PREVIEW
Although the government has opened talks with the ICC, that doesn’t mean the ousted leader will face trial in the Hague any time soon
Reports that the Khartoum transitional government has approved cooperation with the International Criminal Court in the Hague came on 11 February after a flurry of diplomatic initiatives, mostly aimed at getting Sudan removed from the United States' list of state sponsors of terror. The ICC has had a warrant out for Omer el Beshir on three counts of genocide for nearly 10 years.
This month, the Khartoum government paid US$30 million in compensation to families of US sailors killed when Al Qaida bombed the USS Cole warship in Aden port, Yemen in 1999. A US court found that Sudan's Islamist regime at the time had helped Al Qaida's operation (AC Vol 49 No 17, In the dock for the bombings). On 3 February, the military leader of the transitional government, Lieutenant-General Abdel Fattah Burhan had a meeting with Israeli Prime Minister Benjamin Netanyahu in Uganda. After this Sudan relaxed its ban on Israeli planes overflying its territory and Netanyahu promised to put in a good word for Sudan in Washington.
At the same time, Prime Minister Abdalla Hamdok, a former deputy chief of the UN's Economic Commission for Africa, has been discussing the opening of a substantial new UN operation in Khartoum involving technical support on judicial reform and peacebuilding (AC Vol 60 No 17, Hamdok's appeal). As part of that relationship UN Secretary-General António Guterres has been speaking at international forums in support of Sudan being removed from the US terror list.
A commitment by Khartoum's transitional government to work with the ICC, including signing and ratifying the Rome statutes, was taken by outsiders as a signal that it was prepared to hand over Beshir to face trial on charges of genocide and crimes against humanity at the court in the Hague.
Hybrid court
The reality is more convoluted but this latest development makes it likelier that Beshir will face a credible trial for war crimes committed when he despatched militias to suppress a rebellion in Darfur in 2003. On 18 February, Faisal Saleh, the Information Minister and a veteran journalist, confirmed that the transitional government was discussing options with the ICC that could include a hybrid court, involving Sudanese and ICC-appointed judges, a purely ICC judicial panel set up in Khartoum, or the transfer of Beshir and other suspects to face trial in the Hague.
Saleh said that an ICC delegation was due in Khartoum to discuss details, but any decision on Beshir would have to have the approval of both the military and the civilian members of the transitional government.
Discussions about cooperation between Khartoum and the ICC over cases in Darfur grew out of peace talks between the transitional government and the Sudan Revolutionary Forces.
The two sides agreed the negotiations would run along four tracks, one of which would be cooperation with the ICC investigations and prosecution of those accused of war crimes in Darfur. Under the previous National Congress Party (NCP) regime led by Beshir, the government had refused to have any dealings with the ICC. The change of tack by transitional government spokesman Mohammed Hassan el Taishi, a participant in the peace talks, may have been designed to speed up the talks and bolster Khartoum's diplomatic standing at the same time.
Negotiations
In line with the manifesto of the Declaration of Freedom and Change Forces (DFCF), the negotiations between Prime Minister Hamdok's team and the SRF, which started in September 2019, aim to consolidate peace across the country.
The SRF is also demanding to be included on the legislative council in the transitional arrangement. In a show of good faith, the transitional government has postponed the establishment of the legislative council which had been due last December.
Likewise, the appointment of civilian governors in Sudan's provinces to replace the military ones appointed by Beshir has also been postponed. In both cases the SRF will have its own nominees, agreed after the peace talks have concluded. Then, the SRF demanded that Beshir and others wanted by the ICC should be sent to the Hague and prosecuted as a pre-condition for the negotiations to continue.
Although Hamdok's civilian ministers in the transitional government and the DFCF are sympathetic to handing over Beshir, the military members of the sovereign council, the top layer of the transitional government, are not.
Burhan, head of the sovereign council, and the commander of the Sudanese Armed Forces (SAF) is opposed, thinking it would set a dangerous precedent for him and his fellow officers. He wraps up those concerns in a nationalist argument that Sudan's highly politicised judiciary should be given a chance to show it can take on a big, complex case. Few take that view seriously.
The most likely outcome now appears to be cooperation between Khartoum and both the ICC and the UN's judicial reform unit, which could set up some kind of hybrid court mechanism along the lines of the Special Court for Sierra Leone, which tried alleged war criminals after the civil war there and in Liberia.
However, personal and political loyalties could still slow things down. Relations between the civilians in the transitional government, all of whom want to see the restoration of constitutional rule and the establishment of independent institutions of state, and their military and security counterparts remains tense.
The three-way split between the SAF, the Rapid Support Forces (RSF) militia (which had been policing Khartoum) and the National Intelligence and Security Service (NISS), with their own armed units, is far from resolved. Many fear that at some point fighting will break out between the rival forces and talk of trials for retired officers, with their own networks of loyalists, will not help much.
Burhan owes his last promotion as inspector general of the army to Beshir. Like Beshir, Burhan is a member of the Sudanese Islamist movement. Indeed, most of the senior ranking officers were promoted by Beshir, who kept a tight grip on the army during his 30 years in power.
Hemeti risk
Should Khartoum open cooperation with the ICC, the most vulnerable figure in the government would be Mohammed Hamdan Dagalo 'Hemeti' who had the most direct involvement in Darfur because he led a unit of the Janjaweed militia there, which was since rebranded as the RSF. The ICC indictments against Beshir name another Janjaweed leader, Ali Kushayb, who fought alongside Hemeti in Darfur (AC Vol 60 No 16, From revolution to realpolitik).
It may be that some senior officers, long resentful at the resources controlled by Hemeti and the RSF, may see a deal with the ICC as a useful way to sideline him. Civilians in the transitional government harbour deep suspicions of Hemeti and the RSF, whom they hold responsible for the violent dispersal last June of the mass protests in Khartoum, killing at least 110 people.
Perhaps sensing this changing mood, Hemeti went on Sudania 24 television to complain about poor relations between the military and civilian members of the transitional government. No one in Khartoum doubts the truth of that statement. Grave tensions at the heart of government are unlikely to be resolved soon.
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