(New York) - The International Criminal Court's (ICC) issuance of an arrest warrant for President Omar al-Bashir of Sudan signals that even those at the top may be held to account for mass murder, rape and torture, Human Rights Watch said today. ICC judges granted the warrant for Bashir, its first for a sitting head of state, on charges of crimes against humanity and war crimes for his role in orchestrating Sudan's abusive counterinsurgency campaign in Darfur.

"With this arrest warrant, the International Criminal Court has made Omar al-Bashir a wanted man," said Richard Dicker, director of the International Justice Program at Human Rights Watch. "Not even presidents are guaranteed a free pass for horrific crimes. By ruling there is a case for President al-Bashir to answer for the horrors of Darfur, the warrant breaks through Khartoum's repeated denials of his responsibility."

The court did not confirm the three counts of genocide that were requested by the ICC prosecutor. Genocide requires evidence that the crimes were committed specifically "with the intent to destroy, in whole or in part," a national, ethnic, racial, or religious group solely on the basis of its identity.

"Proving genocide charges is always extremely difficult," said Dicker. "President Bashir is hardly off the hook, as he is sought for crimes against humanity and war crimes, including widespread rape, murder, and torture committed as part of a government plan."

Under the ICC Statute, the prosecutor is able to request an amendment of the warrant to include genocide if he obtains additional evidence to support the charge.

The ICC prosecutor requested an arrest warrant for Bashir on July 14, 2008. Following the prosecutor's announcement, Sudanese government officials made implicit and explicit threats of retaliation against international peacekeepers and humanitarian workers. On July 25, a Sudanese presidential advisor, Bona Malwal, stated in regard to peacekeeping forces that, "We are telling the world that with the indictment of our President al-Bashir we can't be responsible for the well-being of foreign forces in Darfur." President Bashir has also threatened to expel international peacekeeping forces if a warrant is issued.

The Security Council, its individual members, the UN Secretariat, the European Union, and the African Union have a critical role in promptly responding to any government-supported retaliation in Darfur following news of the warrant.

"The Sudanese government is obliged to maintain security in the country and the Security Council should act decisively to hold them to it," said Dicker. "Khartoum should not be allowed to use the arrest warrant as a pretext for stepping up its obstructionist policies that have hobbled peacekeeping and humanitarian efforts in Darfur."

The government of Sudan is required by a Security Council resolution to facilitate the deployment of the African Union/UN Mission in Darfur (UNAMID) and to cooperate with the ICC. Under international law, Sudan remains obligated to protect its own civilians and to provide full, safe, and unhindered access by relief personnel to those in need in Darfur. The arrest warrant does not change these obligations, nor does it have any impact on Khartoum's obligations to carry out the 2005 Comprehensive Peace Agreement with the government of Southern Sudan.

"The Security Council and concerned governments should impose targeted sanctions against Sudanese officials responsible for any retaliatory violence, and consider other measures such as further banking restrictions or a widening of the arms embargo," said Dicker.

The ICC is an independent judicial institution. Sudan, though not a party to the Rome Statute creating the court, is subject to ICC jurisdiction through Security Council resolution. Having an official position as head of state does not provide immunity from criminal responsibility before the ICC.

Apart from the warrant against President Bashir, the ICC has issued two other warrants in relation to Darfur. On April 27, 2007, the court issued arrest warrants for State Minister of Humanitarian Affairs Ahmed Haroun and a "Janjaweed" militia leader, Ali Kosheib. The prosecutor has also requested arrest warrants for three rebel leaders in connection with attacks on international peacekeepers at Haskanita in October 2007. That request is currently under consideration by the court.

Sudan has so far refused to cooperate with the ICC. All the arrest warrants remain outstanding. Haroun continues in his official position as state minister of humanitarian affairs. On November 24, the Sudanese government arrested and tortured three human rights defenders in Khartoum for allegedly giving information to the ICC.

"Khartoum is required to cooperate with the court," said Dicker. "Because the ICC has no police force of its own, it needs strong support from governments to ensure that all those charged with crimes are arrested."

Background

In a March 31, 2005 resolution, the Security Council referred the situation in Darfur to the ICC prosecutor for investigation and prosecution. The decision was based on the recommendation of an international commission of inquiry, which found that violations of international humanitarian law and human rights law were continuing in Darfur and that the Sudanese justice system was unwilling and unable to address the crimes. Darfur is the first situation referred by the Security Council to the ICC.

Update

On February 3, 2010, the International Criminal Court (ICC) appeals chamber decided to reject the standard used to exclude genocide charges in the ICC's arrest warrant for President Omar al-Bashir of Sudan.

Last year, on March 4, 2009, ICC Pre-Trial Chamber I issued an arrest warrant for al-Bashir for war crimes and crimes against humanity committed in Darfur. At that time, the Pre-Trial Chamber rejected the inclusion of genocide charges in the warrant on the basis that the prosecutor did not present "reasonable grounds to believe" that the Sudanese government possessed the necessary intent for the crime of genocide.

"Today's decision is a strong reminder that President al-Bashir is wanted for heinous crimes committed in Darfur," said Elise Keppler, International Justice Program senior counsel at Human Rights Watch. "President al-Bashir is a fugitive from justice who needs to appear in The Hague to answer to the allegations against him."

With today's decision, the appeals chamber instructed the pre-trial chamber to reassess the inclusion of genocide charges under a revised standard and amend the arrest warrant as necessary.

Originally posted March 4, 2009.

Updated February 3, 2010.