Sudan hosted an ICC prosecutor for the first time ever – why?

Fatou Bensouda's visit to Khartoum says as much about the ICC as it does about the Sudanese government

The International Criminal Court's chief prosecutor Fatou Bensouda gives a press conference in Sudan's capital on October 20, 2020. AFP

Back in March 2005, the UN Security Council referred the bloody and tragic situation in Darfur, Sudan to the International Criminal Court. Since then, not one alleged perpetrator of the atrocities that were committed there has been held to account. After the ICC issued warrants of arrest for then president Omar Al Bashir, the Court and its personnel were considered “persona non grata”, demonised by Al Bashir’s government.

That has all changed in the span of just over a year, with the collapse of the Bashir regime and a new Sudanese government coming in from the cold, while warming up to the ICC. This rapprochement was on full display last week when, for the first time ever, the Court's chief prosecutor visited Khartoum. There are still hurdles to overcome before Al Bashir is prosecuted for his alleged crimes, but it was big week for the ICC – and momentum appears to be in justice's favour.

The visit of Fatou Bensouda, the incumbent chief prosecutor, was momentous. For most of the past 15 years, Sudan had been an ardent opponent of the ICC, organising like-minded countries and even member states of the Court to castigate the institution as a plaything of Western imperial powers. Al Bashir flouted the two warrants issued against him for war crimes, crimes against humanity and genocide, travelling to dozens of states – including members of the Court that a legal obligation to arrest and surrender him to The Hague, where the ICC is based. His travels created a legal and political headache for the Court.

But then Al Bashir fell from power, ousted neither by the international community nor because of the ICC’s charges against him, but by Sudanese people power. Citizens had grown tired of his iron-fisted rule and took to the streets to show it. Almost immediately, the prospects of the ICC prosecuting Al Bashir – as well as other regime officials it had investigated – was raised by Sudan’s new governing authorities. One alleged perpetrator, Ali Muhammad Ali Abdul Rahman, voluntarily surrendered himself to the Court and will be put on trial in the coming months. Others are in detention in Sudanese prisons.

Omar Al Bashir sits at the defendant's cage during his trial a courthouse in Khartoum, Sudan, on September 15, 2020. AP Photo

And then Ms Bensouda landed in Khartoum. For many, it must have seemed a mirage, but the potential of Al Bashir facing trial before ICC, in Sudan or The Hague, now feels distinctly real.

As I have written in these pages before, prosecuting Al Bashir for atrocities in Darfur will be a herculean task. He is charged with genocide, a crime notoriously difficult to prosecute because it requires proof that the perpetrator had the requisite intent, as well as took the requisite genocidal actions, to wipe out a recognised group in whole or in part. It has long been an open secret that the Prosecutor's office did not have an especially strong case against Al Bashir, which is unsurprising given that no ICC investigators have ever actually set foot in Darfur.

Some believe that the case has strengthened over the past few years. The best evidence for Al Bashir’s alleged crimes, however, may not be in Darfur but in Khartoum. If the former dictator waged a genocidal campaign, he will have orchestrated it from the Sudanese capital.

While witness evidence collected in refugee camps in neighbouring Chad and satellite imagery showing the wanton destruction of Darfuri villages may help, what would really bolster the case the most would be documentary evidence indicating that Al Bashir specifically ordered genocidal acts. To get that kind of evidence, it will be essential that the prosecutor and her team receive effective "co-operation" – a word that the ICC Prosecutor used nine times in a statement during her visit – from the highest levels of Sudan's new government.

ICC chief prosecutor Fatou Bensouda (C), poses with Sudanese officials during her visit to the ministry of justice in Khartoum on October 18, 2020. AFP

There are still hurdles to Al Bashir's  prosecution, but momentum appears to be in justice's favour

The Khartoum visit wasn't all picture perfect. Ms Bensouda was photographed meeting and shaking hands with Gen Mohamed Hamdan "Hemeti" Dagalo, a senior military figure who sits on Sudan's sovereign council and who leads the Rapid Support Forces, a group that was criticised for its campaign in Darfur. The prosecutor is no stranger to meeting with figures who may be incriminated, a presumably "pragmatic" approach to building good will and solidifying co-operation. But it is hoped that Gen Dagalo participates in building a case against his former boss and perhaps even testifies against Al Bashir.

Ms Bensouda surely must be happy with her visit to Khartoum. Besides the historic nature of arriving in Sudan, it was the first major visit that she has undertaken since the US issued sanctions against her and her colleague, senior ICC staff member Phakiso Mochochoko. Both Ms Bensouda and Mr Mochochoko were on the trip to Khartoum.

The US’s campaign to sanction the ICC has been co-ordinated with Israel, in retaliation for the Prosecutor's apparent interest in investigating alleged crimes committed by citizens from both of those countries. Yet Ms Bensouda’s trip to Khartoum took place at precisely the same time as efforts to normalise relations between Sudan and Israel came to fruition, with the diplomatic encouragement of Washington. That the ICC Prosecutor could meet with the Sudanese leadership under such circumstances indicates that Khartoum will not be dissuaded from, or punished for, co-operating with the ICC.

To be sure, the US sanctions are vindictive. They have affected the Prosecutor and will only thwart the work of the Court. But at least the institution will be able to do some of its work in some places, some of the time – without obstruction from Washington.

Will Al Bashir be brought before the ICC? That question remains to be answered. The same options that I outlined in The National earlier this year remain on the table: a domestic prosecution, the creation of a hybrid court mixing elements of international and national law, or proceedings by the ICC, either in The Hague or perhaps in Sudan.

It is unclear towards which option Ms Bensouda’s visit to Khartoum carves a path. What is clear, however, is that it was another step towards justice for atrocities in Darfur.

Mark Kersten is an expert in international law and a consultant at the Wayamo Foundation