International Criminal Court Cases in Africa: Status and Policy Issues
International Criminal Court Cases in Africa:
Status and Policy Issues
September 12, 2008
Analyst in African Affairs
Foreign Affairs, Defense, and Trade Division
Specialist in International Humanitarian Policy
Foreign Affairs, Defense, and Trade Division
Marjorie Ann Browne
Specialist in International Relations
Foreign Affairs, Defense, and Trade Division
International Criminal Court Cases in Africa: Status and
The International Criminal Court (ICC), which was established in 2002, has to-
date initiated investigations exclusively in Sub-Saharan Africa. The ICC Prosecutor
has opened cases against 12 individuals for alleged crimes in northern Uganda, the
Democratic Republic of Congo, the Central African Republic, and the Darfur region
of Sudan. In addition, the Prosecutor is analyzing situations — a preliminary step
toward initiating a full investigation — in Côte d’Ivoire, Kenya, and Chad, as well
as in Colombia, Afghanistan, and Georgia. Recent congressional interest in the work
of the ICC in Africa has arisen from concern over gross human rights violations on
the continent. Legislation before the 110th Congress references the ICC with respect
to several ongoing African conflicts, including those in northern Uganda, the
Democratic Republic of Congo, and the Darfur region of Sudan.
On July 14, 2008, the ICC Prosecutor requested a warrant for the arrest of Sudanese
President Omar Hassan al-Bashir, accusing him of genocide, crimes against
humanity, and war crimes in Darfur. The request, which awaits a decision by a panel
of ICC judges, represents the first attempt by the ICC to prosecute a sitting head of
state, and the first ICC case to cite the crime of genocide. Although the Prosecutor’s
action has drawn praise from human rights advocates, it also has raised fears that ICC
actions in Sudan could threaten ongoing peace processes in Darfur and southern
Sudan or endanger international humanitarian and peacekeeping operations. Unlike
the three other African countries under ICC investigation, Sudan is not a party to the
ICC. Instead, the ICC was granted jurisdiction over Darfur through a United Nations
Security Council resolution in March 2005. The United States, as a member of the
Security Council, can influence the ICC’s actions. The Bush Administration, which
holds the Sudanese government responsible for genocide, has sought to balance its
strong opposition to the ICC with its policy on alleged crimes in Darfur.
Four suspects in other ICC investigations are currently in ICC custody, pending trial.
Three are alleged leaders of Congolese militias, and the fourth is a former Congolese
vice president, senator, and former rebel leader who is accused of crimes committed
in neighboring Central African Republic. This report provides background on ICC
investigations in Africa and gives an overview of cases currently before the Court.
The report also examines issues raised by the ICC’s actions in Africa, including the
ICC’s possible role in deterring future abuses and the potential impact of
international criminal prosecutions on peace processes, ongoing in many countries
on the continent.
In-depth background on U.S. policy toward the ICC can be found in CRS Report
RL31495, U.S. Policy Regarding the International Criminal Court, by Jennifer K.
Elsea. Further background on Sudan and an analysis of U.S. policy options can be
found in CRS Report RL33574, Sudan: The Crisis in Darfur and Status of the North-
South Peace Agreement, by Ted Dagne. This report may be updated as events
In troduction ......................................................1
Overview of the International Criminal Court........................1
The U.S. Position on the ICC.................................3
The ICC and Other International Courts and Tribunals.............4
Congressional Interest in the ICC in Africa..........................6
Atrocities in African Conflicts................................6
Restrictions on U.S. Assistance to African Parties to the ICC.......6
The ICC and Sudan................................................8
U.N. Security Council Resolution 1593.............................8
The U.S. Position on U.N. Security Council Resolution 1593.......9
Investigation of Rebel Crimes...................................10
The Case Against Bashir.......................................11
Application for a Warrant..................................11
Security Council Considerations in July 2008.......................17
Other ICC Cases in Africa..........................................19
Democratic Republic of Congo (DRC)............................21
Thomas Lubanga Dyilo....................................21
Germain Katanga and Mathieu Ngudjolo Chui..................22
Central African Republic (CAR).................................23
Issues Raised by the ICC’s Actions in Africa...........................24
Accusations of Bias...........................................25
Justice vs. Peace?.............................................26
Implications for Future U.S. Policy on the ICC......................28
List of Tables
Appendix A. List of African States Showing Whether They Are Parties to the ICC
and Have Ratified The“Article 98 Agreement”......................30
International Criminal Court Cases in Africa:
Status and Policy Issues
The International Criminal Court (ICC) has to-date initiated investigations
exclusively in Sub-Saharan Africa. Recent congressional interest in the work of the
ICC in Africa has focused on the role that the ICC may play in addressing gross
human rights violations on the continent. While many Members of Congress remainth
opposed to the Court, several pieces of legislation before the 110 Congress
reference the ICC with respect to ongoing African conflicts, including those in
northern Uganda, the Democratic Republic of Congo, and the Darfur region of
Congress and the Bush Administration have each stated that genocide is1
occurring in Darfur. On July 14, 2008, the ICC Prosecutor requested a warrant for
the arrest of Sudanese President Omar Hassan al-Bashir for genocide, crimes against
humanity, and war crimes in the Darfur region of Sudan. This represents the first
time the ICC Prosecutor has named a sitting head of state, and the first time he has
accused a suspect of genocide. While the attempt to prosecute of the Sudanese
president has drawn praise from human rights advocates, the European Union, and
others, it also has raised concerns that ICC actions in Sudan could threaten ongoing
peace processes in Darfur and southern Sudan or endanger international humanitarian
and peacekeeping operations.
This report provides background on ICC investigations in Africa and gives an
overview of cases before the Court. The report also examines issues raised by the
ICC’s actions in Africa, including the ICC’s possible role in deterring future abuses
and the potential effect of international criminal prosecutions on peace processes.
Overview of the International Criminal Court
The Statute of the ICC, also known as the Rome Statute, entered into force on
July 1, 2002, and established a permanent, independent Court to investigate and bring
to justice individuals who commit the most heinous violations of international law
1 Concurrent Resolution Declaring Genocide in Darfur, Sudan (H.Con.Res. 467 [108th]),
agreed to by the House of Representatives and the Senate on July 22, 2004; White House
Press Release, “President’s Statement on Violence in Darfur, Sudan,” September 9, 2004.
and human rights, namely war crimes, crimes against humanity, and genocide.2 The
ICC’s jurisdiction extends only over crimes committed since the entry into force of
the Statute. The ICC is headquartered in The Hague, Netherlands. As of June 1,
2008, 106 countries were parties to the Statute.3 The United States is not a party to
the ICC. The Assembly of States Parties (the body made up of the 106 parties)
provides administrative oversight and other support for the Court, including adoption
of the budget and election of 18 judges, the Prosecutor (currently Luis Moreno-
Ocampo from Argentina), and the Registrar (currently Bruno Cathala from France).4
Situations5 may be referred to the ICC in one of three ways as outlined in the
articles of the Statute: by a state party to the Statute, the ICC Prosecutor, or the
United Nations (U.N.) Security Council. Currently, four situations have been
publicly referred to the Prosecutor. The governments of three countries (all parties
to the ICC) — Uganda, the Democratic Republic of Congo, and the Central African
Republic — each have referred situations to the Prosecutor. The U.N. Security
Council has referred one situation (Darfur, Sudan) to the Prosecutor.6 At least two
2 The ICC began operating at its inauguration on March 11, 2003. The ICC plans to define
and determine its jurisdiction over Crimes of Aggression in 2009. The Statute also
established a second independent institution, the Trust Fund for Victims, to help victims of
these crimes. The Trust Fund for Victims can only act in situations where the ICC has
3 For the current status of signatures, ratifications, and reservations, see the ICC’s website,
[ h t t p : / / www.i c c -c p i . i n t / a s p / s t a t e s p a r t i e s .ht ml ] .
4 For background information on the International Criminal Court, see CRS Report
RL31437, International Criminal Court: Overview and Selected Issues, by Jennifer Elsea.
5 Articles 13 and 14 (1) of the Rome Statute provide for both States Parties and U.N.
Security Council referral of “situations” to the Court. During the negotiations, the question
arose of whether individual “cases” or “situations” should be referred to the ICC Prosecutor.
According to one author, writing on the jurisdiction of the ICC, “it was suggested that States
Parties should not be able to make complaints about individual crimes or cases: it would
be more appropriate, and less political, if ‘situations’ were instead referred to the Court.”
(Elizabeth Wilmshurst, “Jurisdiction of the Court,” Chapter 3, in Roy S.Lee, editor, The
International Criminal Court. The Making of the Rome Statute: Issues, Negotiations,
Results [Boston: Kluwer Law International, 1999], p. 131.) Another author, writing on the
role of the Prosecutor, noted that the “powers of the Prosecutor could also be broadened in
the context of a State’s complaint to the Court, if the complaint referred to ‘situations’ rather
than to individual ‘cases.’” A proposal to this effect, introduced by the U.S. delegation in
1996, was “very soon supported by a large majority of States,” many of whom had been
“uneasy” with allowing a party to “select individual cases of violations and lodge
complaints...with respect to such cases. This could...encourage politicization of the
complaint procedure.” The Prosecutor, after referral of the situation, could “initiate a case
against the individual or individuals concerned.” (Silvia A. Fernandez de Gurmendi, “The
Role of the International Prosecutor,” Chapter 6, in Lee, The International Criminal Court,
6 See press releases on each referral at the ICC’s website, [http://www.icc-cpi.int].
potential situations were dismissed following preliminary analysis, and at least six
others remain under consideration.7
The ICC is considered a court of last resort — it will only investigate or
prosecute cases of the most serious crimes perpetrated by individuals (not
organizations or governments), and then, only when national judicial systems are
unwilling or unable to handle them. This principle of admissibility before the Court
is known as “complementarity.”8 Although many domestic legal systems grant
sitting heads of state immunity from criminal prosecution, the Rome Statute grants
the ICC jurisdiction over any individual, regardless of official capacity.9
The U.S. Position on the ICC. The United States is not a party to the Rome
Statute. The Bush Administration firmly opposes the Court and has renounced any
U.S. obligations under the treaty.10 It objects to the Court on a number of grounds,
!the Court’s assertion of jurisdiction (in certain circumstances) over
citizens, including military personnel, of countries that are not11
parties to the treaty;
!the perceived lack of adequate checks and balances on the powers of
the ICC prosecutors and judges;
!the perceived dilution of the role of the U.N. Security Council in
maintaining peace and security; and
!the ICC’s potentially chilling effect on America’s willingness to
project power in the defense of its interests.
