, driven from power and now languishing in a prison where his opponents were once jailed and tortured, is more vulnerable than ever to a decade-old international arrest warrant for war crimes committed in Darfur.
But the military, which forced him from power after four months of mass protests, has said it will not extradite him to the International Criminal Court at the Hague. Even many opponents of al-Bashir have expressed reluctance about handing him over to the ICC, saying they would prefer to bring him to justice within Sudan. Any attempt to hold him and other top officials accountable could pose risks to the transition to civilian rule sought by the protesters.
The charges against al-Bashir stem from the conflict in western Sudan’s vast and long-neglected Darfur region, where an insurgency broke out in 2003. Al-Bashir’s government mobilized Arab militias known as the Janjaweed, who are accused of burning villages to the ground, massacring civilians and carrying out mass rapes among three ethnic African groups, the Fur, Masalit and Zaghawa. The conflict killed an estimated 300,000 people and displaced some 2.7 million.
Few dispute the allegations, but the ICC warrants proved controversial.
Several African and Arab leaders — most recently Syria’s President Bashar Assad — have hosted al-Bashir and refused to arrest him despite a U.N. Security Council resolution urging them to do so , arguing that the ICC warrants infringe on national sovereignty.
Critics have also claimed the court is biased, noting that all of its outstanding arrest warrants target Africans. The United States, China and Russia have yet to ratify the Rome Statute establishing the court. The U.S. has rejected its jurisdiction over alleged war crimes committed by American forces in Iraq, Afghanistan and elsewhere, and in March moved to block ICC investigators from entering the country .
Experts say the ICC warrant against al-Bashir likely pushed him to resort to even more brutal tactics to remain in power, prolonging his autocratic rule and the conflict in Darfur, where low-level unrest continues to this day. The warrant may have sent a similar message to other leaders accused of war crimes, such as Assad, that the only way to avoid prosecution is to remain in power by any means necessary.
“The ICC probably delayed democratization by 10 years because Bashir believed he could not safely step down, and it shouldn’t do any further damage to Sudanese democratization,” said Alex de Waal, an expert on Sudan at Tufts University.
The organizers of four months of protests that eventually drove al-Bashir from office have demanded that the military immediately hand power to a civilian council that would govern for four years. They fear the military, which is dominated by al-Bashir appointees, will replace him with another general.
The military insists it is committed to governing for no more than two years, during which civilian elections will be held. It says al-Bashir will be brought to justice by Sudanese courts, and has sacked top judges and prosecutors who were appointed by him.
Any international demands for al-Bashir’s extradition could complicate those plans, because senior members of the security forces may fear they’ll be targeted as well. The ICC has warrants out for three other defendants linked to al-Bashir’s government, and may have evidence against others who now sit on the transitional military council. Those officials may conclude, like al-Bashir, that their only way of avoiding detention in the Hague is to cling to power.
The protesters are aware of such concerns and have thus far refrained from calling for al-Bashir’s extradition. Mohammed al-Asam, a senior member of the Sudanese Professionals Association, which has organized the protests, said that if a new judicial system can be established with “independent standards,” then “no one would object to the trial of Omar al-Bashir inside Sudan.” Without such standards, he said, “the Sudanese are going to look for justice elsewhere in the world.”
De Waal said an earlier proposal by the African Union to set up a hybrid court of international and Sudanese judges to investigate crimes in Darfur was accepted by nearly everyone except al-Bashir and his top lieutenants, and could offer a model for justice going forward.
But that depends on whether the protesters and the military are able to agree on a transitional government that could pursue such a process. Protest organizers on Sunday suspended talks with the military council, saying it had failed to meet their demands for an immediate transfer to a civilian government.
In the meantime, the 75-year-old al-Bashir is confined in Khartoum’s Koper prison, a facility where political prisoners were once held and abused , and where al-Asam was held for 98 days. The protesters hope al-Bashir will one day be brought to justice for an array of crimes. Besides the atrocities committed in Darfur and other regions, as well as during the long war in South Sudan, his security forces fired on protesters earlier this month, and his long ruled has been marked by corruption — a key issue for the ongoing protest movement.
“We have to take another direction,” said Amal al-Zein, a 53-year-old activist who was detained under al-Bashir. “We are used to, in Sudan, for us to be forgiving of crimes against (the) nation, but I think we have to start a new page.”
“We need to hold people accountable,” she said. “He needs to be prosecuted here and face the national justice system.”