Sudan: ICC Prosecutor to Charge a Sitting Head of State

On Monday, International Criminal Court Prosecutor Luis Moreno-Ocampo will seek the arrest of Sudanese President Omar al-Bashir for crimes committed in Darfur over the past five years. The indictment will be publicly available on the ICC website and will outline the exact crimes charged under the Rome Statute. If charged with the crime of genocide, President al-Bashir will become the first sitting head of state to be charged as such. The indictment comes on the 13th anniversary of the Srebrenica Genocide in the former Yugoslavia and more than three years after the referral of the case to the ICC by U.N. Security Council Resolution 1593. See also my earlier postings: UN Security Council – 1st Referral to ICC and UN Acts on Sudan but Ignores Darfur. el-bashir, elbashir, el-beshir

A few answers to your questions . . .

What is the legal impact of the arrest warrant? Is it enforceable?
The ICC lacks the power to enforce the arrest warrants. In his statement to the UN General Assembly on 9 October 2006, Judge Philippe Kirsch, the president of the ICC, emphasized that enforcement of the warrants remains with the state and other international actors. Thus, the Sudan would be responsible for arresting its head of state, unlikely in the absence of a coup dâ€™Ã©tat. The pragmatic effect of the arrest warrant is to deter President al-Bashir from traveling outside the Sudan upon threat of being arrested in another country.

Excerpts- Judge Philippe Kirsch’s Statement to the UN

Second Annual Report of the ICC, October 9, 2006

â€¢ Our experience over the past year has reinforced the importance of cooperation to the Court . . . the Court has arrest warrants outstanding The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials.

â€¢ This emerging system of international justice extends beyond cooperation with the ICC to embrace other institutions involved in putting an end to impunity.

â€¢ We must remember that the primary responsibility for investigating and prosecuting international crimes â€“ like all crimes â€“ belongs to national courts. The ICC only comes into the picture when national courts are unwilling or unable genuinely to investigate or prosecute crimes. Putting an end to impunity and preventing future crimes may require the strengthening of national capacities to deal with crimes.

â€¢ The ICC has done and will continue to do its part in putting an end to impunity by fulfilling its mandate as provided by the Rome Statute. For its part, the international community must see that its fundamental commitment to ending impunity is upheld and ensure the support and cooperation needed.

If an arrest warrant is approved by the Pre-Trial Chamber, the parties to the Rome Statute and members of the Security Council will be notified of the arrest warrant. The UN Security Council could adopt a resolution urging all states, including non-party states, to enforce the arrest warrant. Non-party states are not legally obligated to enforce the arrest warrant. If arrested and delivered to the ICC, the Pre-Trial Chamber will conduct a hearing to advise the al-Bashir of his rights, the charges against him, and any right to request interim release before trial.

The ICC also can register the international arrest warrant with Interpol. The ICC arrest warrant would be categorized as a “Red Notice” in Interpol’s searchable database. A Red Notice is not an international arrest warrant; rather, it is an announcement that the ICC (or other national or international court) seeks the arrest of that individual for prosecution.

What is the difference between the ICC arrest warrant and summons?
A summons is used to request that a person appear before the ICC upon a sufficient showing to the ICC’s Pre-Trial Chamber that there are sufficient grounds to believe that the individual committed crimes within the ICC’s jurisdiction. The summons may be issued with or without conditions restricting liberty in keeping with the national law of the country. Such restrictions could include limiting the places and boundaries of permissive travel, the ability to meet with specific other individuals or members of particular groups, a prohibition on professional activities, and/or to post bond. Failure to comply with a summons escalates to an arrest warrant. ICC Prosecutor Moreno-Ocampo can request an arrest warrant or a summons.

Who was the first head-of-state charged with genocide?
Former Khmer Rouge head-of-state Khieu Samphan currently is on trial for genocide before a hybrid tribunal created by the Cambodian government and the United Nations. On 1 July 2008, Dr. Say Bory resigned as Khieu Samphan’s defense lawyer due to the lawyer’s ill health. As of this writing, a new defense lawyer had not been identified. See Extraordinary Chambers in the Courts of Cambodia.

