DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS: THE INTERNATIONAL CRIMINAL COURT ARREST WARRANT DECISION FOR PRESIDENT AL BASHIR OF SUDAN

摘要

The International Criminal Court (ICC or the Court) was established on 17 July 1998 by the Rome Statute of the International Criminal Court (hereinafter 'Rome Statute' or 'Statute'). The Rome Statute which entered into force on 1 July 2002 has been widely ratified by a vast majority of States demonstrating an increasing international recognition by States of the need to hold individuals accountable for international crimes within the jurisdiction of the ICC. Since the ICC became operational, all its active investigations carried out by the Office of the ICC Prosecutor by the end of 2009 were in Africa in four situations in The Democratic Republic of Congo (DRC), Northern Uganda, the Darfur region of Sudan, and the Central African Republic (CAR). Other situations were under preliminary examination by the Office of the ICC Prosecutor in Afghanistan, Colombia, Cote d'Ivoire, Chad, Georgia, Guinea, Kenya, and Palestine. By 2009 the ICC's highest profile case, which is examined in this article, was the case against Omar Hassan Ahmad Al Bashir (hereinafter Al Bashir), the de jure and de facto President of the State of Sudan, Africa's largest country, since 16 October 1993 and Commander-in-Chief of the Sudanese Armed Forces against whom the ICC Pre-Trial Chamber I issued the arrest warrant on 4 March 2009 as an indirect (co)-perpetrator for war crimes and crimes against humanity, This arrest warrant has raised several key questions related to individual criminal responsibility of serving senior State officials of non-State parties to the Rome Statute examined in this article. Such questions relate to the following selected issues: (i) the personal immunities accruing to senior State officials in particular the head of State immunity of non-State parties to the Rome Statute; (ii) criminal responsibility for indirect (co)perpetration under the Rome Statute; (iii) the standard of evidence required to prove genocide at the pre-trial stage under the Rome Statute. This article examines the ICC's decision on the above issues against the background of the situation in Darfur.