The Arrest Warrants for Omar Al Bashir: The Forces of Compliance in International Law and Politics

By George C. Grasso


On July 12, 2010, the International Criminal Court (ICC) issued a second arrest warrant for the Sudanese President Omar Al Bashir for three counts of genocide.[1] This newer warrant was preceded by a 2009 warrant for war crimes and crimes against humanity.[2] Since the ICC is not a supranational court and has no policing powers or prisons, its jurisdiction is only complementary to that of its signatories; thus, implementing and enforcing the obligation of States to cooperate with the ICC’s mandates is one of the ICC’s most important challenges.[3] Numerous national and international political pressures may have prominent roles in compelling many signatories of the Rome Statute of the ICC (Rome Statute or Statute) to arrest Al Bashir and extradite him to the ICC. These political pressures could reinforce certain persuasive legal arguments for jurisdiction and compliance, thereby expediting the execution of the warrants for Al Bashir.

One legal argument for the ICC’s jurisdiction over both signatory and non-signatory States is founded in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).[4] Arguably, the Genocide Convention may supplement or even serve in place of the jurisdiction of the ICC, which is generally conferred by the Rome Statute.[5] Göran Sluiter, a learned scholar in international criminal law, has maintained that the ICC’s outstanding arrest warrants for Al Bashir may be enforced through the Genocide Convention for several reasons, notably because the Genocide Convention is a treaty with more signatories than the Rome Statute and it may have a stronger political hook than the Rome Statute.[6]

The Conflict in Darfur and the Arrest Warrants for Al Bashir 

Sudan has a long and bloody history of violence and turmoil.[7] The current conflict in Darfur began in 2003, when the National Congress Party began terrorizing specific tribes in response to a rebellion brought on by economic marginalization.[8] The conflict has lead to the deaths of around 300,000 people and the displacement of almost 4 million.[9] Although Sudan is not a party to the Rome Statute, the ICC acquired jurisdiction over Sudan on March 31, 2005, through United Nations Security Council (UNSC) Resolution 1593.[10] In 2008, subject to some criticism, [11] the ICC’s prosecutor, Luis Moreno-Ocampo, petitioned the ICC to issue a public arrest warrant for the Sudanese President, Omar Al Bashir, on the charges of genocide, war crimes, and crimes against humanity. The Prosecutor’s request followed a multiyear investigation by his office amid mass public outcry for action on the situation in Darfur.[12]

The ICC’s procedure for procuring a warrant adopts a standard of “reasonable grounds” reminiscent of the familiar U.S. standard of probable cause.[13] In 2009, in response to Moreno-Ocampo’s request, the pre-trial chamber of the ICC issued an arrest warrant for Al Bashir on five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape)[14] and two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging).[15] The court stopped short of issuing a warrant for the crime of genocide. However, on July 12, 2010, after appeal, the pre-trial chamber issued an arrest warrant for Al Bashir charging three counts of genocide. The 2010 arrest warrant for three counts of genocide consists of the charges of genocide by killing, genocide for causing serious bodily or mental harm, and genocide by deliberately inflicting conditions of life calculated to bring about physical destruction.[16]

Prominent Political Forces

The conflict in Darfur has attracted widespread attention by various media outlets, activists, NGOs, politicians and celebrities. The conflict has spawned books, [17] movies, [18] and activist groups [19] in addition to sparking general public outrage. Some cynics have even argued that the crisis in Darfur has received too much attention.[20]

In the United States, several organized and valiant political efforts have been initiated in response to the crisis in Darfur. In some instances, political efforts have pressured the ICC to take meaningful action and flex its muscles. And in other instances, the actions of the ICC have mobilized activists and other entities to fight for compliance with the Court’s mandates, or at least to stand in solidarity with the ICC.

For instance, in 2007, just ahead of the ICC’s Prosecutor’s request for arrest warrants for Al Bashir, the United States Congress passed, and President Bush signed, a bill authorizing the divestment of public monies from companies doing business with the Sudanese government.[21] Many states (including New York and California) and cities (including Los Angeles and Chicago) have followed suit and divested their public pension funds from corporations doing business with Sudan.[22]

Additionally, many NGOs have urged States to comply with the mandate of the ICC in executing the warrants issued for Al Bashir.[23] For example, the International Bar Association (IBA) (a NGO member of the Coalition for the International Criminal Court (CICC)) has issued a news release urging all member States of the Rome statute to adopt implementing legislation in order to ensure compliance with the Statute.[24]

The continuing and reverberating voices and pressure from the CICC, various NGOs, activists, and political leaders are essential pieces of the puzzle to ensure compliance with the ICC. In other words, these institutions and actors have a unique power to influence government to take the right steps towards compliance with the ICC.

The Role of Article VI of the Genocide Convention 

The Genocide Convention, which took effect in the wake of WWII in 1951, currently binds 140 States by voluntary consent of its terms. Over 60 years since its inception, the Genocide Convention is beginning to take on a new and profound role, where, by its own terms, it confers jurisdiction on the brand-new ICC.Article VI of the Genocide Convention states:

Persons charged with genocide
or any of the other acts
enumerated in article III shall be
tried by a competent tribunal of
the State in the territory of
which the act was committed, or
by such international penal
tribunal as may have
jurisdiction with respect to those
Contracting Parties which shall
have accepted its jurisdiction.[25]

Sluiter persuasively argues that “[T]here is much more to the ICC than its statute. The ICC is also an instrument in the enforcement of the Genocide Convention.”[26] Sluiter reasons that all UN member States have, by virtue of the UN Charter, accepted the authority of the United Nations Security Council (UNSC). He continues to argue that:

