February 3, 2010
Today's decision is a strong reminder that President al-Bashir is wanted for heinous crimes committed in Darfur. President al-Bashir is a fugitive from justice who needs to appear in The Hague to answer to the allegations against him.
Elise Keppler, International Justice Program senior counsel at Human Rights Watch

On March 4, 2009, the pre-trial chamber of the International Criminal Court (ICC) issued a warrant of arrest for President Omar al-Bashir of Sudan on charges of crimes against humanity and war crimes. The warrant raises a number of important issues:

1. Can the court's prosecutor bring charges against a head of state? Are presidents, prime ministers, and other heads of state and government not immune from prosecution?

The Rome Statute, which established the ICC, applies to everyone regardless of their official capacity. Any immunities that the person may have in his or her own country based on official position do not prevent the ICC from bringing charges. Article 27 of the Rome Statute states explicitly that heads of state are not immune from prosecution.

2. What requirements does the prosecutor have to meet to obtain an arrest warrant?

The pre-trial chamber issues a warrant if it determines that the summary of evidence that the prosecutor presented establishes "reasonable grounds to believe" that the person named has committed a crime within the court's jurisdiction. A suspect who is arrested or surrenders to the court has an opportunity to object to the charges and to challenge the evidence in a "confirmation of charges" hearing. At that point, the pre-trial chamber must decide whether there is enough evidence to establish "substantial grounds to believe" that the person committed each of the crimes charged in order to move forward to trial.

3. Since the court did not confirm genocide charges against al-Bashir, does that mean that it has ruled that there was no genocide in Darfur?

The pre-trial chamber ruled only on whether the evidence put forward by the prosecutor established that there are "reasonable grounds to believe" that al-Bashir committed the crime of genocide under the Rome Statute, not whether genocide occurred.

Genocide charges are difficult to prove. The prosecutor must show that certain acts (namely killing, causing serious bodily or mental harm to members of a group, deliberately inflicting conditions meant to destroy the group in whole or in part, imposing measures intended to prevent births within the group, or forcibly transferring children from their community) were committed with the specific intent "to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" on the basis of their identity. While there is extensive evidence of atrocities in Darfur, it is more difficult to prove specific "genocidal intent." The prosecutor may, however, request the pre-trial chamber to amend the warrant later on if it finds additional evidence to support charges of genocide.

In any case, al-Bashir faces charges of crimes against humanity and war crimes, extremely serious international offenses, for the massive killings, rapes, and other atrocities in Darfur. The crimes against humanity charges against al-Bashir include murder, extermination, rape, torture, and forcible transfer of a population, committed as part of a widespread or systematic attack against civilians. The war crimes allegations include intentionally directing attacks against the civilian population and pillaging. War crimes and crimes against humanity were the basis of prosecutions for Nazi crimes in Nuremberg and for ethnic cleansing in the Balkans at the International Criminal Tribunal for the former Yugoslavia.

4. Now that the arrest warrant for President al-Bashir has been issued, who can make the arrest?

Because the ICC has no police force of its own, it depends on national authorities to make arrests on its behalf. The court may ask any country where the suspect may be found to arrest and surrender him. States parties to the Rome Statute are generally obligated to comply. However, if there are questions about the obligation to comply or concerns about conflicts with other legal obligations, the state can consult with the court to resolve the issue.

The United Nations (UN) Security Council resolution that referred the situation in Darfur to the ICC prosecutor in 2005 requires the government of Sudan and all parties to the conflict to cooperate fully with the court and to provide it with necessary assistance. Sudan, though not a party to the ICC, is obligated because of the resolution to make arrests at the court's request. The same resolution urges other states that are not parties to the Rome Statute to cooperate, but they are not required to do so.

5. Can UN peacekeeping forces in Sudan make an arrest?

The mandates for the UN peacekeeping forces in Sudan do not include arrest of ICC suspects. 

6. If al-Bashir travels abroad, are other countries obligated to arrest him?

The Rome Statute generally obligates all states parties who have received a request for an arrest to  comply with that request. Therefore, states parties asked to execute the warrant have an obligation to make an arrest. Because this area of law is untested, the court's ruling is the only authoritative decision on this issue. If states asked to make the arrests have concerns about conflicting obligations under international law, the appropriate forum to raise these issues is before the ICC.

Non-states parties are not obligated to make an arrest at the request of the ICC under the Statute. However, the Security Council resolution that referred the situation in Sudan to the ICC prosecutor urges all states to cooperate fully with the court.  

7. If President al-Bashir attends the Arab Summit in Qatar later this month as he announced that he will do, does Qatar have to arrest him?

Although Qatar is not a party to the Rome Statute, the Security Council resolution that referred the situation in Darfur to the ICC prosecutor urges non-parties to the statute to cooperate fully with the court. Qatar could decide to arrest al-Bashir if it receives a warrant from the court, but there is no requirement that it do so.

8. Can diplomats and others still have meetings with al-Bashir?

The issuance of an arrest warrant does not legally prevent diplomats from holding meetings with al-Bashir. How to interact with him will be a matter of policy for governments to decide.

