Catch Me if You Can: The Failing Efforts of the International Criminal Court to Bring Omar Al-Bashir to Justice
“After three years I have strong evidence that al-Bashir is committing a genocide. I cannot be blackmailed; I cannot yield. Silence never helped the victims. Silence helped the perpetrators. The prosecutor should not be silent.”[1]
– International Criminal Court Prosecutor Luis Moreno-Ocampo to CNN, July 14, 2008
These moving words of International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo are a testament to his determination to bring justice for the victims of the Darfur genocide. Yet the key perpetrator, Sudanese President Omar Hassan Ahmad Al Bashir, has eluded this international body for several years. This research paper seeks to investigate the significance of the internal dynamics of Sudan, the empowerment of the ICC, the proceedings against Bashir for genocide, war crimes, and crimes against humanity in Darfur, and the reaction of various actors in the international community. While the International Criminal Court holds a moral impetus for prosecuting these heinous crimes, it lacks the direct action force – which some states, like the United States, would view as a breach of their sovereignty – necessary to bring Al Bashir to justice for his crimes.
The Sorrows of Sudan: The Rise of Bashir, Socioeconomic Woes, and Two Flashpoints
In the epoch of President Bashir, Sudan has struggled to cope with rampant economic problems and two flashpoints of conflict – South Sudan and Darfur. Bashir’s life “has been defined by war.”[2] He was born in a rural area north of Khartoum, the capital of Sudan, in 1944.[3] Bashir became a career soldier, studying at military academies in Cairo and Khartoum and fighting as a paratrooper in the Yom Kippur War.[4] Bashir and the National Congress Party seized power in a military coup against the al-Mahdi regime in 1989.[5] Following the coup, Bashir became the de facto chairman of the Revolutionary Command Council for National Salvation (RCC), giving him the powers of head of state, head of government, and secretary of defense.[6] The RCC named Bashir as the de jure president in 1993.[7] Furthermore, Bashir gained legitimacy for his post through a presidential election in 1996, which he easily won.[8] During his administration, he stressed policies of Arabization, suspended rival trade unions and political parties, and instituted Sharia law.[9] The United States strained its relationship with Sudan when American missiles destroyed a pharmaceutical plant mistaken as a chemical weapons facility in 1998.[10] Thus, conflict marked Bashir’s rise to power in Sudan.
Bashir’s Sudan has struggled with economic and security problems, despite having precious raw materials. Despite an abundance of gold and oil exports, gross domestic product levels and industrial production dropped 4.4% and 28.9% respectively because of armed conflict and a lack of economic development according to 2012 estimate.[11] Also, 46.5% of the population remained below the poverty line with a purchasing power of $2,600.[12] “Porous” borders make Sudan a hub of smuggling and human trafficking of displaced persons in Africa.[13] Poverty and physical insecurity has exacerbated conflict in Sudan.
Bashir’s militant leadership and socioeconomic problems have fomented two armed uprisings in Darfur. The first uprising was between the Muslim Arab north and the Christian black south. Following independence from British administration in 1956, skirmishing broke out in Sudan between the two groups.[14] Sudanese President Jaafar Numeiri offered limited autonomy to the South Sudanese in 1972, which limited the fighting until conflict reignited in 1983.[15] During the Bashir administration, the 2005 Comprehensive Peace Agreement officially ended the conflict, giving the Southern Sudanese more autonomy and a plebiscite for independence in 2011.[16] During this plebiscite, 99% of the southern Sudanese voted for independence, leading to the creation of the sovereign state of South Sudan.[17] Despite the 2005 peace agreement and the independence of South Sudan, armed fighting has persisted over border lines and disputes over oil revenue.[18] This flashpoint of conflict led to the death of over 1.5 million people.[19] Sudan faced a flashpoint of conflict over identity division between the Muslim north and the Christian south, resulting in the state of South Sudan and 1.5 million fatalities.
The second uprising occurred between the black Dafuri tribes and the Arab Sudanese. In 2003, the black Justice and Equality Movement (JEM) and the Sudanese Liberation Army/Movement (SLA/M) protested the “historical, political, and socio-economic marginalization of the Darfur region.”[20] President Bashir responded with disproportional and indiscriminate armed force in Darfur against the black Fur, Masalit, and Zaghawa tribes.[21] Bashir has framed the conflict in Darfur as, “just traditional conflict over resources, which has been coated with claims of marginalization.”[22] Yet this “traditional conflict” has led to the death of at least 300,000 Dafuris and the displacement of 2.5 million more black Sudanese.[23] Bashir’s disproportionate militant response in Darfur set the stage for his ICC prosecution.
