Media Statement by Parliamentarians for Global Action (PGA)

Nairobi/Stockholm/New York: Parliamentarians for Global Action (PGA) welcomes the reported announcement on 11 February 2020 by representatives of the transitional authorities of Sudan that former President Omar al-Bashir will be transferred to the International Criminal Court (ICC) in The Hague. President al-Bashir has been charged with genocide, crimes against humanity and war crimes allegedly committed in Darfur, Sudan, in two separate Arrest Warrants issued by the Court in 2009 and 2010. Although Sudan is not a State Party to the Rome Statute of the ICC, the Court’s jurisdiction on the situation of Darfur was established by UN Security Council Resolution 1593 (2005). In surrendering Mr. al-Bashir to The Hague, the new Government of Sudan is complying with the obligation to cooperate with the ICC under Chapter VII of the UN Charter.

PGA Board Member Ms. Millie Odhiambo, MP (Kenya), commented on this development:

The day has come for African victims to have access to justice for some of the gravest atrocity-crimes attributed to the responsibility of Mr. al-Bashir in Darfur. When Heads of States from Africa protested against the al-Bashir case, African parliamentarians expressed consistent and coherent political support for the ICC, which is an essential tool to put an end to impunity for perpetrators of mass atrocities also in Africa. PGA Board Member Ms. Millie Odhiambo, MP (Kenya)

Previous Heads of States indicted for international crimes when they were in office included President Slobodan Milošević of the Federal Republic of Yugoslavia, who subsequently appeared before the International Criminal Tribunal for the former Yugoslavia (ICTY), and President Charles Taylor of Sierra Leone before the Special Court for Sierra Leone (SCSL). The sitting Head of State of Nazi Germany was informed in 1943 by the Allied Powers that they would have addressed individual criminal responsibility for mass-atrocities through the Moscow Declaration of the Allied Powers of October 1943.

Several States have previously failed to arrest President al-Bashir when he travelled on official or non-official missions, despite the repeated affirmation by relevant Chambers of the Court, including the Appeals’ Chamber, that immunities did not constitute a bar from arrest and surrender. The President of PGA, Ms. Margareta Cederfelt, MP (Sweden), stressed the importance for all States to comply with requests for cooperation issued by the ICC:

The Hague-based Court does not have any police force at its direct disposal, and it relies entirely on the law-enforcement and security forces’ assistance by sovereign States. The global network of PGA believes that the peace-process in Darfur, as well as Sudan’s transition toward the Rule of Law and democracy are reinforced by the transfer of Mr. al-Bashir and other fugitives to the ICC in The Hague.President of PGA, Ms. Margareta Cederfelt, MP (Sweden)

From an international law perspective, PGA’s Secretary-General, Dr. David Donat Cattin, highlighted some of the unique features that characterize the al-Bashir case:

Before the first Prosecutor of the ICC announced an arrest warrant against President al-Bashir, the ICC was criticized as a Court for low-level perpetrators. But after the al-Bashir case was made public in July 2008, critics of the ICC started to accuse the Court’s Prosecutor of going too fast and too high in the chain of command. And President al-Bashir began to defy the Arrest Warrants issued by ICC Judges in 2009 and 2010: he united forces with other Heads of States to try to erode the reputation and credibility of the system of justice set-up by the Rome Statute of the ICC, including through the mobilization of influential States and the African Union. PGA’s Secretary-General, Dr. David Donat Cattin

Dr. Donat Cattin noted the groundswell of support from survivors of atrocities from Darfur and representatives of the diaspora for the investigation and prosecution of al-Bashir by the ICC. This support was not only demonstrated following his ouster, but has been affirmed repeatedly by community representatives at gatherings organized at the margins of the regular reports submitted by the ICC Prosecutor to the UN Security Council. Dr. Donat Cattin further clarified that al-Bashir may still be held accountable for other alleged crimes by Sudanese judicial authorities:

On 11 April 2019, a weakened President al-Bashir was removed from office by a combined movement of civilian protest and military apparatus’ non-violent defection. Ten years of holding genocide charges created profound international distrust for Mr. al-Bashir, who could not attend crucial meetings like the UN General Assembly. If the transitional authorities transfer Mr. al-Bashir to The Hague, now he can face justice for the alleged crimes committed in Darfur at the ICC. At the end of these proceedings, he could return to Sudan to execute any eventual penalty and possibly face charges for other alleged crimes that he may have committed within the framework of other armed conflicts and mass-crimes’ patterns in other regions of Sudan or in neighboring countries.

The ICC consists of a set of investigative, prosecutorial, and judicial organs, and its penitentiary in The Hague is designed to exclusively host persons awaiting trial or undergoing trial and appeals proceedings. The Government of Sudan retains the right to have former President al-Bashir and other accused persons returned to its territories, including for service of penalties in its correctional services. President al-Bashir is currently serving a sentence of imprisonment of two years imposed by a tribunal in Khartoum for ordinary offenses (corruption)

President al-Bashir’s transfer would be a signal of the Sudanese transitional authorities’ commitment to peace and justice under the rule of law and a significant step forward in the fight against impunity. PGA calls on the authorities to follow through with this promise with all due speed.