Prosecuting International Crimes in Africa - PULP - University of ...

Politics of international criminal justice 147
there was insufficient evidence at the time to prosecute him for genocide. 3
In its decision approving the arrest warrant, the ICC Pre-Trial Chamber
found that the information supplied by the ICC Prosecutor did not show
reasonable grounds to believe that the Sudanese government acted with
specific intent to destroy, in whole or in part, the Fur, Masalit and
Zaghawa groups. Charges of genocide were therefore not included for the
arrest warrant.
Nonetheless, the Chamber left a window open for an amendment or
modification in light of any information submitted subsequently under
article 58(6). Indeed, later on and in accordance with the said article of the
Rome Statute, on 3 February 2010, the Appeals Chamber of the ICC
reversed the earlier decision of the Pre-Trial Chamber rejecting the
genocide charge, ruling that the Chamber had applied too stringent a
standard of proof. The consequence of this is that the prosecutor is at
liberty to add genocide to the list of charges against the President of Sudan.
Unlike the three other African countries under ICC investigation, namely
Uganda, Central African Republic (CAR) and Democratic Republic of
Congo (DRC), Sudan is not a party to the Statute of the ICC (Rome
Statute). The Court derives its jurisdiction over Sudan’s case of Darfur
through a Security Council Resolution of March 2005. As a rejoinder, in
July 2009 at the 13th AU Summit, the AU voted by a large majority not to
cooperate with the ICC over its indictment of Sudanese President Omar
Hassan Al Bashir. 4 From among the concerns that were raised by AU
leaders over the actions of the prosecutor, this chapter addresses two,
namely:
(a) The issuance of an arrest warrant for Sudanese President Al Bashir was
prejudicial to ongoing peace processes. 5
(b) The action has been taken without due regard to sustainable peace in
Sudan, and is therefore a toothless stooge of ex-colonial powers. 6
Before examining the plausibility or otherwise of these arguments, a brief
historical account of the relationship between Africa and the ICC as
foundation for the ensuing analysis is in order.
3 AT Cayley ‘The prosecutor’s strategy in seeking the arrest of Sudanese President Al
Bashir on charges of genocide’ (2008) 6 Journal of International Criminal Justice 829-840
and De Waal ‘Darfur, the Court and Khartoum: The politics of state non-cooperation’
in N Waddell and P Clark (eds) Courting conflict? Justice, peace and the ICC in Africa (2008)
4
125.
Assembly of the African Union 2009 ’Decisions and declarations’ Assembly/AU/Dec
5
243-267 (XIII).
African Union Communique 2008 ’Communique of the 142nd meeting of the Peace
6
and Security Council’.
‘AU justice Ministers protest abuse of universal jurisdiction’ New York Times 5
November 2008 available at http://allafrica.com/stories/200811050742.html
(accessed 1 June 2010).