Conflict in Sudan: Al Bashir’s Indictment before the International Criminal Court

On the 4th March 2009 the International Criminal Court issued an arrest warrant for Omar Hassan Ahmad Al Bashir, the current sitting president of Sudan. The Pre-Trial Chamber of the ICC considered that “there are reasonable grounds to believe that Al Bashir is criminally responsible under Art. 25.3.a of the Statute as an indirect perpetrator, or as an indirect co-perpetrator, for war crimes and crimes against humanity” committed in the Darfur region of Sudan, in a conflict which has taken tens or hundreds of thousands of lives so far and displaced millions The arrest warrant followed the application for a warrant of arrest that, on the 14th July 2008, the Prosecutor Luis Moreno-Ocampo issued against Sudanese President for the alleged crimes of genocide, crimes against humanity and war crimes in the Darfur region. The prosecution against Al Bashir is the second case initiated by the Prosecutor in relation to his Darfur investigation. The warrant of arrest for Al Bashir is particularly important because it is the first warrant ever issued for a sitting head of State and government by the ICC and the first case involving the alleged crime of genocide before the ICC. Moreover, the Darfur conflict is the first situation in which the ICC’s jurisdiction has been activated by a referral from the Security Council acting under Chapter VII of the United Nations Charter. The article, after an analysis of the background of the situation in Darfur, examines the ICC’s decision in the light of a lot of questions related to the following issues: (i) the role of the UN Security Council in Al Bashir’s indictment; (ii) the criminal responsibility of Sudanese President for indirect perpetration under the Rome Statute; (iii) the personal immunities of senior State officials, in particular the head of State immunity of State non parties to the Rome Statute; (iv) the cooperation among States party (and no party) to ICC about the arrest of Sudanese President; (v) the implications on future of Darfur (and Sudan) of this decision, in regard that today Al Bashir remains firmly in power: indeed he recently won the nationwide elections7 and he was approved by the great majority of Sudanese citizens.