7 Reportedly, the ICC has received 1,700 communications about alleged crimes in 139
countries, but 80 percent have been found to be outside the jurisdiction of the court. The
Prosecutor has received self referrals only from African countries. See Stephanie Hanson,
Global Policy Forum, “Africa and the International Criminal Court,” Council on Foreign
Relations, July 24, 2008.
8 The bar for proving complementarity has been set very high. In the ICC case against
Congolese suspect Thomas Lubanga Dyilo, the Pre-Trial Chamber ruled that in order for a
case to be inadmissible, national proceedings must encompass “both the person and the
conduct which is the subject of the case before the Court” (ICC Pre-Trial Chamber I, The
Prosecutor Vs. Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application for a
Warrant of Arrest, Article 38, February 10, 2006). This language suggests that a domestic
prosecution must essentially duplicate the ICC prosecution in order for admissibility to be
challenged. Even in such a case, the ICC may retain jurisdiction if domestic proceedings
are not conducted impartially or independently (Rome Statute, Article 17).
9 Article 27 of the Rome Statute.
10 The United States signed the Rome Statute under the Clinton Administration, on
December 31, 2000, but the Statute was never ratified by the Senate. In May 2002, the Bush
Administration notified the United Nations that it did not intend to become a party to the
ICC, and that there were therefore no legal obligations arising from the signature.
11 The United States had supported a version of the Rome Statute that would have allowed
the U.N. Security Council to refer cases involving non-states parties to the ICC, but would
not have allowed other states or the Prosecutor to refer cases.
The Administration has sought to conclude bilateral immunity agreements
(BIAs), known as “Article 98 agreements,” with most states parties to exempt U.S.
citizens from possible surrender to the ICC.12 These agreements are named for
Article 98(2) of the Statute, which bars the ICC from asking for surrender of persons
from a state party that would require it to act contrary to its international obligations.
The U.S. government is prohibited by law from assisting the ICC in its
investigations, arrests, detentions, extraditions, or prosecutions of war crimes, under
the American Servicemembers’ Protection Act of 2002, or ASPA (P.L. 107-206,
Title II). The prohibition is extensive, covering, among other things, the obligation
of appropriated funds, assistance in investigations on U.S. territory, participation in
U.N. peacekeeping operations unless certain protections from ICC actions are
provided to specific categories of people, and the sharing of classified and law
The ICC and Other International Courts and Tribunals. The post-
World War II Nuremberg and Tokyo tribunals to prosecute Nazi and Japanese leaders
for crimes against peace, war crimes, and crimes against humanity established
precedent for the ICC. Other international courts and tribunals, such as the
International Criminal Tribunals for the former Yugoslavia and for Rwanda, also
built on these precedents. However, there are some important distinctions between
the work of the ICC and that of courts created with limited jurisdiction. The ICC was
established through a multilateral treaty and is a permanent, international criminal
tribunal.14 It is not a U.N. body. By contrast, the tribunals for the former1516
Yugoslavia and Rwanda, which were created under separate U.N. Security
12 Each state party to an Article 98 agreement promises that it will not surrender citizens of
the other state party to international tribunals or the ICC, unless both parties agree in
advance. An Article 98 agreement would prevent the surrender of certain persons to the ICC
by parties to the agreement, but would not bind the ICC if it were to obtain custody of the
accused through other means. See Appendix A for a list of states parties to the ICC and
Article 98 agreements in Africa.
13 These prohibitions do not apply to cooperation with an ad hoc international criminal
tribunal established by the U.N. Security Council such as the International Criminal
Tribunal for the Former Yugoslavia (ICTY) or the International Criminal Tribunal for
Rwanda (ICTR). See 22 U.S.C. 7423(a)(1). In the case of Darfur, the Darfur Accountability
and Divestment Act of 2007 (H.R. 180), passed by the House on August 3, 2007, would offer
U.S. support to the ICC's efforts to prosecute those responsible for acts of genocide in
14 The creation of the ICC is the culmination of a decades-long effort to establish an
international court with the jurisdiction to try individuals for the commission of crimes
against humanity. For a general background and discussion of the ICC, see CRS Report
RL30020, The International Criminal Court Treaty: Description, Policy Issues, and
Congressional Concerns, by Ellen Grigorian; CRS Report RL31437, International Criminal
Court: Overview and Selected Legal Issues, by Jennifer K. Elsea; and CRS Report
RL32605, Genocide: Legal Precedents Surrounding the Definition of the Crime, by Judith
Derenzo and Michael John Garcia.
15 On May 25, 1993, U.N. Security Council Resolution 827 (1993) established the
International Criminal Tribunal for the former Yugoslavia (ICTY). It had its precursors in
Council resolutions to address the allegations of crimes against humanity in those
countries, are case specific, limited in jurisdiction, and temporary. The Security
Council may establish international criminal tribunals on a case-by-case basis.
Numerous regional and other international courts and tribunals also have been
created, some on an ad hoc basis, to address particular issues.17 For example, there
are options for mixed courts, which may consist of both international judges and
prosecutors as well as judges and prosecutors having the nationality of the state in
which the trial takes place. Moreover, a mixed court may draw on domestic as well
as international law. The mixed court may be part of the judicial organ of the state,
as in Kosovo, Cambodia, or Timor-Leste, or it may be more international in the form
of a special court, such as the one established for Sierra Leone.18 These courts and
tribunals are distinct from the ICC.
International Court of Justice. The International Court of Justice (ICJ),
also located in The Hague, is the principal judicial organ of the United Nations. The
ICJ does not prosecute individuals; its role is to settle, in accordance with
international law, legal disputes submitted to it by states. Only states may submit
cases for consideration, although the ICJ also will give advisory opinions on legal
questions when requested to do so by authorized international organizations.19
U.N. Security Council Resolution 752, which asked parties to respect humanitarian law;
U.N. Security Council Resolution 771, which condemned ethnic cleansing and demanded
access by international observers; and U.N. Security Council Resolution 780, which
requested the U.N. Secretary-General to establish a Commission of Experts to investigate
alleged violations of humanitarian law.
16 U.N. Security Council Resolution 935 (2004) asked the Secretary-General to establish a
Commission of Experts to examine the allegations of genocide and grave violations of
international humanitarian law in Rwanda. After its investigation, the Commission
recommended that an international tribunal be established to address the crimes. On
November 8, 2004, the Security Council, in Resolution 955, established the International
Criminal Tribunal for Rwanda (ICTR).
17 See, for example, “African International Courts and Tribunals” website, at
[ h t t p : / / www.a i c t -c i t a .or g] .
18 The Special Court for Sierra Leone (SCSL), a hybrid international-domestic court based
in Sierra Leone’s capital, Freetown, was set up jointly by the Government of Sierra Leone
and the United Nations under Security Council Resolution 1315 (2000). It is mandated to
try those who bear the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone after
November 30, 1996. While most suspects have been tried in Freetown, former President
Charles Taylor of Liberia is in custody in the Hague, where he is being tried by the SCSL
for crimes against humanity and other violations of international humanitarian law.
19 See U.S. Department of State, United States Participation in the United Nations—2006,
Congressional Interest in the ICC in Africa
Members of Congress have taken a range of positions on the ICC with regard
to Africa. On the one hand, many in Congress are concerned about massive human
rights violations on the continent, and some see the ICC as a possible means of
redress for these crimes. On the other hand, many oppose the ICC on jurisdictional
grounds. Congressional support remains for some restrictions on U.S. assistance to
countries that are parties to the ICC and that have not signed bilateral immunity
agreements with the United States. However, restrictions on military assistance to
ICC members under the American Servicemembers’ Protection Act of 2002, or
ASPA (P.L. 107-206, Title II), were repealed under the National Defense
Authorization Acts for FY2007 and FY2008. Overall, a combination of presidential
waivers and changes to the law have effectively nullified restrictions on U.S.
assistance to African parties to the ICC.
Atrocities in African Conflicts. There has been particular congressional
interest in the ICC’s work related to Darfur. Recent legislation also has referenced
the ICC in connection with ongoing conflicts in Uganda and the Democratic
Republic of Congo. Examples during the 110th Congress include
!H.R. 6416, The Just and Lasting Peace in Sudan Act of 2008,
introduced on June 26, 2008, which would make Sudanese
compliance with ICC arrest warrants a condition for lifting existing
sanctions on Sudan (referred to the House Committee on Foreign
!H.Res. 1227, Condemning sexual violence in the Democratic
Republic of the Congo and calling on the international community
to take immediate actions to respond to the violence, introduced on
May 22, 2008 (referred to the House Committee on Foreign Affairs);
!H.R. 180, The Darfur Accountability and Divestment Act of 2007,
which would offer U.S. support to the ICC’s efforts to prosecute
those responsible for acts of genocide in Darfur, passed by the House
on August 3, 2007 (referred to the Senate Committee on Banking,
Housing, and Urban Affairs);
!H.Con.Res. 80, Calling on the Government of Uganda and the
Lord's Resistance Army (LRA) to recommit to a political solution to
the conflict in northern Uganda by engaging in good-faith
negotiations, passed by the House on June 19, 2007 (referred to the
Senate Committee on Foreign Relations).
Restrictions on U.S. Assistance to African Parties to the ICC.
Observers have raised concerns over the possible assertion of ICC jurisdiction over
U.S. military personnel in connection with U.S. participation in U.N. peacekeeping
missions in Africa, and with respect to the new U.S. Combatant Command for
Africa, AFRICOM.20 Jurisdictional and other concerns led Congress to pass the
20 See CRS Report RL34003, Africa Command: U.S. Strategic Interests and the Role of the
U.S. Military in Africa, by Lauren Ploch. The Defense Department has signaled its intention
American Servicemembers’ Protection Act of 2002, or ASPA (P.L. 107-206, Title
II), which was signed into law on August 2, 2002. Section 2007 of ASPA prohibited
U.S. military assistance to ICC member-states, except for NATO countries, major
non-NATO allies, and countries subject to various other waiver provisions.
Permanent waivers were granted to countries that ratified Article 98 agreements
promising not to surrender U.S. nationals to the Court.
In Sub-Saharan Africa, ASPA effectively froze International Military Education
and Training (IMET), Foreign Military Financing (FMF), and Excess Defense
Articles (EDA) accounts for Kenya, Mali, Namibia, Niger, South Africa, and
Tanzania. However, President Bush waived the prohibition on IMET assistance to
21 countries, including these six, on September 29, 2006, due to concerns that the
restrictions could preclude valuable military-to-military ties.21 Congress repealed the
ASPA restriction on IMET funding in the National Defense Authorization Act for
FY2007 (P.L. 109-364), which was signed into law on October 17, 2006. The
National Defense Authorization Act for FY2008 (P.L. 110-181), signed into law on
January 28, 2008, repealed Section 2007 of ASPA entirely, ending remaining
prohibitions on FMF and EDA assistance.
