Crisis in Darfur - International Response - International Criminal Court

International Criminal Court

In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the report of the International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution.

In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmed Haroun, and a Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes. The Sudan Government said that the ICC had no jurisdiction to try Sudanese citizens and that it would not hand the two men over to authorities in the Hague.

On 14 July 2008, the Prosecutor filed ten charges of war crimes against Sudan's incumbent President Omar al-Bashir, three counts of genocide, five of crimes against humanity and two of murder. The Prosecutor has claimed that Mr. al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. Leaders from three Darfur tribes are suing ICC prosecutor Luis-Moreno Ocampo for libel, defamation, and igniting hatred and tribalism.

After an arrest warrant was issued for the Sudanese president in March 2009, the Prosecutor appealed to have the genocide charges added. However, the Pre-Trial Chamber found that there was no reasonable ground to support the contention that he had a specific intent to commit genocide (dolus specialis), which is an intention to destroy, in whole or in part, a protected group. The definition adopted by the Pre-Trial Chamber is the definition of the Genocide Convention, the Rome Statute, and some ICTY cases. On 3 February 2010 the Appeals Chamber of the ICC found that the Pre-Trial Chamber had applied "an erroneous standard of proof when evaluating the evidence submitted by the Prosecutor" and that the Prosecutor's application for a warrant of arrest on the genocide charges should be sent back to the Pre-Trial Chamber to review based on the correct legal standard. In July 2010, Sudan's president Omar al-Bashir was finally charged by Hague for orchestrating Darfur genocide, three counts of genocide in Darfur by the International Criminal Court.

Mr. al-Bashir is now the first incumbent head of state charged with crimes in the Rome Statute. Bashir has rejected the charges and said, "Whoever has visited Darfur, met officials and discovered their ethnicities and tribes ... will know that all of these things are lies."

It is expected that al-Bashir will not face trial in The Hague until he is apprehended in a nation which accepts the ICC's jurisdiction, as Sudan is not a state party to the Rome Statute which it signed but didn't ratify. Payam Akhavan, a professor of international law at McGill University in Montreal and a former war crimes prosecutor, says although he may not go to trial, "He will effectively be in prison within the Sudan itself...Al-Bashir now is not going to be able to leave the Sudan without facing arrest." The Prosecutor has publicly warned that authorities could arrest the President if he enters international airspace. The Sudanese government has announced the Presidential plane will be accompanied by jet fighters. However, the Arab League has announced its solidarity with al-Bashir. Since the warrant, he has visited Qatar and Egypt. Both countries have refused to arrest him. The African Union also condemned the arrest warrant.

Some analysts think that the ICC indictment is counterproductive and harms the peace process. Only days after the ICC indictment, al-Bashir expelled 13 international aid organizations from Darfur and disbanded three domestic aid organizations. In the aftermath of the expulsions, conditions in the displaced camps deteriorated, and women were particularly affected. Previous ICC indictments, such as the arrest warrants of the LRA leadership in the ongoing war at northern Uganda, were also accused of harming peace processes by criminalizing one side of a war. Some believe that the arrest warrant against al-Bashir will hinder the efforts to establish peace in Darfur, and will undermine any effort to boost stability in Sudan.