A. Introduction

The International Criminal Court (ICC or the Court) was established on 17 July 1998 by the Rome Statute of the International Criminal Court (hereinafter ‘Rome Statute’ or ‘Statute’).Footnote ¹ The Rome Statute which entered into force on 1 July 2002 has been widely ratified by a vast majority of States demonstrating an increasing international recognition by States of the need to hold individuals accountable for international crimes within the jurisdiction of the ICC.Footnote ² Since the ICC became operational, all its active investigations carried out by the Office of the ICC Prosecutor by the end of 2009 were in Africa in four situations in The Democratic Republic of Congo (DRC), Northern Uganda, the Darfur region of Sudan, and the Central African Republic (CAR). Other situations were under preliminary examination by the Office of the ICC Prosecutor in Afghanistan, Colombia, Côte d'Ivoire, Chad, Georgia, Guinea, Kenya, and Palestine.Footnote ³ By 2009 the ICC's highest profile case, which is examined in this article, was the case against Omar Hassan Ahmad Al Bashir (hereinafter Al Bashir),Footnote ⁴ the de jure and de facto President of the State of Sudan, Africa's largest country, since 16 October 1993 and Commander-in-Chief of the Sudanese Armed Forces against whom the ICC Pre-Trial Chamber I issued the arrest warrant on 4 March 2009 as an indirect (co)perpetrator for war crimes and crimes against humanity. This arrest warrant has raised several key questions related to individual criminal responsibility of serving senior State officials of non-State parties to the Rome Statute examined in this article. Such questions relate to the following selected issues: (i) the personal immunities accruing to senior State officials in particular the head of State immunity of non-State parties to the Rome Statute; (ii) criminal responsibility for indirect (co)perpetration under the Rome Statute; (iii) the standard of evidence required to prove genocide at the pre-trial stage under the Rome Statute. This article examines the ICC's decision on the above issues against the background of the situation in Darfur.

B. Background: The Armed Conflict in Darfur and Security Council Referral of the Situation in Darfur to the ICC

Since Sudan achieved independence from the United Kingdom in 1956, it has experienced several armed conflicts.Footnote ⁵ The most recent armed conflict, in which widespread and systematic serious human rights violations have been committed, possibly amounting to war crimes and crimes against humanity, has been in Darfur, western Sudan.Footnote ⁶ The Darfur conflict broke out in 2003 in which insurgents targeted the government of Sudan (GoS) Security forces because the government denied them access to political power and a fair share of the national wealth. The GoS responded with a sustained counter-insurgency offensive to defeat the armed resistance. The situation in Darfur has been so serious to the extent that on 31 March 2005 the United Nations Security Council determined that it constituted ‘a threat to international peace and security’.Footnote ⁷ Acting under Chapter VII of the United Nations Charter and in accordance with article 13(b) of the Rome Statute,Footnote ⁸ the Security Council adopted Resolution 1593, referring ‘the situation in Darfur since 1 July 2002’ to the ICC prosecutor for investigation and prosecution.Footnote ⁹ Darfur thereby became the first (and so far the only) situation referred by the Security Council to the ICC.Footnote ¹⁰ The ICC prosecutor opened an investigation into the situation in Darfur on 1 June 2005. On 14 July 2008 the ICC prosecutor sought the issue of an arrest warrant for Al Bashir on charges for the alleged crimes of genocide, crimes against humanity and war crimes in the Darfur region.Footnote ¹¹

After eight months of consideration, on 4 March 2009 Pre-Trial Chamber I of the ICC (herein after ‘Chamber’) held that it was satisfied that there were ‘reasonable grounds to believe’ that Al Bashir was criminally responsible under article 25(3)(a) of the Rome Statute as an indirect perpetrator, or as an indirect co-perpetrator, for war crimes and crimes against humanity.Footnote ¹² The Chamber issued a warrant for the arrest of Al Bashir, for two counts of war crimes and five counts of crimes against humanity (but not for genocide).Footnote ¹³ In particular Al Bashir was suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur—belonging largely to the Fur, Masalit and Zaghawa groups perceived by the GoS as being close to several organized armed groups opposing the GoS, in particular the Sudanese Liberation Movement/Army (‘the SLM/A) and the Justice and Equality Movement (‘the JEM’) in the ongoing armed conflict in Darfur;Footnote ¹⁴ murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians; and pillaging their property.Footnote ¹⁵ The Chamber issued the warrant after noting that the arrest of Al Bashir appeared necessary under article 58(1) of the Rome Statute to ensure that he (i) will appear before the Court; (ii) will not obstruct or endanger the ongoing investigation into the crimes for which he is allegedly responsible; and (iii) will not continue with the commission of the above-mentioned crimes.Footnote ¹⁶ Thus, on 4 March 2009 Al Bashir joined a growing list of individuals (all so far exclusively in sub-Saharan Africa) against whom the ICC had issued warrants of arrest, accused mainly of crimes against humanity and war crimes.Footnote ¹⁷

