The people of Sudan finally ousted President Omar al-Bashir from power, on April 11, 2019.
The people of Sudan must now transfer al-Bashir to The Hague to stand trial in the International Criminal Court, which, more than 10 years ago, indicted him for genocide, war crimes and crimes against humanity in Darfur — including the systematic use of rape as a weapon of war.
The people of Sudan, especially the women of Darfur, have waited far too long for justice.
The United Nations Security Council must stand with the people of Sudan as they seek accountability for the crimes of the past and as they stand strong against the crimes of the present. The Security Council must reinforce the people of Sudan’s call for justice and criminal accountability — not only for state actors but also for nonstate actors, including the Janjaweed militia.
The Security Council has done much to advance the cause of justice by adopting Chapter VII sanctions against al-Bashir and other members of his regime, and in March 2005, by referring the situation in Sudan to the International Criminal Court, or ICC, as a threat to international peace and security. The Security Council has failed, however, to ensure respect for the indictments and arrest warrants issued by the ICC, and in failing to do so, it has so far failed to enforce its own resolutions.
While the new or transitional government of Sudan may want to prosecute al-Bashir at home, it is unlikely that such a trial will demonstrate the willingness and ability to do so effectively — either to the satisfaction of the International Criminal Court or to the satisfaction of the Sudanese people.
It is therefore time to transfer al-Bashir and the other indicted members of his regime to The Hague. It is time to bring justice to the people of Sudan — particularly the women of Darfur, who not only endured genocide but also rape as a weapon of war. It is time to uphold respect not only for the Charter of the UN and the Rome Statute of the International Criminal Court but also for the Geneva Conventions, the Genocide Convention and the Torture Convention.
Even if it is politically difficult, the Security Council must uphold these universal instruments, both as a matter of principle and as a matter of practical necessity. Failing to do so inevitably sends a message to other war criminals, including Bashar al-Assad, the president of Syria, that they can massacre civilians with impunity. The people of the world still look to the Security Council to save them from such mass atrocities. Failing to do so not only erodes international law, it also erodes what is left of the Security Council’s credibility.
As of March 4, 2019, 10 years have passed since the ICC first issued an arrest warrant against al-Bashir. Lest the world forget, al-Bashir stands accused of committing the world’s most heinous crimes in Darfur. Under his leadership and direction, the Sudanese Armed Forces and the allied Janjaweed militias have reportedly pillaged and destroyed hundreds of villages and killed or forcibly displaced hundreds of thousands of civilians in Darfur as well as in the South Kordofan and Blue Nile regions. They have systematically used rape and other forms of sexual violence as a weapon against thousands of women and girls.
In her December 2018 statement to the Security Council, Fatou Bensouda, the ICC prosecutor, referred to continuing violence in the Jebel Marra region as well as sexual and gender-based violence against women and girls in Darfur. She recalled that the combined charges against the five indicted officials of the Sudanese government, including al-Bashir, “include over sixty counts of war crimes and over fifty counts of crimes against humanity” and she regretted that “the alleged perpetrators of these crimes remain free, while the victims and affected communities continue to wait for justice.”
The recent ouster of al-Bashir as president of Sudan does not obviate the need for his prosecution; on the contrary, it heightens the urgency of bringing him to justice. The Security Council must make it clear that génocidaires — whether in power or out — will be brought to justice, whether at home or in the ICC. To do so, the Security Council must call upon all UN member states to not only enforce the Chapter VII travel ban and asset freeze against the Sudanese officials designated by the Security Council but also the arrest warrants against the Sudanese officials indicted by the ICC.
The Security Council must also ensure that its pronouncements and resolutions embody the call to bring the perpetrators to justice and to bring justice to their victims. In particular, the Security Council should call upon any transitional or new government in Sudan to end impunity in Darfur by, inter alia:
• transferring al-Bashir and the others indicted by the ICC for prosecution in The Hague, where they will receive a fair trial with full due process rights and no death penalty;
• enforcing the prohibition against granting amnesty to those accused of the most serious violations of international humanitarian and human-rights law;
• ensuring that individuals duly designated on the UN consolidated sanctions list are banned from service in any position at any level of government;
• establishing mechanisms for individial and communal reparations for victims and villages;
• without prejudice to the principle of complementarity, cooperating with the ICC and with the UN Human Rights Council to conduct investigations and to facilitate access to victims, witnesses and relevant documentary evidence, including for any crimes committed during the current violent crackdown against protestors and human-rights activists; and
• without prejudice to the right of self-defense, taking active measures to protect civilians.
If the new Sudan is ever to be at peace with its past, its new leaders must hold its old leaders accountable. If the new Sudan is ever to be at peace with its present, it must ensure respect for the dignity and security as well as the rights and democratic aspirations of each citizen, regardless of gender, race or ethnicity. If the new Sudan is ever to be at peace with its future, it must ensure that the women of Sudan, including the survivors of the genocide and rapes in Darfur, are equally represented in its governing and decision-making bodies.
Ten years ago, the UN Security Council, with the concurring votes of its five permanent members — China, France, Russia, the United Kingdom and the United States — referred the situation in Darfur to the ICC. As such, it is all the more imperative that the Security Council enforce the results of the court’s investigation, including the arising indictments and arrests warrants.
As recently as February 2019, in its Resolution 2455, the Security Council, again with the concurring votes of its five permanent members, expressed its intention “to regularly review the measures on Darfur . . . in light of the evolving situation on the ground.”
On the ground, the people of Sudan have done their part and removed al-Bashir from power. Now, the UN Security Council must do its part and enforce its own resolutions and the ICC’s arrest warrants.
This is an opinion essay.
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Mona Ali Khalil is an internationally recognized public international lawyer with 25 years of UN and other experience, including as a former senior legal officer in the UN and in the IAEA, with expertise in peacekeeping, peace enforcement, disarmament and counterterrorism. She holds a B.A. and an M.A. in international relations from Harvard University and a master’s in foreign service and a J.D. from Georgetown University. She is an affiliate of the Harvard Law School Program on International Law and Armed Conflict and a nonresident fellow at the UN Institute for Disarmament Research. She is the Founder and Director of MAK LAW INTERNATIONAL, a legal advisory and strategic consulting service, assisting governments and intergovernmental organizations in the service of “We the Peoples.”