Arrest warrant against President al-Bashir targets impunity, not Africa says IBA

The International Bar Association (IBA) today described the decision by judges of the International Criminal Court (ICC) to issue an arrest warrant against Sudanese President Omar al-Bashir as a major milestone in the fight against impunity in Darfur. The IBA said that the decision should be seen as targeting impunity, not Africa.

The judges of the ICC Pre-Trial Chamber I spent seven months carefully considering evidence presented by the Prosecutor, finally deciding on 4 March to issue an arrest warrant against President al-Bashir. The arrest warrant is the first ever to be issued by the ICC against a sitting head of state. The judges found that there were ‘reasonable grounds to believe that Omar al-Bashir bears criminal responsibility under the Rome Statute’ for five counts of crimes against humanity including murder, extermination, torture, and rape and two counts of war crimes. The judges declined to include charges of genocide in the warrant, finding that the Prosecution’s evidence failed to prove the requisite intent. The Prosecutor may choose to bring additional evidence before the Chamber and request reconsideration of the genocide charges if he so wishes. He may also appeal the decision.

Mark Ellis, IBA Executive Director, comments: ‘The decision of the ICC judges affirms that sitting heads of State are not above the law and must be held accountable. Sudanese victims will now know that justice is attainable, irrespective of the status of the alleged perpetrator.’

The biggest challenge to the Court is likely to be its ability to enforce the arrest warrants given that the ICC lacks its own enforcement mechanism which makes it difficult to enforce arrest warrants without the cooperation of states. Sudan is not a party to the Rome Statute and is refusing to cooperate despite the obligation imposed by the United Nations (UN) Security Council Resolution which referred the situation in Darfur to the ICC. Recognising this as a major issue, the ICC judges made it clear in their decision against President al-Bashir that if Sudan persists in not cooperating with the Court, the Chamber may refer the matter to the UN Security Council for decisive action.

President al-Bashir is also likely to bank on the continued support of his regional partners at this critical time. The African Union has criticised the Court’s decision and may renew its call for the UN Security Council to defer the proceedings under Article 16 of the Rome Statute.

Mark Ellis comments further: ‘This is a crucial moment in international criminal justice. It is not the time for African leaders to be equivocal in their support for the ICC. Accountability is critical to any meaningful efforts to bring about sustained peace in Sudan. Rather than being seen as targeting Africa, the arrest warrant against President al-Bashir should act as the catalyst which impels the entire international community to act decisively in bringing about an end to impunity in Darfur.’


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Notes to the Editor

The Darfur conflict began in February 2003 as overpopulation and drought in the region caused tensions between local tribes over land use, leading to fighting between the Government of Sudan and several Darfur-based rebel groups. Throughout the conflict the Government has acted mainly through the use of State-sponsored militias, known as ‘Janjaweed’. The Prosecution alleges that between 80,000 and 265,000 civilian deaths have directly resulted from Government action, whilst roughly 2.5 million civilians have been displaced.

The ICC Prosecutor requested a warrant of arrest for President Omar al-Bashir from Pre-Trial Chamber I in July 2008 based on three counts of genocide, five counts of crimes against humanity and two counts of war crimes. The arrest warrant issued yesterday includes the charges of crimes against humanity and war crimes. The Prosecution alleges that President al-Bashir used his position of control as Head of State of Sudan and as Commander-in-Chief of the armed forces to design and implement the military campaign which targeted the civilian population. According to Article 27 of the Rome Statute, President al-Bashir has no immunity from prosecution before the ICC by virtue of his status as a sitting Head of State.

Two other arrest warrants have been issued by the Pre-Trial Chamber in the context of the Darfur situation, against Ahmad Harun, the Minister of State for Humanitarian Affairs, and Ali Kushayb, a ‘Janjaweed’ militia leader. These warrants were issued in April 2007 but remain outstanding. The ICC Prosecutor has also requested warrants of arrest (or, alternatively, summonses) for three unnamed Darfuri rebel leaders. A decision on this request has yet to be announced by the Pre-Trial Chamber.

The Situation in Darfur, Sudan, was referred to the ICC by the United Nations (UN) Security Council in Resolution 1593, in March 2005. The UN Security Council has the power to make a referral to the ICC under Article 13(b) of the Rome Statute. This may extend to referring to the ICC situations in States that are not party to the Rome Statute, such as Sudan.

Although Sudan is not a party to the Rome Statute, it is obligated to fully cooperate with the ICC by virtue of the UN Security Council resolution which provides that ‘the Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’. Other States are urged to cooperate fully with the Court.

The UN Security Council may defer the proceedings against President al-Bashir for one year according to Article 16 of the Rome Statute. Such a resolution must be agreed upon by at least nine of the fifteen Security Council members, including the five permanent members.