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Sudan: Justice for Darfur Genocide Finally in Sight?

Domestic peace at long last? Sudan’s fraught path to the ICC in The Hague.

Takeaways


  • The vote of Sudan’s cabinet to join the International Criminal Court (ICC) will likely cause anxiety in undemocratic regimes further afield.
  • Sudan’s former president Omar al-Bashir was the first sitting head of state to be indicted by the ICC in 2009.
  • "Sudan has to tangibly demonstrate that the new Sudan is now a fully-fledged member of the international community that has joined the fight against impunity.” (Former ICC Prosecutor Fatou Bensouda)
  • How likely is it that Sudan’s sovereign council, dominated by military men, will accede to the ICC?
  • Possible future indictment by the ICC is a persistent Sword of Damocles hovering above key members of Sudan’s current leadership.
  • Unless the current chokehold of the military on economic and political power in Sudan is broken, the country faces a return to the elite-driven crony capitalism of the Bashir era.

On August 3, 2021, Sudan’s cabinet voted unanimously on a draft bill to join the International Criminal Court (ICC).

From hope for peace…

This move sparked some hope that former president Omar al-Bashir and others responsible for the genocide in Darfur will finally be brought to justice.

It may also promote peace negotiations with the remaining armed factions in the country.

… to resistance at home

However, the decision is yet to be ratified by the sovereign council, a joint civilian-military transitional body.

It is dominated by powerful former allies of Bashir, some of whom allegedly played a role in both the Darfur atrocities between 2003 and 2008, and in the violent suppression of political demonstrations in Khartoum in June 2019.

Thus, moves to join in the Hague-based global court may encounter roadblocks from within Sudan. In addition, it will likely cause anxiety in undemocratic regimes further afield.

An upbeat prime minister

Sudan’s Prime Minister Abdalla Hamdok was upbeat.

He declared: “Justice and accountability are a solid foundation of the new, rule of law-based Sudan we’re striving to build.”

Hamdok said that the cabinet and sovereign council would hold a joint sitting to pass the bill into law. However, no timeline was given for ratification.

Bashir, along with four allies, was the first sitting head of state to be indicted by the ICC in 2009, but defied the charges as Sudan is not a member of the Rome Statute that established the court.

Bashir’s ICC charge sheet

Bashir’s ICC charge sheet lists multiple counts of war crimes, crimes against humanity and genocide during the bloody conflict.

At the time, government-backed Janjaweed militias burned and looted Darfur villages, killing and raping civilians. At least 300,000 people were killed and millions displaced from their homes.

Proving a real turnaround

In her final briefing to the UN Security Council before she left office in June this year, ICC Prosecutor Fatou Bensouda emphasized: “Sudan has to tangibly demonstrate that the new Sudan is now a fully-fledged member of the international community that has joined the fight against impunity.”

Bensouda noted that a condition of last year’s Juba Peace Agreement between Khartoum and various rebel groups is that Bashir and other suspects must appear before the ICC, and Sudan must cooperate with the ICC.

Bringing the remaining rebels into the peace deal

A similar condition is demanded by the few groups who have not yet signed the agreement, two of whom met for talks in the Nuba Mountains last week.

Sudan’s ratification of the Rome Statute would simplify and expedite the ICC process, and could help bring the remaining rebels into the peace deal.

Real obstacles stand in the way

But how likely is it that a sovereign council dominated by military men will accede to the ICC, especially since both its chair and vice chair have been dogged by alleged involvement in the Darfur atrocities and subsequent incidents of violence against civilians?

Lieutenant General Abdel Fattah al-Burhan, chair of the council and de facto head of state, was commander of the ground forces and the top-ranked general in Bashir’s administration.

This was a post, it could be argued, responsible for unleashing the Janjaweed attacks in Darfur.

A former warlord in north Darfur

Even more controversial is vice chair Mohamed Hamdan Dagalo, nicknamed “Hemedti.”

Previously a notorious Janajaweed member and warlord in north Darfur, Hemedti subsequently became commander of the Rapid Support Forces (RSF) paramilitary. It was formed by Bashir’s regime in 2013 and later incorporated into Sudan’s army.

