{"id":156902,"date":"2020-02-16T22:58:26","date_gmt":"2020-02-16T20:58:26","guid":{"rendered":"http:\/\/www.myza.co.za\/al-bashir-and-the-icc-there-are-better-ways-to-achieve-justice-the-conversation\/"},"modified":"2020-02-16T22:58:26","modified_gmt":"2020-02-16T20:58:26","slug":"al-bashir-and-the-icc-there-are-better-ways-to-achieve-justice-the-conversation","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/al-bashir-and-the-icc-there-are-better-ways-to-achieve-justice-the-conversation\/","title":{"rendered":"Al-Bashir and the ICC: there are better ways to achieve justice | The Conversation"},"content":{"rendered":"

Al-Bashir and the ICC: there are better ways to achieve justice<\/a>: <\/p>\n

Sudan's ousted President Omar al-Bashir appears in court in Khartoum on December 14, 2019. He was later sentenced to two years in prison for corruption. <\/span> Photo by Mahmoud Hajaj\/Anadolu Agency via Getty Images<\/span><\/span><\/figcaption><\/figure>\n

It\u2019s been widely reported that Sudan is considering handing its former leader, Omar al-Bashir, over to the International Criminal Court (ICC) in The Hague. <\/p>\n

There\u2019s no certainty about what will happen next. And there\u2019s also a case to be made for a different course of action.<\/p>\n

First, it\u2019s not clear that all members of the provisional government in Sudan are on board. And there is speculation that the military will not honour an agreement to extradite al-Bashir or others to the international court.<\/p>\n

The 11-member provisional government was announced in August 2019. It is made up of an even mixture of military and civilian representatives, and currently headed by the military. The government includes \u2013 and is likely secretly controlled by \u2013 Mohamed Hamdan Dagalo, known as \u201cHemeti\u201d. Hemeti\u2019s Rapid Support Forces are accused of atrocities in Darfur and elsewhere. Violence continues to the present day. <\/p>\n

There is also a strong argument to be made for al-Bashir to be tried in Sudan, and not by the ICC. This, of course, depends on whether Sudan proceeds with indictments for atrocity crimes against him and others in its own judicial system. If it does, the ICC should not exercise jurisdiction. As a court of last resort, the ICC is authorised to take cases only where states cannot or will not prosecute them. This is called \u201ccomplementarity\u201d and it is central to the court\u2019s organisation and legitimacy.<\/p>\n

The ICC Prosecutor Fatou Bensouda suggested as much herself last year when she told the UN Security Council:<\/p>\n

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Consistent with the bedrock principle of complementarity enshrined in the Rome Statute, I am ready to engage in dialogue with the authorities in Sudan to ensure that the Darfur suspects face independent and impartial justice, either in a courtroom in The Hague, or in Sudan. Continued impunity is not an option. The victims of the Darfur situation deserve to finally have their day in court.<\/p>\n<\/blockquote>\n

Another important factor to consider is cooperation between Sudan and the ICC could come with unacceptable constraints. In the past, the ICC has been criticised for cutting deals with authoritarian leaders who, in fact, could just as easily stand in the dock as the accused they are handing over. <\/p>\n

At this juncture, more than ever, the ICC needs to be careful not to further destroy its credibility by cooperating with the sorts of bad actors who should be before a court themselves.<\/p>\n

The history<\/h2>\n

The ICC issued an arrest warrant for al-Bashir in 2009. Sudan is not a member state of the ICC, and the case came before the court based on a 2005 referral from the UN Security Council. But the UN referral didn\u2019t have a lot of support, and the ICC proved unable to take custody of al-Bashir. <\/p>\n

For years the ICC frustratedly reminded member states across Africa and the middle east about their duty to arrest al-Bashir when he travelled. The court also adjudicated cases on the matter. But to no avail.<\/p>\n

When al-Bashir was ousted from power in April 2019, calls for his extradition to The Hague were renewed.<\/p>\n