Separately, the Nethercutt Amendment to the FY2005 Consolidated
Appropriations Act (P.L. 108-447), signed into law December 8, 2004, prohibited
Economic Support Fund (ESF) assistance to members of the ICC that had not entered
into an Article 98 agreement with the United States, with certain waiver provisions.
This prohibition was included as part of the FY2006 Consolidated Appropriations
Act (P.L. 109-102, Section 574), which was signed into law on November 14, 2005.
The prohibition was subsequently carried over via continuing resolutions on February
15, 2007 (P.L. 110-5) and September 29, 2007 (P.L. 110-92). A substantially
identical restriction was included in the Consolidated Appropriations Act of 2008
(P.L. 110-161, Section 671), signed into law December 26, 2007. President Bush has
twice waived this restriction with respect to 14 countries, including, in Africa, Kenya,
Mali, Namibia, Niger, South Africa, and Tanzania.22
to locate an AFRICOM staff presence on the continent, either in the form of a headquarters
or regional offices. Depending on the country, the United States may or may not have a
Status of Forces Agreement (SOFA) that appropriately covers military personnel not
detailed to the Embassy. The United States also has a semi-permanent troop presence
known as Combined Joint Task Force-Horn of Africa (CJTF-HOA), in Djibouti. Personnel
associated with CJTF-HOA conduct activities throughout the region. The command
authority for CJTF-HOA, currently under Central Command (CENTCOM), will be
transferred to AFRICOM in late 2008.
21 Presidential Determination No. 2006-27 of September 29, 2006; CRS interview with State
Department official, September 4, 2008.
22 Presidential Determination No. 2007-5 of November 27, 2006, waives restrictions on
FY2006 ESF assistance; Presidential Determination No. 2008-21 of June 20, 2008, does not
specify a fiscal year.
The ICC and Sudan
Sudan is a unique case because of the circumstances of ICC involvement, and
because of whom the ICC Prosecutor has chosen to pursue. ICC jurisdiction in
Sudan was referred by the U.N. Security Council, as Sudan is not a party to the
Court. In September 2004, the Security Council established an International
Commission of Inquiry on Darfur under Resolution 1564, citing concern that the23
Sudanese government had not met its obligations under previous Resolutions. In
January 2005, the Commission reported that it had compiled a confidential list of
potential war crimes suspects, and “strongly recommend[ed]” that the Security
Council refer the situation in Darfur to the ICC.24 On March 31, 2005, U.N. Security
Council Resolution 1593 referred the situation in Darfur to the ICC Prosecutor.
Following the referral, the ICC Prosecutor received the document archive of the
Commission of Inquiry. The Office of the Prosecutor initiated its own investigation
in June 2005.
In May 2007, the ICC issued arrest warrants for a former Sudanese Cabinet
Minister and an alleged former leader of the Janjaweed militia in Darfur. The
Sudanese government has refused to comply with the warrants, and both suspects
remain at large. The Prosecutor is also investigating alleged attacks on peacekeepers
by rebels in Darfur.
On July 14, 2008, the ICC Prosecutor applied for a warrant for the arrest of
Sudanese President Omar Hassan al-Bashir for genocide, crimes against humanity,
and war crimes. The application for a warrant is the first time the ICC Prosecutor has
named a sitting head of state, and the first time he has accused a suspect of genocide.
The request has provoked condemnation in Sudan and controversy in the region.
Several African and Middle Eastern governments and regional organizations have
called for a U.N. Security Council deferral of the prosecution in the interest of peace
and security. This section concludes with an analysis of Security Council
deliberations in July 2008, including discussion of a possible deferral under Article
U.N. Security Council Resolution 1593
On March 31, 2005, the U.N. Security Council, acting under Chapter VII of the
U.N. Charter, adopted Resolution 1593 (2005), which refers reports about the
situation in Darfur, Sudan (dating back to July 1, 2002) to the ICC Prosecutor.25 The
Resolution was adopted by a vote of 11 in favor, none against, and with four
23 S/RES/1564 (2004), September 18, 2004.
24 Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General, S/2005/60, January 25, 2005.
25 See U.N. Press Release, “Security Council Refers Situation in Darfur, Sudan, to
Prosecutor of International Criminal Court,” SC/8351; and U.N. Press Release, “Secretary-
General Welcomes Adoption of Security Council Resolution Referring Situation in Darfur,
Sudan to International Criminal Court Prosecutor,” March 31, 2005, SG/SM/9797-
abstentions — the United States, China, Algeria, and Brazil.26 While Sudan is not
a party to the ICC and has not consented to its jurisdiction, the case can be referred
to the ICC by the U.N. Security Council under Chapter VII. The Resolution is
binding on all U.N. member states, including Sudan. Under the ICC Statute, the ICC
is authorized, but not required, to accept the case.27
The U.S. Position on U.N. Security Council Resolution 1593. In
statements made in July and September 2004, respectively, Congress and the Bush
Administration declared that genocide was taking place in Darfur. The
Administration supported the formation of the International Commission of Inquiry28
for Darfur. However, the Bush Administration preferred a special tribunal in Africa
to be the mechanism of accountability for those who committed crimes in Darfur.
It objected to the U.N. Security Council referral to the ICC because of its stated
objections to the ICC’s jurisdiction over nationals of states not party to the Rome29
Statute. However, the United States had supported a version of the Rome Statute
that would have allowed the U.N. Security Council to refer cases involving non-
states parties to the ICC, but would not have allowed other states or the Prosecutor
to refer cases. The United States abstained on Resolution 1593 (which is not
equivalent to a veto in the Security Council) because the Resolution included
language that dealt with the sovereignty questions of concern and essentially
protected U.S. nationals and other persons of non-party States other than Sudan from
prosecution.30 The abstention did not change the fundamental objections of the Bush
Administration to the ICC.
At the same time, the Bush Administration has supported the need for the
international community to come together and take action on the atrocities occurring31
in Darfur. The Administration and Congress have expressed support for bringing
to justice those who perpetrate genocide, war crimes, and crimes against humanity
in the region. However, U.S. legal restrictions on providing assistance to the ICC
present an obstacle to the use of the ICC for that purpose.
26 U.N. Security Council Resolution 1593 (2005), March 31, 2005.
27 Frederic L. Kirgis, “U.N. Commission’s Report on Violations of International
Humanitarian Law in Darfur: Security Council Referral to the International Criminal Court,”
American Society of International Law Insight Addendum, April 5, 2005.
28 U.N. Press Release, “Security Council Declares Intention to Consider Sanctions to Obtain
Sudan’s Full Compliance with Security, Disarmament Obligations on Darfur,” SC/8191,
September 18, 2004.
29 U.S. Mission to the United Nations (USUN) Press Release #055, “Explanation of Vote
on the Sudan Accountability Resolution,” Ambassador Ann W. Patterson, March 31, 2005.
30 See Paragraph 6 of Security Council Resolution 1593; also see Kirgis, Op. Cit.
31 USUN Press Release #055, Op. Cit.; USUN Press Release #229, “Statement on the Report
of the International Criminal Court,” Carolyn Willson, Minister Counselor for International
Legal Affairs, November 23, 2005.
In May 2007, the ICC issued arrest warrants for Ahmad Muhammad Harun, who
had served as Interior Minister from 2003 and 2005, and Ali Muhammad Ali
Abd-Al-Rahman (known as Ali Kushayb), who had allegedly acted as leader of the
Janjaweed in the Wadi Salih area of Darfur.32 They were each accused of over 40
counts of war crimes and crimes against humanity in connection with abuses
allegedly committed in Darfur in 2003 and 2004.33
The Sudanese government has refused to comply with the ICC warrants, and
neither suspect is in ICC custody. Reports suggest Kushayb was in Sudanese
detention when the arrest warrant was issued, but has since been released, while
Harun was promoted to Minister of Humanitarian Affairs and co-president of a
committee to investigate human rights violations in Sudan.34 In 2005, following the
initiation of the ICC’s investigation, the Sudanese government created its own special
courts for Darfur in an apparent effort to stave off the ICC's jurisdiction under the
principle of complementarity. However, the courts’ efforts were widely criticized as
insufficient.35 They have reportedly been largely dormant since 2007.36
Investigation of Rebel Crimes
In December 2007, the ICC Prosecutor announced the opening of a new
investigation into the targeting of peacekeepers and aid workers in Darfur. In June
2007, attack on the town of Haskanita in which ten peacekeepers — then serving
under the African Union Mission in Sudan (AMIS) — were killed. The Prosecutor
said the Haskanita attack appeared to have been committed by rebel forces, but he37
has not yet named the accused.
32 The Sudanese government has denied having control over the Janjaweed, a term for ethnic
Arab militias accused of perpetrating human rights abuses in Darfur. However, consensus
exists among human rights researchers, journalists, and others who have visited Darfur that
the Janjaweed have received arms and support from the government.
33 ICC Press Release, “Warrants of Arrest for the Minister of State for Humanitarian Affairs
of Sudan, and a Leader of the Militia/Janjaweed,” May 2, 2007.
34 International Federation of Human Rights, “The International Criminal Court and Darfur:
Questions and Answers,” available online at
[ h t t p : / / www.i ccnow.or g/ document s / FIDH_QA_Dar f u r _ ENG.pdf ] .
35 See e.g. Human Rights Watch, Lack of Conviction: The Special Criminal Court on the
Events in Darfur, June 2006; U.N. News, “Sudan's Special Court On Darfur Crimes Not
Satisfactory, UN Genocide Expert Says,” December 16, 2005.
36 CRS interview with human rights researcher, September 10, 2008.
37 ICC Office of the Prosecutor, Seventh Report of the Prosecutor of the ICC to the UN
Security Council pursuant to UNSC 1593 (2005), June 5, 2008.
