International Criminal Court's Action Against al-Bashir

On July 14, 2008, the prosecutor of the International Criminal Court (ICC) requested a warrant of arrest for Sudan's President Omar al-Bashir on charges of ten counts of genocide, crimes against humanity, and war crimes. The request for a warrant raises a number of questions, answers for some of which are below:

Has an arrest warrant for al-Bashir been issued? When will it be issued?

An arrest warrant has not yet been issued for al-Bashir. The prosecutor has requested the Pre-Trial Chamber of the ICC, a judicial body consisting of three judges, to issue a warrant for President Omar al-Bashir on the basis of his investigations so far. The Pre-Trial Chamber will issue a warrant if it determines that the summary of evidence presented by the prosecutor establishes "reasonable grounds to believe" that the president has committed the crimes alleged in the request. Only the Pre-Trial Chamber has the authority to issue arrest warrants or summonses. In previous ICC cases, the Pre-Trial Chamber has taken several weeks to issue a decision on the prosecutor's request for an arrest warrant.

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What factors does the Pre-Trial Chamber consider in making its decision on the arrest warrant?

When determining whether or not to issue a warrant under the Rome Statute, the Pre-Trial Chamber is likely to take into account the following factors:

  • whether the alleged crimes occurred in a location and during a time period over which the ICC has jurisdiction;
  • whether the case is sufficiently grave as to fall within ICC jurisdiction (the ICC mandate is to investigate and prosecute only the "most serious crimes of concern to the international community," including war crimes, crimes against humanity, and genocide); and
  • whether the Sudanese national justice system has shown itself to be unwilling or genuinely unable to proceed in relation to these cases.

If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person has committed a crime within the authority of the court and that the case is eligible to be heard before the ICC, it should issue a warrant of arrest if the arrest of the person appears necessary to ensure that he will appear at trial, that he will not obstruct the court's work, or that he will no longer commit this crime. Alternatively, the court may issue a summons to appear.

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Can the ICC 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 applies to all persons regardless of their official capacity. In addition, any immunities that the person may have in their own country as a result of their position does not prevent the International Criminal Court from bringing charges. Article 27 of the Rome Statute states explicitly that heads of state are not immune from prosecution.

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What must be shown to prove genocide?

Under the Rome Statute, genocide is the widespread commission of certain acts, carried out with a specific intent to eliminate a group, in whole or in part, based on their nationality, ethnicity, race, or religion. The specified acts are killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about their physical destruction, imposing measures intended to prevent births, and forcibly transferring children from their community.

To prove genocide, the ICC prosecutor has to show that some or all of the above acts were committed and that they were done with the specific intent and purpose of destroying a part of a population.

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What must be shown to prove crimes against humanity?

Under the Rome Statute, to prove a crime against humanity, the prosecutor must show that the accused committed one of a number of acts (such as murder, extermination, deportation or forcible transfer of a population, rape, torture, persecution, enforced disappearances, or other inhumane acts) as part of a widespread or systematic attack against a civilian population. The prosecutor needs to show that a number of the acts listed above were committed as part of a state or organizational policy and that the accused had knowledge of the attacks.

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How can the prosecutor show that al-Bashir was involved in crimes in Darfur?

Under the Rome Statute there are two forms of criminal responsibility. Individual responsibility is when the person commits a crime within the jurisdiction of the court directly by committing the crime individually or jointly; by ordering, soliciting, or inducing the commission of a crime; by aiding and abetting the crime; or by otherwise contributing to the commission of a crime. Command responsibility is when a military commander or a civilian effectively acting as a military commander fails to exercise control over forces under his or her effective command and control where he or she knew or should have known that the forces were committing or about to commit such crimes and failed to prevent the crimes or to punish them. .

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

As documented in our 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 the creation and coordination of the Sudanese government's counterinsurgency policy that 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 peaks in abuses by Sudanese security forces. There are indications that they echoed the private directives given to civilian administration, 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.

Al-Bashir was undoubtedly aware of abuses committed by the security forces. Beginning in May 2002, 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 took serious measures to prevent or 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 that took place in December 2004 displayed all the characteristics of previous offenses, including military coordination of the Janjaweed, aerial bombardment of villages, and massed forced displacement of civilians.

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Will the issuance of warrants affect the peace process in Darfur? Should the ICC prosecutor have taken these considerations into account?

It is difficult to predict the effect of the request for an arrest 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. Indeed, al-Bashir has not even participated in the Darfur peace talks to date.

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

In any case, the ICC prosecutor is not mandated to take issues such as the peace process into account in his decisions to prosecute. The prosecutor is responsible for investigating and prosecuting those most responsible for war crimes, crimes against humanity, and genocide regardless of their position. The prosecutor must act independently and apolitically to fulfill his mandate and is not empowered to make decisions about peace and security.

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What effect will the request for a warrant have on deployment of peacekeepers?

Sudan remains obligated to proactively facilitate the full deployment of UNAMID, the United Nations peacekeeping force in Darfur. This is required by Security Council resolution 1769 and is not in any way affected by the prosecutor's request for warrants. A year after the Security Council authorized UNAMID, Sudan has continually obstructed the full deployment of the force, which is operating at barely a third of its authorized capacity and with few camps established. Unrelated to the ICC action, the United Nations Security Council and concerned governments should maintain pressure on Sudan to allow full deployment of UNAMID, including by having the Security Council impose targeted sanctions on the Sudanese government and top officials.

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What will the effect of the prosecutor's request be on humanitarian agencies and peacekeepers on the ground?

Human Rights Watch has long been concerned by the Sudanese government's failure to ensure access to populations in need in Darfur by humanitarian agencies and peacekeepers, and those concerns remain. International law requires the government of Sudan 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 as war crimes those attacks directed against personnel involved in a humanitarian or peacekeeping mission. The prosecutor's request has no bearing on Khartoum's obligation to abide by international law.

Should the government of Sudan violate international law by deliberately attacking or obstructing humanitarian personnel or peacekeepers, the United Nations Security Council should respond by taking appropriate measures, including sanctions, to ensure Sudan's compliance with its obligations.

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