Prosecutor v. Omar al-Bashir: A Detailed Case Summary

Introduction

The case of Prosecutor v. Omar al-Bashir is a major milestone in the history of international law and justice. Sudan’s former president, Omar al-Bashir, became the first sitting head of state to be issued arrest warrants by the International Criminal Court (ICC), it said. The atrocities of which the men are charged occurred in Darfur, southwestern Sudan, where the fighting between government troops and rebels began in 2003 leading to many killings, rapes and relocations of people. The ICC’s involvement in this case underscores its mandate to address the gravest crimes under international law, Also, genocide, crimes against humanity, and war crimes.[1]

In 2009 and 2010 however the issuance of arrest warrants against al-Bashir provided perhaps the ICC’s most profound commitment to ensuring that those in positions of power are held accountable for international crimes. The case targeted a sitting head of state to challenge long term norms of sovereign immunity, while reaffirming the principle that nobody is above the law.[2]

But for the case, the severe obstacles involved in prosecuting international justice are also evident. The international warrants for Al-Bashir’s arrest subsequently exposed the failures of the ICC’s mechanisms of enforcement but above all given that cooperation from state parties is essential to the activation of the court’s powers also the dependence on state cooperation. But the ICC has been roundly criticized by many member states, particularly in Africa, which accused the ICC of disproportionately targeting African leaders, complicating efforts to get al-Bashir to justice.[3] This case is a definitive example of possible and impossible of bringing perpetrators of mass atrocities to account through the ICC.

Background

From 1989 to 2019, Sudanese President Omar al-Bashir oversaw a country hobbled by conflict and political instability and held authoritarian control. The Darfur conflict, which erupted in 2003 in one of the gravest humanitarian crises of the early 21st century, is at the center of the allegations against him. Fueled by ethnic tensions between an Arab-dominated Sudanese government and non-Arab ethnic groups such as the Fur, Masalit and Zaghawa the conflict was prolonged by persistent cross border raids, desertion of the Sudanese army by non-Arabs and by the displacement of the non-Arab population. Other than the government, subdivide rebel movements that rose up against it, like the Sudan Liberation Army (SLA), the Justice and Equality Movement (JEM), were citing decades of neglect and marginalization by central authorities.[4]

In response to the rebellion’s outbreak, al-Bashir’s government launched a counter-insurgency campaign, which it is alleged it pursued using a systematic strategy of directed violence. It accused the Sudanese Armed Forces and their allies, the Janjaweed militia, which is composed primarily of Arab fighters, of committing widespread atrocities. Mass killings, sexual violence and forced displacement of entire villages are documented by international organizations, and villages are burned to the ground.[5]

It displaced millions of civilians, making it one of the world’s biggest displacements of civilians. In 2004, the United Nations reported that this had left over 1.6 million people internally displaced, and at least hundreds of thousands elsewhere. US-sponsored lawsuits targeting al Bashir for ‘genocide’, ‘crimes against humanity’ and violating the prohibition against genocide in the Intermanuel Protocol proved most destructive: finally al Bashir was ‘investigated’ by the ICC, which issued arrest warrants against him.[6]

Charges Against Omar al-Bashir

By Resolution 1593 (2005), the United Nations Security Council (UNSC) referred the issue of Darfur to the ICC investigation. The ICC issued two arrest warrants against al-Bashir in 2009 and 2010. The charges include:

1. Genocide: Al-Bashir is accused by the ICC of wishing to destroy in whole or in part the Fur, Masalit and Zaghawa ethnic groups. Genocide was practiced through acts of killing; serious bodily or mental harm for the purpose of destroying, in whole or in part, a group; and intentionally inflicting on the group conditions of life calculated to bring about its physical destruction.[7]
2. Crimes Against Humanity: They are charged with murder, extermination, forcible transfer of populations, torture and rape. They consisted in the vast or widespread or systematic attack directed against civilian populations.[8]
3. War Crimes: In addition to charges of attacks against civilians intentionally, pillaging and outrages upon personal dignity he was also charged.[9]

Legal Proceedings

On March 4, 2009, the ICC’s Pre Trial Chamber I issued its first arrest warrant against Omar al Bashir. The warrant, charging al-Bashir with crimes against humanity and war crimes including murder, extermination, forcible transfer, torture and rape, was issued on February 22, with dates ranging from May 26, 1998, to June 5, 2010. Instead though, genocide was not even mentioned in the initial charges. On July 12, 2010, the Court issued a second arrest warrant following an appeal by the ICC Prosecutor; three counts of genocide concerning the targeting of the Fur, Masalit and Zaghawa ethnic groups in Darfur were added.[10]

However, neither decisively wins in al-Bashir’s continued rejection of the Court’s jurisdiction he has insisted that these are politically motivated. Even when it comes to ICC member countries obligated to execute arrest warrants, he still continued to fly internationally. For example, he was never arrested in Kenya, South Africa and numerous other countries when he travelled there and that demonstrated fundamental flaws in how the ICC is enforcing its mandate. The Court’s failure to prosecute sitting heads of state under international law was undermined by this lack of cooperation of states party to the Rome Statute.[11]

Significance of the Case

For a number of historical reasons, the case against Omar al-Bashir is historically important. Secondly the issuing of arrest warrants to a sitting head of state was not just a major step for international law but also for the fundamental rule that no one is above the law, no matter what office they hold. On this matter, it was a significant step to once more reinforce the responsibility of leaders in states that are involved in grave international crimes.[12]

Secondly, the very strong inclusion of genocide charges showed how extreme were the crimes committed in Darfur. Through the case covering genocide, the issue had a chance to go global, with regards to the atrocities, and the victim’s plight.[13]

