On 3rd March 2009, the ICC issued a warrant of arrest for Omar al Bashir, President of Sudan, on charges of crimes against humanity and war crimes in Darfur. This was the first warrant of arrest ever issued for a sitting Head of State by the ICC.

The decision represents an historic and controversial moment for the ICC, which is being accused of jeopardising a fragile peace on the ground in Darfur and elsewhere in Sudan in the name of international justice.

The OTJR Working Paper Series explores the legal, political and humanitarian issues that arise from the Bashir case, asking what these developments mean for the ICC, the wider realm of transitional justice, Sudan and other states affected by mass conflict.

Series Papers

 

1. If Ocampo Indicts Bashir, Nothing May Happen 

Sun, 13 Jul 2008 by Phil Clark

The ICC is making a hollow threat which challenges the role and credibility of the Court. A version of this paper appeared originally on the SSRC blog, “Making Sense of Darfur”, with responses in the Sudan Tribune, the Financial Times, the Guardian.

 

2. Dilemmas of Confrontation and Cooperation: Politics in Sudan during Ocampo v Bashir 

Fri, 18 Jul 2008 by Sharath Srinivasan

The ICC’s moves against President Bashir take place in an environment of ‘well-oiled political calculation’ by Khartoum that, depending on how the Court responds, could aid or derail its cause.

 

3. Ocampo v Bashir: The Perspective from Juba 

Fri, 18 Jul 2008 by Naseem Badiey

The prevailing view on the ground in Southern Sudan is that the ICC is engaged in a form of legal adventurism that jeopardises fragile hopes for peace. Commentary on this essay appears in the September 2008 US Congress report on the ICC in Africa: http://fpc.state.gov/documents/organization/110372.pdf.

 

4. What Does it Mean for the Prosecutor to be a Political Actor? 

Mon, 21 Jul 2008 by Teddy Harrison

In the light of the application by ICC prosecutor Moreno Ocampo for an arrest warrant for President Bashir serious discussion is necessary about how to ensure that the prosecutor exercises appropriate political agency.

 

5. The Force of Law and Problem of Impunity 

Mon, 28 Jul 2008 by Yvonne Malan

Non-judicial approaches to transitional justice are less effective than is often claimed, and ICC Prosecutor Moreno Ocampo¹s bold move against President Bashir is a timely reminder that prosecutions are important in the struggle against impunity.

 

6. The Bashir Indictment: Are Serving Heads of State Immune from ICC Prosecution? 

Sun, 20 Jan 2013 by Dapo Akande

There are at least three possible ways of arguing that President Bashir is not immune despite the fact that Sudan is not a party to the Statute of the ICC. For commentary on this essay, see The Daily Telegraph, the SSRC blog, 'Making Sense of Darfur', and the September 2008 US Congress report on the ICC in Africa..

 

7. Head of State Immunity and the ICC: Can Bashir be Prosecuted? 

Fri, 01 Aug 2008 by Pondai Bamu

On any reasonable reading of international law, a sitting head of state is immune from prosecution and/or arrest in the territory of another state; therefore the ICC Prosecutor is playing politics rather than law. Commentary on this essay appears in the September 2008 US Congress report on the ICC in Africa.

 

8. Ocampo's Darfur Strategy Depends on Congo 

Wed, 20 Aug 2008 by Phil Clark

To understand what the ICC Prosecutor hopes to gain from his pursuit of President Bashir, we need to understand the wider context of the ICC's prosecutorial strategy to date, in particular the cases from the Democratic Republic of Congo. Commentary on this essay appears in Der Spiegel and The Daily Telegraph

 

9. Would al-Bashir Get a Fair Trial? Lessons from Guantánamo for the ICC 

Wed, 20 Aug 2008 by Rid Dasgupta

In a potential future ICC trial of al-Bashir, there are certain lessons to be learned from the US military commissions on Guantánamo Bay, Cuba, with regards to protections of defendants and how best judicial impartiality and independence may be preserved.

 

10. Another Piece in the Puzzle: Accountability and Justice for International Crimes in Sudan 

Wed, 20 Aug 2008 by Lutz Oette

The ICC can set an important example by taking a rule of law approach to justice and thereby assist domestic civil society efforts aimed at fostering a culture of accountability in Sudan.

 

11. Bashir and the ICC: The Aura or Audition of International Justice in Africa? 

Wed, 15 Oct 2008 by Stephen Oola

In his disproportionate focus on Africa, Moreno Ocampo has developed a prosecutorial strategy that risks undermining delicate conflict resolution strategies in the region.

 

12. The Security Council, Article 16 and Darfur 

Sun, 20 Jan 2013 by Robert Cryer

Contrary to what prominent commentators such as David Scheffer argue (here), it would be lawful for the Security Council to request deferral of the prosecution of Sudanese government officials.

 

13. The Perils of an Article 16 Deferral for Bashir 

Tue, 17 Mar 2009 by Zachary Manfredi

The stakes are too high for the ICC’s future to risk deferral as delaying Bashir’s indictment would represent a victory for impunity and political power over accountability and judicial independence.

 

14. Implications of the Absence of Genocide Charges for Bashir 

Fri, 20 Mar 2009 by Zachary Manfredi

A schism has opened up between legal and popular uses of 'genocide' that may force activists to develop new tools and strategies to encourage political and humanitarian action in Darfur.

 

15. Activism, Genocide and Darfur 

Tue, 24 Mar 2009 by Marc Gustafson

In contrast to what Zachary Manfredi argues, it is unlikely that the ICC's decision to exclude genocide charges will have an impact on the activist campaigns because the relevance of using the word 'genocide' has already come and gone.