9. Will the issuance of the warrant affect the peace process in Darfur? Should the court have taken these considerations into account?

It is difficult to predict the effect of the warrant on political developments in Sudan, but the peace process in Darfur has long been stalled for reasons wholly unrelated to the ICC. Rather, the parties do not appear committed to finding a solution through the peace talks.

The historical record from other conflicts shows that warrants for arrest of leaders can actually strengthen peace efforts by stigmatizing and marginalizing these leaders. The arrest warrants against Charles Taylor of Liberia and Radovan Karadzic in Bosnia and Herzegovina removed them from peace processes and ultimately facilitated reaching agreement. In addition, many credit the ICC warrants against the leaders of the Lord's Resistance Army (LRA) in Uganda for their willingness to participate in peace talks for the first time in years.

In any case, the court is not mandated to take the issue into account in decisions to issue arrest warrants. The court is responsible for bringing to justice those most responsible for war crimes, crimes against humanity, and genocide. It must act independently and apolitically to fulfill its mandate and is not empowered to make decisions about peace and security.

10. What will the effect of the warrant be on humanitarian agencies and peacekeepers on the ground?

Human Rights Watch has long been concerned about the Sudanese government's failure to ensure access by humanitarian agencies and peacekeepers to people in need in Darfur, and those concerns remain.

International law requires the government to ensure the full, safe, and unhindered access of relief personnel to all those in need in Darfur as well as the delivery of humanitarian assistance, in particular to internally displaced persons and refugees. In addition, international law prohibits attacks against humanitarian or peacekeeping missions and defines such attacks as war crimes.

The warrant does not change Khartoum's obligation to abide by international law. Should the government violate international law by deliberately attacking or obstructing humanitarian personnel or peacekeepers, the UN Security Council should respond by taking appropriate measures, including sanctions.

11. Will the warrant slow deployment of UNAMID peacekeepers?

The government of Sudan is required-under UN Security Council Resolution 1769-to facilitate the full deployment of the UNAMID force. This requirement is not in any way affected by the issuance of arrest warrants. The government has continually obstructed and undermined UNAMID from the start. It has eased some restrictions on deployment in recent months, but it is still far from fulfilling its obligations. The Security Council and concerned governments should maintain pressure on Sudan to allow full deployment of UNAMID. This might include widening the arms embargo and imposing targeted sanctions (such as travel bans and banking restrictions) on top Sudanese officials.

12. What effect does the warrant have on the Comprehensive Peace Agreement (CPA), which ended the civil war between north and south Sudan?

The warrant has no impact on the obligations of either the governing National Congress Party or the Sudanese People's Liberation Movement under the CPA, which ended more than two decades of civil war. Both parties have economic and political interests in seeing the power and wealth-sharing components of the CPA put into effect. In addition, since the prosecutor's July 2008 announcement that he was seeking an arrest for President al-Bashir, both have indicated that they are committed to implementing the agreement and to avoiding a return to conflict. In July, the two sides made significant headway in resolving the Abyei dispute, which caused clashes in May 2008, and in October, the parties passed a number of laws related to the CPA.

13. How will this affect the upcoming elections in Sudan?

Under the CPA, which ended the 20-year civil war between the north and south, elections are to be held in 2009. Both parties have confirmed their commitment to hold these elections. Although significant challenges must be addressed if the elections are to be free and fair, these are largely unrelated to the ICC. Outstanding challenges include the need for urgent legislative reform, logistical and security preparations, and wider measures to protect freedom of expression and access for the media. The international community has a role to play in maintaining pressure to ensure that the ruling party takes all necessary steps to meet its national and international obligations.

14. Can al-Bashir be a candidate in the elections even though there is an ICC warrant for his arrest?

While international law places obligations on states to arrest persons wanted by the ICC, it does not prohibit an individual sought for crimes by the ICC from running for office.

Whether he is eligible to run for president in the upcoming elections is determined by national laws in Sudan.

15. What has Human Rights Watch found regarding al-Bashir's role in crimes in Darfur?

As documented in Human Rights Watch's December 2005 report, "Entrenching Impunity: Government Responsibility for International Crimes in Darfur," Human Rights Watch found that the highest levels of the Sudanese leadership, including al-Bashir, were responsible for creating and coordinating the government's counterinsurgency policy, which deliberately and systematically targeted civilians in Darfur in violation of international law.

Al-Bashir, as commander-in-chief of the Sudanese Armed Forces, played a pivotal leadership role in the military campaign in Darfur. His public statements were precursors to military operations and to peaks in abuses by Sudanese security forces. There are indications that they echoed the private directives given to civilian administration and military and security services. For instance, on December 30, 2003, al-Bashir announced that: "Our top priority will be the annihilation of the rebellion and any outlaw who carries arms." A few days later, in January 2004, the Sudanese security forces began an offensive that used systematic force in violation of international humanitarian law to drive hundreds of thousands of people from rural areas in Darfur. The methodological use of aerial support to target civilians in the military campaign, despite protests from air force officers, also appears to reflect the involvement of high-level officials in Khartoum.

