Darfur and the International Criminal Court
Frequently Asked Questions
On July 14, 2008, the Prosecutor of the International Criminal Court requested an arrest warrant for President Omar al-Bashir of Sudan on charges of genocide, crimes against humanity and war crimes committed in the Sudan?s Darfur region.
1. How did the International Criminal Court come to investigate the situation in Darfur?
The International Criminal Court (ICC), a permanent independent judicial body created by the international community in 1998 to prosecuted crimes such as genocide, crimes against humanity and war crimes, was asked by the UN Security Council to investigate the situation in Darfur. In 2005, the Security Council found Darfur to be a threat to international peace and security and conferred jurisdiction over Darfur to the ICC.
This case marks the first time the Security Council referred a situation to the ICC.
2. What charges are being leveled against Omar al-Bashir?
The Prosecutor of the ICC, in his application for an arrest warrant, accused Omar al-Bashir of mobilizing the whole state apparatus, including the army and the Janjaweed militia, to methodically commit genocide, crimes against humanity and war crimes in Darfur since 2002.
Al-Bashir allegedly ordered attacks on villages and camps, targeting groups on account of their ethnicity, while using rape, hunger and fear to create conditions of life calculated to bring about their physical destruction. He allegedly concealed the crimes committed in Darfur under the guise of lawless actions committed by autonomous militias, and provided impunity to his subordinates in order to secure their willingness to commit genocide.
The Prosecutor?s allegations are based on evidence collected from witnesses and victims from 17 countries, from government and non-governmental agencies and from recent UN missions to Darfur.
This case marks the first ever move against a sitting head of state by the ICC.
3. Who decides whether Omar al-Bashir will be charged with crimes committed in Darfur?
A panel of judges, known as the Pre-Trial Chamber, will review the evidence, and decide whether or not to charge al-Bashir.
If the judges determine that there are reasonable grounds to believe that al-Bashir committed the alleged crimes, they will issue an arrest warrant. At this stage, they make no determination of the accused?s innocence or guilt. The judges can also dismiss the Prosecutor?s application, agree with it partially or ask for more information.
A decision on an arrest warrant can take six to eight weeks, but as this is a complex case, it may take longer.
4. Can the UN Security Council take away the Prosecutor?s authority to investigate and prosecute this case?
Under article 16 of the Rome Statute for the ICC, the UN Security Council, acting under its authority to maintain peace and security, can defer an investigation or prosecution for a renewable period of one year.
In the case of Darfur, the Security Council found Darfur to be a threat to peace and security. In 2005, in resolution 1593, the Security Council asked the ICC to investigate the situation in Darfur, and in June 2008, the Council unanimously reiterated the importance of the resolution, stating that justice and accountability are critical to achieve lasting peace and security in Darfur.
A deferral under article 16 would contradict Security Council findings and requests thus far.
5. What consequences could a deferral of the investigation and prosecution have?
A deferral could endanger the establishment of lasting peace in the region. A deferral is capable of obstructing justice for victims of international crimes committed in Darfur, and would send a message to those planning and committing crimes in Darfur that they are free to proceed without risk of being held accountable.
A deferral under article 16 may have consequences beyond the situation in Darfur. It would have potentially disastrous effects on the ICC and would risk becoming a precedent in every situation being investigated by its Prosecutor.
A deferral would also leave the Security Council open to permanent blackmail by the government of Sudan that might threaten a broad range of retaliatory measures, including resumption of hostilities, if the Security Council were to end the deferral and the Court were to resume consideration of the request for an arrest warrant.
6. What is the United States? position on a deferral for this case?
The United States, which has been outspoken in labeling the situation in Darfur as genocide, has opposed a deferral of the investigation. The US voiced concern that a deferral would undermine efforts to bring al-Bashir and others to justice. US Deputy Ambassador Alejandro Wolff stated that deferring the investigation and prosecution under article 16 "would send the wrong signal at a very important time when we are trying to eliminate the climate of impunity."
7. What is Amnesty International calling for?
Amnesty International is calling on the US to ensure that the Security Council does not block any efforts to execute the warrant for al-Bashir and any other suspects.
Despite its official opposition to the ICC, the US has continued to shift in favor of the court's work on Darfur. The US has offered to cooperate with the investigation in this case. In 2005, the United States opted to not block a UN Security Council vote to refer crimes committed in Darfur to the ICC Prosecutor.
Amnesty International urges the US to continue to show support for the ICC's work on Darfur.
