Future of the World Court in Balance
Future of the World Court in Balance
Sudan’s Imperilled Transition: Policy Recommendations for the U.S.
Sudan’s Imperilled Transition: Policy Recommendations for the U.S.
Op-Ed / Africa

Future of the World Court in Balance

A treaty among 104 countries formed the International Criminal Court (ICC) to investigate atrocities of international concern that go uninvestigated by national court systems. Most of the world agrees that such atrocities, labeled by the US as genocide, have occurred in the impoverished Darfur region of western Sudan since 2003. After rebel activity in the region, the Sudanese government and Arab militias have systematically worked to kill, rape and evict millions of black Africans from Darfur. More than 200,000 people have died and 2 million more have been dislocated. After the ICC charged two men with organizing crimes, the Sudanese government responded with outright defiance. By refusing to support the court in its prosecution, the international community and the UN Security Council will set a precedent for other governments that engages in atrocities against civilians, according to Nick Grono and Donald Steinberg of the International Crisis Group. The future of a world court, promising to bring to justice to those who commit horrific crimes, hinges on the international community’s response to Sudan.

By backing away from Sudan’s defiance and atrocities, the international community could strip the world court of its power

The Sudanese government has responded swiftly to the call to hand over to the International Criminal Court two individuals allegedly responsible for atrocities in Darfur, delivering a blunt threat to “cut the throat of any international official…who tries to jail a Sudanese official in order to present him to the international justice.”

This is ultimately a challenge to the UN Security Council. How the international community responds to this defiance will determine the authority of the ICC and the Security Council itself.

On February 27, the ICC prosecutor named the targets of his investigation – former State Minister for the Interior Ahmad Harun and a janjaweed/militia commander, Ali Muhammad Ali Abd al-Rahman, also known as Ali Kushayb – and sought orders from ICC judges that they be brought to the Hague.

The vehement response by the Sudanese government indicates the regime’s awareness that the ICC threatens its legitimacy and perhaps its long-term survival. Harun is part of President Omer Al-Bashir’s inner circle, but not the most senior government figure responsible for the campaign of atrocities. Bashir, his special adviser Nafie Ali Nafie, and his national security chief Salah Gosh fear they may be future targets of Prosecutor Luis Moreno-Ocampo and hence the strident reaction.

Last week’s fireworks mark the most important developments in a case that has crept forward since the UN Security Council referred the situation in Darfur to the ICC in March 2005. The referral gave the ICC jurisdiction to investigate Khartoum’s systematic campaign of atrocities, one which has resulted in the death of more than 200,000 people and the displacement of some 2 million more over the last four years.

The referral itself was a landmark event, with the US, a strident opponent of the ICC, and China both abstaining on the vote. The Security Council called on Khartoum and other parties to the conflict in Darfur to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution."

Bashir responded with defiance: “I shall never hand any Sudanese national to a foreign court." But Sudan’s strategy, more nuanced than its rhetoric over the last 18 months, has followed two tracks:

First, to curry support in the Islamic and developing worlds, Sudan has painted the ICC investigation as a Western-inspired plot to punish the regime and perhaps seek regime change.

Second, Sudan has argued that it is willing and able to deal with the crimes under investigation. If the government can satisfy the judges in The Hague that this is the case, then the ICC must defer to the Sudanese legal system. Thus, Bashir claims that the Sudanese judiciary is “honest and qualified to try any Sudanese" and has created the Special Criminal Court for Events in Darfur, which is currently conducting trials. It appears that Kushayb has been detained since November 2006 and Harun has been questioned by the Ministry of Justice. However, after examining these claims of competency and intent, the prosecutor nonetheless advised the court that Sudan is not investigating the same persons and conduct under ICC purview.

All evidence to date suggests that Khartoum will never hand Harun or Kushayb to the ICC if the judges make this order. Such a refusal would repudiate not only the ICC, but also the Security Council. Of course, defiance of the international community and international law is nothing new to this regime, which has repeatedly reneged on its commitments to disarm the janjaweed, implement ceasefires and allow the deployment of a more robust peacekeeping force, with no serious consequences.

