A critical analysis of some of the legal issues raised by the indictment of president al-Bashir of Sudan by the ICC

Abstract

There is a stark regress in the development of international criminal justice, in particular the fight against impunity on the African continent. This study explores various legal aspects that have arisen between Africa and the International Criminal Court (ICC) since the indictment of President al-Bashir of Sudan by the Court. There is a presumption of conflict between some provisions of the Rome Statute, particularly Article 27 and Article 98. The indictment of President al-Bashir ICC has been the epitome of such a presumption. The African Union (AU) is among those opposed to the indictment of President al-Bashir and has requested the Security Council to defer the matter in accordance with Article 16 of the Rome Statute. The regional body has also refused to cooperate with the ICC in the arresting and surrendering of President al-Bashir to the Court on the basis of Article 98. Therefore, this study seeks to critically analyse the indictment of President al-Bashir by the ICC and the AU’s response to the same. The study further explores the legal validity of a deferral by the UN Security Council and the challenges it would will raise. The study also attempts to reconcile article 27 and article 98 of the Rome Statute in the context of President al Bashir’s indictment. In doing so, the study endeavours to weigh the legal elements in both of the arguments offered in support and against the action taken by the ICC. The reason for such a discussion is to investigate the nature of the jurisdiction the Court has upon President al-Bashir by virtue of UN Security Council Resolution 1593(2005), which referred the al Bashir case to the court. The discussion also investigates the nature of the legal obligations on members of the international community including Sudan, to cooperate with the ICC by arresting and surrendering President al-Bashir to the Court. In an effort to garner support for the ICC’s indictment of President al-Bashir, the study also looks at the operation of the principle of complementarity under the Rome Statute and various principles of International Criminal Law that affirm the ICC’s jurisdiction over the situation in Darfur and those principles that speak to the presumed liability of President al-Bashir. Although this study acknowledges the apparent competing demands of justice and peace, it challenges arguments that promote impunity and makes the case for addressing the AU’s concerns relating to the ICC. More importantly, the study suggests that the UN Security Council and the ICC should be consistent and in condemning atrocities wherever they are committed and should be impartial in referring perpetrators of atrocities to the ICC irrespective of their political status. In so doing a clear message may be sent to individuals like President al-Bashir that commission of atrocities will invite international accountability.