On July 14, 2008, the Prosecutor of the International Criminal Court (ICC) applied to a Pre-Trial Chamber of the ICC for an arrest warrant against Sudan’s President, Omar Hassan Ahmad Al-Bashir. The sitting President is charged with genocide, crimes against humanity and war crimes. Can the Court try him? What is the legal basis for such an action?

Background
Since 2003 Darfur has lost nearly three million of its population by either slaughter, displacement or rape because of the ongoing violence between the Sudanese Armed Forces, allied militias and rebel groups, based on the struggle for power. The Sudanese government and the Janjaweed, a military group consisting of Arabs working for the government, spent five years destroying the African population. Some of the methods were rape, sexual violence and torture, physical suffering, destruction of property and ethnical cleansing. These acts of genocide, crimes against humanity and war crimes were in accordance with the orders coming from the president of Sudan, Omar Hassan Ahmed Al-Bashir. The situation deteriorated to an extend that the Security Council found a meeting to be necessary. The issue was put in the hands of the International Criminal Court, referred to as the ICC hereafter.

Definition of the crimes in art 6, 7 and 8 in the Rome Statute
The ICC is based on the Rome Statue, referred to as the statute hereafter. The jurisdiction of the court is limited to the most serious crimes as with the crime of genocide, crimes against humanity, war crimes and crime of aggression.

The word genocide stands in this purpose for the deliberate murder of a whole group or race of people, national, ethnical, religious or racial. Physical and mental harm of the group are examples of genocide actions within the meaning of art 6 in this statute.

Crimes against humanity stands in this purpose for the widespread or systematic attack against people with the intent to either murder or exterminate. Torture and other inhuman acts are examples of crimes against humanity within the meaning of art 7 in this statute.

A war crime is a cruel act done during war which is illegal under international law and is therefore, in the purpose of this statue, a violation against the Geneva Convention of 12 august 1949, about protection for people and property. Acts of torture and destruction of properties are examples of war crime within the meaning of art 8 in this statute.

The court’s jurisdiction
The ICC treats both national and international law within its jurisdiction. There are three main factors of the courts jurisdiction. The first is the three crimes within the statue. Second, the principle of Jurisdiction ratione temporis , which means that the court only has jurisdiction over crimes committed after the entry into force of the statute. The third is that the court can exercise its jurisdiction over the territory or nationality of the state that has ratified the statue. This meaning that the court may handle a case where the crime has been committed within a territory, or where the crime has been committed by a citizen of a nation, that is a party to the statute.

The ICC operates under a complementary rule under art 19 of the statue which e contrario says that the ICC as a court exercises its jurisdiction to prosecute crimes if a country is unwilling or unable to prosecute the case themselves. If a state has made such a prosecution, then the court has no jurisdiction according to the principle of “ne bis in idem” which translates “not twice for the same” (art 20)

Parties to this statue have accepted the jurisdiction of the court, which then may be exercised, if it is refereed by either a state, the Security Council or on the initiative of the prosecutors themselves. Although a state is not a party to the statue the jurisdiction of the ICC may by exercised when the Security Council, referred to as the council hereafter, refers the case to the court, but only if a state has violated human rights in its territory. (ICC). In other words, the referring right of the council covers countries all over the world.

The council may do such a referral to the prosecutor in accordance with art VII of the charter of United Nations about resolutions concerning threats and breaches to international security, referred to as the UN-charter hereafter. It is a duty of theirs to determine if it exists any threat/breach or an act of aggression to the peace and shall therefore as a duty of theirs, make recommendations or decide what act should be taken to restore the peace and security. This was the case in the investigation of the action of Sudan’s President, Omar Hassan Ahmad al-Bashir.

In the UNSC Resolution, in march 2005, the council made a request of ICC Prosecutor Luis Moreno-Ocampo to investigate the situation in Darfur, in the regard that the situation in Sudan is continuously going to constitute a threat to international peace and security. The prosecutor was given three months of a date to adopt a resolution made by the council.

Legal basis of the case
Prosecutor Luis Moreno-Ocampo submitted an application of a warrant against Omar Hassan Ahmed Al-Bashir for genocide crimes under art 6, for killing members of target groups, causing them seriously and bodily harm and conflicting with the groups condition to cause physical destruction. Furthermore, for crimes against humanity under art 7, committed in accordance with the meaning of the statute which is described above under definition. This involves murder and extermination by forcible transfer of the population, torture and rapes. The last charge comprises war crime under art 8, for intentionally directing attacks against civilian population and damaging towns or places.