The ICC has continued with its focus on investigating and prosecuting crimes in Africa in some cases even when national courts may well have been an option.Footnote ¹⁸ Since the ICC was set up in 2002, all the 13 warrants it had issued by March 2009 had been to political or rebel leaders on the African continent; five for the Lord's Resistance Army (LRA) senior commanders in Uganda;Footnote ¹⁹ four for rebel leaders from the Democratic Republic of the Congo (DRC);Footnote ²⁰ one warrant for the alleged President and Commander-in-chief of the Movement for the Liberation of Congo arising out of the situation in the Central African Republic;Footnote ²¹ two for Sudanese government officials arising out of the situation in Darfur, SudanFootnote ²² and one for the alleged militia (Janjaweed) commander in Sudan.Footnote ²³ The ICC had issued one summons to appear against the President of the United Resistance Front (URF) rebel leader Bahar Idriss Abu Garda for 3 counts of war crimes;Footnote ²⁴ and was considering two new summonses against rebel leaders in Darfur. Rebel leader Bahr Idriss Abu Garda voluntarily appeared in Court on 18 May 2009. It is striking to note that, so far, all other individuals against whom warrants of arrest have been issued or summons to appear are leaders of armed rebel movements except for Al Bashir and his Minister of State for Humanitarian Affairs—Ahmad Harun.Footnote ²⁵

The warrant of arrest for Al Bashir is particularly important because it is the first warrant ever issued for a sitting head of State and/or government by the ICC and the first case involving the alleged crime of genocide before the ICC. In addition, such a warrant if applied without discrimination to other leaders who are alleged to have committed crimes within the jurisdiction of the ICC (in case there is a reasonable basis to proceed) is an important signal that everyone including a president can be held accountable for international crimes within the jurisdiction of the ICC. It is not surprising that human rights organizations welcomed the warrant.Footnote ²⁶ The Pre-Trial Chamber I of the ICC which delivered the warrant of arrest for Al Bashir on 4 March 2009 was composed of presiding Judge Akua Kuenyehia (Ghana), Judge Anita Ušacka (Latvia) and Judge Sylvia Steiner (Brazil). Three aspects of the Chamber's decision are considered below because of their importance in international law, namely heads of State immunity; the concept of indirect (co-)perpetration for international crimes; and the Chamber's finding with respect to genocide.

C. Official Capacity as a Head of State and Head of State Immunity

The term immunity generally means that ‘a court cannot entertain a suit, not that the defendant is immune from criminal liability altogether’.Footnote ²⁷ While it is recognized that immunities are ‘valuable in preventing interference with representatives, and thereby maintaining the conduct of international relations, they can also lead to serious injustice’.Footnote ²⁸ This normally arises where a head of State or government, a member of government or parliament or an elected representative or a government official relies on immunity which may attach to the official capacity to avoid criminal prosecution.

Generally, under customary international law, serving heads of State are accorded immunity from the criminal jurisdiction of foreign States.Footnote ²⁹ Those immunities, as stated by the ICJ in the Arrest Warrant case,Footnote ³⁰ ‘protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties’. Treaties may also confer immunity on serving heads of State when abroad, for example as State representatives to international organizationsFootnote ³¹ or special missions.Footnote ³² This immunity from criminal jurisdiction includes immunity from personal arrest or detention and extends even to cases where heads of State are suspected of having committed war crimes or crimes against humanity.Footnote ³³ As noted by the ICJ:

However, serving heads of States parties to the Rome Statute are not immune from ICC jurisdiction because such States have agreed to an exception under article 27 (1) of the Rome Statute, which provides that the ‘Statute shall apply equally to all persons without any distinction based on official capacity’. While discussing immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs in the Arrest Warrant case, the ICJ held that the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances including the following:

It makes sense to apply the above position to a head of State. Thus, serving heads of State parties to the Rome Statute cannot invoke immunity of heads of State because of article 27. However, Sudan has not ratified the Rome Statute and so is not bound by article 27. In the case of non-States parties to the Rome Statute such as Sudan a question arises whether Sudan is bound by the Rome Statute, including its article 27. Does President Al Bashir enjoy immunity from arrest and prosecution as a head of State not party to the Rome Statute? Should Sudan as a non-State party to the Rome Statute be treated as a party to the Rome Statute (and thus bound by the provisions of the Rome Statute including article 27) by virtue of the compulsory nature of the Security Council powers under Chapter VII of the UN Charter?