If Khartoum remains defiant, the Security Council will be expected to enforce its ICC resolution. That would pose a dilemma for the Council: To date, it has shied away from implementing tough measures against Khartoum, preferring a policy of engagement to gain cooperation through peace negotiations, humanitarian relief efforts and plans to introduce a robust UN/African Union hybrid peacekeeping force.

Security Council inaction in the face of Sudanese defiance would undermine the ICC, perhaps fatally, and expose the council as a paper tiger. The Security Council is the ultimate guarantor of the ICC’s credibility, and failure to ensure compliance would encourage not just Sudan, but other governments whose officials are targeted by the ICC, to defy the court. By contrast, successful prosecutions in the Darfur case would reinforce the lessons of the Milosevic, Taylor and Habre cases, and force government officials to think carefully before embarking on state-sponsored atrocity campaigns.

Khartoum has also argued, with some outside support, that the ICC prosecutions are an obstacle to a peace deal with rebels and that the Sudanese government cannot be expected to negotiate while its ministers face the threat of indictment. But concerns about the interplay between the prosecutions and the peace process can be addressed through other avenues. The Rome Statute permits the Security Council to put prosecutions on hold for a 12-month period, renewable annually. In this case, there are few signs that Khartoum would use such a period to pursue peace, given the scale of its systematic atrocities, its past history of violating commitments and its bombing of proposed assembly areas for rebel leaders in advance of peace talks.

The Security Council must take a tough stance on Sudan’s non-compliance with the ICC. France and Britain, as prime movers of the ICC referral and strong supporters of the court, should lead the charge. The US should be supportive: President Bush has labeled Darfur “a genocide,” and despite a desire to maintain a counterterrorism relationship with the regime, the administration’s moral outrage over Darfur atrocities would be exposed as hollow should the US not press for prosecution for conduct so vehemently denounced. China, a long-time supporter of Sudan, has recently been tougher on the regime, fearing possible breakup of Sudan should the conflict continue. China is unlikely to veto a resolution in support of the ICC and expose itself to international condemnation before the 2008 Olympics. Russia will likely follow China’s lead.

The Security Council should provide Sudan a deadline for handing over the two individuals. Thus far, the failure of Khartoum to cooperate with the international community to resolve the conflict in Darfur has taken place at no cost to the regime. The council should change the calculations in Khartoum by imposing travel bans and asset freezes on the regime’s senior leadership, sanctioning the regime’s commercial entities, and considering measures specifically targeting revenue flows from the petroleum sector and foreign investment in that sector. Khartoum’s failure to accede to the council deadline should be enough to push even the most recalcitrant parties to support this approach.

The ICC prosecutor’s naming of Harun and Kushayb marks a milestone in the development of this fledging institution and a first step in a high-stakes test of international political will. How the Security Council responds to Sudan’s defiance will go a long way to determining whether the ICC will meet its founders’ expectations that it “put an end to impunity for the perpetrators of [atrocity crimes] and thus to contribute to the prevention of such crimes.” It will also determine whether anyone will be held accountable for the conscience-shocking atrocities in Darfur.

Contributors

Former Deputy President and Chief Operating Officer
Former Vice-President for Multilateral Affairs

Sudan’s Imperilled Transition: Policy Recommendations for the U.S.

In a 1 February 2022 hearing before the U.S. Senate Committee on Foreign Relations, Crisis Group’s President & CEO Dr. Comfort Ero testified on the escalating situation in Sudan and outlined four main recommendations for the U.S. to help restore the civilian-led transition to democracy.

Good morning/afternoon, Chairman Menendez, Ranking Member Risch and distinguished members of the Committee. My name is Dr. Comfort Ero, and I am the President and CEO of the International Crisis Group. Previously I served as the organization’s Africa program director and I have spent my professional and academic career focusing on peace and security issues in Africa. The International Crisis Group is a global organisation committed to the prevention, mitigation and resolution of deadly conflict. We cover over 50 conflict situations around the world and our presence in Sudan dates back more than two decades.[fn]Crisis Group Africa Report N°281, Safeguarding Sudan’s Revolution, 21 October 2019; Jonas Horner, “After the Coup, Restoring Sudan’s Transition”, Crisis Group Commentary, 5 November 2021; Crisis Group Africa Briefing N°168, The Rebels Come to Khartoum: How to Implement Sudan’s New Peace Agreement, 23 February 2021.Hide Footnote