“[T]he word ‘accepting’ in that provision is
identical to the language in Article VI of the
Genocide Convention. Therefore, when the
Security Council . . . submits a situation to
the ICC, thereby creating jurisdiction for
that Court, UN members must be regarded
as having accepted the jurisdiction of the
ICC in respect of that situation. This brings
the ICC, in relation to the situation in Darfur
and when an arrest warrant includes
accusations of genocide, within the full
reach of Article VI of the Genocide
Convention. All contracting parties to that
Convention are members of the UN and all
of them can be said to have accepted the
jurisdiction of the Court.”[27]

This reasoning is persuasive for several reasons. First, Sluiter is correct in pointing out that the UNSC is supreme over the General Assembly’s decision-making authority. Although many States, scholars, and activists often quarrel with the notion that five superpowers retain so much dominance over decisions that may very well affect the entire world, the fact is that the UNSC’s authority and veto power are settled as all member States accepted the UNSC’s role upon ratifying the UN Charter. As controversial as the UNSC’s role may be, it is an indisputable part of the structure of the UN. In this case, the UNSC resolution referring the Sudan matter to the ICC confers jurisdiction upon the Court, which compels compliance based on the Rome Statute and Article VI of the Genocide Convention.

Second, the intent and purpose of the Genocide Convention are the swift and efficient punishment and deterrence of genocide.[28] Should a signatory of the Genocide Convention neglect to carry out its duties under the Convention (i.e. arresting an individual who has been indicted for genocide), the result would be impunity for genocide and the convention would be violated. A violation of the convention could plausibly (and should) result in serious political, diplomatic, or economic consequences.

Finally, the fact that the Genocide Convention contemplated an “international penal tribunal” is substantial evidence that the signatories of the Genocide Convention intended that the jurisdiction conferred by the treaty be automatically absorbed by whatever international penal tribunal should be created in the future. In other words, the signatories of the Genocide Convention foreshadowed and anticipated the creation of international criminal courts. Therefore it is logical to believe that allowing the ICC jurisdiction over genocide would be in line with the intent of the Genocide Convention.

Sudan, while not a member of the Rome Statute, is a signatory of the Genocide Convention. This fact may have important political and legal implications. If Sluiter’s argument is correct and achieves international support, many States may be even more encouraged to apply external political pressure on Khartoum to secure compliance with the Genocide Convention, thereby, the warrants issued by the ICC.


In any case where international law is at issue, it is important to explore political climate in conjunction with the relevant international law because political and legal forces supplement and compensate for each other. Where one fails to bind or persuade, the other may provide the missing link. Where one seems unjust, the other may provide explanation or justification. If justice is the ultimate goal, than the law cannot be viewed in a vacuum; all things must be considered. In the case of Al Bashir, if the political winds are in tune and the legal arguments for the jurisdiction and authority of the ICC resonate with clarity, then the “forces of compliance” will lead to the execution of justice.

1 Prosecutor v. Al Bashir, No. ICC-02/05-01/09, Decision on the Prosecutor’s Application for a Warrant of Arrest Against Omar Hassan Ahmed Al Bashir (July 12, 2010), available at

2 See id.

3 COALITION FOR THE INTERNATIONAL CRIMINAL COURT, Cooperation Agreements and Enforcement – Background, (last visited Apr. 24, 2011).

4 Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. INT’L CRIM. JUST. 365, 382 (2010) (“There is a very strong case to be made that contracting parties [of the genocide convention] have an unconditional duty to arrest and surrender Al Bashir to the ICC, irrespective of whether they are a party to the ICC or not.”).

5 See Generally Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).

6 See Sluiter, supra note 4, at 382.

7 See About the Conflict in Darfur and Southern Sudan, THE ENOUGH PROJECT, (last visited Apr. 24, 2011) (providing a detailed history of Sudan’s internal conflicts).

8 Id.

9 Id.

10 S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005).

11 Antonio Cassese, Flawed International Justice for Sudan, Entry to The World in Words, PROJECT SYNDICATE (July 15, 2008),

12 See Press Release, Int’l Criminal Court, The Prosecutor of the ICC Opens Investigation in Darfur, ICC-OTP-0606-104-En (June 6, 2005), available at (follow “Press Releases (2005)” hyperlink for the correct press release).

13 See Prosecutor v. Al Bashir, No. ICC-02/05-01/09 OA, at n.99.

14 Rome Statute, supra note 5, art. 7(1).

15 Id. art. 8(2)(e).

16 Id. art. 6.


18 See e.g., DARFUR NOW (Crescendo Productions, Mandalay Independent Pictures, Participant Productions 2007); The Devil Came on Horseback (Break Thru Films 2007).

19 See e.g.,THE ENOUGH PROJECT, (last visited Apr. 24, 2011); SAVE DARFUR, (last visited Apr. 24, 2011).

20 Andrew Heavens, Is Sudan’s Darfur Crisis Getting too much Attention?, REUTERS (Oct. 26, 2009, 5:23 AM),

21 Sudan Accountability and Divestment Act of 2007, 50 U.S.C. § 1701, Pub. L. 110-174, §§ 1 to 12, Dec. 31, 2007, 121 Stat. 2516, as amended Pub. L. 111-195, Title II, § 205(a), July 1, 2010, 124 Stat. 1344 (2008).

22 Get Involved with Divestment, THE ENOUGH PROJECT, (last visited Apr. 24, 2011).


24 News Release, International Bar Association, IBA Says All States Parties to the ICC Must Adopt Implementing Legislation as a Matter of Urgency (Nov. 14, 2008) available at

25 Convention on the Prevention and Punishment of the Crime of Genocide, art. VI, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.

26 Sluiter, supra note 4, at 379.

27 Id. at 373–72.

28 Id. at 371.