Described by Human Rights Watch as “men with no mercy,” the RSF terrorised civilians in Darfur and elsewhere. Ongoing violence by the RSF after Bashir’s ouster, including in Khartoum, has been laid at Hemedti’s door.

Brutality and gold

Hemedti also wields considerable economic and social power – his family controls much of the gold mining in the Jebel Amer and Jebel Marra regions of Darfur. His uncle is chieftain of a clan that straddles Sudan’s western border with Chad.

Hemedti’s RSF forces reportedly also benefited from gold acquired while they were “leased out” by the Bashir regime to fight for Saudi Arabia in Yemen. Since the relative decarbonisation of Sudan’s economy after the secession of South Sudan in 2011, gold has become increasingly significant.

More reasons for doubt

Earlier, this year several civilian members of the sovereign council, including Sudan’s Attorney General and its first female Chief Justice, resigned or were removed from the council.

They listed interference in their duties and military dominance of the council among their reasons.

The anti-ICC diplomatic front

Burhan and Hemedti reputedly have close ties with the ruling elites in Egypt, Bahrain and the United Arab Emirates, all of which have signed but not ratified the Rome Statute, and with Saudi Arabia and Israel, who are not members of the ICC.

None of those regimes would welcome moves by the global court that could bring them a step closer to scrutiny for their own actions. Since Sudan was not a member of the ICC, the Darfur case was referred to the ICC by the UN Security Council.

Bashir and his co-accused

Meanwhile, Bashir is incarcerated in Kober prison in Khartoum following his conviction on corruption charges after his ouster in 2019. He is currently on trial in Sudan for the 1989 military coup in which he seized power.

Two of his ICC co-accused, Abdel Raheem Hussein and Ahmad Haroun, are also in custody in Khartoum, while a third, Ali Muhammad Ali Abdel Rahman, popularly known as Ali Kushayb, surrendered to the ICC in the Central African Republic in June 2020.

The remaining suspect, Abdallah Banda, is still at large. Haroun declared in May this year that he would prefer to be tried at the Hague rather than in Sudan.

The prospect of long-desired justice

So, as Sudan inches towards joining the ICC, the prospect of long-desired justice tantalizes the Darfur victims and their families.

This has strengthened hopes for consolidating and fully implementing the Juba Peace Agreement.

On the other hand, possible future indictment by the ICC is a persistent Sword of Damocles hovering above key members of the current leadership.

Should that come to pass, the mobilization of armed brigades in support of Burhan, Hemidti and their ilk is all too likely, especially given that the RSF now has a visible presence in the capital and other central regions.

The reach of Bashir’s deep state

There are also persistent rumours that various paramilitary elements of Bashir’s deep state are yet to be identified and demobilized.

Nor should potential financial and military support from regimes with vested interests in Sudan’s economic and political future be discounted.

These are scenarios that are likely to be considered by the rebel factions who are still reluctant to make peace with a military-dominated regime.

Hamdok’s tightrope walk

Coupled with recent political fractures within the ruling alliance of the Forces for Freedom and Change (FFC), Sudan’s Prime Minister Abdalla Hamdok has a careful tightrope to walk in getting this ICC bill ratified.

He may have to make concessions, e.g., conditional amnesties, that would be unpalatable to many.

Breaking the military’s chokehold on economic and political power

Even then, unless the current chokehold of the military on economic and political power in Sudan is broken, it will most likely presage a return to the elite-driven crony capitalism of the Bashir era.

The central urban elites have prospered at the expense of the hinterlands, which have remained underdeveloped for decades. This is unsustainable, particularly in the absence of the oil wealth that previously financed government repression.

If military leaders cannot be brought to realise this, new rebellions and renewed cycles of conflict will inevitably arise, a scenario already playing out in some of the gold-rich areas in Darfur.

Conclusion

Hamdok, despite his mild manner, is both pragmatic and very canny. If he can use that shrewdness to barter a serial dismantling of the military-economic status quo for some protections from ICC investigation, nauseating though the latter may be, he may well do his country an enormous service.

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About Ayesha Kajee

Ayesha Kajee is a South Africa-based consultant on governance, human rights and education issues.

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