The Rome Statute cannot create obligation for a non-State party without its consentFootnote ³⁶ and as such the Statute cannot remove the official immunity enjoyed by a head of State of a non-State party. Indeed under the Rome Statute, States parties to the Rome Statute must not act inconsistently with the State or diplomatic immunity obligations of non-State parties.Footnote ³⁷ It must be recalled that under the UN Charter, Security Council resolutions adopted under Chapter VII are binding on all UN Member States, including Sudan.Footnote ³⁸ Although the ICC Chamber applied Resolution 1593 to justify its jurisdiction over Al Bashir,Footnote ³⁹ its interpretation of Resolution 1593 was broad. The Chamber did not explicitly address the question of immunity. It only considered immunity implicitly when dealing with the question of jurisdiction. As a preliminary matter the Chamber considered summarily the question of whether the case against Al Bashir falls within the jurisdiction of the ICC. In answering this question in the affirmative, the Chamber held that

In effect, Sudan was treated as a State party to the Rome Statute not by its consent but as a result of Resolution 1593. However, Resolution 1593 did not expressly deal with the question of immunity. It should be recalled that in its refusal to cooperate with the ICC Sudan has argued that it ‘would never cooperate with the Court since it was not a signatory [sic, note that Sudan is a signatory but not a party] to the Rome Statute’.Footnote ⁴¹ The argument that Sudan is not a party to the Rome Statute is likely to be raised with respect to immunity if Al Bashir stands trial. Therefore, it could be argued that, since Sudan is not a party to the Rome Statute, its head of State's immunity in customary international law has not been affected by article 27, as the Rome Statute cannot clearly bind a non-State party. Other States, acting collectively, cannot remove immunity by a treaty to which the State possessing the immunity under customary international law is not a party, when they can not do this individually. Therefore, the fact that the ICC is an international court does not ipso facto mean that immunity cannot be invoked before it, as the ICC Member States could not have transferred to an international organisation the power to try persons whom for want of jurisdiction they could not try themselves, eg, the head of State of a non-party.Footnote ⁴²

However, although article 27 does not remove the head of State immunity of non-State parties to the Rome Statute, in the case of Al Bashir such immunity may be regarded as having been removed by Security Council Resolution 1593 that referred the situation in Darfur to the ICC under Chapter VII of the UN Charter. It is well established that the Security Council can withdraw immunity from anyone, and this is what it had done in establishing the ad hoc tribunals.Footnote ⁴³ Although Security Council Resolution 1593 does not explicitly remove immunity enjoyed by the head of State, it could be argued that such immunity was removed implicitly on the basis of any of the following: (i) Security Council referral to the ICC means that all individuals investigated and prosecuted via the referral are bound by the provisions of the Rome Statute including article 27;Footnote ⁴⁴ (ii) that when the Security Council decided in Resolution 1593 operative paragraph 2 that the GoS Sudan ‘shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ that included a lifting of the immunity; (iii) that article 27 restates an already existing principle of customary international law concerning the exercize of jurisdiction by any international court. Thus, it applies with respect to every person enjoying immunities under customary international law, regardless of whether the State this person represents is a party to the Rome Statute.Footnote ⁴⁵

In reaching its decision on jurisdiction, the Chamber advanced its reasons upon which its jurisdiction was based. The Chamber noted that according to the preamble of the Rome Statute, one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, which ‘must not go unpunished’.Footnote ⁴⁶ The Chamber observed that in order to achieve this goal article 27(1) and (2) of the Rome Statute provide for the following ‘core principles’:

1. (i) ‘This Statute shall apply equally to all persons without any distinction based on official capacity;’

2. (ii) ‘[…] official capacity as a Head of State or Government, a member of Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence;’ and

3. (iii) ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’Footnote ⁴⁷

While putting an end to impunity is a legitimate goal, in itself it does not provide sufficient legal basis which can entitle the ICC to disregard immunities of serving heads of non-State parties. This goal is stated in the Rome Statute to which Sudan is clearly not a party and thus not bound by it. Arguably the Chamber's decision suggests that any claim to immunity by Al Bashir would be inconsistent with Sudan's obligation as a signatory State to the Rome Statute to ‘refrain from acts which would defeat the object and purpose of a treaty’,Footnote ⁴⁸ which is to avoid impunity for those responsible for the most serious crimes. Similar but less detailed provisions can be found in the statutes of UN international criminal tribunals.Footnote ⁴⁹ However the Chamber did not make any analysis of article 27(1) and (2) of the Rome Statute.Footnote ⁵⁰ It is submitted that article 27(2) of the Rome Statute simply restates an already existing principle of international law concerning the exercize of jurisdiction by any international criminal court. In this regard, it will be recalled that that there are two categories of rules granting immunity from criminal responsibility, namely those accruing under international law and those provided for in national legislation.Footnote ⁵¹ Immunities accruing under international law may relate either to the conduct of State agents acting in their official capacity (so-called functional—rationae materiae or organic—immunities), or protect the private or official acts carried out by some categories of State officials, such as heads of State and diplomats, accredited to a host country, while in office, as well as private or official acts performed prior to taking office, and are possessed only as long as the official is in office (personal or rationae personae immunities).Footnote ⁵²

