The long arm of the ICC comes for Al Bashir

The essentials: Last week an official of Sudan's transitional government announced that the country is planning to hand over former President Omar Al Bashir to the International Criminal Court to face charges of war crimes and crimes against humanity. The announcement was light on details and heavy on caveats, but with more information emerging, it looks increasingly likely that Al Bashir will have to face justice in some form.

The details: Omar Al Bashir was indicted by the International Criminal Court in The Hague in 2009 on counts of murder, extermination, forcible transfer, torture and rape (all crimes against humanity), directing attacks against civilians and pillaging (both war crimes), as well as genocide. All charges were brought in relation with the Darfur crisis, which has a history going back centuries, but which escalated into genocide perpetrated by Sudanese government forces and its allies against primarily non-Arab ethnic groups by 2003.

Al Bashir, the first sitting head of state to have an international arrest warrant for war crimes issued against him rejected the charges and declined to appear before the court. While the indictment contributed to Sudan's continuing international isolation, Al Bashir himself was only marginally inconvenienced by it. Especially Arab and African governments declined to enforce the warrant and allowed Al Bashir to continue to represent Sudan on diplomatic missions.

The situation changed with Al Bashir's fall in April 2019. Elements of Sudan's military conducted a coup against Al Bashir, placed him under arrest and entered into negotiations with an opposition movement that had paralyzed the country with mass protests in the prior months. Members of the military and the opposition agreed on a joint transitional government and plans to negotiate a lasting national peace with various rebel groups.

Initial reports that Al Bashir, along with several alleged coconspirators would be handed over to the ICC came after somewhat vague remarks by a government spokesperson in the context of peace talks between the government and Darfur rebels. Now, a week later, a clearer picture emerges.

Both military and civilian leaders within the transitional government seem to be in favor of having Al Bashir face justice for his crimes in Darfur and involve the ICC in some capacity in that process. These two issues are connected, but don't necessarily depend on each other. That they are considered together, likely stems from a desire to address both national and international priorities of the current Sudanese leadership.

Nationally, the transitional government has committed itself to finding a peaceful solution to the country's many internal conflicts. This is likely a higher priority for the civilian members of the transitional government, but even the military officers likely understand and accept that peace in Darfur will have to involve some form of accountability of members of the former regime. Throwing Al Bashir to the wolves is probably more desirable to the generals as having the military's entire record scrutinized closely.

Internationally, Sudan is still a de facto pariah state and cut off from important aspects of the global economy. While many sanctions have been lifted, Sudan's status as a state sponsor of terrorism is maintained by the US government, which severely limits the ability of Sudan's leadership to address its domestic economic crisis. Involving the ICC in a trial of Al Bashir is a strong signal to the international community and will likely be linked directly or implicitly to commitments by the US and EU to provide financial assistance.

But while it seems more and more sure that Al Bashir will face some form of trial, it is as of now unclear which form that will take. The unlikeliest scenario is for Al Bashir to be extradited to The Hague, as this would undermine the transitional government in the eyes of Sudanese nationalists, who retain some of their political influence. A likelier scenario would be an ICC-led or hybrid trial taking place in Sudan itself, probably in Khartoum. This would retain the image of national soverignity, but also satisfy the international community.

The upshot: It wouldn't be the first time that the ICC is used by a new regime to help with its own political agenda. But no matter the intentions, handing over Al Bashir in any form to the ICC will send a strong message. His continued dodging of his arrest warrant did a lot to undermine the ICC and brand it as ineffective and useless. His trial and likely conviction will repair some of that damage and serve as a precedent for decades to come.