Former President of Serbia and of Yugoslavia Slobodan MiloÅ¡ević was charged with genocide and complicity in genocide before the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY). He was found dead in his cell at The Hague on 11 March 2006 before a verdict could be reached. The ICJ, when reviewing state responsibility for the genocide, cleared the state but maintained that MiloÅ¡ević knowingly allowed the genocide to occur. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Milosevic

In February 2008, Judge Fernando Andreu of Spain’s National Court in Madrid announced that he had evidence implicating Rwandan President Paul Kagame in the crime of genocide but that he could not issue an indictment because President Kagame, as a sitting head-of-state, was protected by governmental immunity under Spanish law. President Kagame refutes the legitimacy of the charges and the court’s jurisdiction under universal jurisdiction.

Former Liberian President Charles Taylor has been charged with war crimes and crimes against humanity, but not genocide, before the Special Court for Sierra Leone, a hybrid tribunal established jointly by the Government of Sierra Leone and the United Nations. Due to domestic security risks, Taylor currently is in detention at the ICC. He will be tried by the Special Court, using the ICC’s facilities.

What is the International Criminal Court?
The International Criminal Court (ICC) / Cour PÃ©nale Internationale (ICC-CPI) is a permanent
criminal court located in The Hague, the Netherlands. Under its authorizing mandate, known as the Rome Statute, the ICC has jurisdiction over genocide, crimes against humanity, and war crimes committed after 2002 when the Rome Statute went into effect and the Court began operations. (Article 5). The ICC also technically has jurisdiction over crimes of aggression but pragmatically will not be able to adjudicate such crimes until the parties to the Rome Statute agree on a definition. (Articles 5, 121, 123).

What is the difference between the ICC and the ICJ “World Court”?
Although both are located at The Hague, the ICC is not the same as the International Court of Justice (ICJ). The ICJ, sometimes referred to as the “World Court,” resolves disputes between countries on a wide range of subjects, including boundary disputes and trade. The ICJ is located at the Peace Palace at The Hague.

The ICC, in contrast, prosecutes individuals for serious violations of international human rights and humanitarian law. The concept of holding government or rebel leaders individually responsible for violations of international law harkens back to the principles established at Nuremberg. The rationale of Nuremberg held that individuals initiate, direct, and engage in committing war crimes and that they should be prosecuted accordingly.

For additional information on the similarities and differences between the ICJ and the ICC, see the UN Courts and Tribunals and the Background Fact Sheet (with side-by-side comparison of the two courts).

Why does the ICC have jurisdiction over crimes in Sudan if the Sudan is not a party to the ICC?
The ICC’s jurisdiction over the war crimes in Darfur derives from the U.N. Security Council Resolution 1593, adopted on 31 March 2005 as the first referral by the Security Council to the ICC. The United States abstained from voting. Article 13 of the Rome Statute explicitly allows such referrals by the Security Council when it acts pursuant to the Chapter VII powers related to threats to international peace and security under the U.N. Charter. Still, the referral involved two controversial issues: the jurisdiction of the Court over a state not party to the Rome Statute and an immunity clause extended to states not party to the Rome Statute. See my earlier posting for an in-depth discussion of the referral. Notably, the Sudan, under President al-Bashir, signed the Rome Statute on 8 September 2000 but did not ratify it.

What is the difference between a “party” and a “signatory” to the Rome Statute?
A party to the Rome Statute means that a government of a country has ratified the Rome Statute and thus accepts it as legally binding. Under the concept of pacta sunt servanda (treaties must be respected) embodied in Article 26 of the Vienna Convention on the Law of Treaties, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” A signatory country is one which has signed the Rome Statute but which has not yet ratified it. Signatories cannot take actions that would defeat the object and purpose of the Statute.

Resources

Legal Resources

Reports and Articles on Darfur

Sudanese Government Resources

Additional Resources on Sudan