Beacon of Justice: The Rome Statue and the International Criminal Court
The Rome Statute provided the ICC with a comprehensive framework, organizational structure, provided substantive definitions of heinous crimes, and described its operational mechanisms. The articles in the Rome Statute empowered the ICC to investigate eight open cases in Africa and bring individual perpetrators of vile atrocities to justice. On the other hand, the hesitance of the United States to support the ICC has weakened its clout of power.
The Rome Statute was a multilateral legal effort which states started in 1998 and ratified on July 1, 2002 to create a standing judicial body to prosecute individuals for committing grave crimes. Article 1 described the ICC as being a “permanent institution,” rather than an ad hoc tribunal, like the International Criminal Tribunal for Yugoslavia.[24] Furthermore, the ICC had the power to “exercise its jurisdiction over persons for the most serious crimes of international concern.”[25] The ICC was “complementary to national criminal jurisdictions,” meaning that the ICC was a court of last resort, and the prosecution would only investigate cases if the party state referred a case to the ICC or if the party state was incapable to investigate the case.[26] Article 2 stated that the ICC would work in a “relationship” with the U.N.[27] Article 3 declared that the ICC would sit at The Hague.[28] Article 4 on the legal status and powers of the court noted that “The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.”[29] This article is a clear break from customary international law, in that states which were not party to the Rome Statute could have ICC functions and powers used against their nationals. This unique situation could occur when the prosecutor acted using proprio motu – on his own initiative, or the U.N. Security Council requested an investigation on grave crimes committed by individual nationals of the non-party state.[30] Thus, the Rome Statute created an international court that had unprecedented sweeping jurisdiction and standing.
Following the description of the basic nature of the International Criminal Court, the Rome Statute provides the substantive definitions and specific acts of heinous crimes. The ICC maintains jurisdiction over the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression in Article 5.[31] In Article 6, The Rome Statute defines genocide as:
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; 4 (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.[32]
The key issue with this definition of genocide is proving the “intent to destroy,” which can be difficult in a criminal prosecution because of varying standards of proof. The Rome Statute then clarifies crimes against humanity in Article 7 as:
Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[33]
To further clarify these crimes, Article 7 (2) a-i defines the individual crimes.[34] Article 8 defines war crimes as, “Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention” and “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.”[35] The crime of aggression is yet to be defined.[36] According to Article 11, the ICC had the jurisdiction on these crimes after the statute went into effect on July 1, 2002.[37] The Rome Statute provided substantive definitions to enable prosecution of individuals for the gravest crimes.
The ICC has numerous organs to ensure its mission of justice is fulfilled. Article 34 lists the organs of the court including “the presidency, an appeals division, a trial division, a pre-trial division, the office of the prosecutor, and the registry.”[38] The presidency is responsible for “The proper administration of the Court.”[39] The Rome Statute set the number of judges at a total of 18.[40] The prosecutor was responsible for “receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.”[41] The registry has the responsibility for “non-judicial aspects of the administration and servicing of the Court.”[42] The various organs of the ICC support its permanent standing and its independent authority.
The ICC has several articles in the Rome Statute which give the institution flexibility in its international jurisprudence. Article 16 permits the court to defer an investigation or prosecution for a year following a U.N. Security Council Resolution.[43] The ICC has the competence to authorize a warrant of arrest in Article 58 of the Rome Statute, pending that:
There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.[44]
Despite this broad authority to create arrest warrants, the ICC lacks its own gendarmerie to deliver suspects to The Hague.[45] According to Article 89 of the Rome Statute, “States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.”[46] While state parties should support the ICC, other real geopolitical interests can obstruct this compliance. Altogether, 122 countries have ratified the Rome statute, with 34 from Africa, 27 from Latin America, 25 from Western Europe, 18 from Eastern Europe, and 18 from the Asia-Pacific region.[47] Thus, the ICC has the flexibility to work with its party states in bringing fugitives to justice.