It also showed how much of a struggle it is for the International Criminal Court (ICC) to carry out its mandates when states or regional blocs do not cooperate. Ultimately, the limitations of the court’s jurisdiction and authority were exposed by the reluctance of some countries to arrest al Bashir or to turn him over to the ICC.[14]

Al-Bashir’s warrants also had a substantial political repercussion; it greatly isolated Sudan internationally and contributed to vigorous pressure imposed by international community. The struggle for global justice, and for the international community’s support for the perpetrators of mass atrocities to be held accountable, is symbolized by this case.[15]

Challenges Faced by the ICC

Several operational and political challenges of the International Criminal Court (ICC) are illustrated by the case against Omar al-Bashir. In the first place, the lack of state cooperation was a stumbling block for efforts by the ICC. Yet key member states, such as South Africa and Jordan, hosted al Bashir, whose absence left no country prepared to execute the arrest warrants for violating the Rome Statute, principally on the grounds of diplomatic immunity or regional political considerations.[16]

Second, the ICC met with very strong political against from many African Union (AU) members, who accused the court of being biased against African leaders. The intensification of this criticism raised the level of tensions between the ICC and AU, and the withdrawal of some African countries from the court.[17]

Al-Bashir’s continued presence in Sudan and the support that solidifies him from its and other regional allies also made international steps aimed at arresting him even more difficult. It was also shown how collectively these factors failed to adequately expose the ICC’s own limitations in dealing with high profile cases of impunity.

Current Status

Although he was ousted from power in 2019 following mass protests and a military coup, Omar al Bashir, has never been surrendered to the International Criminal Court (ICC). After he was removed, Sudan’s transitional government, which took power, indicated its willingness to work with the ICC, suggesting it might transfer al-Bashir to stand trial for genocide, war crimes and crimes against humanity. But the transfer has not yet taken place, with al-Bashir remaining detained in Sudan, where he is facing domestic charges such as corruption and his role in the 1989 coup.

Sudan’s new leadership has signalled a desire to follow international justice standards, and there are indications that it is prepared to extradite al Bashir to the ICC, but it has not lived up to that hope and political complexities and domestic challenges have so far obstructed that. His case continues to serve as a test of Sudan’s determination to deliver justice to those killed in the Darfur conflict, and to the international community’s capacity to make state sponsored atrocities accountable.[18]

Conclusion

The case of Prosecutor v. Omar al-Bashir is an icon in international criminal law, and an important story about the extent and the limits of extending the reach of the International Criminal Court (ICC) to hold heads of state accountable for the gravest crimes. However, it draws attention to how hard the ICC works to hold perpetrators accountable despite many hindrances, including the overwhelmingly evident link – and the absent desire to cooperate between states and the political will to oppose. The delay in al-Bashir’s extradition is no doubt a warning about the difficulty of implementing international mandates, but his indictment is an important advance in halting impunity.

To the victims of Darfur, the case is a symbol of hope that justice someday will be forthcoming, although only slowly. While it raises several important questions about the ICC’s mandate to prosecute crimes of international concern versus the tension it creates by furthering state sovereignty, it also does. The case is of course ultimately a reminder of the never ending quest for accountability and the continuing battle to see those responsible for atrocity pay the price, whatever their political status.

Reference(s):

[1] Noëlle Quénivet, The Report of the International Commission of Inquiry on Darfur: The Question of Genocide, 7 Human Rights Review 38 (2006).

[2] Angela Mudukuti, Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral Re Al-Bashir Appeal, 114 American Journal of International Law 103 (2020).

[3] Jean-Baptiste Jeangène Vilmer, The African Union and the International Criminal Court: Counteracting the Crisis, 92 International Affairs 1319 (2016).

[4] Quénivet, supra note 1.

[5] 17 Human Rights Watch/Africa, Sudan, Entrenching Impunity: Government Responsibility for International Crimes in Darfur (2005).

[6] Michael P Scharf, The International Criminal Court’s Arrest Warrant for Omar Al Bashir, President of the Sudan, 48 International Legal Materials 463 (2009).

[7] Manisuli Ssenyonjo, The International Criminal Court and the Warrant of Arrest for Sudan’s President al-Bashir: A Crucial Step Towards Challenging Impunity or a Political Decision?, 78 Nordic Journal of International Law 397 (2009).

[8] William A Schabas, An Introduction to the International Criminal Court (2011).

[9] William A Schabas, The International Criminal Court, in The International Politics of Mass Atrocities 150 (2010).

[10] Ssenyonjo, supra note 7.

[11] Schabas, supra note 9.

[12] Id.

[13] 17 Human Rights Watch/Africa, supra note 5.

[14] Keiichiro Kawai, Who Enforces an Arrest Warrant of the International Criminal Court? An Assessment of the ICC Appeals Chamber’s Surrogation of Jurisdiction Theory from the Perspective of International Organizations Law, 19 Journal of International Criminal Justice 543 (2021).

[15] Tambe Endoh Fabrice, United Nations Security Councils’ Response to the Darfur Conflict in the Sudan: An Appraisal, 5 Mediterranean Journal of Social Sciences 604 (2014).

[16] PROTESTERS IN SUDAN, EXCESSIVE AND DEADLY (2014).

[17] Kasaija Phillip Apuuli, Uganda’s Decision ‘In the Matter of an Arrest Warrant and the Surrender to the International Criminal Court (ICC) of Omar Hassan Ahmed al-Bashir’: Explanation, Issues and Consequences, 2021 African Yearbook on International Humanitarian Law 150 (2021).

[18] Jeremy Sarkin, Reforming the International Criminal Court (ICC) to Achieve Increased State Cooperation in Investigations and Prosecutions of International Crimes, 9 International Human Rights Law Review 27 (2020).