There exist both material elements and mental elements of intention. According to art 30 in the statute he is criminally responsible due to the intention and knowledge of the crimes he masterminded as a hierarch. More specific guilty of targeting specific groups and using genocide in struggle for power and therefore violating the Geneva Convention.

In addition to the latter, the legal basis for the court to prosecute Al-Bashir is regulated in art 25 and 27 of the statute. According to the individual criminal responsibility in art 25 all individuals pursuant to the statue can be held individually responsible and also liable to be punished for their crimes, whether it is done individually, jointly, by orders or other ways that facilitates the commission. Pursuant are those who are citizens of the ratifying state. Any aim of contribution that has the intention or acknowledgement of the groups intention of such crimes, gives the legal basis to the same responsibility and punishment. Art 27 holds the irrelevance of official capacity, saying that the statue applies equally to all persons and holds no distinction for the head of a state. Neither will it affect the extent of the punishment. Nor do the national or international immunities have any effect on the exercise of the court’s jurisdiction. The responsibility of commanders even reach circumstances where no such order of crime have been given but in fact is practiced with the acknowledgement of the commander.

Challenges
The government of Sudan denied the existence of rape, but there are statements from victims about the massive crimes of rape. Another argument from Sudan’s side is that the war is a case of counterinsurgency, which means that they have to protect themselves like a combat against the rebel groups. In this case the use of force is allowed according to the principle of “Jus ad bellum” which derives from art 51 of the UN charter about self-defence. However, the argument is not adequate since you cannot target certain groups or use genocide, which happens to be the outcome in this case. What concerns genocide, the United Nation commission presented a challenge to the inquiry which said that, it has to be directed at target groups and not just an area of groups. The investigation of the court showed that the areas vulnerable to genocide were in fact part of target groups and not persons accidently selected by the government to live in the same areas . These are the legal basis for charging Al-Bashir with genocide crimes.

As mentioned earlier, the jurisdiction of ICC can only be exercised on parties to the statue. Since Sudan has not ratified the statue it is not a party, based on consent not being effective until ratified. But as also mentioned above, the council has a referral power which covers every country in the world. After finding reasonable grounds for believing that Al-Bashir bears criminal responsibility, the prosecutor determined that Sudan was unwilling and unable to investigate and prosecute the case. So, due to art 17 of the statute, about admissibility of a case unless a state is unwilling or unable to investigate itself, the court began their investigation.

In 2005 Sudan opened a special court for the case of Darfur by which they meant that the ICC no longer had the jurisdiction. However the Sudanese interpretation of crimes do not provide justice in the meaning of human rights. While rape barely is acknowledged as an act of crime in the Sudanese view, the ICC, guided by the statue, can prosecute rape as a genocide. Besides the only ones prosecuted in the Sudanese court were those who did not act according to Al-Bashirs will. Those who in the contrary did obey, were guaranteed impunity. Since a rule of national law, in meeting the international obligation that it should satisfy, may be judged by an international court about its adequacy, the court is in this case justified to its jurisdiction according to the principle of “complementary”.

Art 45 of the statue authorities the court to follow a warrant for an arrest of a person if there are reasonable grounds for such an arrest and if it is necessary to prevent future commission of these crimes. The warrant is necessary if fulfilling the criteria in art 58 of the statue, preventing the continues of crime .The granting of the warrant was however a decision to be made by the Pre-Trial chamber 3. These are the legal basis for the courts action of deciding their right to jurisdiction.

Conclusion
For a crime to be recognized as genocide it has to fulfill the criteria of having the intent to destroy. The motive of Al-Bashir's crimes were struggle for power. He gave orders and led the commission with the acknowledgement of them destroying the African population. So this is not just a case of self-defence where the principle of jus ad bellum gives Sudan the right to use force due to chapter VI of the charter.

According to art 7 of the statute a crime has to be widespread and systematic for it to be classified as war against humanity. Since three million people became victims of the crimes committed the criteria of widespreadness is fulfilled. The target in mind shows a sign of the attacks being systematically made and therefore known as crimes against humanity.

One can only be charged for a war crime if the crime submitted was constituted during war. The crimes of this case is known as war crimes due to the fact that they occurred during war and violated the international law in terms of the Geneva convention. With these requirements accomplished, the court has the legal basis for trying Al-Bashir with the crimes of genocide, crimes against humanity and war crimes.

Since the crimes continued even after the entry into force of the statute, the court was entitled to jurisdiction over the case.