I very much appreciate the opportunity to speak to you about the deteriorating situation in Sudan today. The country is at a dangerous crossroads. Not for the first time in its history, the military has turned its back on the demands of the Sudanese people for more just and representative rule by violently seizing power. The coup on October 25 brought a sudden halt to a civilian-military coalition that since 2019 has been charged with steering Sudan toward elections and full civilian rule.[fn]Crisis Group Report, Safeguarding Sudan’s Revolution, op. cit.; Horner, “After the Coup, Restoring Sudan’s Transition”, op.cit. It was a major reversal in a transition that had brought hope to so many in the Horn of Africa and beyond. I will share with you my analysis of the current situation in Sudan and recommendations for steps the United States might take to help guide it back on the path toward greater democracy and stability.

Background

By way of background, the transition that was interrupted on October 25 followed 30 years of rule by the notorious strongman Omar al-Bashir.

  • After coming to office in a coup in June 1989, Bashir maintained his hold on power by repressing political opposition, fighting costly counter-insurgencies in the country’s peripheries and underwriting his factious security sector with patronage-driven expenditure that ate up, by some estimates, 70 per cent of the national budget.[fn]Shortly after taking office, Prime Minister Abdalla Hamdok, who was mandated to lead the civilian-military transition in August 2019, listed as an ambition driving down military expenditure to 20 per cent of the national budget. He said in some years, that budget line had stood at 80 per cent. “Sudan PM seeks to end the country’s pariah status”, AP, 25 August 2019.Hide Footnote
     
  • The patronage system that Bashir built eventually bankrupted the country and contributed to the strongman’s ouster. A small cabal of favoured cronies including Bashir’s Islamist allies from the National Congress Party, senior military officers (many of them drawn from the tiny riverine elite that has dominated Sudan’s military and politics for decades) and newly minted allies such as the paramilitary Rapid Support Forces (RSF), which was blamed for some of the worst violence in the western region of Darfur, benefited substantially from Sudan’s rigged, lopsided economy.[fn]“Who are Sudan’s RSF and their Commander Hemeti?”, Al Jazeera, 6 June 2019.Hide Footnote These same actors continue to try to preserve their privileges atop Sudan’s political, economic and security establishment.
     
  • Popular frustration over political repression, rising prices and a sclerotic economy that could not absorb Sudan’s ranks of unemployed youths helped trigger the protests that eventually drove Bashir from power. The uprising began in the south-eastern towns of Damazin and Sennar, where crowds took to the streets on 13 December 2018 in response to a tripling of bread prices. By the time the protests reached Atbara, the historic bastion of unionism in Sudan, demonstrators were demanding regime change. Against long odds and despite heavy repression, the protesters eventually overwhelmed the security forces, who staged a palace coup against Bashir on 11 April 2019.  
     
  • The military tried to maintain the upper hand but was forced under pressure both from the protest movement and external actors to compromise and accept to share power with civilians. International revulsion over a 3 June 2019 massacre of protesters encamped outside the military headquarters was particularly important in forcing the generals to cede to the will of the Sudanese people.[fn]“Sudan commemorates the June 3 Massacre”, Dabanga Sudan, 3 June 2021.Hide Footnote Under the terms of a 17 August Constitutional Declaration, the country would be governed by a hybrid civilian-military coalition for 39 months leading up to elections.
     
  • The task before that coalition was enormous. The new cabinet headed by the technocrat and diplomat Abdalla Hamdok was charged with breathing new life into Sudan’s anaemic economy, reforming political institutions to lay the ground for elections and delivering justice to the many Sudanese victims of atrocities during Bashir’s rule – and in the weeks following his fall. Despite the formidable obstacles the authorities faced, that coalition represented the country’s best hope for emerging into a stable, prosperous and democratic future and was a source of hope for those supporting democratic renewal in other countries in the region.
     
  • Always reluctant participants in the alliance, the generals barely disguised their opposition to the Hamdok administration’s reforms and were particularly opposed to efforts to deliver justice and to reshape the country’s economy. In defiance of the United States government and others who warned them against doing so, they seized power and ousted the civilians.