The Case Against Bashir
Application for a Warrant. On July 14, 2008, ICC Prosecutor
Moreno-Ocampo applied for a warrant for the arrest of Sudanese President Omar
Hassan al-Bashir.38 The application presented evidence implicating Bashir in three
counts of genocide, five counts of crimes against humanity, and two counts of war
crimes.39 The accusations refer to alleged attacks by Sudanese troops and
pro-government militias against civilians in the Darfur region of Sudan during the
government’s five-year counter-insurgency campaign. Moreno-Ocampo affirmed that
while Bashir did not “physically or directly” carry out abuses, “he committed these
crimes through members of the state apparatus, the army, and the Militia/Janjaweed”40
as president and commander-in-chief of the armed forces. Although many domestic
legal systems grant sitting heads of state immunity from criminal prosecution, the
Rome Statute grants the ICC jurisdiction over any individual, regardless of official
capaci t y. 41
The application for a warrant is not an indictment; under ICC procedures,
charges must be confirmed at a pre-trial hearing. Having received the application,
a panel of ICC judges known as the Pre-Trial Chamber must decide whether to issue
a warrant for Bashir's arrest. The decision is expected to take into account whether
there are “reasonable grounds” to believe Bashir committed the alleged crimes, and
whether a warrant is necessary to ensure Bashir’s appearance in court. In response
38 In a briefing to the Security Council on June 5, 2008, the ICC Prosecutor had indicated
that he would present a second case on Darfur to ICC judges in July. ICC Office of the
Prosecutor, Seventh Report of the Prosecutor, Op. Cit.
39 The counts are: (1) Genocide by killing of members of each target group; (2) Genocide
by causing serious bodily or mental harm to members of each target group; (3) Genocide by
deliberately inflicting on each target group conditions of life calculated to bring about the
group's physical destruction; (4) Murder of civilians in Darfur, constituting a crime against
humanity; (5) Extermination by inflicting conditions of life calculated to bring about the
destruction of a part of the civilian population in Darfur, constituting a crime against
humanity; (6) Forcible transfer of population in Darfur, constituting a crime against
humanity; (7) Torture of civilians in Darfur, constituting a crime against humanity; (8) Rape
of civilians in Darfur, constituting a crime against humanity; (9) Attacks against the civilian
population in Darfur, constituting a war crime; and (10) Pillaging of towns and villages in
Darfur, constituting a war crime (ICC Office of the Prosecutor, Summary of Prosecutor’s
Application under Article 58, July 14, 2008).
40 ICC Office of the Prosecutor, Summary of the Case: Prosecutor's Application for Warrant
of Arrest under Article 58 Against Omar Hassan Ahmad Al Bashir.
41 Rome Statute, Article 27. International legal experts are, however, divided as to whether
the Rome Statute waives “procedural” immunity for sitting heads of state — i.e., protection
from arrest while traveling to a foreign country in official capacity — under customary
international law. For further discussion, see Marko Milanovic, “ICC Prosecutor Charges
the President of Sudan with Genocide, Crimes Against Humanity and War Crimes in
Darfur,” American Society of International Law Insight, July 28, 2008; Dapo Akande, “The
Bashir Indictment: Are Serving Heads of State Immune from ICC Prosecution?,” Oxford
Transitional Justice Research Working Paper Series, July 30, 2008; and Pondai Bamu,
“Head of State Immunity and the ICC: Can Bashir be Prosecuted?” Oxford Transitional
Justice Research Working Paper Series, August 1, 2008.
to the request for a warrant, several European governments, including France and
Great Britain, have called on the Sudanese government to comply with ICC actions.
Reactions by regional governments have been more critical, with many calling for a
deferral of the prosecution. The governments of Russia and China have voiced
opposition to the prosecution attempt. An analysis in the Chicago Tribune noted that
if a warrant is issued, “Sudan is unlikely to hand over the president, but the warrant
would mean that Bashir could be arrested by international authorities if he left his
Genocide.43 Bashir is the first individual to be accused of genocide by the ICC
Prosecutor. The request for a warrant alleges that Bashir “intends to destroy in
substantial part the Fur, Masalit and Zaghawa ethnic groups as such” through
coordinated attacks by government troops and Janjaweed militia members on civilian
targets, including villages, towns, and camps for internally displaced persons.44 The
prosecution’s case states that 35,000 people in Darfur have been killed outright, at
least 2,700,000 displaced, and thousands raped in such attacks, and that most victims45
are members of the targeted groups. The case is based on the Prosecutor’s own
investigation, which was initiated in June 2005, as well as on thousands of
documents, video footage, and interview transcripts received from the U.N.
International Commission of Inquiry on Darfur. The Prosecutor also received the
Commission’s sealed list of individuals suspected of committing serious abuses in
Darfur, though this list is not binding on the selection of suspects.
Human rights organizations and Darfur advocacy groups have welcomed the46
prosecution of Bashir for genocide. However, the formulation of the Prosecutor’s
accusation has drawn some criticism. The Commission of Inquiry concluded in its
January 2005 report that the violence in Darfur did not amount to genocide, but that
“international offences such as the crimes against humanity and war crimes that have
42 Maggie Farley and Edmund Sanders, “Darfur Genocide Laid at Sudan President's Door,”
The Chicago Tribune, July 15, 2008. In late August, Bashir traveled to and from Turkey,
which is not a party to the ICC.
43 See CRS Report RL32605, Genocide: Legal Precedent Surrounding the Definition of the
Crime, by Judith Derenzo and Michael John Garcia, for a discussion of the legal elements
of genocide under the Rome Statute and under the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide.
44 Darfur's main rebel groups are associated with these ethnicities; the Prosecutor's case
against Bashir alleges that military and militia attacks specifically targeted civilians even
where rebel locations were spatially separate and well-known.
45 ICC Office of the Prosecutor, “Summary of the Case.” The application for a warrant
references reprisals against other, smaller ethnic groups in connection with alleged war
crimes and crimes against humanity. The estimate of 35,000 killed is much lower than the
figure of 200,000-400,000 referenced by some non-governmental organizations and
researchers, though many of these estimates include deaths indirectly caused by the conflict.
46 See e.g. Human Rights Watch, “Darfur: ICC Moves Against Sudan's Leader; Charges
Against al-Bashir a Major Step to Ending Impunity,” July 14, 2008; Amnesty International,
“President Of Sudan Could Face Arrest Over Darfur War Crimes,” July 18, 2008.
been committed in Darfur may be no less serious and heinous than genocide.”47
Many Darfur activists have accused the Commission of allowing political
considerations to affect its conclusions.48 Other analysts, such as the scholar Alex de
Waal, argue that while the Sudanese government is responsible for serious crimes in
Darfur, the charge of genocide will be “extraordinarily difficult” to prove.49
Sudanese Reactions. The Sudanese government has rejected ICC
jurisdiction over Darfur as a violation of its sovereignty and accused the Court of50
being part of a Western plot against a sovereign African and Muslim state. Other
reactions have focused on the potential impact of an arrest warrant on ongoing peace
processes, peacekeeping operations, and humanitarian relief, and on the potential
impact on national elections scheduled for 2009.
The Bashir Administration. Reports suggest that Bashir’s administration
sees the ICC as an instrument of Western pressure for regime change in Sudan, and
not as an independent institution.51 The Sudanese president has repeatedly denied
that genocide or ethnic cleansing is taking place in Darfur and has rejected ICC
jurisdiction as an infringement on Sudanese sovereignty.52 The last mission to Sudan
by ICC prosecutorial staff was in January-February 2007, after which the government
announced it would no longer allow ICC personnel to speak to Sudanese officials.53
47 Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004,
January 25, 2005.
48 E.g., Eric Reeves, “Report of the International Commission of Inquiry on Darfur: A
critical analysis (Part II),” Sudanreeves.org, February 6, 2005.
49 Alex de Waal, “Darfur, the Court and Khartoum: The Politics of State Non-Cooperation,”
in Nicholas Waddell and Phil Clark, eds., Courting Conflict? Justice, Peace and the ICC in
Africa (London: The Royal Africa Society, March 2008). Another critical response is
presented by Rony Brauman, “The ICC's Bashir Indictment: Law Against Peace,” World
Politics Review, July 23, 2008. For further background, see Human Rights Watch,
Entrenching Impunity: Government Responsibility for International Crimes in Darfur,
50 E.g., BBC Monitoring, “Sudanese Leader Calls International Court ‘Tool of Imperialist
Forces,’” [State-owned] Suna News Agency, August 20, 2008.
51 See e.g. Al-Sahafah [Khartoum], “Sudanese Aide Accuses West of Striving to Replace
Al-Bashir,” via BBC Monitoring, August 21, 2008; Sudan Tribune, “Sudan Warns UN Chief
Over ICC,” via BBC Monitoring, August 18, 2008; and de Waal, Op. Cit.
52 The Sudanese government signed the Rome Statute on September 8, 2000, but did not
ratify it. On August 26, 2008, Sudan notified the Secretary-General of the United Nations,
as depositary of Rome Statute of the International Criminal Court, that Sudan “does not
intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation
arising from its signature on 8 September 2000.” (Reference: C.N.612.2008.TREATIES-6
[Depositary Notification], Rome Statute of the International Criminal Court, “Sudan:
53 CRS interview with ICC Office of the Prosecutor official, September 3, 2008. ICC
prosecutorial staff have conducted extensive interviews with witnesses outside of Sudan,
including in neighboring countries.
Days before the request for a warrant against Bashir was announced, a presidential
spokesman reportedly called the Prosecutor a “terrorist” whose investigation was
based on testimony by rebel leaders and spies posing as humanitarian workers.54 The
ruling National Congress Party (NCP) has used state-controlled media and public
demonstrations to rally domestic support and emphasize that ICC actions are “aimed
at core national values and strategic interests.”55 Shortly after the request for a
warrant was announced, Bashir undertook a good-will tour to Darfur, where he
reportedly promised new development initiatives for the region and was greeted by
thousands of supporters. At the regional level, the Sudanese government launched
a diplomatic campaign to lobby for a U.N. Security Council deferral of the case (see
section below). According to press reports, in mid-August 2008, government troops
launched a new offensive in northern Darfur to seize control of rebel strongholds.
In a further effort to preclude prosecution, Bashir has argued that Sudan has the
capacity to investigate and try perpetrators of violence in Darfur domestically.56 In
early August 2008, the government appointed a special prosecutor, Nimer Ibrahim
Mohamed, to investigate alleged crimes in Darfur. The appointment is in addition
to the special courts created after ICC warrants were issued for Harun and Kushayb.
While Mohamed is reportedly a respected lawyer, observers suggest that his efforts
will be limited by political pressures, and that Sudanese law does not contain
provisions for genocide, war crimes, or crimes against humanity.57
While the ICC is institutionally independent from the United Nations, Sudanese
officials have reportedly on multiple occasions threatened the safety of U.N.
personnel in Sudan if an arrest warrant is issued, including those serving the U.N.
