The Legality of the Indictment of President Omar Hasen Al-Bashir by the International Criminal Court under International Law

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Addis Ababa University


In March 2005, the UN Security Council referred the situation in Darfur to the International Criminal Court (ICC). After investigating the case the prosecutor of the ICC made an application in July 2008 to the ICC requesting arrest warrant against Sudanese president Omar Hasan Al-Bashir for the crimes committed in Darfur since 2003. After the prosecutor’s application, the ICC Pre-Trial Chamber I issued arrest warrant on 4 March 2009 for the first time in the Court’s history against a sitting Head of State. The issuance of this arrest warrant raised a mixed reaction in favor of the indictment and against the indictment. The main objective of this study is assessing as to whether the indictment issued against Al-Bashir is in accordance of the ICC Statute or not. To analyze the legality of the indictment against Al-Bashir, various literatures, international and regional human rights instruments, different treaties and conventions including the ICC Statute, summary of the prosecutor’s application and the Pre-Trial Chamber I decision have been consulted. Finally the findings of the study reveal that the indictment issued against Al-Bashir is legally founded on the basis of ICC Statute and the international crimes lodged against Al-Bashir fall within the jurisdiction of the court. In addition, this study pointed out some practical problems or challenges to bring Al-Bashir to justice so as to the court lacks enforcement mechanism to make arrest warrant effective and practical. To solve these problems, therefore, it needs the cooperation of Sudanese government, state parties to the ICC Statute and non-State parties to the Statute. More specifically, all possible efforts should be made by the U N Security Council. Where a State party fails to comply with a request to cooperate with the court’s decision it is the U N Security Council which mandated by the UN Charter to take all necessary means. Key words, international criminal court, Al-Bashir, Sudan, Darfur, indictment, arrest warrant.



international criminal court, Al-Bashir, Sudan, Darfur, indictment, arrest warrant