ICC: Bashir Warrant Is Warning to Abusive Leaders

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.