Human Rights Watch concluded that beginning in May 2002, even before the more devastating phases of the conflict, al-Bashir was very likely aware of abuses committed by the security forces in Darfur. By mid-2004, reports of tens of thousands of displaced people and information from dozens of police complaints, press accounts, and reports by numerous organizations, including the United Nations High Commissioner for Human Rights, made it clear that massive abuses were taking place in Darfur. Apart from this specific information, the government's previous use of ethnic militias in the southern Sudan conflict provided ample warning that such forces invariably targeted civilians and committed other war crimes.

There is no evidence that al-Bashir or other senior government officials took serious measures to prevent or to stop the abuses. The armed forces and government-backed militia called "Janjaweed" continued to carry out crimes for months after the reports were widely known. Even after al-Bashir established a national inquiry into the crimes (which reported to him personally), attacks in December 2004 displayed all the characteristics of previous offenses, including military coordination of the Janjaweed, aerial bombardment of villages, and mass forced displacement of civilians.

16. Why are all the ICC prosecutor's cases in Africa? Is the West trying to impose its own justice on Africa?

The ICC, established to bring accountability for the world's most serious crimes, currently has situations in four countries under active investigation-Central African Republic, Democratic Republic of Congo, Uganda, and the Darfur region of Sudan. The prosecutor's office, on its own initiative, is also looking into possible investigations in Afghanistan, Colombia, and Georgia.

The court's exclusive focus on Africa at present has led to criticism among some African states and ICC observers that the continent is the court's main target. However, a number of objective factors undermine such accusations, including:

  • Three of the four ICC country situations under investigation were referred by the countries involved, while the fourth situation, Darfur, was referred to the court by the UN Security Council;
  • The ICC can only investigate crimes committed after July 1, 2002, which means that many situations are excluded from the court's jurisdiction; and
  • In order to warrant ICC intervention, crimes committed after July 1, 2002, must still be sufficiently grave (in terms of the number of victims, for example), and the national authorities must be shown to be either unable or unwilling to address them.

In fact, 22 African countries were among the founding ratifiers of the Rome Statute. Of the 108 states parties to the ICC, 30 are countries in Africa. Each has voluntarily demonstrated its commitment to the institution. The ICC, in turn, is working to bring justice to the countless African victims who have suffered unspeakable crimes.

A number of countries, including the United States, do not automatically come under the ICC's jurisdiction because they have not become parties to the Rome Statute. It is also possible for a country that is not a party to the Rome Statute to voluntarily submit crimes on its territory to the ICC's jurisdiction.

17. Why is it important to prosecute grave crimes in violation of international law?

Justice for the most serious crimes-including genocide, crimes against humanity, and war crimes-is mandated by international law. But justice is also crucial to bring redress to victims and to build respect for the rule of law, which contribute to establishing a durable peace, especially in societies that have been devastated by conflict.

18. Why is the ICC prosecutor investigating President al-Bashir but not investigating crimes against civilians by Israeli and Palestinian forces in Gaza?

The ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed after July 1, 2002, only if at least one of the following threshold conditions is met:

  • The crimes occurred in the territory of a state that is a party to the Rome Statute;
  • The person accused of the crimes is a citizen of a country that is a party to the Rome Statute;
  • A state that is not a party to the Rome Statute accepts the ICC's jurisdiction for the crime in question by making a declaration and lodging it with the ICC registrar; or
  • The UN Security Council refers the situation to the ICC prosecutor.

Because Israel is not a state party to the Rome Statute, for the ICC to begin an investigation either the United Nations Security Council would have to refer the situation to the ICC prosecutor (as it did for Darfur) or the state where the crimes occurred (or the state whose citizens are accused of committing the crimes) would have to accept the court's jurisdiction. The Palestinian Authority has agreed to accept the court's jurisdiction for crimes committed in Gaza. The prosecutor is now considering whether the Palestinian Authority is a state under international law and thus able to accept jurisdiction for crimes committed in Gaza.

Human Rights Watch has called for an impartial international investigation into violations of the laws of war by all sides in Gaza as a first step to ensuring accountability for crimes allegedly committed there.

19. Is there not a double standard when it comes to international justice, with international prosecutions only being pursued in states with less political clout?

Perpetrators of serious violations of international law should be held to account regardless of their nationality. Nevertheless, the application of international justice has been uneven. States, often acting through the UN Security Council, have decided when-or when not-to establish international criminal tribunals and what their mandates will be. Political considerations have been a factor, and the institutions created have not covered all the grave crimes that have been committed. Despite this selectivity, the ad hoc tribunals have contributed to establishing accountability at least with respect to conflicts within their mandate. It is crucial to extend this accountability for the worst crimes wherever they occur. The ICC, established by a multi-party treaty rather than a Security Council resolution, accomplishes this to some extent, but there are limits to its jurisdiction. It is important for more states to ratify the treaty in order to extend its jurisdictional reach.