Both functional and personal immunities may be invoked by a State official before foreign courts, while national immunities involve exemption from national jurisdiction. However, immunities that exist in national or in international law (eg constitutional law and all rules of general and special international law such as those contained in the 1961 Vienna Convention on Diplomatic Relations) ‘shall not bar the Court [ICC] from exercising jurisdiction’.Footnote ⁵³ This confirms that in principle the ICC can indict, issue an arrest warrant for and prosecute a serving head of State provided that the State is a party to the Rome Statute or, as in the case of Sudan, that the situation is referred to the ICC by the Security Council under Chapter VII of the UN Charter. Under article 25 of the UN Charter, Sudan is obliged to accept and carry out decisions of the Security Council.Footnote ⁵⁴ As noted by the Chamber,

By implication, the Chamber took the view that the Security Council implicitly adopted article 27 of the Rome Statute and as such the ICC has jurisdiction over Al Bashir, not withstanding his position as a serving head of State of a non-State party to the Rome Statute.

It should be noted that prosecuting serving heads of States by the ICC is consistent with the practice of other international criminal tribunals. The International Criminal Tribunal for the former Yugoslavia (ICTY) indicted Slobodan Milošević whilst he was still the head of State of the Federal Republic of Yugoslavia.Footnote ⁵⁶ Likewise, in June 2003, the Special Court for Sierra Leone (SCSL) indicted and issued an arrest warrant for Charles Taylor while he was president of neighbouring Liberia.Footnote ⁵⁷ The SCSL held that ‘the principle seems now well established that the sovereign equality of States does not prevent a Head of State from being prosecuted before an international criminal tribunal or court’.Footnote ⁵⁸ It relied on passages in Pinochet and the Arrest Warrant case which make reference to the possibility of prosecution before international criminal courts where such courts have jurisdiction.Footnote ⁵⁹ Nevertheless, in both of these cases (Milošević and Taylor), custody of the accused was only secured after they had been removed or stepped down from power. Thus their trials commenced when they were former heads of State, as indicated in the Arrest Warrant case.Footnote ⁶⁰ Under international law serving heads of State are immune from the jurisdiction of other States and as such they may not be prosecuted in foreign national courts although they may be prosecuted before ‘certain international tribunals’ (since these are not organs of a particular State or group of States), where these have jurisdiction, giving as examples of such tribunals the ICTY, the International Criminal Tribunal for Rwanda (ICTR) and the ICC. In the case of genocide, the Genocide ConventionFootnote ⁶¹ states that persons committing genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide ‘shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. In such cases, the Genocide Convention clearly lifts immunity. It is also significant to note that the ICJ implicitly admitted that under customary international law official status does not relieve responsibility for genocide.Footnote ⁶²

Although in the decision to issue a warrant of arrest for Al Bashir, the majority of the Chamber did not find reasonable grounds to believe that Al Bashir had committed genocide, there was consensus that there were reasonable grounds to believe that he was an indirect perpetrator (or according to the majority an indirect co-perpetrator) of war crimes and crimes against humanity, as shown in section E below. Given that these are among the most serious crimes of concern to the international community as a whole, which ‘must not go unpunished’, it is understandable that official capacity as a head of State or government and immunities which may attach to such capacity could not bar the ICC Chamber from considering Al Bashir's alleged criminal responsibility under the Rome Statute at the stage of issuing a warrant of arrest. It is likely, however, that if the prosecution proceeds to the trial stage, the admissibility of the Al Bashir case or the jurisdiction of the ICC in the case would be challenged on the basis of Al Bashir's official capacity as head of State of a State not a party to the Rome Statute.Footnote ⁶³ As noted by the Pre Trial Chamber, its decision was ‘without prejudice to a further determination of the matter pursuant to article 19 of the statute’.

D. Al Bashir's Criminal Responsibility as an Indirect Perpetrator, or as an Indirect Co-perpetrator

It should be recalled that in his application for the issuance of an arrest warrant against Al Bashir, the ICC prosecutor argued that Al Bashir did not physically or directly carry out the alleged crimes but committed them (indirectly) through members of the State apparatus, the army and the militia. This means that the application was based on the view that Al Bashir was an indirect perpetrator or an indirect co-perpetrator; of note is that this was the first time a prosecutor before an international tribunal has based a prosecution on the concept of indirect perpetration.Footnote ⁶⁴ Indirect perpetration and indirect co-perpetration are provided for in article 25(3)(a) of the Rome Statute, which recognizes that a person can commit a crime ‘through another person’ or ‘jointly with another’ in the following terms:

The Chamber defined the notions of indirect perpetration and indirect co-perpetration. In relation to the notion of indirect perpetration,Footnote ⁶⁵ the Chamber referred to its decision on the confirmation of the charges in the Katanga and Ngudjolo case where it highlighted that

