It’s been a few years since President Al-Bashir of TRO (The Republic of) Sudan was indicted by the International Criminal Court for crimes committed by his government and its proxy militias in Darfur.  He hasn’t been arrested yet, and conflicting opinions regarding the prudence of the ICC’s indictment persist. Before those issues are analyzed, however, background information is needed.

In 2005, the UN Security Council referred the Darfur situation to the ICC. One author explains it in more technical terms: “Prompted in part by the U.S. declaration of genocide, the Security Council adopted Resolution 1564 calling for an international investigation into reports of genocide and crimes against humanity in the province. The subsequently created commission issued a report that resulted in an Article 13(b) Security Council referral of the case to the ICC.” In turn, the chief prosecutor of the ICC, Luis Moreno Ocampo, investigated what was going on in Sudan (for those interested, he was able to do this because Article 53 of the Rome Statute, which established the ICC, gives the prosecutor the authority to investigate potential crimes). After carrying out an investigation, Campo submitted his findings to the ICC’s Pre-Trial Chamber. There, cases are presented to three judges and, if the case meets the low threshold for proof, they decide “that a crime has been committed within the Court’s jurisdiction” it accepts the Prosecutor’s submission (for the individual to be arrested or summoned to court). When requesting the issuance of an arrest warrant for Al-Bashir, Moreno Ocampo pressed for genocide to be included as one of the charges.

When the ICC takes a case, it assumes the state’s role in prosecuting someone for genocide, crimes against humanity, war crimes, or the crime of aggression (the only crimes that will land you in The Hague). It is only able to take on a case when the state is unable or unwilling to do it, and won’t get involved if the person being accused of the crime is already being prosecuted in that member state’s courts. The above conditions come into play in TRO Sudan. At the time of the indictment, it didn’t seem that putting Al-Bashir on trial in TRO Sudan was possible. The regime – which probably wouldn’t indict its head – wasn’t going to change, which would mean that the courts would have to press charges against the head of state. This would be tricky considering that the military – under the control of Al-Bashir – was in control of the judiciary. Seeing as how the rule of law was less than perfect in this case, it’s understandable to see why the ICC was seen by some to be more effective than TRO Sudan’s courts.

The ICC reviewed the evidence presented regarding the 2003-onward conflict in Darfur and the role of the Sudan Armed Forces, the Sudan Police Forces, and proxy militias such as the Janjaweed in the violence against civilians that characterized it. In July 2008, President Omar Al-Bashir of TRO Sudan was indicted for genocide, war crimes, and crimes against humanity. Most of these crimes targeted the Fur, Zaghawa, and Masalit groups. Evidence gathered by various non-governmental organizations like Amnesty International or Human Rights watch indicated that the government of TRO Sudan was directly complicit in the human rights atrocities – rape, torture, forcible transfer and murder – being committed in TRO Sudan, which helped provide grounds for prosecution. The investigation carried out by the prosecutor at the UN’s request proved that Al-Bashir, who was in charge of the military and who had influence over what the proxy militias did, was culpable in their acts (like razing villages). The accountability aspect is important because, even though it may be taken for granted that he would, it had to be proven that Al-Bashir was actually in charge of what the military was doing and could have stopped what was going on but chose not to. For those interested in precedent-setting events, I’ll note that the arrest warrant referral was “the first such referral in history” to target a head of state.

Al-Bashir was charged with crimes against humanity, the legal definition of which includes those acts alleged to have occurred during widespread attacks on civilians during the repression of the SLM/A and JEM insurgencies – namely, rape, torture, forcible transfer of populations, and murder. He could be indicted because he had knowledge that civilians were being victimized and the continuation of those attacks was part of a larger scheme. Evidence of this intentionality was found in the way that attacks against insurgents were carried out, for example. If civilians were not murdered outright Sudanese armed forces “systematically destroyed the means of survival” (ruining agricultural lands or killing livestock) so that the remaining would die off. In addition to extermination through aerial assaults or the destruction of their livelihoods, civilians targeted by the government of TRO Sudan endured torture and sexual crimes. In addition to murder, the prosecution alleged that mass rapes perpetrated by militia in villages across the Darfur region were systematic, intentional, and used as weapons in the conflict. This is in contrast to, say, civilians injured when caught in an armed conflict between forces; rather than dying as collateral damage while caught in a war zone, the civilians in Darfur were directly targeted. Again, the Fur, Masalit, and Zaghawa tribes generally bore the brunt of these acts.