In June 2019, a peaceful protest in Sudan was crushed by government-sponsored violence. Hundreds were killed and raped. As I wrote mid-last year, cooperating with human rights abusers in power in Sudan for the arrest of al-Bashir was a bad bargain. <\/p>\n

\n

Read more: Al-Bashir and the ICC: is it worth getting your man, if you jeopardise your mission? <\/strong> <\/em> <\/p>\n

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The military forces that violently reasserted power last year also opposed cooperation with the ICC. Instead, al-Bashir faced charges of corruption and other financial crimes. In September 2019, he was sentenced to two years\u2019 prison by a Sudanese court. Since these are not the crimes that the ICC has indicted him for, his sentence in Sudan did not affect the ICC\u2019s interest in his case.<\/p>\n

But there were signs late last year that al-Bashir\u2019s fate may be changing. The country\u2019s attorney general announced that Sudan would investigate atrocity crimes committed in Darfur since 2003. This investigation could implicate al-Bashir and others indicted by the ICC.<\/p>\n

More recently negotiations between Sudan\u2019s provisional government and Darfur rebel groups appear to have re-introduced the idea of turning over al-Bashir. The spokesman for Sudan\u2019s provisional government, which is made up of a mix of military and civilian leaders, announced that individuals indicted by the ICC will be extradited to The Hague.<\/p>\n

Preferred directions, in Sudan and elsewhere<\/h2>\n

In my view the ICC\u2019s best course is to monitor and support anti-impunity in Sudan. It already does this in another country, Colombia. The ICC has been working with the government and members of Colombian civil society to observe implementation of the 2016 peace accords and the transitional justice process. <\/p>\n

This flexibility has two advantages. It allows countries to craft their own paths forward following violence. It also keeps the resources, promises, and threats that accompany international prosecution close and available, should domestic alternatives fail.<\/p>\n

In the meantime, the ICC has other meaningful opportunities it should pursue that would underpin its institutional relevance. It has been approached about European Union policies towards migrants, and it\u2019s been asked to investigate whether European arms sales are aiding and abetting war crimes.<\/p>\n

Advocates for greater ICC involvement in western countries\u2019 treatment of migrants suffered a defeat this week, as the ICC rejected a 2017 request to investigate Australia\u2019s immigration policies. The ICC noted that while conditions in Australia\u2019s immigration camps are in \u201cviolation of fundamental rules of international law,\u201d they nonetheless fall outside of the court\u2019s jurisdiction.<\/p>\n

This is a mistake. By declining to intervene on behalf of vulnerable and victimised populations, the ICC misses a chance to act where its mission to create a more just world could have real impact. That is does so where its ideological and political alliances are strongest only compounds the error.<\/p>\n

\"The <\/p>\n

Kerstin Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.<\/span><\/em><\/p>\n

Source:<\/strong> The Conversation \u2013 Articles (AFRICA)<\/a><\/small>
\n<\/p>\n

Read more on The Conversation<\/a>.<\/p>\n

Join the fun:<\/strong> Add Your event<\/a> | Submit a Press Release<\/a> | Add your listing<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Al-Bashir and the ICC: there are better ways to achieve justice: Sudan's ousted President Omar al-Bashir appears in court in Khartoum on December 14, 2019. He was later sentenced to two years in prison for corruption. Photo by Mahmoud Hajaj\/Anadolu Agency via Getty Images It\u2019s been widely reported that Sudan is considering handing its former […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","ngg_post_thumbnail":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4584],"tags":[7219,7783,4328,8890,1198,5324,9223],"class_list":{"0":"post-156902","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-africa-news-2","7":"tag-achieve","8":"tag-albashir","9":"tag-better","10":"tag-conversation","11":"tag-justice","12":"tag-there","13":"tag-ways","14":"entry"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/156902","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/comments?post=156902"}],"version-history":[{"count":0,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/posts\/156902\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/media?parent=156902"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/categories?post=156902"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.myza.co.za\/press\/wp-json\/wp\/v2\/tags?post=156902"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}