Omar Al-Bashir, First Sitting Head of State Indicted by the International Criminal Court
By ‘Eseta Schaaf
What if gross immoral human rights abuses carried out on a mass scale could be prosecuted by an international and impartial court of law? What if individuals, no matter how high ranking, even heads of state could be held accountable for misuse of power, and violations of international human rights? Well, it is possible, thanks to the International Criminal Court.
Sudanese President Omar Hassan Ahmad Al-Bashir is the first sitting head of state to be indicted by the International Criminal Court. Al-Bashir is charged with ten counts as an indirect perpetrator of the Darfur conflict: two counts of war crimes; five counts of crimes against humanity; and three counts of genocide. Sudan, which is not an ICC member state, was referred to the court under Security Council Resolution 1593, thus obligating it to cooperate. Headquartered in The Hague, the International Criminal Court was established on July 1st 2002 after the founding of the Rome Statute. The ICC can only prosecute crimes committed on or after its founding date.
ICC Prosecutor Jose Luis Moreno Ocampo made the case for al-Bashir’s arrest warrant after the Darfur crisis sparked worldwide attention and outrage. In 2003, the villages of the ethnic groups Fur, Masalit, and Zaghawa were targeted and attacked by the Sudanese government after a rebellion by indigenous groups. The SPLM and JEM accused Khartoum of oppressing non-Arab Sudanese in favor of Sudanese Arabs. According to the charge sheet, Mr. al-Bashir “masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups” in a brutal retaliation campaign of ethnic cleansing which claimed at least 400,000 lives and displaced over 2.5 million Darfuris. The Sudanese government along with the Janjaweed Militia carried out gross human rights violations, inflicted deaths by direct combat, indirectly killed thousands by starvation and disease, and utilized rape and sexual violence as weapons of war.
On July 14th, 2008, the prosecution application was filed for President Omar al-Bashir’s warrant of arrest. The first warrant was issued on March 4th 2009, and charged al-Bashir with five counts of crimes against humanity, and two counts of war crimes. In it, the ICC pre-trial chamber declined to include genocide charges, but after an appeal based on inappropriate standard of proof al-Bashir was served a second arrest warrant on July 12th 2010: a charge of three counts of genocide.
Refusing to recognize the legitimacy of the ICC, and its jurisdiction in Sudan, Mr. al-Bashir has dismissed the charges as lies. Also in opposition to the indictment is the African Union which maintains that the charges could destabilize Sudan. Immediately after the announcement of his indictment, Sudan staged demonstrations in Khartoum denouncing the ICC and showing support for al-Bashir. International humanitarian organizations were expelled and the UN withdrew its non-essential staff for safety concerns. Intimidation and posturing were rampant in vulnerable areas with a high flux of internally displaced persons. Besides Africa’s harboring of al-Bashir, the Arab League, Non-Aligned Movement, Russia and China also condemn the ICC charges.
Since his indictment, the ICC has called on the international community and individual states to support international criminal justice by arresting President Omar al-Bashir upon arrival in their respective territories; however, this hasn’t been the case. Al-Bashir has since visited Egypt, Qatar, Chad, Nigeria, Kenya, Djibouti, and China without being arrested, but has steered clear of most ICC member states.
Although President Omar al-Bashir has not surrendered, the ICC should not be discouraged, and neither should lovers of international criminal justice worldwide. NATO and human rights organizations such as Amnesty International among others back the ICC indictment. The ICC’s first indictment of a sitting head of state serves as an important precedence for future cases; it is a deterrent and warning to brutal regimes that violate human rights and international law with impunity.