The ICC has opened cases in seven countries around the world in addition to Sudan. In April 2004, President Joseph Kabila of the Democratic Republic of the Congo invited the ICC prosecutor to investigate allegations of grave crimes since July 2002.[48] The ICC Prosecutor Luis Moreno-Ocampo started his investigation in June 2004, and ICC judges approved four of his arrest warrant applications against warlords.[49] In December 2003, President Yoweri Museveni of Uganda asked the ICC prosecutor to investigate atrocities committed by Joseph Kony of the Lord’s Resistance Army (LRA).[50] The ICC prosecutor started his investigation in July 2004, leading to numerous arrest warrants; however, this action hardened the resolve of LRA to not accept a cease fire with the government of Uganda.[51] In July 2005, the government of the Central African Republic requested the ICC prosecutor to investigate crimes committed in its territory.[52] The ICC prosecutor’s investigation led to the warrant and arrest of Jean-Pierre Bemba, a notorious warlord.[53] The ICC prosecutor has also investigated violence in Kenya and in the Ivory Cost proprio motu, or on his own initiative, in 2010.[54] The ICC has also investigated graves crimes in the wake of the Arab Spring revolutions in Libya and Mali.[55] The ICC is an active investigative and prosecuting force in international legal affairs.
Despite the ICC’s activism in international legal affairs, the United States is hesitant to work with the institution out of fear that the court would encroach on American sovereignty. The arguments for the U.S. to avoid signing the Rome Statute are best articulated by the Heritage Foundation, an American conservative research group, who claim that,
The Rome Statute created a seriously flawed institution that lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of nonparty states in some circumstances.[56]
While President Bill Clinton signed the Rome Statute, the American Congress refused to ratify the multilateral accord, fearing that U.S. soldiers could be targeted by “politically motivated or frivolous prosecutions.”[57] This point of tension led to President Bush’s “un-signing” of the Rome Treaty, declaring that the U.S. had no intention to become a party state to the ICC.[58] Furthermore, American hesitance to work with the ICC manifested the American Service-Members’ Protection Act of 2002 (ASPA) which limits U.S. involvement with the ICC by: “prohibiting cooperation with the ICC by any official U.S. entity,” “prohibiting participation by U.S. military or officials in U.N. peacekeeping operations unless they are shielded from the ICC’s jurisdiction,” and “authorizing the President to use ‘all means necessary and appropriate’ to free U.S. military personnel or officials detained by the ICC.”[59] Another piece of American legislation, the Nethercutt Amendment, supplemented ASPA by limiting aid to ICC party states unless they signed a bilateral agreement not to extradite American nationals to the ICC.[60] Surprisingly, both ASPA and the Nethercutt Amendment have provisions which allow the President to disregard them if they are in the interests of the United States, allowing for pragmatic cooperation with the ICC.[61] For example, the American Ambassador to the U.N. Security Council abstained on referring the situation in Sudan to the ICC.[62] In addition to the U.S. not being a party to the International Criminal Court, other important countries such as Russia, Israel, Iran, Egypt, China, Pakistan, India, Indonesia, and Turkey also avoiding signing the Rome Statue.[63] The Heritage Foundation noted:
The Court is gravely flawed. Its broad autonomy and jurisdiction invite politically motivated indictments. Its inflexibility can impede political resolution of problems, and its insulation from political considerations can complicate diplomatic efforts. Efforts to use the court to apply pressure to inherently political issues and supersede the foreign policy prerogatives of sovereign nations undermine the court’s credibility and threaten its future.[64]
The risks to American sovereignty, military personnel, and diplomatic stratagems do not outweigh the benefits of becoming a party state of the ICC, leading to the institution losing support.
The Prosecutor v. Omar Hassan Ahmad Al Bashir: A New International Precedent
The legal process to investigate atrocities in Darfur started in 2004 and continues to the present day. This case demonstrates the lengthy and judicious procedure of the ICC in its pursuit of justice. Three factors stand out as a new international criminal precedent in this case: the first time the ICC issued an arrest warrant for a head of state,[65] the first time the ICC issued an arrest warrant citing the crime of genocide,[66] and Bashir’s extensive evasion of being brought before the ICC.