The crime of genocide is our main concern. Genocide, according to the ICC, consists of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, the ethnic group in this case being the non-Arab population. That definition can be debated, but for now it’s the one we’ll work with because it’s relevant to Al-Bashir’s arrest warrant.  Getting the genocide charge included in the list of charges included in Al-Bashir’s arrest warrant, to begin with. First the ICC decided to omit genocide because there wasn’t enough evidence, then Mareno Ocampo appealed the decision, urging the ICC to include genocide to raise awareness of what happened to victims and to honour them by holding Al-Bashir accountable. The appeal was won when the appeals court found that there was enough evidence, and a second arrest warrant including genocide as one of the charges was released. But although we know that genocide is the extermination of a group, what specific actions fall under this? If you look at what crimes are included under genocide, a lot of it looks like a reflection of crimes against humanity, like forcing people out of an area or murdering them. The distinction is that while crimes against humanity encompass acts directed against civilians generally, genocide (according to the ICC) is characterized by the intent to target a religious, national, ethnical, or racial group and eliminate them. This is seen in Darfur where, according to Moreno Campo, the government of TRO Sudan is carrying out a campaign to exterminate the non-Arab, or black African, population. The racial distinction is contentious to some, with claims made that the assertion of ‘genocide’ constructs an overly simplistic racial division. That discussion will be taken up next month in the second part of this analysis, but for now that should be a hasty but serviceable summary of the genocide charge.

The ICC indictment of Al-Bashir was groundbreaking in a couple of ways. It was the first time an arrest warrant was put out for a head of state, and the first time someone was charged with genocide. Furthermore, some saw it as a message to other high-ranking leaders that their power would not protect them from being held accountable for crimes against the citizens of their state. The arrest warrant also made it possible for victims to be vindicated if Bashir were to be punished for what was done to them. At the same time, the indictment remains rife with controversy – some questioned the prudence of including genocide in the list of charges while others were concerned that the Prosecutor’s analysis of the racial dimensions to the conflict oversimplified matters. For humanitarian workers afraid of being kicked out of the country or those who prefer to diplomatically resolve the conflict between Khartoum and rebels, the arrest warrant is seen as contentious and risky. For the idealistic or hopeful, meanwhile, the arrest warrant hasn’t had the desired impact on TRO Sudan.

Information in this article was taken from the following sources:

Al Jazeera, “Bashir genocide charge under review,” 3 February 2010.

Barnes, Gwen P., “The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Bashir,” Fordham International Law Journal 34.6 (2011): 1585-1619.

Flint, Julie and Alex de Waal, “Case Closed: A Prosecutor Without Borders,” World Affairs, Spring 2009.

International Criminal Court, “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, ICC-02/05-01/09, Pre-Trial Chamber 1, 4 March 2009.

International Criminal Court. Rome Statute of the International Criminal Court,  Enschede, Overijssel: PrintPartners Ipskamp, 2011.

Kelly, Michael J., “‘Genocide’: The Power of a Label,” Case Western Reserve Journal of International Law 40.1/2 (2008): 147-162

Lipscomb, Rosanna, “Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan,” Columbia Law Review 106.1 (2005): 182-212

Mamdani, Mahmood, “The International Criminal Court’s Case Against the President of Sudan: A Critical Look,” Journal of International Affairs 62.2 (2009): 85-92

Ray, Corina, “Are ‘Arabs’ killing ‘Black Africans’ in Darfur?” New African, January 2009 [print]

Reuters, “ICC issues arrest warrant for genocide against Bashir,” 12 July 2010.

Rice, Xan, “Sudanese president Bashir charged with Darfur war crimes,” The Guardian, 4 March 2009.

Warham, Olivia, “Four years later, was the ICC right to indict Sudan’s Bashir?” Reuters, 4 March 2013.