Mission in Sudan (UNMIS, in the South) and the African Union-United Nations
Hybrid Operation in Darfur (UNAMID).58 At the same time, at least one official
denied that the government was threatening U.N. staff.59 Seven peacekeepers were
54 The Associated Press (hereafter, AP), “Sudan Dismisses ICC Proceedings on Darfur,
Reiterates Refusal to Hand Over Any Suspects,” July 11, 2008.
55 Suliman Baldo, “The Politics of an Arrest Warrant,” Making Sense of Darfur [online
forum published by the Social Science Research Council], July 23, 2008.
56 See e.g., transcript of Bashir’s press conference in Istanbul, Turkey, on August 20, 2008,
via the Open Source Center.
57 Abdelmoniem Abu Edries Ali, “Sudan Appoints Darfur Prosecutor,” Agence
France-Presse (hereafter, AFP), August 6, 2008.
58 See e.g., AP, “Sudan: ICC Case Could Provoke Violence,” July 13, 2008; AP, “Sudan
Rejects Genocide Charges Against President, Lawmaker Says Sudan Can't Ensure U.N.
Safety,” July 14, 2008; Katharine Houreld, “Official: Aid workers might not be safe in
Sudan if ICC issues arrest warrant for president,” AP, July 22, 2008; BBC News Online,
“Sudanese Warning on Peacekeepers,” July 25, 2008; Daniel Bases, “Sudan Warns
‘Consequences’ Over Warrant - UN,” Reuters, August 19, 2008; AP, “Sudan's President
Says Ready To Go To War,” August 20, 2008; Akhbar al Yawm [pro-government Sudanese
newspaper], “Political Parties Support President's Decision on ‘Expelling’ UNAMID,” via
BBC Monitoring, August 24, 2008.
59 Peter Clottey, “Sudan Denies Threatening U.N. Staff Over ICC Arrest Warrants,” Voice
killed and 22 injured in an ambush in Darfur on July 8, 2008, deepening fears of
Other Sudanese Reactions. Some Sudanese opposition parties have
displayed public support for the president, reportedly due in part to concerns that an
ICC arrest warrant could derail elections scheduled for 2009, while privately61
acknowledging mixed reactions. Spokesmen for the two largest Darfur rebel
factions, the Sudan Liberation Movement-Unity (SLM-U) and the Justice and
Equality Movement (JEM), have reportedly welcomed the request for a warrant
Media reports suggest southern Sudanese are ambivalent about the attempt to63
prosecute Bashir. The Sudan People's Liberation Movement (SPLM) — the former
southern rebel group and partner in the Government of National Unity under the 2005
Comprehensive Peace Agreement (CPA) — called on the Government of National
Unity “to forge an understanding with the international community and to cooperate64
with [the] ICC on the legal processes.” The SPLM also expressed concern that the
ICC's move could threaten “peace and stability” in Sudan, and affirmed that the65
situation in Darfur “requires a negotiated and peaceful settlement.” Some SPLM
officials are reportedly concerned that ICC attempts to prosecute Bashir could undo
the CPA, while others have reportedly expressed hope that prosecution could
leverage international pressure on Khartoum.66 Following the request for a warrant,
of America, August 19, 2008; see also Mohamed Osman, “Darfur Peacekeepers' Chief:
Sudan Cooperating,” AP, August 21, 2008.
60 U.N. Security Council, Report of the Secretary-General on the Deployment of the African
Union-United Nations Hybrid Operation in Darfur, S/2008/558, August 18, 2008. The
report states that the United Nations is investigating who was behind the attack, and
documents several other “direct attacks” on UNAMID personnel in July 2008.
61 Lydia Polgreen and Jeffrey Gettleman, “Sudan Rallies Behind Leader Reviled Abroad,”
The New York Times, July 28, 2008; Sarah El Deeb, “Indicted Sudanese President Seeks
Help From Rivals,” AP, August 6, 2008. Bashir has stated that elections will take place as
scheduled (Jennie Matthew, “Beshir Vows Sudan Elections on Time,” AFP, August 3,
62 Reuters, “Instant View: ICC Prosecutor Seeks Warrant for Sudan's Bashir,” July 14, 2008;
AFP, “‘Delighted’ Darfur Rebels Offer to Help Bring Beshir In,” July 14, 2008.
63 See e.g. “Sudan: Saving Omer,” Africa Confidential, August 1, 2008; and Naseem Badiey,
“Ocampo v Bashir: The Perspective from Juba,” Oxford Transitional Justice Research
Working Paper Series, July 18, 2008.
64 SPLM Press Release, “SPLM Position On ICC Indictment,” July 21, 2008; see also Wasil
Ali, “SPLM Official Calls on Sudan to ‘Deal Legally’ With ICC,” Sudan Tribune, August
65 SPLM Press Release, “SPLM Position On ICC Indictment”; SPLM Press Release, “SPLM
Reviews ICC Indictment as 2nd PB Meeting Opens,” July 26, 2008; Najum Mushtaq, “ICC
Indictment Sparks Hope, Fear,” Inter Press Service, July 18, 2008.
66 Opheera McDoom, “Analysis-Justice Clashes With Peace on Darfur Bashir Warrant,”
Bashir appointed the SPLM's Salva Kiir, the President of south Sudan and first Vice
President in the Government of National Unity, to head a government commission
to coordinate Sudan’s response to the ICC. Kiir reportedly traveled to Uganda in late
July and urged the country's leadership to support a delay in the proceedings against
Bashir.67 The ruling party has averred that “the position of the SPLM… is based on
full solidarity with the president,” according to local media, though observers dispute
Regional Reactions. The Sudanese government has rallied support for a
deferral of Bashir’s potential prosecution among Arab and African leaders, as well
as among regional organizations such as the African Union (AU), the Arab League,
and the Organization of the Islamic Conference (OIC).69 In a written statement on
July 11, 2008, the AU Peace and Security Council “expressed its strong conviction
that the search for justice should be pursued in a way that does not impede or
jeopardize efforts aimed at promoting a lasting peace” and “reiterated [the] AU's
concern with the misuse of indictments against African leaders.”70 On July 21 and
July 22, respectively, the AU Peace and Security Council and the OIC's Group in
New York requested that the U.N. Security Council suspend ICC proceedings in the71
interests of peace and stability. The AU also called on the Sudanese government
to investigate human rights violations in Darfur, and is reportedly planning its own72
investigation in the region, with Sudanese cooperation. The President of the AU
Commission, Jean Ping, and the joint U.N.-AU mediator for Darfur, Djibril Bassolet,73
have raised concerns that the ICC is jeopardizing peace efforts. On July 31, the
Non-Aligned Movement of 120 developing countries expressed “deep concern” that74
the prosecution of Bashir could destabilize Sudan.
Reuters, July 14, 2008; Mushtaq, Op. Cit.
67 Milton Olupot, “Delay Arrest of Bashir — Kiir,” New Vision [Kampala], July 23, 2008.
68 United Nations Mission in Sudan (UNMIS) press review, July 15, 2008; see also Sudan
Tribune, “Interview: Sudan FM expresses frustration with the ruling NCP over Darfur
crisis,” September 8, 2008.
69 The OIC is an inter-governmental organization of 57 states that aims to “project the
interests of the Muslim world” (OIC website, at
70 African Union, Letter Dated 14 July 2008 from the Permanent Observer of the African
Union to the United Nations Addressed to the President of the Security Council, S/2008/465.
71 Security Council Report, “Update Report: Sudan,” July 28, 2008. While some see these
statements as evidence of regional support for Bashir, others point out that the option of a
deferral could serve as leverage over Khartoum.
72 Jennie Matthew, “AU Recruiting Top Lawyers Over Sudan War Crimes Probe,” AFP,
August 5, 2008.
73 Reuters, “Darfour - La CPI Complique les Choses, Selon le Médiateur Onu-UA,” July 31,
74 Reuters, “Developing States Worried by Sudan Indictment,” July 31, 2008.
Many African and Middle Eastern governments have expressed concern over
the attempt to prosecute Bashir, including those of South Africa, Nigeria, Kenya,
Rwanda, Tanzania, Benin, Eritrea, Egypt, Iran, Syria, Libya, Algeria, and Morocco.
President Yoweri Museveni of Uganda, on the other hand, has taken a public stance
in favor of ICC involvement in Darfur, a position that appears to stem in part from
the ICC’s prosecutions of rebel leaders in Uganda.75 Some African and Middle
Eastern commentators have praised the ICC Prosecutor’s decision to pursue Bashir
as an important step against impunity in the region, while others wondered whether
the move displayed bias against African countries.76
Security Council Considerations in July 2008
The July 14, 2008, ICC Prosecutor’s request for an arrest warrant for Bashir
occurred during the time that the U.N. Security Council was considering extension
of the Council mandate for the African Union-United Nations Hybrid Operation in
Darfur (UNAMID). The Council had before it the report of the U.N. Secretary-
General on the deployment of the operation, dated July 7 and covering the period
April to June 2008.77 It was expected that this mandate, which was to expire July 31,
would be extended, albeit with some discussion of UNAMID-related issues.
Council considerations were significantly impacted by the ICC Prosecutor’s
announcement. In the light of reactions to this request (see previous section) and in
view of the fact that the Council had sent the case to the ICC for investigation,
protracted consultations within the Council on the content of a resolution extending
the UNAMID mandate delayed Council action until nearly the final hour.78
Among the possible issues engaging Council members after the July 14 action
was the oft-made suggestion that the Council include in its resolution a request, under
Article 16 of the ICC Statute, for a deferral or suspension of further ICC action on
the case for up to 12 months for the purpose of, among other things, facilitating
efforts toward a peaceful settlement of the situations in Darfur and south Sudan.
Some governments also expressed concerns that a positive ICC response to the
request for an arrest warrant would exacerbate the situation on the ground in Darfur,
making both peacekeepers and humanitarian workers subject to further attacks.
75 Rodney Muhumuza, “We Can't Condemn ICC Over Bashir — Museveni,” The Monitor
[Kampala], August 4, 2008.
76 See e.g., The Daily Champion [Lagos, Nigeria], “Al-Bashir’s Indictment [editorial],”
August 6, 2008; Paul Ejime, “Before Al-Bashir Goes on Trial,” The Guardian [Lagos], July
2008, via the Open Source Center; AFP, “Praise and Criticism for ICC From African Rights
Organizations,” July 16, 2008.
77 The U.N. Security Council requested that the Secretary-General report every 90 days on
progress made in implementation of UNAMID and the status of the political process.
78 Security Council Report, “Update Report, Sudan,” July 28, 2008, available at
[ ht t p: / / www.secur i t ycounci l r epor t .or g] .