The Chamber held that the notion of indirect co-perpetration is applicable when some or all of the co-perpetrators carry out their respective essential contributions to the common plan through another person.Footnote ⁶⁷ It recalled that in these types of situations

The majority found that there were reasonable grounds to believe that, soon after the April 2003 attack on the El Fasher airport, a common plan to carry out a counter-insurgency campaign against the SLM/A, the JEM and other armed groups opposing the GoS in Darfur was agreed upon at the highest level of the GoS by Omar Al Bashir and other high-ranking Sudanese political and military leaders.Footnote ⁶⁹ The Chamber also found that there were reasonable grounds to believe that a ‘core component’ of such common plan was the unlawful attack on that part of the civilian population of Darfur —belonging largely to the Fur, Masalit and Zaghawa groups—perceived by the GoS as being close to the SLM/A, the JEM and other armed groups opposing the GoS in the ongoing armed conflict in Darfur.Footnote ⁷⁰ Furthermore, the majority found that there were reasonable grounds to believe that Omar Al Bashir and the other high-ranking Sudanese political and military leaders directed the branches of the ‘apparatus’ of the State of Sudan that they led, in a coordinated manner, in order to jointly implement the common plan.Footnote ⁷¹ In particular, the Chamber found that there were reasonable grounds to believe that the common plan was, to a very important extent, implemented through State and local security committees in Darfur.Footnote ⁷² The Chamber concluded that Al Bashir, as de jure and de facto president of the State of Sudan and commander-in-chief of the Sudanese Armed Forces, played an ‘essential role’ in coordinating the design and implementation of the common plan.Footnote ⁷³

In the alternative, the Chamber found that there were reasonable grounds to believe that Al Bashir (i) played a role that went beyond coordinating the implementation of the common plan; (ii) was in full control of all branches of the ‘apparatus’ of the State of Sudan, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Forces, the National Intelligence and Security Service (‘the NISS’) and the Humanitarian Aid Commission (‘the HAC’) and (iii) used such control to secure the implementation of the common plan.Footnote ⁷⁴ As a result, the Chamber found that there were reasonable grounds to believe that Al Bashir was criminally responsible as an indirect perpetrator, or as an indirect co-perpetrator,Footnote ⁷⁵ under article 25(3)(a) of the Rome Statute for:

1. i. intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities as a war crime, within the meaning of Article 8(2)(e)(i) of the Statute;

2. ii. pillage as a war crime, within the meaning of Article 8(2)(e)(v) of the Statute;

3. iii. murder as a crime against humanity, within the meaning of Article 7(l)(a) of the Statute;

4. iv. extermination as a crime against humanity, within the meaning of Article 7(l)(b) of the Statute;

5. v. forcible transfer as a crime against humanity, within the meaning of Article 7(1)(d) of the Statute;

6. vi. torture as a crime against humanity, within the meaning of Article 7(l)(f) of the Statute; and

7. vii. rape as a crime against humanity, within the meaning of Article 7(1)(g) of the Statute.Footnote ⁷⁶

The application of indirect perpetration (or indirect co-perpetration) in the Al Bashir case is a welcome development in line with the present trends because today more than in the past it is State officials, and in particular senior officials, that commit international crimes.Footnote ⁷⁷ It is rare for such persons to commit such crimes directly; instead they order, plan, instigate, organize, aid and abet, culpably tolerate or acquiesce, or willingly or negligently fail to prevent or punish international crimes.Footnote ⁷⁸ In any case, it is likely that international crimes by definition may involve senior State officials. This is the case, for example, with crimes against humanity defined in article 7 of the Rome Statute as being committed as part of a ‘widespread or systematic attack’ directed against any civilian population, with knowledge of the attack. It is unlikely that an attack would be ‘systematic or widespread’ without some form of involvement of State officials or by an organized group. It is also the case that State officials would often avoid direct involvement in the commission of international crimes in order to avoid potential criminal prosecution or negative publicity. Thus, the best way to ensure accountability of such leaders is by holding them accountable either as indirect perpetrators or, when appropriate, as indirect co-perpetrators.

E. Insufficient Evidence to Prove Genocide

There has been considerable controversy over the question whether or not genocide was committed in Darfur. A brief background is useful to understand the nature of this controversy. In September 2004, the United States Secretary of State Colin Powell called upon the UN Security Council to initiate a full investigation in Darfur, claiming that ‘genocide has occurred and may still be occurring in Darfur’.Footnote ⁷⁹ In response to Secretary of State Powell's appeal, Security Council Resolution 1564 of 18 September 2004 requested that the Secretary General rapidly establish