The long road to The Hague started on September 18, 2004 with the U.N. Security Council establishing the Commission of Inquiry. U.N. Security Council Resolution 1564 (2004) requested that,
The Secretary-General rapidly establish an international Commission of Inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable, calls on all parties to cooperate fully with such a commission, and further requests the Secretary-General, in conjunction with the Office of the High Commissioner for Human Rights, to take appropriate steps to increase the number of human rights monitors deployed to Darfur.[67]
This Commission of Inquiry would serve as the eyes and ears of the U.N. Security Council on a fact-finding mission in Darfur.
The next major event occurred with Secretary General Kofi Annan’s report on the composition and findings of the Commission of Inquiry to the U.N. Security Council on January 31, 2005. Secretary General Annan staffed the Commission of Inquiry with Antonio Cassese as the chairperson, with Mohamed Fayek, Hina Jilani, Dumisa Ntsebeza, and Therese Striggner-Scott serving as members.[68] Secretary General Annan gave them of the objectives of:
(1) to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties; (2) to determine whether or not acts of genocide have occurred; (3) to identify the perpetrators of violations of international humanitarian law and human rights law in Darfur; and (4) to suggest means of ensuring that those responsible for such violations are held accountable.[69]
The commission became operational on October 25, 2004, and Kofi Annan demanded a status report in three months.[70] After traveling to Darfur to investigate, the Commission of Inquiry found that “Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law.”[71] Furthermore the commission discovered that, “most attacks were deliberately and indiscriminately directed against civilians.”[72] Despite the appearance of war crimes and crimes against humanity, the commission deemed, “the Government of the Sudan has not pursued a policy of genocide,” because “the crucial element of genocidal intent appears to be missing.”[73] To fulfill the fourth objective of suggesting means to hold those accountable for violations, the Commission of Inquiry “strongly recommend[ed] that the Security Council immediately refer the situation of Darfur to the International Criminal Court.”[74] The fact finding Commission of Inquiry noted that gross atrocities were occurring in Sudan, and recommended that the Security Council turn to the ICC to hold the perpetrators accountable.
The U.N. Security Council heeded the advice of the Commission of Inquiry, and referred the situation in Darfur to the ICC with Resolution 1593 (2005). On March 31, 2005, the U.N. Security Council decided to, “immediately refer the situation of Darfur to the International Criminal Court.”[75] Yet Sudan was not a party to the Rome Statute. The Security Council sought to remedy this incongruence by stressing cooperation with the prosecutor. The U.N. body wrote,
The Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.[76]
The U.N. Security Council was forcing the jurisdiction of the ICC on Sudan, a non-party state to the Rome Statute.
The first arrest warrants for perpetrators in Darfur atrocities came in 2007; the prosecution shortly thereafter applied for a warrant of arrest for President Omar Al-Bashir. In February 2007, the prosecution applied for arrest warrants for Sudanese Interior Minister Muhammad Harun and Janjaweed Militia Leader Ali Muhammad Ali Abd-Al Rahman “Ali Kushayb.”[77] The ICC Pre-Trial judges granted this request in April 2007.[78] The prosecution then took the unprecedented step of applying for a warrant of arrest for sitting head of government Bashir on July 14, 2008, creating the case of The Prosecutor v. Omar Hassan Ahmad Al Bashir. The prosecution wrote,
There are reasonable grounds to believe that Omar Hassan Ahmad AL BASHIR bears criminal responsibility under the Rome Statute for the crime of genocide under Art. 6(a) killing members of the Fur, Masalit and Zaghawa ethnic groups; (b) causing serious bodily or mental harm to members of those groups; and (c) deliberately inflicting on those groups conditions of life calculated to bring about their physical destruction in part; for crimes against humanity under Art. 7(1) of the Rome Statute committing as part of a widespread and systematic attack directed against the civilian population of Darfur with knowledge of the attack, the acts of (a) murder; (b) extermination; (d) forcible transfer of the population; (f) torture and (g) rapes, and for war crimes under Art. 8 (2)(e)(i) of the Statute, for intentionally directing attacks against the civilian population as such, and (v) pillaging a town or place.[79]
Thus, the prosecution applied for a warrant of arrest for President Bashir with three counts of genocide, two counts of war crimes, and five counts of crimes against humanity. The prosecutor then described Bashir’s personal responsibility for the upheaval in Darfur. Luis Moreno-Ocampo described how Bashir divided Sudanese society, as he “developed a policy of exploiting real or perceived grievances between the different tribes struggling to prosper in the difficult environment.”[80] Bashir then played the tribes off against each other by “promot[ing] the idea of a polarization between tribes aligned with him, whom he labelled ‘Arabs’ and the three ethnic groups he perceived as the main threats, the Fur, Masalit, and Zaghawa.”[81] The prosecution illustrated Bashir’s plan, as, “His pretext was a ‘counterinsurgency’. His intent was genocide.”[82] Drawing on the sheer number of war crimes and crimes against humanity, the prosecutor wrote that, “the facts of this case from which the existence of the intent required for genocide is the only reasonable inference.”[83] Thus, the prosecutor took the unprecedented step of charging a sitting head of government, President Bashir, with the highest crime – genocide.
