Common sense would suggest that subsequent to the ousting and imprisonment of the man with the longest authoritarian reign in Sudan, there should be some urgency from the country to facilitate his long-awaited transfer to stand trial at the International Criminal Court (ICC).

Since 2009, Omar al-Bashir has succeeded in evading criminal accountability for war crimes, crimes against humanity and genocide. Notwithstanding having two separate arrest warrants (2009 and 2010), al-Bashir travelled for 10 years, at will, with impunity and diplomatic support to countries that are signatories of the Rome Statute and had an obligation to arrest him. Yet surprisingly, once again, against all odds, in solitary confinement at Khartoum prison, al-Bashir continues to evade criminal accountability for war crimes, crimes against humanity and genocide.

Presently, the headline of this article, is one of the most contested questions engaging audiences that have an interest in international criminal justice. Since issuing its first arrest warrant to al-Bashir in 2009, for crimes against humanity committed during Sudan’s five-year protracted armed conflict from 2003 to 2008, the supranational court has been finding itself, one could say, at a crossroads as a growing movement of its African signatories calls for withdrawal from the Rome Statute while an international criminal justice movement argues that the court is the only way for perpetrators of the most horrific atrocities to be accountable for their crimes. 

The supranational court’s relevance requires an appreciation of the historical evolution of criminal law developing from a narrow nationalistic viewpoint anchored in indifference and non-intervention to symbolising a broader and holistic international stance. Politics aside, the court is one of the most significant legal developments of the past two decades, and notwithstanding its substantial challenges, flaws as well as controversies, it is in an embryonic stage, and cooperatively signatories can engage in efforts to re-examine some of the approaches and ideals that underpin its practice.

The prosecution of al-Bashir will not only provide justice to the victims, and deter future abuses by heads of states, government officials, military and militia leaders, it could also ensure that the supranational court recuperates some of its ‘global relevance’, after the acquittal of Gbagbo (2019) and Jean-Pierre Bemba (2018) cast more doubt on its relevance and effectiveness. However, at present, the question of whether the architecture of one of the most impregnable and firmly entrenched military autocracies in Africa will face prosecution in the Hague remains improbable and indeterminate.

The latest development from Sudan, is that the military council maintains its decision that Bashir’s fate will be decided by a democratically elected civilian government, when they relinquish power after two years. The protesters and opposition, on the other hand, are preoccupied with ensuring that there is regime change  and the decision about al-Bashir’s fate does not seem to taking precedent over concrete economic and political reforms. The obliteration of the National Congress Party’s authoritarian legacies and military rule, which are deeply entrenched in Sudan, is being prioritised over al-Bashir’s fate.

Moreover, the suspension of the negotiations by the opposition on the grounds that the military council is deliberately deferring the process of transferring power to a civilian government, is also casting a shadow on al-Bashir’s ICC fate. Similarly, al-Bashir’s recent charges of money laundering and corruption, after the military intelligence found large sums of money in his house, will also confound the probability of him being transferred to the Hague.

If the protesters, opposition and military council reach an agreement to prosecute al-Bashir, which judiciary system would prosecute him? The existing one, which critics are referring to as dysfunctional, or the one subsequent to the two years ‘transition’ and judiciary reforms? If it’s the one after the transition and reforms, how long will it take for the civilian government to re-negotiate a different judiciary system and subsequent reforms? And during this indeterminate period what would be the fate of Bashir?

Proponents of international criminal justice are suggesting that in a transitional context after a coup d’état characterised by military elites exerting control camouflaged as transition, a former ally cannot be prosecuted on the basis of impartiality. Hence, they suggest that it would be an opportune moment for al-Bashir to be tried in the Hague, because the ICC is an independent court, and all its legal processes will be rendered by impartial judges in accordance with the provisions of its founding treaty, the Rome Statute, and other legal texts governing all its proceedings.

All the outstanding legal processes in Bashir’s ICC case (such as the pre-trial stage, trial stage, appeals stage and enforcement) could take years, as illustrated by Jean-Bemba’s ICC case which lasted for 6 years, from 2010 to 2016, leading to his acquittal in 2018. Similarly, Gbagbo’s case lasted for 8 years, from 2011 until his charges were dismissed in 2019. 

Whatever decision the protesters, opposition, and military council make they should take into consider that victims of the Darfur genocide have been waiting for justice since 2005. Ideally, not taking into consideration that its current political landscape is volatile, complex and uncertain, would the international community and victims consider the country’s decision to prosecute al-Bashir after the two years transition and judiciary reforms?

Surely, the list of Bashir’s victims and crimes have accumulated since the genocide, hence, which ones should take precedence and where and how can he stand trial for all? Moreover, would domestic prosecutions in Sudan in the future, as opposed to in the Hague mean a better version of justice for all his victims including those of the genocide in Darfur if non-judicial domestic efforts are taken to persecute him? Perhaps, the issue of al-Bashir’s prosecution in the Hague or Sudan should be approached when there isn’t the potential of civil war, ongoing protests and the military unwilling to relinquish power. Resolving the present turmoil in the country needs to take precedent over al-Bashir’s fate.

Michael Khorommbi is a researcher on regional integration and peace building in Africa. He is also a part-time lecturer in history at St Augustine College of South Africa. He also writes articles (in his own personal capacity) for the Daily Maverick. He is currently studying for a Master of Science in Governance and Regional Integration at the Pan-African University Institute for Governance, Humanities and Social Sciences, hosted wit