The UN Secretary General promptly created an International Commission of Inquiry (‘the Commission’), chaired by Professor Antonio Cassese, as called for in the above Security Council Resolution. The five-member commission included three African members from Ghana, South Africa and Egypt. The Commission in its report to the Secretary General on 25 January 2005 found that violations of international humanitarian law and human rights law had occurred and were continuing in Darfur and that the Sudanese justice system was unwilling and unable to address the crimes.Footnote ⁸¹ However, it disagreed with Secretary of State Powell, concluding that the violations that had been committed in the Darfur region of Sudan were not acts of genocide but rather crimes against humanity, essentially because it failed to find evidence of a State plan or policy to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious ground.Footnote ⁸² The Commission called for prosecution by the ICC.Footnote ⁸³

Notwithstanding the Commission's view on genocide, the ICC prosecutor submitted that there were reasonable grounds to believe that President Al Bashir bears criminal responsibility for genocide.Footnote ⁸⁴ Did the GoS and Al Bashir commit genocide? The answer to this question depends on whether or not the GoS and Al Bashir had intent to destroy, in whole or in part, a national, ethnical, racial or religious group.The former Senior Prosecuting Counsel at the ICTY and ICC noted that ‘[s]erious disagreement remains, however, as to whether Al Bashir and the Sudanese government intended actually to destroy, in part, the Fur, Masalit and Zaghawa peoples of Darfur’.Footnote ⁸⁵ As shown below, this disagreement was manifested in the Pre-Trial Chamber's Decision in the Al Bashir case.

Genocide is defined in Article 6 of the Rome Statute.Footnote ⁸⁶ This provision is essentially similar to article II of the Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention).Footnote ⁸⁷ By article 6 of the Rome Statute, genocide means any of the following acts committed with ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group’:

1. (a) Killing members of the group;

2. (b) Causing serious bodily or mental harm to members of the group;

3. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. (d) Imposing measures intended to prevent births within the group;

5. (e) Forcibly transferring children of the group to another group.

Thus the specific intent (dolus specialis) to destroy in whole or in part a national, ethnical, racial or religious group is an essential component of the definition of genocide. Accordingly, to prove genocide it has to be shown that

It is important to note that the ICC Elements of CrimesFootnote ⁸⁹ on genocide adds contextual elements as an objective point of reference for the determination of a realistic genocidal intent by providing:

The above contextual element was incorporated by the Chamber.Footnote ⁹⁰ However this remains a contentious issue because the ICC Elements of Crimes are not legally binding on the Court.Footnote ⁹¹ The Chamber found, by a majority of two to one,Footnote ⁹² that the materials provided by the prosecution failed to provide reasonable grounds to believe that the government of Sudan acted with a specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups. The majority observed that:

Given that a specific intent to destroy in whole or in part the targeted group (national, ethnic, racial or religious) is an essential element of the crime of genocide,Footnote ⁹⁴ the majority held that

Consequently, the warrant of arrest does not include any count for genocide. Nevertheless, the majority considered that if, as a result of the ongoing prosecution's investigation into the crimes allegedly committed by Al Bashir ‘additional evidence on the existence of a GoS's genocidal intent is gathered’, the majority's conclusion would not prevent the prosecution from requesting, pursuant to article 58(6) of the Statute, an amendment to the arrest warrant for Al Bashir so as to include the crime of genocide.Footnote ⁹⁶ It is, however, unlikely that such evidence would be obtained on the basis of nationality, race or religion because, as the majority observed, there are no reasonable grounds to believe that nationality, race and/or religion are a distinctive feature of any of the three different groups (the Fur, the Masalit and the Zaghawa) allegedly targeted.Footnote ⁹⁷ Indeed, the members of these three groups, as well as others in the region, appear to have Sudanese nationality, similar racial features and a shared Muslim origin.Footnote ⁹⁸ The only possible ground is that each of the said three groups is a distinct ethnic group as each group has its own language, its own tribal customs and its own traditional links to its lands.Footnote ⁹⁹ As Cayley observed:

However, in a partly dissenting opinion, Judge Anita Ušacka found reasonable grounds to issue an arrest warrant on the basis of the existence of reasonable grounds to believe that Al Bashir committed the crime of genocide.Footnote ¹⁰¹ There were two main reasons for her dissent from the majority. Firstly, unlike the majority, she looked at the target of the counter-insurgency campaign as being a single ethnic group of the ‘African tribes’, which in turn comprised of smaller groups, including the Fur, Masalit and Zaghawa.Footnote ¹⁰² She noted that the Fur, Masalit and Zaghawa population was targeted as a unitary—though diverse—entity of ‘African tribes’, even though neither the perceived entity nor the Fur, Masalit and Zaghawa are in fact racially distinct from the perceived ‘Arab’ tribes.Footnote ¹⁰³