The Pre-Trial Chamber issued a warrant of arrest for Bashir on March 4, 2009; however, they did not include the charge of genocide. Justices Akua Kuenyehia, Anita Usacka, and Sylvvia Steiner of the ICC authorized a warrant for the arrest of Omar Al-Bashir on the war crimes of attacking civilians and pillaging, and the crimes against humanity of murder, extermination, forcible transfer, torture, and rape.[84] The justices denied the claims of genocide because,
The Majority considers that, if the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met (my emphasis).[85]
The judges of the Pre-Trial Chamber issued a warrant of arrest for President Bashir for war crimes and crimes against humanity after dismissing the charges of genocide.
The prosecution then appealed the dismissal of the three counts of genocide to the Appeals Chamber of the ICC. Luis Moreno-Ocampo argued that, “the Majority applied the wrong legal test to draw inferences for determining ‘reasonable grounds’ under Article 58 of the Statute.”[86] This use of the wrong legal test which, “imposed on the Prosecution an evidentiary burden that is inappropriate for this procedural stage,” that resulted in the charges of genocide being dismissed.[87] Instead of using the standard of “reasonable grounds” for an arrest warrant under Article 58, the justices used the standard of “proof beyond a reasonable doubt,” which is the standard for the trial phase.[88] The prosecution requested that “the [Appeals] Chamber, after reversing the Decision and determining the correct standard, remand the matter to the Pre- Trial Chamber for a new determination under Article 58.”[89] The prosecution believed that there were reasonable grounds under Article 58 to authorize the charges of genocide in the arrest warrant of Bashir.
Appeals Chamber agreed with the prosecution’s appeal and allowed for genocide to be considered in another warrant of arrest for President Bashir on February 3, 2010. This Appeals Chamber of the ICC, consisting of Justices Erkki Kourula, Sang-Hyun Song, Ekaterina Trendafilova, Daniel David Ntanda Nsereko, and Joyce Aluoch, determined that the Pre-Trial Chamber used “erroneous standard of proof” in denying the Prosecutor’s claim of genocide for the arrest warrant of Bashir.[90] The Appeals Chamber then demanded that “It is therefore appropriate to reverse the Impugned Decision to that extent,” and the question of whether genocide fit the standard of proof for an arrest warrant was “remanded” to the Pre-Trial Chamber.[91] Thus, the Appeals Chamber sided with the prosecution’s notion that the Pre-Trial Chamber used an erroneous standard of proof when dismissing the genocide charges, and the Pre-Trial Chamber would now have to reevaluate the evidence in light of Article 58 of the Rome Statute.
The Pre-Trial Chamber decided that Bashir had committed three counts of genocide in his second arrest warrant on July 12, 2010, yet he still has not been brought before the ICC. Justices Sylvia Steiner, Sanji Mmasenono Monageng, and Cuno Tarfusser, found Bashir to be an “indirect perpetrator” of three counts of genocide including “by killing,” “by causing serious bodily or mental harm,” and “by deliberately inflicting conditions of life calculated to bring about physical destruction,” using the standard of proof prescribed by Article 58 of the Rome Statute.[92] The ICC had found a sitting head of state guilty of the most heinous crime – genocide. Despite these charges in addition to the grievances in his first warrant, President Bashir has not appeared before the ICC to face justice for his actions in Darfur.[93] While the ICC created a new international legal precedents with The Prosecutor v. Omar Hassan Ahmad Al Bashir, the Sudanese President has eluded trial.
