Arrest Warrant for Sudanese President

Contributed by Emily Broad, former Executive Director of JSPAN. Emily recently graduated from Harvard Law School, where her studies focused on international human rights law, particularly on political and judicial responses to mass atrocities. On Wednesday, March 4, 2009, the International Criminal Court made history when it issued an arrest warrant for Sudan’s President, Omar Hassan Ahmad al-Bashir, for atrocities committed in the Darfur region of Sudan. The arrest warrant charges al-Bashir with war crimes and crimes against humanity for his role in the widespread murder, rape, torture, and displacement of civilians in Darfur. This is the first time that the ICC has issued an arrest warrant for a sitting head of government, although heads of state have been charged with crimes at other criminal tribunals. ICC Prosecutor Luis Moreno-Ocampo also filed charges against al-Bashir for genocide, but the ICC judges found insufficient evidence in order to issue the arrest warrant on this charge. This was due to the restrictive intent requirement for the crime of genocide, which can only be satisfied with proof that the accused had the “specific intent” to “destroy, in whole or in part, a national, ethnical, racial or religious group” (Rome Statute of the International Criminal Court, Art. 6). Instead, the warrant was issued only for war crimes and crimes against humanity, both of which are easier to prove, as they do not require evidence that the victims were singled out on the basis of race, ethnicity, religion, etc. Al-Bashir’s arrest warrant has caused a massive backlash by the Sudanese government and civilians, as well as the heads of other sympathetic nations. Al-Bashir’s supporters argue that the ICC is a tool for Western colonialism, as evidenced by the fact that the ICC has, to date, only investigated or issued warrants for African conflicts. Though this is true, three of the four criminal investigations underway at the ICC are for conflicts in States Parties to the ICC, who referred their own cases to the ICC. While Sudan is not a State-Party, its conflict was referred to the ICC by the United Nations Security Council. In the days following issuance of the warrant, the Sudanese government forced international aid organizations to close down their operations in Sudan and staged various protests in Sudan’s capital, Khartoum. Sudanese government officials have also threatened violent retaliation against the very civilians the ICC hopes to protect. These responses have reinforced the argument made by some skeptics that the issuance of al-Bashir’s arrest warrant threatens the possibility of peace and advances justice or retribution at the expense of peace. This “peace versus justice” argument has been an ongoing debate in every international criminal tribunal. In looking at a case like that of Darfur, however, it is important to note that, though peace is the primary goal, a claim that an end to the violence is near seems disingenuous. In fact, the conflict in Darfur has persisted since February 2003, and, according to the United Nations, at least 300,000 people have been killed and 2.7 million people displaced in this massive human disaster. Despite the potential dangers from the Sudanese backlash, the arrest warrant for al-Bashir deserves acclaim for a few reasons. First, the ICC has taken another decisive step to end the stalemate in Darfur that has been allowing hundreds of civilians to die every day. The court issued two warrants in 2007 – one for a lower government official and one for a former militia leader – but neither of those individuals has been arrested or brought to justice, and the violence in Darfur has continued despite those warrants. This indictment and arrest warrant may provide the tools to finally move forward in ending the conflict and bringing the perpetrators to justice. Second, this warrant for a head of state strengthens the ICC and its mission. The overarching goal for the ICC, as for any criminal tribunal since Nuremberg, has been to deter future mass atrocities from occurring, rather than focusing purely on punishment of the perpetrators. By showing that not even a sitting head of state is safe from legal action at the ICC, this arrest warrant will deter future mass atrocities and will bring us one step closer to the motto of “Never again,” a motto that has been our aspiration for more than half a century.