Between the satisfaction of the victims and the loopholes of the law ... Is Bashir close to The Hague?

Ahmed Fadl-Khartoum

Ousted Sudanese President Omar al-Bashir could not have imagined in his worst nightmares that the Hague International Criminal Court would be closer to him than his hometown in Hosh Banga, northern Sudan, which he has long challenged and considered under his shoes.

The spokesman for the government delegation, negotiator in Juba, Mohammed Hassan Al-Taishi, confirmed that the government agreed to bring Al-Bashir to the criminal court and that the decision was taken before being announced during the negotiations on the Darfur track.

Although there are procedures that may prevent the transitional government and armed movements from agreeing in the ongoing negotiations in Juba to hand Bashir over to The Hague Court, achieving peace in Sudan remains subject to the appearance of those wanted by the court in the Netherlands.

The International Criminal Court issued two warrants for the arrest of al-Bashir in 2009 and 2010, on charges relating to war crimes, crimes against humanity and genocide.

The court also requests the appearance of former officials of the Bashir government, Ahmed Haroun and Abdel-Rahim Mohamed Hussein, as well as Ali Kushayb, a militia commander in Darfur.

The court has a list of some 52 defendants accused of crimes in the Darfur region, which has suffered from war since 2003.

A message for tyrants
According to the head of the Justice and Equality Movement, Gabriel Ibrahim, the effect of Bashir’s extradition to the International Criminal Court goes beyond his person and represents a message to all the arrogant tyrants who commit terrible crimes against their people to remain in power for life.

Gabriel says to Al Jazeera Net, "The step confirms that there is no impunity, even if the time is long, the decision will have a positive impact in supporting the court and developing international criminal law."

Gabriel, a member of the negotiating delegation for the Revolutionary Front in Juba, indicated that it was agreed with the delegation of the transitional government that "the transitional authorities cooperate unlimitedly with the International Criminal Court, including facilitating the appearance of those against whom arrest warrants have been issued by the court."

He adds that the agreement also provided for the transitional authorities to abide by UN Security Council Resolution 1593 (2005), which referred the Darfur case to the International Criminal Court.

It shows that the negotiating parties are aware of the certainty that this is the demand of the victims in Darfur who do not trust the judicial system built by the Bashir regime over three decades, as has become the demand of all parties and national figures, some of which were against the principle of surrender.

Delivery or appearance?
A member of the Democratic Alliance for Lawyers, Ismail El-Toum, considers that the operative of the agreement speaks of an extradition that does not appear.

Al-Tom returns the agreement to the constitutional document that provides for the formation of the Transitional Justice Commission, and in its concept that "the victim must feel satisfied with achieving enough justice, and here handing over Bashir and the rest of the wanted achieves this satisfaction."

He warns that if the wanted court is tried inside the criminal court, there will be no consent, which can be achieved if the trial took place in The Hague even if they acquitted them.

He warns that the Sudanese judicial institutions are unable to carry out the trial of those involved in war crimes and crimes against humanity, and that the Bashir government gave the International Court jurisdiction because it did not show a desire and willingness to achieve justice.

Al-Tom says that there are 230 cases before the criminal court related to Darfur, of which four are wanted: Al-Bashir, Ahmed Haroun, Abdel-Rahim Mohamed Hussein and Ali Kushayb. There may be charges related to the list of 52 people accused of the Darfur crimes.

There is likely to be a political agreement between the government and the armed movements that the 25 defendants appear before a special court inside.

Legal opposition
But Othman Muhammad al-Sharif, a former lawyer and expert in international law, tells Al-Jazeera Net that the decision to extradite the wanted to the criminal is not correct, because the accused can simply oppose the decision by relying on paragraph (3) of Article (3) of the Criminal Procedure Law that prevents the extradition of anyone to be tried Outside.

Al-Sharif Al-Jazeera Net reports that they were waiting for the negotiators to respond to the request of the armed movements to hand over Al-Bashir and the rest of those wanted, that war crimes and crimes against humanity have become part of Sudanese laws since 2009.

It is reported that the judiciary after the revolution became independent, impartial, willing and able to restore rights, because the request of the movements was based on a lack of confidence in the Sudanese judiciary under the previous regime.

And he confirms that those wanted by the Hague Court cannot be extradited by any executive decision, saying, "In my judgment, it cannot be applied on the ground, unless it violates the rights of those wanted to sue before the Sudanese judiciary."

Witness protection
Member of the Democratic Alliance for Lawyers Ismail El-Tom believes that there are security problems that prevent any direction of the Hague Court sitting inside because of the lack of a witness protection program, and that evidence could be destroyed.

It is evident that the Public Prosecutor complained about the problem of not protecting witnesses in the case of breaking up the sit-in in front of the army leadership, not to mention providing this protection in a larger case, such as the crimes committed in Darfur.

On Tuesday, the Public Prosecutor informed teams from Human Rights Watch that there are real difficulties in the matter of providing full protection to witnesses and that the Public Prosecution office is in urgent need of assistance from the relevant authorities.

The Attorney General informed the organization's team that Sudan's position on the International Criminal Court and the extradition of Al-Bashir depended on three elements, namely, the position of negotiation in Juba and its outcome, legal reform, and consultation with the local component, especially the families of the victims.

Ismail El-Tom says that the government is convinced that it is unable to provide justice to the victims, and that reconciliation and transitional justice are what will bring stability in the future.

He adds that the essence of the matter is fairness to the victims and the fair trial of the accused, and not their fate in any prison will serve a sentence, whether in hotel-like prisons in Europe or improper prisons, as in Sudan.