The question of whether and how to execute outstanding warrants against Bashir and others is a defining issue for Sudan's nascent political settlement.
The demand for justice was a major driver of the December 2018 Sudanese revolution that saw former President Omar al-Bashir removed after almost three decades in power, and ensuring accountability is now one of the biggest challenges facing the transitional government which replaced him.
Atrocities committed under the Bashir regime are already well documented, such as the deaths of hundreds of thousands of people and the displacement of millions in Darfur, the Nuba Mountains, and Blue Nile.
The Darfur situation was referred to the International Criminal Court (ICC) by the UN Security Council back in 2005, and arrest warrants were issued against Bashir and four others. One of them, Ali Kushayb, surrendered in 2020 and is now in The Hague but the others have not yet been handed over to the ICC despite three being in government custody.
Cooperation with the ICC is just one part of a comprehensive transitional justice process required to address atrocities committed before, during, and after the revolution
A historic breakthrough was achieved in the signing of the Juba Peace Agreement (JPA) - which is now incorporated in the Constitution - in which the government pledged full and unlimited cooperation with the ICC, including facilitating the appearance of those wanted before the Court. And, following a visit to Khartoum by ICC prosecutor Fatou Bensouda, the government signed a memorandum of understanding with the ICC in February 2021 over cooperation in the Kushayb case.
Delivering justice for past crimes
Cooperation with the ICC is just one part of a comprehensive transitional justice process required to address atrocities committed before, during, and after the revolution. Expected to be enacted into law soon is a bill to establish a Transitional Justice Commission, which will lead national consultations to assess what Sudan's diverse communities consider to be justice for past crimes, and how to deliver it.
The JPA also provides for establishing a Special Court for Darfur Crimes, composed of Sudanese judges operating under both Sudanese and international criminal law, which can hold to account any perpetrators outside the remit of the ICC, while a Truth and Justice Commission and the use of traditional justice mechanisms are also foreseen.
More widely, the government recently ratified the conventions against torture and enforced disappearances and agreed to join other international human rights conventions, such as the Rome Statute. But there is currently no agreement on handing over remaining ICC indictees to The Hague, despite the government's obligations to do so.
There may be legal justification for the delay, flowing from the principle of complementarity enshrined in the Rome Statute which means, as a matter of principle, cases should be held under national authority if state parties are willing and able to do so, and the ICC is a court of last resort. The government could argue ongoing legal reform means Sudan is on a path to meet that criteria, and that trying suspects before the Special Court for Darfur would also bring justice closer to the Sudanese people.
Regional voices are likely to push for justice and accountability to remain high on the agenda, while oversight should be strengthened once the legislative assembly is created. But the powerful military component of the government may push back
But this legal possibility should not preclude acknowledgement of many significant obstacles to the successful prosecution of high-profile cases of atrocity crimes in Sudan's courts. In principle, it would also be possible to stage an ICC trial in Sudan but holding an ICC trial outside The Hague has never happened and logistically it would be a difficult, expensive and lengthy process.
Both options require years of preparatory work with wide-ranging legal, institutional, and security sector reforms, while the independent commissions on legal and judicial reform provided for in the Constitutional Charter have not yet been established. There has also been no comprehensive reform of the judiciary, Public Prosecutor's office, or civil service, and no amendment of laws giving immunity to members of the military and security services.
Sudanese lawyers would need training to deal with international crimes, and there are still no arrangements for victim and witness protection in Sudan which would impede trials being held domestically, particularly given elements of the former regime remain in the security structures at both national and local levels.
A delicate political balance
Politics may be the most fundamental challenge to delivering those indicted by the ICC to The Hague. There is a delicate balance between the military, civilians, and armed movements in the transitional government following the JPA-mandated reconfiguration in February 2021, which brought representatives from Sudan's conflict-affected regions into key positions.
Regional voices are likely to push for justice and accountability to remain high on the agenda, while oversight should be strengthened once the legislative assembly is created. But the powerful military component of the government may push back, either on grounds of national sovereignty, concerns about their own immunity, or pressure from Islamist elements still entrenched in the military and security services.
Sending the former president to face international justice would place further strain on an already precarious partnership but there is growing public frustration at the slow pace of the enquiry into atrocities committed in Khartoum on 3 June 2019, and concerns about an amnesty decree issued by the Sovereign Council which appears to provide some degree of reprieve for government security forces.
These examples raise difficult questions about transparency in the justice system and continued impunity, but answers must be found. Transitional justice is imperative for achieving lasting peace, political stability, and democratic transformation in Sudan, and addressing the injustices inflicted upon communities in Sudan's peripheries is a vital aspect of promoting reconciliation and rebuilding the social fabric.
Time is a major concern as victims have waited years to see cases come to court. Bashir is already 77, and further delays mean the potential loss of even more victims and witnesses, particularly if investigations begin from scratch. More than two million people still live in miserable conditions in camps in Darfur and eastern Chad, with a further 100,000 newly displaced by recent violence in West Darfur.
Cooperation with the ICC is an important part of implementing the JPA and re-connecting with the international community. Bensouda is expected to visit Darfur in April, and this engagement has increased the expectation that justice and accountability will finally begin to be delivered for the victims of crimes there, some of which occurred almost two decades ago.
Sudan's new leaders must keep the views and expectations of those who have suffered in Darfur at the forefront of their deliberations, and work to the maxim that 'justice delayed is justice denied'. But to deliver justice, the most timely and practical option is to hand over all suspects to the ICC; this would show Sudanese citizens that the transitional government is genuine about its promises to deal with the legacies of the Bashir era.
Ahmed Soliman, Research Fellow, Africa Programme