On July 7, prosecutors from the International Criminal Court appealed an earlier decision not to indict Omar al-Bashir, the President of Sudan, on charges of genocide.  The prosecutors have filed charges of genocide, crimes against humanity, and war crimes in the Darfur region of Sudan against al-Bashir, alleging his actions are in violation of Articles 6, 7, and 8 of the Rome Statute. 

In March, ICC judges determined that there was insufficient evidence to charge al-Bashir with genocide.  Under Article 6 of the Rome Statute, genocide is specifically defined as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and/or forcibly transferring children of the group to another group.”

The ICC instead indicted the controversial head of state for two counts of war crimes (intentionally directing attacks against civilians and pillaging) and five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape).  A warrant for al-Bashir’s arrest has been out since March 4 under these charges.

ICC prosecutors, led by Luis Moreno-Ocampo of Argentina, were permitted appeal of the March decision by the ICC on July 6.  Moreno-Ocampo’s filed appeal states that the standards for evidence used in the Pre-Trial Chamber stage of the legal proceedings were applied improperly under the Rome Statute.  The Rome Statute, in Article 58, requires “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court;” and that “the arrest of the person appears necessary: to ensure the person's appearance at trial, to ensure that the person does not obstruct or endanger the investigation or the court proceedings, or where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.”

The appeal of the prosecutors offers two potential solutions to the Appeal Chambers of the ICC: issue a warrant on genocide charges for al-Bashir or review the case and remand it to the Pre-Trial Chamber with different standards for evidence.  Either action would, theoretically, encourage the efforts of prosecutors to arrest al-Bashir on charges of genocide. 

At a summit in Libya, the African Union announced they will not cooperate with the International Criminal Court prosecutors who plan to extradite and charge al-Bashir.  The African Union members, thirty of which have ratified the Rome Treaty, believe that the decision to pursue charges against al-Bashir would jeopardize the ongoing peace process in Sudan.  The heads of state present at the summit voted on the resolution, which states that the African Union “decides that in view of the fact that a request of the African Union (to defer al Bashir's indictment) has never been acted upon, the AU member states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to ... the arrest and surrender of Sudanese President Omar al Bashir to the ICC.” 

With the African Union’s resolution, a dilemma arises: should the prosecutors at the ICC continue to pursue these charges against al-Bashir against the wishes of African heads of state, or should the pursuit be deferred or even suspended?

There are merits to each argument presented in the decision to pursue charges against al-Bashir.  It is possible that indicting the head of state on genocide charges will cause even more violence in the Darfur region and destroy any chance of peace. Sudanese officials have consistently made threats towards Sudanese civilians, international humanitarian workers, and peacekeepers in the country if the pursuit of charges continues.  There could be increased violence towards the Fur, Masalit, and Zaghawa, the three ethnic groups that have been allegedly targeted by al-Bashir since 2003 if the charges remain.

At the opposite end of the spectrum, the decision to postpone or even suspend the charges could have international repercussions. First, the ICC could be seen as simply a negotiation device, not a legitimate court, used only to pressure officials into action.  The already uncertain role of an international justice body would lose its power in continuing conflicts, and the role of justice in conflict resolution would be lessened through inaction. 

Secondly, halting the proceeding can also hinder the peace process in the Darfur region and eliminate any power the ICC may have to deter future crimes.  A climate of impunity has existed in Sudan throughout the conflict, and the decision by the AU only further encourages actions with impunity. 

Third, and perhaps most important, the role of an international court in the world is obviously unprecedented, and thus the actions of the ICC are groundbreaking no matter the route.  The role that the ICC can play in the future may very well hinge on these proceedings.  Without accountability, the conflict in Sudan will continue, and possibly worsen.  The role of an international tribunal to punish individuals who have committed genocide and other serious international crimes is essential to ending impunity and future conflict.

It is currently unclear what effect the African Union’s resolution will have on the future of the ICC proceedings.  The thirty countries that voted for the resolution remain legally obliged as signatories to the ICC to arrest al-Bashir if he should visit their country.

The IIJD recognizes that the first priority in Sudan is to end the violence that has plagued the region.  However, in order to ensure the social, political, and economic recovery of Sudan upon achieving peace, President al-Bashir must be held accountable for his actions.  Failure to prosecute those responsible for the attrocities in Darfur sets a dangerous precedent the jeopardizes the future development of the region.