The International Reaction: From Disgust to Joy
The international reaction to The Prosecutor v. Omar Hassan Ahmad Al Bashir has been greatly varied. The Sudanese government has reacted extremely negatively to the two arrest warrants of their sitting head of government. Human rights Non-Governmental Organizations (NGOs) have applauded the actions of the ICC, and demand that Bashir be brought to trial for his crimes, while conservative NGOs fear the actions of the ICC lead Bashir to further radicalize his policies. The African Union (AU), an Intergovernmental Organization (IGO) of African states, decisively denounced the ruling of the ICC. Thus, the reaction to the warrants of arrest to President Bashir has stretched from disgust to joy.
President Bashir and the Sudanese government, which is not a state party to the Rome Statute, has continued to denounce the rulings of the ICC. Bashir told the AP that, “we [the Sudanese government] are telling them [the ICC judges] to immerse it [their judgment] in water and drink it,” a traditional Arabian insult.[94] He also denied the allegations of crimes against humanity to NBC News stating, “People have been killed because there is war. It is not in the Sudanese culture or people of Darfur to rape. It doesn’t exist. We don’t have it.”[95] Time quoted the Sudanese ambassador to the U.N. as concisely saying, “For us [the Sudanese government], the ICC doesn’t exist.”[96] Despite the two arrest warrants against Bashir, “There are no signs of criminal pursuit of Bashir, though the international community knows exactly where he is, where he has traveled, and often where he is going.”[97] He has successfully visited Chad – an ICC state party with an obligation to arrest and to extradite him, China, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Kuwait, Libya, Qatar, Saudi Arabia, and South Sudan.[98] States such as Botswana, the Central African Republic, France, Kenya, Malawi, Malaysia, Nigeria, South Africa, Turkey, Uganda, and Zambia have politely refused entry to President Bashir or have rescheduled international summits to non-Rome Statute state parties.[99] The Sudanese government has denounced the ICC rulings, and President Bashir continues to travel with relative impunity.
Human rights NGOs have praised the ICC for taking the unprecedented legal step in charging a sitting head of government with the crime of genocide, but conservative NGOs fear that the indictments will cause Bashir to become more desperate. Amnesty International Representative Tawanda Hondora, Deputy Director of Law and Policy, said that “Members of the General Assembly must stand up on behalf of Darfuri victims to condemn this impunity and to call on the UN Security Council to require all states to cooperate fully with the ICC.”[100] Human Rights Watch Senior Counsel Elise Keppler spoke that “Security Council members and other concerned governments should actively press Sudan to stop its blatant obstruction of the ICC and to see to it that al-Bashir appears at the court.”[101] While Human Rights Watch had previously declared the situation in Sudan to include war crimes, crimes against humanity, and ethnic cleansing, the NGO did not claim the situation was genocidal “due to insufficient information in its research.”[102] On the other side of the ideological spectrum, The Heritage Foundation feared that the ICC warrants against Bashir would further radicalized his policies, as “he has nothing to lose.”[103] Furthermore, The Heritage Foundation noted that the warrant directly led Bashir to expel humanitarian NGOs from Sudan, and the charges may lead him to encourage attacks against peacekeepers or to violate the 2005 Comprehensive Peace Agreement with South Sudan.[104] Amnesty International and Human Rights Watch have applauded the decisions of the ICC, while The Heritage Foundation remains skeptical out of fears of blowback.
The AU has become hesitant to work with the ICC in The Prosecutor v. Omar Hassan Ahmad Al Bashir. Officials in the AU have claimed the court is “anti-Africa” because all open ICC investigations are taking place in Africa and potential investigations on grave crimes in other locations have not occurred.[105] At the start of the case against Bashir, the AU argued for a deferral of The Prosecutor v. Omar Hassan Ahmad Al Bashir under Article 16 of the Rome Statute; however, the United Nations Security Council declined to reply.[106] This silence led the AU to advise its member states at the July 2009 Sirte Summit to halt any efforts on extraditing Al Bashir to the ICC.[107] The AU feels that the ICC is prejudiced against African States, leading the IGO to advise its member states to defy the authority of the court.