ICC has jurisdiction over nationality or territory and since Al-Bashir is a citizen and since the crime was committed on Sudan’s territory, both national and territorial jurisdiction would cover the case. The only problem left would be that Sudan is not a party and, therefore, neither are its citizens. However the security handed the court its legal basis to jurisdiction through a referral. This is where the world spread, peace-keeping power of the council is exercised and off curse applied on Sudan as well as for its citizens and territory. Since being the head of a state makes no difference to the outcome of the criminal responsibility or the punishment, the responsibility of a citizen applies on Al -Bashir as well. These are the legal basis to the jurisdiction of the court to try Al-Bashir.

Reasonable grounds for a warrant requires that it is necessary to prevent future commission. It has already been established that intent exists to exterminate specific target groups by using any criminal methods available. In addition to this, the president has a national immunity which makes him further unreachable. So if the ICC does not interfere, there will be ongoing acts of crimes, just as in the regard of the council when making this referral.

Discussion
There is a discussion in concern for the threat of peace if Al-Bashir gets arrested. The action of the ICC has gotten protested against by the government of Sudan saying that it will jeopardize their negotiations for peace, and the argument also was supported by the African Union . Since the Security council has a peace-keeping power, you can say that a non- referral to the ICC prosecutor, through the latter argument, also is a resolution for remaining international security. However this is not a challenge for the jurisdiction of the court since it only has been a discussion and not a decision of blocking the courts investigation of the case. Besides, there is a requirement of majority when voting for such blocks and one veto can give the prosecutor authority to continue to investigate.

The important issue is that the regards of peace is taking away the importance of people’s rights and obligations to the same rights and obligations. If Al-Bashir was not the head of a state, the question of peace or justice would probably not be an issue. Art 27 of the statute lays down the rule that he, as a commander has no less of a responsibility as to what other individuals have. However, it would not be the first time rules are bended for the sake of special circumstances. And peace is undoubtly a vital factor, especially for the council.

We think that justice will be served when Al-Bashir is charged guilty of his crimes, but then we may not reach peace. Should one factor go before the other? It is a highly difficult issue for which we do not care to give a direct answer. Although we want to comment that if we do not struggle for justice we will not see peace, and if we do not aim for peace we will not have justice.

However in this case there are facts showing that the crimes will be continued in case Ocampo does not prosecute. If the crimes do decrease it will be, like Ocampo said, a consequence of that the people in target already have lessened. So we won’t achieve peace by disregarding justice anyway.

In a statement by the prosecutor a quotation from one of the victims was used, “those who rape you wear uniforms and those who protect you wear uniforms. We don’t know any more who to run from and who to run to.”

Sources:

Treaties:

 The Rome Statue.

 The UN-Charter.

Practice:

 International Criminal Court: SITUATION IN DARFUR, THE SUDAN SUMMARY OF THE CASE, Prosecutor’s Application for Warrant of Arrest under Article 58, Against Omar Hassan Ahmad Al-Bashir. (http://www.icc-cpi.int/library/organs/otp/ICC-OTP-Summary-20081704-ENG.pdf

Databaces:

Hein-On-Line:

 Corcoran, Rebecka A, Justice for the forgotten: Saving the women in Darfur, 2008.

 Coyer, Anna, The hybrid model of international dispute resolution whys Sudan’s case should be heard in the Hague and at home, 2005.

Articles:

 Mithre J. Sandrasagra , RIGHTS: Sudan Rejects ICC Warrants on Darfur (http://ipsnews.net/news.asp?idnews=37599)
 Press Release, SC/8351, SECURITY COUNCIL REFERS SITUATION IN DARFUR, SUDAN, TO PROSECUTOR OF INTERNATIONAL CRIMINAL COURT, Resolution 1593 (2005) Adopted by Vote of 11 in Favour To None Against, with 4 Abstentions (Algeria, Brazil, China, United States (http://www.un.org/News/Press/docs/2005/sc8351.doc.htm)

 TRANSITIONAL JUSTICE AND RAPE IN CONFLICT, http://www.awid.org/eng/Issues-and-Analysis/Issues-and-Analysis/Transitional-Justice-and-Rape-in-Conflict

Homepages:

 International Criminal Court, http://www.icc-cpi.int/home.html&l=en

 United Nations, http://www.un.org/english/
Special for the solh
Indira and trifa are students in Orebro University in the Sweden

Indira Limakeshi
Trifa Rawandozi