NAME OF MECHANISM

International Criminal Court

PERIOD OF OPERATION

March 2005 – present

MANDATE AND OPERATIONS

In March 2005, United Nations Secretary-General Kofi Annan referred the situation in Darfur to the International Criminal Court (ICC), requesting that it investigate events in the region since 1 July 2002. The ICC began a formal investigation on 6 June 2005 and has since opened four cases against six individuals. Sudan is not party to the Rome Statute and so is not obliged to arrest the accused.

RESULTS

The first case, Prosecutor v. Ahmad Muhammad Harun ("Ahmad Harun") and Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb"), was brought against the former minister of state for the interior and the alleged leader of the Janjaweed militias for war crimes and crimes against humanity committed in Darfur. Both Ahmad Harun and Ali Kushayb remain at large.

The second case, Prosecutor v. Omar Hassan Ahmad Al Bashir, has received considerable press for its indictment of the current Sudanese president, who is accused of war crimes, crimes against humanity and genocide. The crime of genocide was reintroduced by the court in July 2010. Bashir remains at large.

The third case, Prosecutor v. Bahar Idriss Abu Garda, was dismissed in April 2010 because of a lack of evidence against the former Sudanese chairman and coordinator of military operations for the rebel group, the United Resistance Front.

A fourth case, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, against two rebel commanders accused of war crimes, including the of killing 12 African Union (AU) peacekeepers, was disclosed on 15 June 2010, with the accused making their first appearance on 17 June 2010.

RESOURCES

Report of the United Nations Commission of Inquiry on Darfur  [UN | Sept 2004]
International Criminal Court official website
African Union High-Level Panel on Darfur report  [29 Oct 2009]

BACKGROUND

In March 2005, the ICC prosecutor opened an investigation of the Darfur conflict. The inquiry began with a review of the report of the United Nations Commission of Inquiry  (UN Security Council Resolution 1564 of 18 September 2004), which operated from October 2004 to January 2005. The Commission of Inquiry was established to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine whether or not acts of genocide have occurred and to identify perpetrators. The commission recommended that the Security Council establish a Compensation Commission for Sudan to provide reparations to the victims of war crimes.

In February 2009, the AU established a High-Level Panel on Darfur to address the conflict and human rights violations in Darfur. The panel, headed by former South African President Thabo Mbeki, conducted a six-month investigation aimed to expedite the peace process, promote reconciliation and advise the AU on transitional justice in cases of war crimes. It presented its report  to the AU on 29 October 2009, recommending, among other processes, the establishment of a hybrid court and a truth commission, as well as judiciary reforms. The AU Security Council has endorsed the report and established another high-level panel to ensure that the recommendations are implemented.

In a June 2009, at the Fifth Citizens’ Continental Conference on the AU Summit, held by the Centre for Citizens' Participation in the AU, civil society organisations made the following recommendations:

•  AU member states should respect the independence of the ICC and national courts;
•  A clear distinction should be made between the principle of universal jurisdiction and the ICC;
• African heads of state and governments need to ensure the protection of human rights defenders relating to their work on fighting impunity; and
• The AU should urge member states to cooperate with the ICC by enforcing warrants.

In July 2009, the AU declared a position of noncooperation with the Bashir warrant, further requesting that the ICC defer the arrest warrant because of concerns that it would hamper the Darfur peace process. In response to the AU position, over 130 African civil society groups signed a joint statement that called upon African states party to the Rome Statute to reaffirm their commitment to and their obligation to cooperate with the ICC. The statement declares that noncooperation threatens victims' right to justice and supports impunity. Moreover, it argues that the AU decision is contrary to its own constitutive act, which rejects impunity [HRW | July 2009].

Bashir was reelected president in April 2010, despite the ICC arrest warrant. The announcement to re-introduce the charge of genocide against Bashir has prompted the Sudanese government to revitalize its own Special Criminal Court on the Events in Darfur (SCCED), a hybrid panel with both local and international judges appointed by the AU.

SOURCES

[BBC | Feb 2010]
[Coalition for the ICC | 16 June 2010]
[HRW | July 2009]