• HRLPR

THE TRIAL OF OMAR AL BASHIR: A NOTE ON THE INTERPLAY OF IMPUNITY AND JUSTICE

Updated: Sep 4, 2020


Introduction

On 11th February 2020, a prolonged international pursuit met its end, when the Sudanese Government officially declared to hand over its former head, Omar Al-Bashir, to the International Criminal Court [hereinafter, “ICC”], in connection to war crimes and mass-genocide ordered by him in Darfur, Sudan. The decision was finalized by the Sovereign Council of Sudan in 2020, after the 2018 protests which effectively deposed the former head and established a new rule in the country.

This recent decision is a historical win for the ICC and the victims of Darfur, as Omar Al-Bashir was responsible for killing and displacing millions of citizens of Darfur for which he was indicted by the ICC in 2009. However, before his effective arrest in February 2020, Al-Bashir had been absconding from the hold of ICC for almost a decade, travelling freely within the African Union, without facing any consequences for the same. The African Union [hereinafter, “AU”] countries, along with Sudan’s own military, had refused to extradite Al-Bashir to the ICC, citing diplomatic and jurisdictional incapability as their reasons for not arresting him. Though these claims were later clarified by the ICC as being groundless, the AU still refused to extradite Al-Bashir.

This attitude of non-cooperation echoes the problem of impunity in international criminal trials and results in a calamitous effect on the sanctity of human rights. The sheer reluctance of the Sudanese and African governments in bringing the alleged wrongdoers to justice caused an undue delay to a fair trial, further giving off the impression of neglect for the commission of grave human rights violations. However, this reluctance of the African countries to cooperate was not without reason.

For years, the AU had disregarded ICC’s jurisdiction, stating political discrimination as the intention behind their contempt. This alleged contempt shows the prevalent culture of impunity within the region. Caught in this dichotomy of acceptance and justice are the survivors of human rights violations. Can undeterred justice, with support from the international community, settle the plight of the Sudanese survivors? The article attempts to examine this possibility firstly by discussing the non-compliance of the ICC’s arrest warrant by different states in the case of Al-Bashir and secondly, by examining the consequences of the application of impunity on the victims of the perpetrated crimes, before concluding the article.

Background To The Issue

From 2003 to 2008, the Sudanese government along with rapid action forces like the Janjaweed militia, initiated systemic attacks on the indigenous tribes of Sudan in Darfur. These attacks were carried out in order to curb a growing rebellion against the Sudanese government’s mistreatment and marginalization of the tribes in Sudan. This involved mass murders, rape, pillage, torture, and execution of the civilian population of Darfur over a period of six years.

In 2008, on a referral by the United Nations Security Council (UNSC), the situation of Darfur was investigated by the UN Secretary General. It was found that the rapid action forces liable for the perpetrated crimes were supported and controlled by Omar Al-Bashir, thus making him liable for crimes against humanity, war crimes and genocide on the basis of ‘perpetration by means’ under the Rome Statue i.e., liability for an indirect involvement in the conflict through the use of militia. He and five other Sudanese officials were indicted under Article 25(3)(d) as being the chief organizers of the military acts thus invoking the principle of ‘Command Responsibility’. The UN then referred these cases to the ICC in order to conduct a trial and the ICC at once issued arrest warrants against Al-Bashir and his accomplices.

Though these warrants were issued in 2009, it wasn’t until 2019 that the hope of arresting Al-Bashir arose. Prior to this, his position as the head of state had provided him enough diplomatic credit and impunity to travel freely and attend diplomatic conclaves within the African Peninsula, without the fear of conviction. Hence, his deposition in 2019 from his erstwhile title sparked hopes of a possible arrest. However, Sudan was still not ready to hand him over to the ICC. Sudan stated that due to their own domestic charges of corruption against Al-Bashir, they are not in a position to extradite him without holding a trial within the country first, thus effectively employing Article 17 of the Rome statute. This was met by contentions of inadequacy in investigations as Al-Bashir held a significant influence within the country.

Finally, it is in 2020 that the Sovereign Council of Sudan has agreed to hand him over. Still, the relative reluctance and unwillingness to cooperate mimics a wider problem prevalent within the region.

Disregarding ICC’S Orders

After the issuance of a warrant of arrest by the ICC, a wide scale defiance to the order was seen by both member and non-member parties to the Rome Statute in the AU. The Republic of Chad was the first country to disregard the arrest warrant and allowed Al-Bashir to participate in the Heads of the AU meeting in July of the same year. Similar behaviour was followed by other AU members such as South Africa, Kenya, Democratic Republic of Congo and Libya.

It is important to note that almost all of the involved states were legally bound to arrest Al-Bashir, irrespective of their membership of the Rome Statute. This is due the fact that a UNSC referral to the ICC, mandatorily applies all provisions of cooperation to even non state parties. However , the unwillingness to cooperate showed the growing critique of AU for the ICC so much so that in 2010, the AU proceeded with an official declaration of non-cooperation in the ICC arrest.

The said declaration showed the growing critique of the AU towards the ICC prosecutions of its heads of states. Though some member states oppose the collective stance, the AU is now slowly reinforcing the concepts of impunity and diplomatic immunity in human rights violations. The Majority of AU believes that immunity shall be provided to sitting heads of states against possible ICC indictments based on discriminatory and neo-colonial perspectives of Africa. However, this line of reasoning fails to understand the graveness of non-prosecution and the plight of victims. In bringing forth such opinions, the states actively endorse a culture of impunity, putting the implementation of basic human rights at risk.

The Problem With Impunity

Impunity according to its dictionary definition, means an exemption from punishment or a freedom from the injurious consequences of an action. Legally, it arises from a state’s failure to prosecute a perpetrator due to legal protection accorded by local impunity laws. When it occurs, it is characterized by the state’s absence of thoroughness in dealing with the trial, and their inability to investigate violations and ensure the arrest and prosecution of those suspected. Faults are observed in the redressal of victims and the inadequacy of the system in providing them with reparation is frequent.

However, this culture of impunity is not limited to the perpetrator’s’ own native state. In almost every case encountered by the ICC, the alleged perpetrator has tried to find shelter in foreign states, and has effectively been protected by the government because of a growing culture of acceptance of the behaviour.