Article 16 of the ICC Statute is entitled Deferral of investigation or prosecution
and provides that
No investigation or prosecution can be commenced or proceeded with under this
Statute for a period of 12 months after the Security Council, in a resolution
adopted under Chapter VII of the Charter of the United Nations, has requested
the Court to that effect; that request may be renewed by the Council under the
Thus, if the U.N. Security Council, acting under Chapter VII of the Charter, adopts
a resolution requesting the ICC to suspend or defer any further investigation or
prosecution of the case against Bashir, the ICC, including the Prosecutor, would be
obliged to cease its investigation in that particular situation and the Pre-Trial
Chamber, before which the warrant request is pending, would have to suspend its
considerations. The Council request would be applicable for 12 months and would
David Scheffer, who headed the U.S. delegation to the conference that drafted
the ICC Statute, in an August 20, 2008, Op-ed in Jurist, noted that the “negotiating
history of Article 16 should be instructive to how the Council currently examines the
Darfur situation.”79 Scheffer pointed out that Article 16 was drafted and adopted to
enable the U.N. Security Council to suspend or defer an ICC investigation or
prosecution of a situation “before either is launched if priorities of peace and security
compelled a delay of international justice.” He stated that “the original intent behind
Article 16 was for the Security Council to act pre-emptively to delay the application
of international justice for atrocity crimes in a particular situation in order to focus
exclusively on performing the Council’s mandated responsibilities for international
peace and security objectives.” This was a tool to be employed by the Council in
instances of “premature State Party or Prosecutor referrals.” In addition, Scheffer
observed that if the current proposals for Council suspension of further ICC action
on a situation referred to the ICC by the Council had been foreseen, “Article 16 never
would have been approved by the...majority of governments attending the U.N. talks
on the Rome Statute for it would have been viewed as creating rights for the Security
Council far beyond the original intent of the Singapore compromise.”
Scheffer noted, “Nonetheless, one plausibly may argue that the language of
Article 16 of the Rome Statute technically empowers the Security Council to
intervene at this late date and block approval of an arrest warrant against President
Bashir or even suspend its execution following any approval of it by the judges.”80
79 David Scheffer, “The Security Council’s Struggle over Darfur and International Justice,”
Jurist — Forum (Jurist, University of Pittsburgh School of Law), online at
[http://j urist.law.pitt/forumy/ 2008/08/security-councils-struggl e-over-darfur.php].
80 Scheffer, Op. Cit. A more academic commentary on Article 16 may be found in Luigi
Condorelli and Santiago Villalpando, Referral and Deferral by the Security Council,
Chapter 17.2, in The International Criminal Court: A Commentary, edited by Antonio
Cassese, Paola Gaeta, and John R.W.D. Jones ( New York: Oxford University Press, 2002),
vol. I, pp. 644-654.
U.N. Security Council Resolution 1828 (2008), adopted on July 31, 2008, by a
vote of 14 in favor and with the United States abstaining, extended UNAMID for a
further 12 months; the meeting, incidentally, ended at 10:45 pm.81 In abstaining on
the vote rather than voting against it, the United States supported renewal of the
UNAMID mandate but noted that the language in preambular paragraph 9 “would
send the wrong signal to President Bashir and undermine efforts to bring him and
others to justice.”82 In remarks with the press following the vote, U.S. Deputy
Permanent Representative Alejandro Wolff stated:
The reason for our abstention...had to do with one paragraph that would send the
wrong signal at a very important time when we are trying to eliminate the climate
of impunity, to deal with justice, and to address crimes in Darfur, by suggesting
that there might be a way out. There is no compromise on the issue of justice.
The ... United States felt it was time to stand up on this point of moral clarity and
make clear that this Permanent Member of the Security Council will not83
compromise on the issue of justice.
Other ICC Cases in Africa
The ICC Prosecutor has opened five cases in connection with northern Uganda,
four in connection with the Democratic Republic of Congo (DRC), and one in
connection with the Central African Republic (CAR). In contrast to Sudan, which has
resisted ICC jurisdiction, these three countries are states parties to the ICC; all three
and referred situations in their countries to the Prosecutor. Four suspects are
currently in ICC custody, all Africans: Jean-Pierre Bemba, Thomas Lubanga,
Germain Katanga, and Mathieu Ngudjolo. No one has yet been convicted by the ICC.
81 See S/PV.5947 for verbatim record of the meeting and U.N. Press Release S/9412 for an
unofficial summary of the statements made and the text of the adopted resolution. For links
to both items, see under July 31 at [http://www.un.org/Depts/dhl/resguide/scact2008.htm].
A U.S. vote against the resolution would have defeated the resolution since that “no” vote
would have been a veto.
82 Explanation of vote by Ambassador Alejandro Wolff, U.S. Deputy Permanent
Representative, USUN Press Release # 209 (08), July 31, 2008. The text of preambularnd
paragraph 9 follows: “Taking note of the African Union (AU) communiqué of the 142
[AU] Peace and Security Council (PSC) Meeting dated 21 July (S/2008/481, annex), having
in mind concerns raised by members of the Council regarding potential developments
subsequent to the application by the Prosecutor of the International Criminal Court of 14
July 2008, and taking note of their intention to consider these matters further.”
83 Remarks by Ambassador Alejandro Wolff, U.S. Deputy Permanent Representative, at the
Security Council Stakeout [with the press], USUN Press Release #210 (08), July 31, 2008.
The government of Uganda, a party to the ICC, referred “the situation
concerning the Lord’s Resistance Army” to the Court in 2003.85 The Lord’s
Resistance Army (LRA) is a rebel group that has fought for over two decades in
northern Uganda. In October 2005, the ICC unsealed arrest warrants — the first
issued by the Court — for LRA leader Joseph Kony and LRA commanders Vincent
Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. The Prosecutor
accused the LRA of establishing “a pattern of brutalization of civilians,” including
murder, forced abduction, sexual enslavement, and mutilation, amounting to crimes
against humanity and war crimes.86 None of the suspects are in custody; Lukwiya
and Otti have reportedly been killed since the warrants were issued, while other LRA
commanders are reportedly in hiding in eastern Democratic Republic of Congo.
While Uganda’s referral specifically mentioned the Lord’s Resistance Army, the
Prosecutor also is investigating alleged crimes committed by the Ugandan military
in northern Uganda.
Despite widespread documentation of LRA abuses, the ICC’s actions in Uganda
have met with some strong domestic and international opposition due to debates over
what would constitute justice for the war-torn communities of northern Uganda and
whether the ICC has helped or hindered the pursuit of a peace agreement.87 Some
observers argue that ICC arrest warrants were a crucial factor in bringing the LRA
to the negotiating table in 2006 for peace talks brokered by the Government of South
Sudan. In August 2006, rebel and government representatives signed a landmark
cessation of hostilities agreement; in February 2008, the government and the LRA
reached several significant further agreements, including a permanent cease-fire.
However, threats of ICC prosecution are considered by some to be a stumbling block
to achieving an elusive final peace deal. The LRA has reportedly demanded that ICC
arrest warrants be annulled as a prerequisite to a final agreement. The Ugandan
84 See CRS Report RL33701, Uganda: Current Conditions and the Crisis in North Uganda,
by Ted Dagne and Hannah Reeves.
85 ICC Office of the Prosecutor Press Release, “President of Uganda Refers Situation
Concerning the Lord's Resistance Army (LRA) to the ICC,” January 29, 2004. According
to an Office of the Prosecutor official, referrals by the governments of Uganda and DRC
followed moves by the Office of the Prosecutor to open investigations under its
discretionary power (CRS interview, September 3, 2008); see also Payam Akhavan, “The
Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the
International Criminal Court,” The American Journal of International Law, 99, 2 (April
86 ICC Press Release, “Warrant of Arrest Unsealed Against Five LRA Commanders,”
October 14, 2005. Kony is wanted for 12 counts of crimes against humanity, including
murder, enslavement, sexual enslavement, rape, and “inhumane acts,” and 21 counts of war
crimes, including murder, cruel treatment of civilians, directing an attack against a civilian
population, pillaging, inducing rape, and the forced enlistment of children; the other LRA
commanders are accused of crimes against humanity and war crimes, ranging from four to
87 See Tim Allen, Trial Justice: The International Criminal Court and the Lord's Resistance
Army (London: Zed Books, 2006).
government has offered a combination of amnesty and domestic prosecutions for
lower- and mid-ranking LRA fighters, and is reportedly willing to prosecute LRA
leaders in domestic courts if the rebels accept a peace agreement. This could entail
challenging the LRA cases’ admissibility before the ICC under the principle of
complementarity. However, only the ICC’s Pre-Trial Chamber has the authority to
make a decision on admissibility. The ICC Prosecutor has reportedly stated that he
will fight any move to drop the LRA prosecutions.88
Democratic Republic of Congo (DRC)
The DRC government referred “the situation of crimes within the jurisdiction
of the Court allegedly committed anywhere in the territory of the DRC” to the
Prosecutor in April 2004.89 Despite the end of a five-year nationwide civil war in
2003 and the conduct of national elections in 2006, the DRC has continued to suffer
from armed conflict, particularly in the volatile eastern regions bordering Rwanda,
Uganda, and Burundi. The ICC has issued four arrest warrants in its first DRC
investigation, which focuses on the eastern Congolese district of Ituri, where an
inter-ethnic war erupted in June 2003 with reported involvement by neighboring
governments.90 Three suspects are in custody, while a fourth remains at large. The
Prosecutor has stated that a second investigation in the DRC will focus on sexual
crimes committed in the eastern provinces of North and South Kivu, while a third
will look into “the role of those who organized and financed” armed groups
throughout the country.91 The latter investigation could potentially target officials
from neighboring countries as well as members of the Congolese government and
Thomas Lubanga Dyilo. The ICC issued a sealed arrest warrant in February
2006 for Thomas Lubanga Dyilo, the alleged founder and leader of the Union des
Patriotes Congolais (UPC) in Ituri and its military wing, the Forces Patriotiques
pour la Libération du Congo (FPLC). At the time, Lubanga was in Congolese
88 CRS interview with ICC Office of the Prosecutor official, September 3, 2008. According
to the official, the Ugandan government has expressed continued commitment to arresting
the LRA leaders in discussions with the ICC.
89 ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral of the Situation
in the Democratic Republic of Congo,” April 19, 2004.
90 Ituri’s armed groups did not participate in the peace process between DRC's major rebel
movements that brought the country’s nationwide civil war to an end in 2003. While U.N.
peacekeepers and DRC government troops have succeeded in staunching much of the
violence in Ituri, many of the groups have not disarmed, and the area is still considered
unstable. See International Crisis Group, Congo: Four Priorities for Sustainable Peace in
Ituri, Africa Report No. 140, May 13, 2008.