Secondly, she applied a lower evidentiary threshold as required at the arrest warrant stage. Trials at the ICC take three stages: (i) the issuance of a warrant of arrest or summons to appear under article 58 of the Rome Statute; (ii) the confirmation of the charges and committal of a person for trial under article 61 of the Rome Statute; and (iii) the conviction of an accused person under article 66 of the Rome Statute. Significantly, different evidential standards must be met at each stage of the trial, and these are progressively higher. At the stage of issuing an arrest warrant or a summons to appear, the Pre-Trial Chamber need only be ‘satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court’.Footnote ¹⁰⁴ In contrast, when deciding whether or not to confirm the charges, the Chamber must determine whether there is ‘sufficient evidence to establish substantial grounds to believe that the person committed the crime charged’.Footnote ¹⁰⁵ Finally, at the trial stage, the Trial Chamber must ‘be convinced of the guilt of the accused beyond a reasonable doubt’ in order to convict an accused.Footnote ¹⁰⁶

Judge Ušacka decided that, given the preliminary nature of the proceedings at the arrest warrant stage, the prosecution need not demonstrate that genocidal intent is the only reasonable inference available on the evidence.Footnote ¹⁰⁷ This is because this is ‘tantamount to requiring the Prosecution to present sufficient evidence to allow the Chamber to be convinced of genocidal intent beyond reasonable doubt, a threshold which is not applicable at this stage, according to article 58 of the Statute’.Footnote ¹⁰⁸ This appears to be a correct interpretation of the Rome Statute because, as noted above, all that is required in order to obtain an arrest warrant under article 58 of the Rome Statute is for the Chamber to be satisfied that ‘[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court’.Footnote ¹⁰⁹ The evidence which raises reasonable grounds to believe need not be at the same level as that necessary to justify a conviction or even to confirm the charge.Footnote ¹¹⁰ Judge Ušacka found the evidence submitted sufficient, concluding, inter alia, that Al Bashir ‘possessed the intent to destroy the ethnic group of the “African tribes” as such’.Footnote ¹¹¹ Although this is a wider understanding of a targeted group, it would raise the threshold for what amounts to a ‘substantial’ part of the group. Nonetheless, she acknowledged that:

It is implicit in the foregoing dissent that the majority were not satisfied that there were reasonable grounds to believe that Al Bashir committed genocide for two main reasons: (i) they failed to identify the targeted group which Judge Ušacka identified as ‘African tribes’ targeted as the result of a perception of an affiliation between the Fur, Masalit and Zaghawa and the rebel groups as opposed to ‘Arab tribes’, and (ii) the evidential standard applied by the majority at the pre-trial stage requiring the prosecution to demonstrate that genocidal intent was the only reasonable inference available on the evidence was higher than required. In effect, this standard went beyond proving that there were ‘reasonable grounds to believe’ as required at the pre-trial stage, and amounted, in substance, to requiring the prosecution to prove the charges of genocide at the pre-trial stage ‘beyond reasonable doubt’, yet this standard applies at the trial stage.

As expected, the ICC Prosecutor applied for leave to appealFootnote ¹¹³ under article 82(1)(d) of the Rome StatuteFootnote ¹¹⁴ and his application was granted to consider whether the correct standard of proof in the context of article 58 of the Rome Statute requires that the only reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.Footnote ¹¹⁵ If the appeal succeeds, this means that the Prosecutor would be able to seek the addition of genocide charges to Bashir's arrest warrant. The decision of the Appeals Chamber in this regard would help to provide clarity on the law on proof by inference, particularly at the arrest warrant stage. If the Appeals Chamber reinstates the genocide charge, this might create an additional obligation for States parties to the Genocide Convention to arrest Al Bashir because the Genocide Convention contains an implicit obligation to cooperate with competent international courts including an obligation to arrest persons (whether they are constitutionally responsible rulers, public officials or private individuals) suspected of genocide.Footnote ¹¹⁶

Certainly, as is well known, it is generally difficult to establish the crime of genocide because of the difficulty in proving intent to destroy a protected group as such. Save in the case of a confession (which is difficult to obtain), there will hardly be any direct evidence to prove the specific ‘intent to destroy’ a protected group in whole or in part. Indeed, the ICTY has so far been unable to establish genocide anywhere in Bosnia except in Srebrenica, where in July 1995 Bosnian Serb forces massacred around 8,000 Bosnian Muslim men and boys.Footnote ¹¹⁷ Time will show if genocide charges in the Al Bashir are well founded, or founded at all. Although the majority did not find reasonable grounds to issue a warrant for genocide against Al Bashir, it remains a fact that the indictment for crimes against humanity and war crimes represents the recognition by the ICC of Al Bashir's alleged liability for some of the most serious crimes in international criminal law. While genocide is perceived to be the ‘crime of crimes’, crimes against humanity and war crimes can be as extremely serious as genocide.