The October 25 Coup and Its Aftermath

Today, unfortunately, the picture looks grim. The military violently applied the brakes on the transition in the early hours of October 25 when they placed Hamdok under house arrest, rounded up numerous other civilian officials in the administration, declared a state of emergency and dissolved key institutions including the cabinet. Since then, Sudan’s military chief General Abdel Fattah al-Burhan has taken a series of steps to reverse the reforms the civilian-led administration had rolled out, including by disbanding a committee charged with reclaiming public assets, by packing the Sovereign Council, which serves as the country’s executive, with his allies and by appointing Bashir-era figures into key posts including in the judiciary and security forces.[fn]Crisis Group EU Watch List 2022, 27 January 2022.Hide Footnote The military attempted some window dressing when it reinstated Hamdok on 21 November, a move Sudanese protesters rightly dismissed as an effort to legitimise their power grab. Some efforts to stimulate talks among Sudanese actors to find a way out of the crisis continue although the prospects of a resolution appear dim.

[Sudan] has been on a downhill trajectory since the coup.

Overall, the country has been on a downhill trajectory since the coup. On 2 January, Hamdok resigned in frustration after failing to persuade the generals to stick to their commitments under the August 2019 constitutional charter, and in particular to give him a free hand to appoint a new cabinet. In the meantime, the public’s frustration has been growing. For the past few weeks, Sudanese people across the country have taken to the streets to signal their revulsion at the military’s power grab. The general’s response to the protests has come right out of the Bashir playbook. The security forces have repeatedly fired into crowds, killing dozens, according to human rights groups and the UN.[fn]“Bachelet condemns killings of peaceful protesters in Sudan”, UN, 18 November 2021.Hide Footnote A late December decree by military chief Abdel-Fattah al-Burhan gave the police effective immunity for their actions. Still, the Sudanese people continue to risk their lives by staging protests, work boycotts and other strike actions.

While it is not yet clear who will come out on top in this contest between the security forces and the street, there is evidence to suggest that the generals have gravely miscalculated the strength of their hand. This is a different Sudan from the one in which the army captured control of the state at least five times in the past, including in 1989 when Bashir took office.[fn]"A history of Sudan coups”, Statista, 25 October 2021.Hide Footnote Sudan has one of the youngest populations in the world.[fn]“After the Uprising: Including Sudanese Youth”, Chr. Michelsen Institute, 2020.Hide Footnote Six in ten Sudanese are aged between fifteen and 30 – and the current generation rejects the notion that the country should go back to being governed by an unaccountable, out-of-touch elite.[fn]Sudan’s Political Impasse”, The Horn (Crisis Group podcast), 26 January 2022.Hide Footnote This mobilised, youthful population showed its power at the end of 2018 when it rose up in protest at Bashir’s repressive, kleptocratic rule. The protest movement captured the imagination of pro-democracy campaigners well beyond Sudan with its diversity, with the prominent role that women played – sometimes outnumbering men in demonstrations – with its tenacity, and ultimately with its success. Against what many viewed as tall odds, it brought a halt to Bashir’s rule. Since the coup, this movement has again shown its strength by mobilising millions of Sudanese to take to the streets and send a clear signal to the generals that they will not, as past generations of officers did, get away with imposing their will on the Sudanese people.[fn]“Deaths Reported in Sudan as ‘March of Millions’ Demands Restoration of Civilian Rule”, Voice of America, 30 October 2021.Hide Footnote

Getting the transition back on track would serve both the people of Sudan’s democratic aspirations and the interests of the United States.

Getting the transition back on track would serve both the people of Sudan’s democratic aspirations and the interests of the United States and other regional and international actors in the strategically important Horn of Africa – where Sudan sits between major regional powers Ethiopia and Egypt and shares a border with seven countries, several in the throes of conflict themselves. Support for Sudan’s transition would comport with the U.S. government’s stated commitment to champion democratic values and to “demonstrate that democracies can deliver by improving the lives of their own people”[fn]“President Biden to Convene Leaders’ Summit for Democracy”, White House, 11 August 2021.Hide Footnote . It would also be the surest pathway to medium- and long-term stability in the country.

