Conversation | Why Sudan won’t hand over former president al-Bashir to the International Criminal Court

It has been a long fight for justice. Back in July 2008, the prosecutor for the International Criminal Court (ICC) requested an arrest warrant for the then president of Sudan, Omar al-Bashir, citing his alleged criminal responsibility for crimes against humanity, genocide and war crimes in the Darfur region. Ultimately, two arrest warrants were issued, on March 4, 2009 and July 12, 2010.

But justice did not swiftly follow. Despite the arrest warrants, al-Bashir won presidential elections in 2010 and 2015 and continued to travel around the region and further afield. In April, following months of protests, the Sudanese military toppled the president and announced a military-led transitional council. The former president is now being held in prison in Sudan.

The military-led transitional council has declared that al-Bashir may be tried in Sudan, but not handed over to the ICC. It is unclear whether a return to civil rule will result in al-Bashir’s transfer to the ICC, but al-Bashir has been charged domestically with killing demonstrators and financial crimes.

Under international law, heads of state such as al-Bashir, enjoy various privileges, including immunity from criminal jurisdiction. This simply means that a serving head of state cannot be brought before a court to answer for their alleged crimes. Indeed, even when they leave office, they continue to enjoy immunity for their official acts during their time in office, a privilege known as “functional immunity”. 

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