F. Conclusion

The analysis above allows us to make several concluding observations about the ICC warrant of arrest for President Al Bashir. The establishment of the ICC is a major step ahead in the struggle against impunity. The Court's decision to issue a warrant of arrest for Al Bashir confirms this. Since the warrant was issued, there have been renewed efforts to address the question of accountability for serious crimes of international concern at the regional level in Africa, which would be complementary to national jurisdiction and processes for fighting impunity. In this regard it is important to note that the African Union (AU) has considered the possibility of empowering the African Court of Justice and Human Rights with new powers to try persons for international crimes such as genocide, crimes against humanity and war crimes in a manner complementary to national jurisdiction.Footnote ¹¹⁸ This would be a positive development if the African Court receives full cooperation from all African States with respect to its additional criminal jurisdiction.

Following the ICC's investigations in Darfur, Sudan instituted some legal reforms ostensibly designed to improve domestic accountability. These include the establishment of the Special Criminal Court on the Events in Darfur in June 2005; the establishment of two additional special courts in November 2005, and numerous committees—the Judicial Investigations Committee, the Special Prosecutions Commissions, the Committees against Rape, the Unit for Combating violence Against Women and Children of the Ministry of Justice, the Committee on Compensations; the establishment of the Specialised Prosecution for Crimes against Humanity Office in Khartoum; and the reform of Sudan's Criminal Code to include international crimes such as crimes against humanity and war crimes. While such domestic institutions have the potential to prosecute international crimes, these courts have not conducted proceedings relevant to the ICC after four years.Footnote ¹¹⁹ This has been due to lack of political will and lack of capacity to hold perpetrators accountable.Footnote ¹²⁰ As a result, the perpetrators of serious crimes in Darfur have overwhelmingly remained unpunished.Footnote ¹²¹ Indeed, Sudan's courts cannot prosecute President Al Bashir while still in office given his immunity unless three quarters of all Members of the national legislature pass a resolution lifting Presidential immunity on the basis that Al Bashir's indirect perpetration of alleged international crimes in Darfur amounted to a ‘gross violation of [the] Constitution or gross misconduct in relation to State affairs’.Footnote ¹²²

Although the Court's decision cannot be rightly considered as being political, it must be noted that the Prosecutor's decision to prosecute Al Bashir, a sitting head of State, is a ‘profoundly political decision’ since its consequence is a call for regime change.Footnote ¹²³ As shown above, Al Bashir is the first sitting president to be indicted for war crimes and crimes against humanity by the ICC, a move that has certainly broken new ground in confirming that official capacity as a serving head of State and immunity which may attach to such official capacity is not a bar to the ICC's investigation and prosecution. As noted above, the Pre Trial Chamber did not examine in detail the question of immunities of State officials whose States are not party to the Rome Statute and the question of whether States parties to the Rome Statute can rely on Article 98 of the Rome Statute to justify non-cooperation with the ICC. This requires clarification in the future.

Despite the controversy arising from the issue of the warrant, it is an important step towards ensuring accountability for international crimes allegedly committed in Darfur. For the millions of Darfuri victims of the conflict, this decision provides an independent legal recognition that there are ‘reasonable grounds to believe’ that Al Bashir (as an indirect perpetrator or an indirect co-perpetrator) is personally criminally responsible for the war crimes and crimes against humanity committed against them. However, Al Bashir has claimed innocenceFootnote ¹²⁴ and insisted in his first interview since an arrest warrant was issued that:

In light of the above defence, President Al Bashir should not wait for the Security Council (an organ that is perceived by the GoS to be an instrument of American and British power)Footnote ¹²⁶ to act under articles 41–42 of the UN Charter. He could voluntarily surrender himself to the ICC and defend himself, but this is highly unlikely since he does not respect the ICC as an independent court. Surely, his arrest and surrender to the ICC remains a challenge as his trial depends on his presence before the ICC yet the AU Member States to the Rome Statute,Footnote ¹²⁷ the League of Arab States,Footnote ¹²⁸ the Standing Commission for Afro-Arab CooperationFootnote ¹²⁹ and some permanent members of the UN Security Council (in particular the Russian Federation and China) are opposed to the warrant.Footnote ¹³⁰ At the current stage, it is certainly difficult to obtain Al Bashir's custody, and as such the warrant of arrest is likely to remain ink on paper, at least in the short-run. However, even if Al Bashir ends up in the custody of the ICC, his prosecution, though significant in ending impunity, is unlikely to end the conflict in Darfur. This is because the conflict in Darfur is a manifestation of a broader crisis affecting the whole of Sudan.Footnote ¹³¹ It is a long-term consequence of the development of a colonial and post-colonial system in which a minority of the population, concentrated in and around Sudan's capital Khartoum, maintained monopoly over political power and economic resources, leaving millions of Sudanese (including those in Darfur) politically disempowered and victims of ‘domination, economic underdevelopment and marginalisation’.Footnote ¹³² Thus the ICC arrest warrant for President Al Bashir must be complemented by other effective measures outside the jurisdiction of the ICC including measures (by the GoS and other influential regional actors in particular the African Union and the League of Arab States) to address inequality in access to political power and economic resources in order to redress historical imbalances in Sudan.