Q&A: The International Criminal Court and Sudan

July 14, 2008 (WASHINGTON) — The prosecutor of the International Criminal Court in The Hague has requested an arrest warrant for President Omar al-Bashir of Sudan, for alleged genocide and crimes against humanity committed in Sudan’s Darfur region.

1. Why is the International Criminal Court investigating Sudan?

The International Criminal Court, created by a 1998 treaty known as the Rome Statute, is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. In 2005, the United Nations Security Council voted to ask the court’s Office of the Prosecutor to investigate the situation in Sudan’s Darfur region. The decision to trigger the court’s jurisdiction on Sudan was not made by the prosecutor but by the Security Council.

Before referring the case to the ICC, the Security Council itself had ordered an investigation into Darfur; its independent commission of inquiry found evidence of very serious crimes. The prosecutor then conducted his own investigation.

2. Who decides whether the ICC charges a person with a crime?

The Office of the Prosecutor presents evidence to a panel of judges. The panel, known as the Pre-Trial Chamber, will issue an arrest warrant for a person if it believes there are “reasonable grounds” to believe the person has committed one or more serious crimes. At this stage, it makes no determination of the accused’s innocence or guilt.

3. When will the pre-trial chamber decide whether to issue the arrest warrants?

The Pre-Trial Chamber usually takes six to eight weeks to respond to the prosecutor’s requests – but this is a complicated case and may take longer.

4. What standards would the court use during an actual trial to determine guilt or innocence?

If a defendant were brought to trial, the person could not be convicted unless the court found him or her guilty “beyond reasonable doubt” – a much higher standard to meet than the standard of “reasonable grounds” used as the basis of an arrest warrant.

5. What is the difference between “crimes against humanity,” “war crimes” and “genocide”?

Acts of killing, torture, rape and other such deeds can constitute any of those crimes. However, they are all distinct in the following ways:

A charge of genocide reflects an alleged intent to destroy a group, in whole or in part. The group must be national, ethnical, racial or religious. The unique feature of genocide is this specific intent.

Crimes against humanity involve a widespread or systematic attack on a civilian population. War crimes are breaches of international humanitarian law that can take place in international or internal armed conflicts. These can be committed against civilians or combatants such as prisoners of war.

6. Has the ICC issued charges against other serving heads of state?

It has not, but other courts have taken such action. The International Criminal Tribunal for the former Yugoslavia, or ICTY, indicted President Slobodan Milosevic of Serbia in 1999 for crimes against humanity and other charges. The Special Court for Sierra Leone charged President Charles Taylor of Liberia for war crimes and crimes against humanity committed in Sierra Leone.

Some national courts have placed on trial former heads of state, Such as Alberto Fujimori, currently on trial in Peru, and Augusto Pinochet in Chile before his death and four different heads of state in Argentina, including Jorge Rafael Videla, Roberto Eduardo Viola, Leopoldo Galtieri and Reynaldo Benito Bignone. Thus, from a legal perspective, the prosecutor’s decision to seek the arrest of President Bashir has direct precedents.

7. Does the Security Council have the power to take away the prosecutor’s and the ICC’s authority?

The Rome Statute gives the Security Council authority to defer an investigation or prosecution for 12 months. But in the case of Darfur, the Council in 2005 deemed Darfur a threat to international peace and security. A deferral would seem inconsistent with that finding. A deferral would not wholly stop the prosecutor’s efforts, since it would have to be renewed each year.

8. Will there be any more arrest warrants dealing with Darfur?

The ICC is mandated to try persons for all crimes in Darfur, if the alleged crimes meet the “gravity” threshold and if they occurred after July 2002. It is possible the prosecutor will seek additional warrants, and they may be for rebel leaders if they have been involved in Rome Statute crimes. Until now, most of the ICC’s arrest warrants have been against militia leaders rather than state actors, including several militia leaders from the Democratic Republic of Congo, Joseph Kony of the Lord’s Resistance Army of Uganda and Ali Kushayb, a janjaweed leader in Sudan.

9. Are the arrest warrants likely to worsen the conflict in Darfur?

Sudan’s government holds the key to this question. It has threatened to undermine the peacekeeping mission and humanitarian assistance. The international community should exert all possible pressure to prevent the situation in Darfur from deteriorating.

10. It is sometimes said that the ICC has targeted only African situations in its investigations. Is the ICC attempting to impose western justice and rights norms on the continent, as ICC opponents argue?

With the exception of the Sudan investigation, all the investigations and arrests by the ICC are the result of states asking the court to intervene. That is true for cases involving the Democratic Republic of Congo, Uganda and the Central African Republic.

(Prepared by the International Center for Transitional Justice (ICTJ))