The government is performing a delicate balancing act in the interests of advancing justice during a complex political transition.
In August, Sudan's Minister of Foreign Affairs Mariam al-Sadiq al-Mahdi announced that the country would hand over all suspects charged by the International Criminal Court (ICC) for crimes committed in Darfur from 2003 to 2004.
Former president Omar al-Bashir is among the ICC accused and has a long list of domestic and international charges to account for. He is currently serving a two-year sentence for corruption and faces criminal indictments for the 1989 coup in which he took power. Given the plethora of justice demands the transitional government must deal with, surrendering al-Bashir to the ICC may be its best option.
Although the authorities didn't announce a timeline for the handover, this is the strongest commitment shown for the transfer of al-Bashir and other Darfur accused to the ICC's seat in The Hague. To be enforced, the cabinet decision now requires approval from the ruling sovereign council made up of military and civilian members.
Pivotal and high-ranking military officials seem to be on board, with General Mohamed Hamdan Dagalo, Sudan's first vice-president, stating that Sudan is prepared to cooperate with the ICC.
Sudan has legislation on war crimes, but the relevant article has never been used in any prosecution
While al-Bashir was president, there was little to no chance of his surrender to the court. This was partly because some countries that had joined the ICC's Rome Statute refused to arrest him when he was in their territories. Another reason was that in Sudan, the president was immune from prosecution.
Now the tables have turned. Since al-Bashir's ousting in 2019 and with a new transitional constitution, there is cautious optimism that the interim government will make good on its promise to hand him over to the ICC. But the critical question is why Sudan has now decided to hand al-Bashir over rather than prosecuting him at home for his alleged crimes in Darfur?
The first likely reason is that although Sudan has legislation to try al-Bashir and others for war crimes, Article 18 of the country's penal code has never been used in any prosecution. A capacity gap in handling this offence and the political heft of the accused could lead to judicial missteps and compromise the prosecution's case.
The principle of complementarity in international criminal law requires that states first prosecute international crimes and that international courts are used as a 'last resort'. But there must be a genuine willingness on the part of states to try such cases. Are Sudanese judicial authorities willing and able to try al-Bashir for the crimes committed in Darfur?
Even if Sudan was willing to prosecute international crimes, it might not have the resources to do so
Second and closely linked to this is the issue of funding a trial in Sudan. Even if it was prepared to prosecute international crimes, the country might not have the resources to do so. These prosecutions are expensive. The ICC, for example, budgeted approximately €2 500 000 for the Darfur situation in 2021 alone. Hence it may be more pragmatic for the ICC to handle these cases.
A domestic trial in Khartoum or Darfur is likely to cost less than one in The Hague. However, a cash-strapped transitional government will need to mobilise substantial funds to try a case of this magnitude and scale. Besides al-Bashir, Sudan would have to consider prosecuting other suspects wanted by the ICC for Darfur crimes, such as Ahmed Haroun and Abdel Raheem Hussein, currently detained in Khartoum, as well as Abdallah Banda Abaker Nourain, who is missing.
Sudan's government would also have to negotiate a complex transfer of Ali Kushayb, currently detained by the ICC in The Hague, back to Sudan - an outcome that is highly unlikely.
The third possible reason for handing al-Bashir to the ICC is that there is no national consensus around the Sudanese people's justice and accountability needs. This is solely due to the sheer volume and scale of human rights abuses and violations committed by the former ruling government.
As it stands, different regions arguably have different justice needs. For example, the focus in Khartoum is on accountability for the 3 June 2019 massacre in which more than 128 people died during protests. In Darfur, the priorities are understandably different. The war in the country's western region from 2003 to 2004 resulted in approximately 500 000 deaths and the displacement of over two million people.
Balancing the various justice demands without causing further marginalisation is a Herculean task
Perceptions within Sudan are key, so balancing the various demands for justice without causing further marginalisation is a Herculean task for the transitional government. Already several states have called for secession. Dealing with this, along with the job of decentring politics and providing justice in Khartoum will have a major impact on the course of Sudan's political transition.
The last reason is that the decision to surrender ICC suspects would improve Sudan's standing with the international community. The removal of the country from the US State Sponsors of Terrorism list and Sudan's recent decision to join the Rome Statute show progress in this regard.
Khartoum's decision to surrender those wanted by the ICC is a smart move as the transitional government positions itself as a defender of human rights. It signals the Sudanese authorities' commitment to ensuring accountability for atrocity crimes and will have a deterrent effect on incumbent leaders.
The technicalities around when and where the Darfur crime suspects will stand trial are yet to be determined. There is still talk of a special court for Darfur. For now, Sudan's decision serves as a reminder to those in power that impunity is never lasting. A change in domestic politics is all it takes to tip the scales in favour of justice and accountability.
Maram Mahdi, Research Officer and Ottilia Anna Maunganidze, Head of Special Projects, ISS Pretoria