ICC prosecutor seeking arrest warrant for the President of Sudan

Today, the ICC Prosecutor finally confirmed numerous news reports of the last days (which also were mentioned on several law blogs) presenting evidence against Sudan’s President Omar Al-Bashir and also requesting an arrest warrant. According to Mr Luis Moreno-Ocampo, the President of Sudan “bears criminal responsibility in relation to 10 counts of genocide, crimes against humanity and war crimes“. The Prosecutor went on to state that President Al-Bashir “masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity”. The Pre-Trial Chamber of the ICC will now review the evidence presented by the Prosecutor and decide on whether or not to issue an arrest warrant.

The Prosecutor’s presentation of evidence does come at an interesting point in time. On 8 July this year a UNAMID (African Union-United Nations Hybrid Operation in Darfur) and police convoy was attacked by militia. The incident left 7 peacekeepers dead and 22 wounded (see the Security Council Press Statement regarding the attack). There is grave concern that the Sudanese government and especially President Al-Bashir do not do enough to stop these kinds of attacks on the peacekeepers. I personally (carefully) doubt that the Prosecutor’s decision to seek an arrest warrant will actually contribute to making the Sudanese government more cooperative towards the peacekeepers, raising once again the question of how to balance fighting impunity and not disrupting any efforts for peace.

Be that as it may, on July 12 the UN Secretary General talked to Sudanese President Omar Al-Bashir and underlined the independence of the ICC. This of course is a very important issue and I don’t entirely understand why the Secretary General at all had to underline this, keeping in mind the wording of the preamble of the Rome Statute (“to establish an independent permanent International Criminal Court”) which should have been clear to President Al-Bashir. The ICC is not an organ of the UN, and even if it would have been, it is rather naive to believe that the UN would try to influence the Court and/or the prosecutor. However, one could wonder how the Secretary General (or President Al-Bashir for that matter) got sufficient notice of the Prosecutors intent to present the evidence, before he had actually presented it. 

Anyway, it is most likely that the President of Sudan starts to feel pressure rising as UN peacekeepers are doing their work in monitoring the situation in the country and where simultaneously you have the Prosecutor of the ICC conducting investigations. This certainly would make me nervous if I were President in a country where 300,000 people have died, either through direct combat or because of disease, malnutrition or reduced life expectancy, over the past five years, where rebels have been fighting Government forces and allied Arab militiamen since 2003 and where 2.5 million people are internally displaced and currently living under constantly worsening conditions in camps.

Another issue that deserves mentioning is the fact that the Prosecutor decided to charge Omar Al-Bashir with committing the crime of genocide. I am sure the Prosecutor was keeping in mind the finding of the United Nations Commission of Inquiry, chaired by Professor Antonio Cassese, which concluded that there was insufficient evidence of genocide … Suppose the Prosecutor remembered these findings, what might be won if these charges receive support by the Pre-Trial chamber of the ICC but lead to an acquittal later on …?

A good summary of the history leading up to the Prosecutor’s application for an arrest warrant against President Al-Bashir, can be found here.

Also, do check out the comment of Andrew Natsios, the former U.S. Special Envoy for Sudan and former Administrator of USAID.