## Facts

- The ICC opened proceedings arising from alleged mass atrocities in Darfur, Sudan, after a U.N. Security Council referral in 2005.
- Omar Hassan Ahmad Al Bashir was Sudan’s President and Commander-in-Chief during the charged period.
- The Prosecution alleged that, beginning in 2003, Sudanese state forces and allied militia carried out a counterinsurgency campaign that included widespread attacks on civilians associated with the Fur, Masalit, and Zaghawa groups.
- The alleged conduct included killings, extermination, torture, rape, forcible displacement, attacks on civilians, and pillage across multiple locations in Darfur.
- In July 2008, the Prosecution sought an arrest warrant under Article 58 of the Rome Statute, alleging genocide, crimes against humanity, and war crimes, and asserting Al Bashir’s responsibility as an indirect (co-)perpetrator.

## Issues

1. Whether the Court had jurisdiction and the case was admissible despite Sudan’s non-party status to the Rome Statute and Al Bashir’s position as a sitting head of state.
2. Whether there were reasonable grounds to believe Al Bashir was criminally responsible under Article 25(3)(a) for crimes within the Court’s jurisdiction and whether arrest was necessary under Article 58(1)(b).
3. Whether the record supported reasonable grounds to believe Al Bashir acted with the specific intent required for genocide under Article 6.

## Decision

- The Chamber held the case fell within the Court’s jurisdiction based on the Security Council referral and was admissible, including on gravity and complementarity grounds.
- The Chamber authorized issuance of an arrest warrant for five crimes against humanity: murder, extermination, forcible transfer, torture, and rape.
- The Chamber authorized issuance of an arrest warrant for two war crimes: intentionally directing attacks against civilians and pillaging.
- The Chamber found reasonable grounds to believe Al Bashir was responsible as an indirect perpetrator or indirect co-perpetrator under Article 25(3)(a).
- The Chamber found arrest necessary to ensure appearance, prevent obstruction or endangerment of the investigation, and prevent continued commission of crimes.
- By majority, the Chamber declined to include genocide charges, finding insufficient reasonable grounds at that stage to infer the requisite intent to destroy protected groups as such, while leaving open the possibility of later amendment upon additional evidence.

## Legal Principles

- A Security Council referral under Article 13(b) can establish ICC jurisdiction over crimes committed in a non-State Party territory.
- Official capacity, including status as a head of state, does not bar ICC jurisdiction or negate criminal responsibility under the Rome Statute.
- Under Article 58(1), a warrant of arrest requires (i) reasonable grounds to believe the person committed crimes within the Court’s jurisdiction and (ii) necessity of arrest for appearance, non-obstruction, or prevention of further crimes.
- Crimes against humanity require reasonable grounds to believe in a widespread or systematic attack against a civilian population pursuant to a state or organizational policy, plus the charged underlying acts.
- Genocide under Article 6 requires specific intent to destroy, in whole or in part, a protected group as such; intent to displace, punish, or suppress perceived rebel support is not sufficient without evidence supporting the genocidal mens rea.

## Conclusion

The Chamber authorized an arrest warrant against a sitting head of state for crimes against humanity and war crimes committed in Darfur, grounded in a Security Council referral and rejecting immunity based on official capacity, but it declined at that stage to include genocide because the evidence did not establish reasonable grounds to infer specific intent to destroy protected groups as such.


Prosecutor v. Al Bashir, ICC-02/05-01/09-3 (Int’l Crim. Ct. Pre-Trial Chamber I 2009)