91 ICC Press Release, “DRC: ICC Warrant of Arrest Unsealed Against Bosco Ntaganda,”
April 29, 2008.
92 CRS interview with Office of the Prosecutor official, September 3, 2008. Nationals of
non-member states are subject to ICC jurisdiction for crimes committed on the territory of
a member state.
custody and had been charged in the domestic justice system.93 After a determination
of admissibility by the ICC, Lubanga was transferred to ICC custody in March 2006.
The ICC has charged Lubanga with three counts of war crimes related to the
recruitment and use of child soldiers.94 Despite anticipation that the case would lead
to a straightforward conviction, in June 2008, prior to trial, the ICC Trial Chamber
stayed the proceedings against Lubanga because the Prosecutor had allegedly failed
to disclose exculpatory evidence.95 On July 2, Lubanga was ordered released. A
preliminary application by the Prosecutor to lift the stay of proceedings was rejected
by the ICC Trial Chamber in early September 2008. A final decision on whether to
proceed with Lubanga’s trial is pending, during which time the accused is to remain
Germain Katanga and Mathieu Ngudjolo Chui. Germain Katanga, the
alleged highest-ranking commander of the Force de Résistance Patriotique en Ituri
(FRPI) and Ngudjolo, the alleged highest-ranking commander of the Front des
Nationalistes et Intégrationnistes (FNI), are being prosecuted as co-perpetrators for
allegedly having “acted in concert to mount an attack targeted mainly at Hema
civilians” in Ituri in 2003.97 The ICC issued sealed arrest warrants for Katanga and
Ngudjolo in July 2007, and they were transferred by Congolese authorities to ICC
custody in October 2007 and February 2008, respectively. The Prosecutor has
accused them jointly of four counts of crimes against humanity and nine counts of
war crimes related to murder, “inhumane acts,” sexual crimes, the use of child98
soldiers, rape, and other abuses. The case is in the pre-trial phase.
Bosco Ntaganda. The ICC issued a sealed warrant for the arrest of Bosco
Ntaganda, the alleged former Deputy Chief of General Staff for Military Operations
in Lubanga's FPLC, in August 2006. In April 2008, the ICC unsealed the warrant,
having determined that public knowledge of ICC proceedings would neither endanger
witnesses nor further obstruct attempts to bring Ntaganda into custody.99 The ICC
93 According to Human Rights Watch, Lubanga was arrested by Congolese authorities after
the killing of nine U.N. peacekeepers in Ituri in February 2005. He and other Ituri militia
members had been charged with genocide, war crimes, and crimes against humanity, but had
not been brought to trial when the ICC warrant was issued. (Human Rights Watch, “D.R.
Congo: ICC Arrest First Step to Justice,” March 17, 2006.)
94 ICC, The Prosecutor Vs. Thomas Lubanga Dyilo, Document Containing the Charges,
Article 61(3)(a) (Public Redacted Version), August 28, 2006.
95 For more information on the decision to stay proceedings, see Human Rights Watch,
“International Criminal Court's Trial of Thomas Lubanga ‘Stayed’: Questions and
Answers,” at [http://hrw.org/english/docs/2008/06/19/congo19163.htm].
96 ICC Press Release, “Trial Chamber I Maintains Stay of Proceedings in the Thomas
Lubanga Dyilo Case,” September 4, 2008.
97 ICC, Combined Factsheet: Situation in the Democratic Republic of the Congo, Germain
Katanga and Mathieu Ngudjolo Chui, June 27, 2008. Their cases were joined in March
98 ICC, Combined Factsheet, Op. Cit.
99 ICC Press Release, “Warrant of Arrest Against Bosco Ntaganda Unsealed,” April 29,
Prosecutor has accused Ntaganda of three counts of war crimes related to the alleged
recruitment and use of child soldiers in 2002 and 2003.100 Attempts to arrest
Ntaganda have been complicated by the fact that he is reportedly currently serving
as second-in-command in another rebel group, the Congrès National pour la Défence
du Peuple (CNDP), in the DRC's North Kivu province. The CNDP, currently the
DRC's most significant rebel organization, is led by Laurent Nkunda, a dissident
military general.101 Ntaganda remains at large.102
Central African Republic (CAR)
The government of CAR, a party to the ICC, referred “the situation of crimes
within the jurisdiction of the Court committed anywhere on [CAR] territory”to the
ICC Prosecutor in January 2005.103 In May 2008, the ICC issued a sealed warrant of
arrest for Jean-Pierre Bemba Gombo, a former DRC rebel leader. The warrant alleged
that as commander of the Movement de Libération du Congo (MLC), one of two
main DRC rebel groups during that country's civil war, Bemba had overseen
systematic attacks on civilians in CAR territory between October 2002 and March
2003.104 The Prosecutor accused Bemba of five counts of war crimes and three
counts of crimes against humanity for alleged rape, torture, pillaging, and other
abuses.105 Bemba, who had been in exile in Europe since 2007, was arrested by
Belgian authorities in May 2008 and turned over to the ICC in July 2008.
Bemba's prosecution by the ICC has been controversial in the DRC, where the
MLC is now the largest opposition party.106 After serving as one of four
vice-presidents in the DRC transitional government from July 2003 to December
100 ICC Pre-Trial Chamber, The Prosecutor Vs. Bosco Ntaganda, Warrant of Arrest, August
101 A peace deal was signed by Nkunda and other armed groups in North Kivu in January
2008, though reports indicate that sporadic fighting continues. For background on the
conflict, see International Crisis Group, Congo: Bringing Peace to North Kivu, Africa
Report No. 133, October 31, 2007.
102 Jacques Kahorha , “Nkunda Rebuffs ICC Over Indictee,” Institute for War and Peace
Reporting, June 16, 2008.
103 ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral Concerning
Central African Republic,” January 7, 2005.
104 Bemba's MLC, based in the DRC's north, was reportedly invited into CAR by
then-President Ange-Félix Patassé to help quell a rebellion led by François Bozizé. Bozizé
took power in a coup in 2003 and is the current president of CAR.
105 ICC Press Release, “Surrender of Jean-Pierre Bemba to the International Criminal
Court,” July 3, 2008. The counts as listed in this document appear to have changed slightly
from those listed in the original arrest warrant.
106 The MLC converted itself into a political party following the end of the DRC civil war
the vote, behind the incumbent president, Joseph Kabila; Bemba’s supporters
accused the president of electoral fraud. Bemba won a Senate seat in January 2007,
but he went into exile the following April after relations with Kabila continued to
deteriorate. Some observers consider Bemba’s prosecution by the ICC to be
politically expeditious for President Kabila, whose main rival is now in international
custody. The Office of the Prosecutor has strenuously denied that political
considerations played a role in the decision to pursue Bemba.107
Issues Raised by the ICC’s Actions in Africa
Many observers have praised the ICC’s investigations in Africa as a crucial step
against widespread impunity on the continent. Nevertheless, the ICC’s actions have
provoked debates over the court’s potential impact, its perceived prioritization of
Africa over other regions, its selection of cases, and the effect of international
prosecutions on peace processes. Most persistently, critics have accused the ICC of
potentially jeopardizing the settlement of long-running civil wars in the pursuit of an
often abstract “justice.” Supporters of the Court reject these criticisms, and hope that
ICC investigations will build accountability for the world’s gravest atrocities and
contribute to Africa’s long-term peace and stability.
Many hope that the ICC will usher in a new period of international
accountability for the gravest human rights abuses by ensuring that perpetrators are
brought to justice. The ICC’s founders anticipated that by ending impunity, the ICC
would deter future atrocities.108 Indeed, some observers have argued that the ICC’s
success should be evaluated not just based on the punishment of past atrocities, but
also in terms of “the effect its investigations have on reducing abysmal conduct in the
present and future.”109 (The Office of the Prosecutor maintains that the choice of
cases is not based on calculations of deterrent effect, though the Office acknowledges
that strategic communications related to ICC prosecutions may play a role in
The goal of deterrence has been particularly salient in the ICC’s investigations
in Africa, which have focused to-date on regions where conflict is ongoing or only
recently settled.111 However, difficulties in enforcing ICC arrest warrants and the fact
that the Court has yet to convict any suspects have led some to question whether the
107 CRS interview with Office of the Prosecutor official, September 3, 2008.
108 Preamble of the Rome Statute; see also International Criminal Court Assembly of States
Parties, “Court Adopts Agreements to Launch Court's Operation,” United Nations Press
Release L/3013, September 9, 2002.
109 Waddell and Clark, “Introduction,” in Courting Conflict?
110 CRS interview, September 3, 2008.
111 The ICC’s temporal jurisdiction, which limits prosecution to crimes committed after the
entry into force of the Rome Statute, has contributed to this phenomenon.
threat of ICC prosecution is credible. Some observers suggest that the Court’s failure
to apprehend suspects in Darfur in particular has bared tensions between the ICC’s
universal mandate and its reliance on the enforcement power of states.112 Others
maintain that deterrence is difficult to evaluate and that changes in perpetrators’
behavior may be visible only over the long-run. Some argue that the Court's
compilation of evidence, including transcribed interviews with witnesses, may serve
future prosecutions or reconciliation processes even if they do not immediately lead
Accusations of Bias
The ICC’s investigations in Sub-Saharan Africa have stirred concerns over
African sovereignty and the long history of foreign intervention on the continent. For
example, President Paul Kagame of Rwanda, which is not a state party to the Court,
has portrayed the ICC as a new form of “imperialism” that seeks to “undermine
people from poor and African countries, and other powerless countries in terms of
economic development and politics.”113 Other commentators have alleged that the
Prosecutor has limited investigations to Africa because of geopolitical pressures,
either out of a desire to avoid confrontation with major powers or as a tool of
Western foreign policy.114 The attempt to prosecute Bashir has been particularly
controversial, drawing rebuke from African governments and regional organizations.
Supporters of the Court respond that investigations to-date have been determined by
referrals, either by African states or the Security Council, and that the Prosecutor is
analyzing situations in countries outside of Africa. In addition, observers have
pointed out that national legal systems in Africa are particularly weak, which has
allowed the ICC to assert its jurisdiction under the principle of complementarity.115
The Office of the Prosecutor maintains that its choice of cases is based on the relative
gravity of abuses, and that crimes committed in Sub-Saharan Africa are among the
world's most serious.116
The Prosecutor’s selection of cases also has proven controversial. ICC
prosecutions in Sudan had, prior to the request for a warrant against President Bashir,
drawn criticism for targeting mid-level officials rather than those with alleged
higher-order responsibility for abuses in Darfur. Some have criticized ICC
prosecutions in Uganda, the DRC, and CAR for focusing on alleged abuses
committed by rebel fighters to the exclusion of those reportedly committed by
government troops. In Uganda, some observers suggest that the ICC is seen locally
112 See e.g. Kenneth A. Rodman, “Darfur and the Limits of Legal Deterrence,” Human
Rights Quarterly, 30, 3, August 2008.
