The International Criminal Court arrest warrant for Omar al-Bashir and Sudan's April elections
Omar al-Bashir - Sudan's president and a candidate in elections slated for April 2010 - is a fugitive from justice. The International Criminal Court (ICC) issued a warrant for his arrest on March 4, 2009, for war crimes and crimes against humanity committed in Darfur. This document provides questions and answers on the interface between the ICC's arrest warrant and Sudan's impending elections.
1. Can President al-Bashir legally run for office in Sudan, given the arrest warrant issued for him by the ICC?
International law does not prohibit an individual sought for crimes by the ICC from running for office. Whether al-Bashir is eligible to run for president is therefore determined by national laws in Sudan. Sudanese law prohibits individuals who have been convicted-but not merely accused-of a criminal offense involving "honesty or moral turpitude" from running for office.
Whether al-Bashir runs or is elected has no legal effect on the pending arrest warrant or the charges to which he is required to respond.
Sudan and states that are parties to the Rome Statute, which created the ICC, remain obligated to cooperate with the ICC in al-Bashir's arrest, consistent with United Nations Security Council resolution 1593 and the Rome Statute. Under the same resolution, the Security Council urged states that are not parties to the ICC to cooperate with the ICC in its efforts in Darfur.
3. Is there any precedent for a candidate running for office while involved in criminal proceedings before an international court?
There is precedent for indictees of serious crimes being permitted to continue political activity, as long as they are also cooperating with the international court. Ramush Haradinaj-a former Kosovo Liberation Army commander, former prime minister of Kosovo, and leader of the political party Alliance for the Future of Kosovo-was on trial for war crimes at the International Criminal Tribunal for the former Yugoslavia while participating in elections in Kosovo in 2007.
4. What actions should the international community take regarding the arrest warrant for al-Bashir and the elections?
Key donors involved in the elections effort-including the United States, the United Kingdom, the United Nations, and the European Union-can play an important role by urging al-Bashir to respond to the ICC arrest warrant and appear in The Hague immediately, without regard to the upcoming elections. By speaking out, these major players could dispel any appearance of acquiescing to the Sudanese government's heavy-handed obstruction of the ICC's efforts.
In addition, international actors assisting the elections, including through monitoring, should refrain unless absolutely necessary from meeting with al-Bashir in view of the arrest warrant pending against him. In assessing whether the elections are free, fair, and credible, election monitors also should take into account the extent to which political parties and civil society are able to discuss the arrest warrant, a valid campaign issue.
Al-Bashir is accused of widespread or systematic murder, torture, rape, and extermination, along with intentionally attacking civilians and pillage in Darfur. While al-Bashir has sought to distract attention from the crimes with which he is charged, the victims of these crimes deserve to see justice done and international law requires that perpetrators of such crimes be brought to justice.
The court makes decisions about its investigations based on a variety of factors, including whether it has jurisdiction over the crimes and their gravity. The court's authority extends primarily to crimes committed in states that are parties to the ICC treaty, unless the Security Council refers a situation to the court or a state that is not a party to the court voluntarily accepts its authority.
Some of the worst international crimes committed since the ICC was established in 2002 have been committed in states that are not parties to the court and are thus outside its jurisdiction, including in Sri Lanka, Burma, and Iraq. At the same time, the landscape in which international justice is applied has been uneven. Political realities mean that leaders of powerful states are less likely to be prosecuted by international courts when they are associated with serious crimes.
Justice should not be denied, however, because it is politically impossible to ensure justice for all. Rather, the reach of accountability should be extended to wherever serious crimes occur. This can be done in part by expanding participation in the ICC.
Human Rights Watch takes a position of neutrality with respect to all elections, neither endorsing nor opposing candidates for office. Our role as a human rights monitor is best served by our speaking out impartially on human rights issues and not being perceived as engaged in partisan politics.