Recommendations

The United States is one of Sudan’s most important external partners. It provides about half a billion dollars in assistance annually and was a champion of efforts to reconnect Sudan’s economy with international financial institutions. Given these ties and the United States government’s relations with all the main regional actors, the U.S. is well positioned to support efforts to reverse the military’s power grab and set Sudan back on a path toward elections and representative government. Specifically, it could:

  • Press the generals to immediately halt violence against protesters and coordinate targeted sanctions to hold them to account: As outlined, Sudan’s security forces have responded to peaceful protests by indiscriminately shooting into crowds and sometimes reportedly even pursuing fleeing and wounded demonstrators into hospitals.[fn]“Sudanese security forces ‘hunt down’ injured protesters in hospital”, France 24, 25 January 2022.Hide Footnote This pattern of behaviour, on top of its grave human cost, threatens to poison relations between the parties and render a resolution even further beyond reach. In coordination with partners including the African Union (AU) and the European Union, the United States should make clear that the generals will face consequences including asset freezes and travel bans if they continue to kill unarmed demonstrators. The White House should simultaneously convene an interagency process to design a targeted sanctions programs aimed at key figures in the military and outline that it is willing to deploy these against individuals that continue to sanction the killing of protesters or obstruct progress toward elections more broadly.
     
  • Support Sudanese-led efforts to rerail the transition: The United States has already signalled its backing for efforts to stimulate negotiations among the generals and civilian groups including the Forces for Freedom and Change (FFC), the coalition that spearheaded the protest movement and neighbourhood resistance committees, which play an integral role in the day-to-day organisation of protests and have proved a particularly effective channel of resistance to the military coup. The United States should warn the generals against taking precipitous measures that could derail these potential talks, including refraining from unilaterally appointing a new prime minister. It should further insist that these talks are maximally inclusive and in particular that they should take on board the views of the resistance committees. The 2019 power-sharing agreement should be the blueprint for a compromise that could restore civilian-military governance and lead to elections.
     
  • Withhold financial assistance until the military reverses its coup: In the immediate aftermath of the military takeover, the United states suspended $700 million in assistance to Sudan. This was the right step given the generals’ brazen decision to terminate the power-sharing agreement. The United States should make clear to the generals that this support will not resume unless they accept to return to the path toward elections laid out in the 2019 power-sharing agreement. In the meantime, the United States should advance with efforts to repurpose some of its support to civil society groups and also to work with partners including the UN to offer direct assistance to Sudan’s long-suffering people.
     
  • Urge all regional actors to back a return to a civilian-led dispensation: Many on the Sudanese street perceive some external actors, namely Egypt, the United Arab Emirates and Saudi Arabia, as tacitly backing military rule.[fn]Sudan’s Political Impasse”, op. cit.Hide Footnote Such perceptions will ultimately be damaging to those countries’ standing in Sudan if it is able to reinvigorate its transitional process. But it is still possible for these key regional actors to play an important role in helping Sudan return to a civilian-led transitional process, thereby protecting their relations with the Sudanese people. Given his strong background in regional diplomacy, Special Envoy Satterfield should be well positioned to engage these actors and urge them to use their privileged relations with Sudan’s generals to convey to them that the power-sharing agreement they torpedoed remains Sudan’s best and perhaps only chance for stability, a goal they all profess to share. With the welcome appointment of a new ambassador to Khartoum, the United States could play a key role in marshalling a coalition of actors within and outside Sudan that can help steer the country back toward the path to elections.


Sudan is at a historic hinge-point. The military’s power grab has derailed a transition that was an inspiration well beyond Sudan, and still could be, if the generals step back and allow Sudan’s civilians to steer the country to elections. With a piling set of challenges – not least an economy in deep distress, resurging violence in Darfur and elsewhere, and a tottering peace deal with armed groups – the generals can hardly afford to stonewall the Sudanese people’s demands for change. The world – and the United States – should stand with Sudan’s people in their quest for a more democratic and accountable government, an outcome that represents the country’s best hope for achieving long-run political, social and economic stability.

Contributors

Former Deputy President and Chief Operating Officer
Former Vice-President for Multilateral Affairs

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