113 AFP, “Rwanda's Kagame says ICC Targeting Poor, African Countries,” July 31, 2008;
Rwanda Radio via BBC Monitoring, “Rwandan President Dismisses ICC as Court Meant
to ‘Undermine’ Africa,” August 1, 2008.
114 See e.g. Oraib Al Rantawi, “A Step Forward or Backward?” Bitter Lemons, 32, 6, August
115 See e.g. Stephanie Hanson, “Africa and the International Criminal Court,” Council on
Foreign Relations, July 24, 2008.
116 CRS interview with Office of the Prosecutor official, September 3, 2008.
as closely associated with the administration of President Museveni, as only LRA
commanders have been targeted since the Prosecutor's investigation in northern
Uganda began despite reported abuses by government troops.117 The decision to
pursue DRC opposition leader Jean-Pierre Bemba Gombo has provoked accusations
that the Prosecutor was swayed by political bias or excessive pragmatism. As one
pair of authors has written, “perceptions of the ICC on the ground have at times been
damaged by insufficient efforts by the Court to make clear the basis on which
individuals have been the subject of warrants and of particular charges, while those
of apparently equal culpability have not.”118 ICC supporters have responded that the
Prosecutor is mandated to focus on a limited number of particularly serious cases,
and that investigations are ongoing and could lead to prosecutions against members
of opposing sides in the future.
Justice vs. Peace?
One of the most persistent criticisms of the ICC’s actions in Africa has been that
by prosecuting active participants in ongoing or recently settled conflicts, the Court
risks prolonging violence or endangering fragile peace processes. By removing the
bargaining chip of amnesty from the negotiating table, critics allege, the ICC may
remove incentives for peace settlements while encouraging perpetrators to remain in
power in order to shield themselves from prosecution. Some observe that in such
cases, “it is difficult to tell victims of these conflicts that the prosecution of a small
number of people should take precedence over a peace deal that may end the
appalling conditions they endure and the daily risks they face.”119
Concerns that the aims of “justice” and “peace” may conflict have been
particularly prominent in Uganda and Sudan. In Uganda, some observers argue that
ICC arrest warrants against LRA commanders have acted as an impediment to
achieving a final peace agreement. However, others counter that the threat of ICC
prosecution, on top of other shifts in the conflict, was a decisive factor in bringing
the LRA to the negotiating table in 2006. This observation has led some to see the
ICC in Uganda as “an important ingredient in a political solution” for the conflict-
plagued north.120 In Sudan, some observers have argued that the attempt to prosecute
President Bashir could endanger the Comprehensive Peace Agreement for southern
Sudan and the peace process in Darfur, or provide an incentive to the ruling party to
cling to power ahead of elections scheduled for 2009. For example, according to
former U.S. envoy to Sudan Andrew Natsios, “the regime will now avoid any
compromise or anything that would weaken their already weakened position, because
117 Michael Otim and Marieke Wierda, “Justice at Juba: International Obligations and Local
Demands in Northern Uganda,” in Courting Conflict? See also Tim Allen, Op. Cit. The
Prosecutor is investigating alleged abuses by the Ugandan military. Observers agree,
however, that alleged abuses by government troops are not equal in gravity to those
reportedly committed by the LRA.
118 Waddell and Clark, Op. Cit.
119 Nick Grono and Adam O'Brien, “Justice in Conflict? The ICC and Peace Processes,” in
120 Akhavan, “The Lord's Resistance Army Case,” Op. Cit.
if they are forced from office they face trials before the ICC… [An ICC warrant for
Bashir] may well shut off the last remaining hope for a peaceful settlement for the
country.”121 U.N. Secretary-General Ban Ki-moon, who has maintained a neutral
position on the ICC’s actions in Sudan, has nonetheless argued that the international
community must seek to balance “peace” and “justice” in dealing with the conflict
in Darfur.122 On the other hand, some argue the ICC request for a warrant against
Bashir has opened up new opportunities to secure a just peace in Darfur. Indeed,
several see progress in the Sudanese ruling party’s decision to reach out to its
domestic political rivals, for example by appointing south Sudan’s Vice President
Kiir to head a government commission to coordinate the government’s response to
the ICC.123 Moreover, U.S. officials, Darfur advocacy groups, and others have stated
that justice and accountability are paramount aims in Sudan.
Supporters of international prosecutions maintain that the pursuits of peace and
justice are complementary, rather than opposed, as a credible threat of prosecution
may serve as an important lever of pressure on actors in a conflict.124 For example,
Priscilla Hayner of the International Center for Transitional Justice writes, “it would
be wrong to suggest that pragmatism always trumps principle in matters of life and
death, and thus that one must ease up on justice in order to achieve peace. In some
cases, the interest of peace has been well served by strong, forthright efforts to
advance justice.”125 Many observers have pointed out that discerning the effect of
ICC actions on complex processes is extremely difficult. As Nick Grono and Adam
O’Brien of the International Crisis Group observe, “peace deals that sacrifice justice
often fail to produce peace” in the long-run.126
121 Quoted in Opheera McDoom, “Analysis: Justice Clashes With Peace on Darfur Bashir
Warrant,” Reuters, July 14, 2008.
122 U.N. Security Council, Report of the Secretary-General on the deployment of the African
Union-United Nations Hybrid Operation in Darfur, S/2008/558, August 18, 2008. Ban
Ki-moon stated on August 28, 2008, that the Prosecutor's request for a warrant had “altered
the political landscape, although it is too early to assess the impact it will have on the peace
process” (Louis Charbonneau, “Peace in Sudan as Important as Justice — UN's Ban,”
Reuters, August 28, 2008).
123 In early August 2008, the government withdrew troops from the town of Abyei, a
flashpoint in the north-south conflict, a move that some see as proof that the NCP has
chosen conciliation over confrontation in response to the arrest warrant request. In late
August, Bashir visited Juba, the capital of South Sudan, for the first time in nearly two
years. See Oxford Analytica, “International/Sudan: ICC Pursues Calculated Risk,” August
124 E.g., Caroline Flintoft [International Crisis Group], “Our Silence on Sudan Shames Us,”
The Globe and Mail, June 16, 2008; Sara Darehshori [Human Rights Watch], “Doing the
Right Thing for Darfur: An ICC indictment of Sudan’s president serves peace and justice,”
The Los Angeles Times, July 15, 2008.
125 Priscilla Hayner, “Seeking Justice as War Crimes Rage On,” The Chicago Tribune, July
126 Grono and O’Brien, Op. Cit.
Implications for Future U.S. Policy on the ICC
It is unclear whether U.S. views on the acceptability of the ICC have changed
as a result of events since July 14, 2008. The United States abstained on Council
Resolution 1828 (2008), extending the UNAMID mandate, pointing to the language
in a preambular paragraph that referred to the July 14 application by the ICC
prosecutor and the possibility of a Council request for deferral of further
consideration of ICC consideration of that case as the reason for the abstention. The
United States also had abstained on Council Resolution 1593 (2005), by which the
Council sent the situation in Darfur to the ICC for investigation. While the Bush
Administration would have preferred a different venue for consideration of the
genocide conditions in Darfur, it did not halt referral to the ICC by vetoing the
Some observers have suggested that the U.S. position in the past would not have
permitted abstention on the two Council resolutions. Thus, they maintain that the
United States has moved to a policy that recognizes that under certain circumstances,
the ICC may have a role.127 Others have pointed out, however, that any perceived
moderation in U.S. views toward the Court has not affected its overall position not
to become a party to the ICC Statute.
Current U.S. efforts, as reflected by U.S. abstentions in the Council appear to
be driven by non-ICC foreign policy issues that are perceived as more important.
The need to support the U.S. policy against genocide in Darfur was perceived as
more important than overall U.S. opposition to the ICC. This broader policy drove
the U.S. abstention on Council referral of the situation to the ICC in 2005.
Moreover, the need to ensure that the UNAMID mandate, on the brink of expiring,
was extended for another 12 months was perceived as more important and drove the
U.S. abstention in July 2008.
John Bellinger, the Legal Advisor to the Secretary of State, in a speech in April
on the United States and the ICC, noted,
Now it may strike some as a bit ironic that a senior U.S. Government official
would speak at a conference “celebrating” the tenth anniversary of the
International Criminal Court, given that the U.S. Government’s concerns about
the Court are so well known. But I welcome this opportunity to appear to share
the U.S. Government’s views. Indeed, I will tell you up front that one of my
main themes is that even if we disagree over the means chosen by the Rome
Statute — and I believe that this is a disagreement that is likely to continue under
future U.S. Administrations unless U.S. concerns are addressed — nevertheless
127 See, for example, Council on Foreign Relations, “Bellinger Says International Court
Flawed But Deserving of Help in Some Cases,” Interview, July 10, 2007; AP, “U.S.
Ambivalent on Genocide Charge Against Sudan’s President, “ International Herald Tribune,
July 15, 2008; Hanson, Op. Cit.; and Council on Foreign Relations, “The Dilemma of
International Justice,” Interview, July 28, 2008.
we do not disagree over the Statute’s end goals, and we are prepared to work128
with those who support the Court in appropriate circumstances.
128 John B. Bellinger, “The United States and the International Criminal Court: Where
We’ve Been and Where We’re Going,” Remarks to the DePaul University College of Law,
Chicago, Illinois, April 25, 2008, available at [http://www.state.gov/s/l/rls/104053.htm].
Appendix A. List of African States Showing Whether They Are
Parties to the ICC and Have Ratified The“Article 98 Agreement”
CountryParty to ICCRatified Article 98 Agreement
Central African RepublicXX
Congo, Republic ofXX
K e nya a X
Mali a X
Moza mbique Xa
Nami bia Xa
São Tomé and PríncipeX
CountryParty to ICCRatified Article 98 Agreement
Sources: International Criminal Court; U.S. Department of State, Treaties in Force 2007.
a. Economic Support Fund (ESF) assistance to these countries, which are parties to the ICC
but have not signed Article 98 agreements, remains restricted under the Nethercutt
Amendment. However, the restriction was waived by President Bush in 2006 and 2008 (see