For the past 15 years the figure of Omar al-Bashir, the former president of Sudan, has epitomized the struggle of the International Criminal Court (ICC) to fulfill its mandate, i.e. to end impunity for the worst crimes of concern to the international community as a whole. In 2005, the former ICC Prosecutor – Luis Moreno Ocampo - had promptly opened an investigation into the atrocities committed in Darfur after receiving a referral by the United Nations Security Council (Resolution n. 1593 of 2005), which permitted the Court to affirm its jurisdiction over Sudan, not a state party to the ICC. In the context of this investigation, two warrants of arrest were issued against al-Bashir, in 2009 and 2010, for the most serious crimes, including war crimes, crimes against humanity and even charges of genocide. It is estimated that over 300,000 people were killed and 2.7 million forced to flee their homes in Darfur as a result of military campaigns led by the Sudanese army and pro-government militias against ethnic minorities since 2003.
Notwithstanding the two arrest warrants against him issued by the Court, al-Bashir continued to travel widely, enjoying immunity as the president of Sudan. The issue of the immunity of president al-Bashir is possibly the most controversial topic that has come up in the ICC’s 18 years of activity. Remarkably, the al-Bashir saga went far beyond the issue of the arrest of that individual - the Sudanese president wanted for genocide by the highest international criminal institution in the world. In fact it involved geo-political aspects.
On the one hand, along with other factors, it greatly contributed to contaminating the entire African Union (AU)’s relationship with the ICC, which deteriorated to the point of getting some African states to call for a joint African withdrawal strategy from the ICC Statute in 2017. In 2015 the South African government had refused to arrest al-Bashir, who was there to attend an AU summit, on the basis of his immunity as sitting head of state. The decision not to arrest al-Bashir “seemingly prioritised the country's regional political reputation and the AU's position, over its global reputation as a human rights supporter.” Like many other countries before (such as Kenya, Chad, Malawi) South Africa was in breach of its cooperation obligations as a state party to the ICC. Indeed, the conflict between the Court and some state parties over the request to arrest al-Bashir became more and more evident. In December 2017 the Pre-Trial Chamber found that Jordan had also failed to comply with its obligations under the Statute because it had not arrested Omar al-Bashir when he was there to attend the summit of the Arab League. The ICC Appeals Chamber in May 2019 confirmed the decision, clarifying that al-Bashir could not enjoy immunity as a head of state vis-à-vis the ICC under both treaty and customary international law.
On the other hand, European states continued to have in al-Bashir’s Sudan an interlocutor for implementing their plans to halt migrants from Africa. Thus, the very same countries that through the Security Council had referred the regime in Khartoum to the ICC continued to entertain relations and work with it.
In April 2019, after months of protests by the Sudanese people, al-Bashir was finally pushed out of office as security forces withdrew their support for him. For a very long time Darfur victims were denied justice; now it finally seems that justice is on the way. Indeed, the question nowadays is no longer if al-Bashir will be brought to justice but where and how the trial will happen. As noted by commentators, there are several possible options in this regard and each of them has its pros and cons. In particular, at this stage, the main options are: a trial before the ICC; a trial in Sudan before the domestic authorities; the establishment of a hybrid court.
As to the first option, this would be the natural consequence of the 15-year investigation and two arrest warrants issued against al-Bashir by the ICC. Despite the many years of investigations, the amount of resources invested and evidence collected, the criminal proceedings could not start yet as the presence of the accused is required by the ICC Statute in order for the trial to take place. In theory there are now good chances of having him transferred to the Court: not only has al-Bashir been custody since April 2019, but also last February it was widely reported that the Sudanese transitional government would have agreed to transfer him to the ICC (see here and here). However, whether this move will ever happen is unsure, as there are significant counter-interests and fears among Sudanese officials. If al-Bashir is handed over to The Hague Court, it will be a huge success for the ICC and a highly needed one for an institution that is struggling to establish itself as an effective and strong justice player. In any case, the physical transfer of the accused to The Hague is not the only and last step that the ICC needs from Sudan, as the cooperation of Khartoum will be essential to successfully prosecute al-Bashir (especially on counts of genocide). In theory the Court could even decide to organize the trial in Sudan for the benefit of the affected communities who could participate in the trial and relate to the whole proceedings more easily. This option has been taken into consideration in the past with regard to other situations, but so far the ICC has never managed to organize a trial in loco for both security and organizational issues. It is highly improbable that the ICC will be managing such a complex trial outside of the Court’s premises given the unbearable costs of this move.
As for the second option, it should be noted that al-Bashir was in fact already convicted for corruption by a Sudanese court in 2019 and is detained in a Khartoum prison. Given the fragile situation of the country, however, it seems unrealistic that the former Sudanese president could in the near future face any genuine and fair trial for genocide and other international crimes committed against his people before the domestic courts without any substantial international help.
The above-mentioned considerations thus suggest the possibility of setting up a hybrid court, be it in Sudan or elsewhere, to prosecute al-Bashir for international crimes. Such courts have already been used in a number of other situations, including Cambodia and Sierra Leone. They combine international and domestic elements, and employ mixed staff. Because of this mixed system, hybrid courts present several challenges in their organization and funding; but they also have advantages in terms of being better tailored to the specific situation involved, closer to the affected communities and with potentially positive impact on the domestic legal system, boosted through international resources.
In conclusion, the decision on where and how al-Bashir will face justice is largely political, and the ICC could end up not being that forum. However, it should be recognized that without the ICC’s active involvement, al-Bashir’s crimes could simply remain unpunished. Most importantly, the ICC’s al-Bashir case has already scored a fundamental point by affirming in the 2019 Appeals Chamber’s decision the customary law value of the principle that sitting heads of state do not enjoy immunity vis-à-vis the commission of international crimes.