The Prosecutor v. Omar Hassan Ahmad Al Bashir is an unprecedented legal case between the International Criminal Court and the sitting Sudanese President Omar Al Bashir. President Bashir rose to power through an environment of conflict, and he perpetuated the strife to centralize authority in Khartoum. Concurrently, 122 countries ratified the Rome Statute, which created the International Criminal Court, a standing court with the jurisdiction to investigate the gravest crimes, sometimes even in non-party states – a fundamental break with customary international law. This break became a legal precedent under the lengthy process of The Prosecutor v. Omar Hassan Ahmad Al Bashir, as the prosecution argued for three charges of genocide to be levied against the sitting head of government of a non-party state to the Rome Statute. Ultimately, the justices of the ICC sided with Luis Moreno-Ocampo, and produced two warrants of arrest for President Bashir, citing three charges of genocide, two of war crimes, and five of crimes against humanity. The international reaction has greatly varied on the ICC rulings, as it has been supported by watchdog NGOs, but has been criticized by the Sudanese Government, conservative NGOs, and the AU. Furthermore, because the ICC does not have a gendarmerie, it is dependent on the party states to enforce arrest warrants; thus far, President Bashir has avoided extradition. Ultimately, while the arrest warrants precipitating from The Prosecutor v. Omar Hassan Ahmad Al Bashir set new international criminal law precedents, the entirety of the Bashir situation remains a “catch me if you can.”
Timeline of The Prosecutor v. Omar Hassan Ahmad Al Bashir
18 September 2004 – U.N. Security Council established the Commission of Inquiry.
31 January 2005 – Kofi Annan’s letter sent to the U.N. Security Council.
31 March 2005 – UN Security Council referred Darfur to Prosecutor of the ICC in Resolution 1593.
April 2007 – The ICC judges issued warrants for Minister Haryn and Militia Leader Kushayb
14 July 2008 – Prosecution filled out an application for an arrest warrant for Bashir
4 March 2009 – The ICC judges issued the first arrest warrant for Bashir under two war crimes and five crimes against humanity, but not genocide.
6 July 2009 – Prosecution appealed the charge of genocide in the warrant, contesting the standard of proof.
3 February 2010 – Appeals Chamber allowed for genocide to be included in the warrant.
12 July 2010 – The ICC judges issued the second warrant of arrest for Bashir, including three charges of genocide.
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[1] Randy James, “Sudanese President Omar Hassan al-Bashir,” Time. March 5, 2009. Accessed February 7, 2014.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Central Intelligence Agency, “Sudan,” World Factbook. April 16, 2014. Accessed April 28.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Randy James, “Sudanese President Omar Hassan al-Bashir,” Time. March 5, 2009. Accessed February 7, 2014.
[10] Ibid.
[11] Central Intelligence Agency, “Sudan,” World Factbook. April 16, 2014. Accessed April 28.
[12] Ibid.
[13] Ibid.
[14] BBC, “Sudan Profile.” October 26, 2013. Accessed February 7, 2014.
[15] Ibid.
[16] Ibid.
[17] BBC, “Profile: Sudan’s Omar al-Bashir.” December 5, 2011. Accessed February 7, 2014.
[18] BBC, “Sudan Profile.” October 26, 2013. Accessed February 7, 2014.
[19] Ibid.
[20] Felicity Conrad, “The Alleged Crimes in Farfur of Omar Al Bashir, President of Sudan,” American Non-Governmental Organizations Coalition for the International Criminal Court. August 18, 2010. Accessed February 7, 2014.
[21] Ibid.
[22] BBC, “Profile: Sudan’s Omar al-Bashir.” December 5, 2011. Accessed February 7, 2014.
[23] Felicity Conrad, “The Alleged Crimes in Farfur of Omar Al Bashir, President of Sudan,” American Non-Governmental Organizations Coalition for the International Criminal Court. August 18, 2010. Accessed February 7, 2014.
[24] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 3.
[25] Ibid.
[26] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014; ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 3.
[27] Ibid., 4.
[28] Ibid.
[29] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 4.
[30] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.
[31] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 4.
[32] Ibid., 4-5.
[33] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 5.
[34] Ibid., 5-6.
[35] Ibid., 6.
[36] Ibid., 4.
[37] Ibid., 10.
[38] Ibid., 19.
[39] Ibid.
[40] Ibid.
