O Tribunal Penal Internacional e a contínua saga do Caso Al Bashir: quais são os impactos legais dos eventos recentes?

Protesters at the Dag Hammarskjold Plaza in New York call for Omar Al-Bashir's arrest on 24 September 2013. Source: Coalition for the International Criminal Court.

In the past week, newsfeeds have announced that the government of Sudan intends to surrender Omar Al Bashir to the International Criminal Court (ICC) to be tried for crimes against humanity, war crimes and genocide. It was announced, on 12 August 2021, that they would “hand over wanted officials to the ICC.” This news came after a visit by the ICC Prosecutor, Karim Kahn, to Khartoum. These recent announcements, however, have not been out of the blue.

Sudan is currently governed by a Sovereign Council (a civil-military coalition), that has been ruling Sudan since Omar Al Bashir was ousted by a coup in 2019. On 11 February 2020, it was already widely announced in the media that, in the ongoing peace negotiations in Juba between Council and Darfuri rebels, the Sudanese Sovereign Council agreed to let the ICC try those indicted in the situation on Darfur.

What seems to have changed in the Council’s narrative is the fact that they now phrase this issue as a matter of sending these individuals to the Hague, an aspect that was not so clear in previous statements. As it was reported in 2020, “[a]s it stands the Sudanese government has no intention of extraditing ex-President Omar Al-Bashir to the Hague to face the International Criminal Court.” The Council’s idea seemed to be one that would not require any kind of extradition of these wanted individuals.[1]

Yousra Elbagir, a Sudanese journalist who covered the unrest in Sudan that led to the ousting of President Bashir, has recently highlighted the amount of “mixed messaging” around the topic of having Bashir tried by the ICC. Besides that, holding international trials for wanted individuals has been reported as a demand from the Darfuri rebels and victims, which then leaves us to ponder whether this cooperation would be carried forward should negotiations fail.[2]

One of the (if not the!) most known and controversial cases at the ICC, the Al Bashir Case has made the Court, international criminal lawyers and academics go over important institutions of international law to settle issues that the case has raised.

However, the Council’s decision to hand Bashir over for trial does not have a legal impact on the disputes that have shaped this case. With Bashir no longer in office, Head of State Immunity, the issue that has created most of the uproar surrounding this case – mostly reflected in the African backlash –, is no longer a problem.

Since the issuance of the two arrest warrants against Omar Al Bashir, in order to clarify whether the defendant was entitled to sovereign immunity, many have questioned Sudan’s statute before the Court. As is well known, the situation in Darfur was triggered into the ICC’s jurisdiction through a referral by the UN Security Council in 2005, since the Office of the Prosecutor could not start the case by itself because Sudan was not a party to the Rome Statute. In this sense, it matters whether Sudan should be considered equivalent to a State Party for the purposes of Rome Statute implementation.[3] After not presenting a very convincing position in the DRC non-compliance decision, in which it affirmed that the UN Security Council “implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State,” in the South African non-compliance decision, the PTC II affirmed that “Sudan has rights and duties analogous to those of States Parties to the Statute.” International criminal lawyers and academics, nevertheless, have disagreed with this view, arguing that the UN Security Council does not “have the power to set aside general rules of international law, such as the relative effect of treaties.”[4]

The debate on whether there was an obligation to arrest and surrender Omar Al Bashir for the purposes of respecting the customary international law of Head of State Immunity was no longer an issue when he was removed from office in 2019. What lies ahead is the issue of Sudan’s duty to cooperate with the ICC, which was covered by UNSC Resolution 1593.

The decision from the Sudanese government to cooperate with the ICC also did not impact with the obligation of third states to arrest and surrender Bashir, since his deposing from office was the event that changed his status (and consequently which laws protect him).

It is important to point that the issues that were opened for debate with the problems posed by this case are still not resolved. As very well argued by Dire Tladi, the issue of Head of State Immunity became very much associated with the notion of impunity for Omar Al Bashir before the ICC, however, even though this case might be on its way for trial, the issues disputed are greater than one case at the ICC and very much not settled.

[1] Randle DeFalco makes an interesting evaluation of the possibilities of an in situ trial for these individuals. See Randle DeFalco, 2020, Sudan Announces Intention to Have al-Bashir and Others “Appear” Before the ICC. At https://www.justsecurity.org/68643/sudan-announces-intention-to-have-al-bashir-and-others-appear-before-the-icc/. See also Mark Kersten, 2020, Sudan’s Omar al-Bashir may finally face justice for Darfur. But the work is not yet done. At https://justiceinconflict.org/2020/02/21/sudans-omar-al-bashir-may-finally-face-justice-for-darfur-but-the-work-is-not-yet-done/.

[2] See Gwenaëlle Lenoir, 2020, Sudan: Peace Before Justice? At https://www.justiceinfo.net/en/44074-sudan-peace-before-justice.html.

[3] For more in depth discussions on the Court’s different argumentations on this matters, see AKANDE, Dapo, The Immunity of Heads of States of Nonparties in the Early Years of the ICC, AJIL Unbound, v. 112, p. 172–176, 2018, p. 175–176; JACOBS, Dov, The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation, in: STAHN, Carsten (Org.), The law and practice of the International Criminal Court, First edition. Oxford: Oxford University Press, 2015, p. 281–304.

[4] JACOBS, Dov, The ICC and immunities, Round 326: ICC finds that South Africa had an obligation to arrest Bashir but no referral to the UNSC.