[41] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 24.
[42] Ibid., 24.
[43] Ibid., 11.
[44] Ibid., 31.
[45] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.
[46] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 48.
[47] ICC, “The States Parties to the Rome Statute.” Accessed March 23, 2014.
[48] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 4-5.
[49] Ibid., 5.
[50] Ibid.
[51] Ibid.
[52] Ibid.
[53] Ibid., 6.
[54] ICC, “Situations and Cases.” May 2, 2014.
[55] Ibid.
[56] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 1.
[57] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.
[58] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 9.
[59] Ibid., 8-9.
[60] Ibid., 9.
[61] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 9.
[62] Ibid., 11.
[63] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.
[64] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, Backgrounder.
[65] Lucia DiCicco and Ana Gómez Rojo, “Analysis of the ICC Arrest Warrant for Omar Al Bashir, President of Sudan,” American Non-Governmental Organizations Coalition for the International Criminal Court. July 1, 2009. Accessed February 7, 2014.
[66] Human Rights Watch. “Sudan: ICC Warrant for Al-Bashir on Genocide.” July 13, 2010. Accessed February 7, 2014.
[67] United Nations Security Council, “Resolution 1564 (2004).” September 18, 2004.
[68] United Nations Security Council, “Letter dated 31 January 2005 from the Secretary-General addressed to the President of the Security Council.” February 1, 2005, 2.
[69] United Nations Security Council, “Letter dated 31 January 2005 from the Secretary-General addressed to the President of the Security Council.” February 1, 2005, 3.
[70] Ibid., 10.
[71] Ibid., 3.
[72] Ibid.
[73] Ibid., 4.
[74] Ibid., 5.
[75] United Nations Security Council, “Resolution 1593 (2005).” March 31, 2005.
[76] United Nations Security Council, “Resolution 1593 (2005).” March 31, 2005.
[77] ICC, “The Situation in Darfur.” Accessed February 7, 2014.
[78] Ibid.
[79] ICC, “Public Redacted Version of the Prosecutor’s Application under Article 58.” July 14, 2008, 6.
[80] ICC, “Public Redacted Version of the Prosecutor’s Application under Article 58.” July 14, 2008, 7.
[81] Ibid.
[82] Ibid.
[83] Ibid., 16.
[84] ICC, “Warrant for the Arrest of Omar Hassan Ahmad Al Bashir.” ICC-02/05-01/09-1. March 4, 2009. Accessed February 7, 2014, 7-8.
[85] ICC, ““Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir.” March 4, 2009. Accessed February 7, 2014, 56.
[86] ICC, “Prosecution Document in Support of Appeal against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’.” July 6, 2009, 3.
[87] Ibid.
[88] Ibid., 3, 10.
[89] Ibid., 25.
[90] ICC, “Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’.” ICC-02/05-01/09. February 3, 2010. Accessed February 7, 2014, 3.
[91] Ibid., 18.
[92] “Second Warrant for the Arrest of Omar Hassan Ahmad Al Bashir.” ICC-02/05-01/09-95. July 12, 2010. Accessed February 7, 2014, 3, 8.
[93] ICC, “Case Information Sheet: The Prosecutor v. Omar Hassan Ahmad Al Bashir.” March 28, 2012.
[94] Randy James, “Sudanese President Omar Hassan al-Bashir,” Time. March 5, 2009. Accessed February 7, 2014.
[95] Ibid.
[96] Ibid.
[97] Bashir Watch. “Stop Bashir: End Genocide.” Accessed February 7, 2014.
[98] Bashir Watch. “Stop Bashir: End Genocide.” Accessed February 7, 2014.
[99] Ibid.
[100] Amnesty International. “UN: Demand al-Bashir’s surrender to the International Criminal Court.” September 10, 2013. Accessed February 7, 2014.
[101] Human Rights Watch. “Sudan: ICC Warrant for Al-Bashir on Genocide.” July 13, 2010. Accessed February 7, 2014.
[102] Ibid.
[103] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 17.
[104] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 17.
[105] Wendy Bremang, “Response to Criticism That the International Criminal Court is ‘Anti-African,’” American Non-Governmental Organizations Coalition for the International Criminal Court. August 24, 2009. Accessed February 7, 2014.
[106] Ibid.
[107] Ibid.
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