International Criminal Court Cases in Africa:
Status and Policy Issues

Alexis Arieff
Analyst in African Affairs
Rhoda Margesson
Specialist in International Humanitarian Policy
Marjorie Ann Browne
Specialist in International Relations
July 14, 2009
Congressional Research Service
7-5700
www.crs.gov
RL34665
CRS Report for Congress
P
repared for Members and Committees of Congress

International Criminal Court Cases in Africa: Status and Policy Issues

Summary
The International Criminal Court (ICC), established in 2002, has to-date initiated investigations
exclusively in Sub-Saharan Africa. The ICC Prosecutor has opened cases against 16 individuals
for alleged crimes in northern Uganda, the Democratic Republic of Congo, the Central African
Republic, and the Darfur region of Sudan. In addition, the Prosecutor is analyzing situations—a
preliminary step toward initiating a full investigation—in Kenya, Côte d’Ivoire, and Chad, as well
as in Colombia, Afghanistan, and Georgia. Recent congressional interest in the work of the ICC
in Africa has arisen from concern over gross human rights violations on the African continent and
beyond.
On March 4, 2009, ICC judges issued an arrest warrant for Sudanese President Omar Hassan al-
Bashir for war crimes and crimes against humanity. The case against Bashir represents the first
attempt by the ICC to prosecute a sitting head of state. The prosecution has drawn praise from
human rights advocates as a step toward ending impunity for serious human rights abuses in
Africa. However, it also has raised concerns that ICC actions could endanger peace processes in
Darfur and southern Sudan. Additional fears that the ICC could imperil international
humanitarian operations in Sudan were heightened when the Sudanese government responded to
the warrant by expelling international relief agencies.
Unlike the three other African countries under ICC investigation, Sudan is not a party to the ICC;
instead, the ICC was granted jurisdiction over Darfur through a United Nations Security Council
resolution in March 2005. The United States, as a member of the Security Council, may influence
the ICC’s actions. Obama Administration officials have expressed support for the prosecution of
perpetrators of atrocities in Darfur and have suggested that Bashir should face the accusations
against him. Legislation before the 111th Congress references the ICC warrant against Bashir and,
more broadly, U.S. government support for ICC prosecutions.
Four suspects in other ICC investigations are currently in ICC custody, pending trial. Three are
alleged leaders of Congolese militias, and the fourth is a former Congolese rebel leader,
transitional vice president, and senator and who is accused of overseeing war crimes in
neighboring Central African Republic. Additionally, a Darfur rebel leader summoned by ICC
judges voluntarily appeared before the Court in May.
This report provides background on ICC investigations in Africa and gives an overview of cases
currently before the Court. The report also examines issues raised by the ICC’s actions in Africa,
including the ICC’s possible role in deterring future abuses and the potential impact of
international criminal prosecutions on peace processes, ongoing in many countries on the
continent. In-depth background on U.S. policy toward the ICC can be found in CRS Report
RL31495, U.S. Policy Regarding the International Criminal Court (ICC), by Jennifer K. Elsea.

Congressional Research Service

International Criminal Court Cases in Africa: Status and Policy Issues

Contents
Recent Developments.................................................................................................................. 1
Background ................................................................................................................................ 2
Overview of the International Criminal Court........................................................................ 2
The U.S. Position on the ICC .......................................................................................... 3
The ICC and Other International Courts and Tribunals .................................................... 5
Congressional Interest in the ICC in Africa.................................................................................. 6
The ICC and Human Rights .................................................................................................. 6
Restrictions on U.S. Assistance to African Parties to the ICC................................................. 6
The ICC and Sudan..................................................................................................................... 7
U.N. Security Council Resolution 1593................................................................................. 8
The U.S. Position on U.N. Security Council Resolution 1593.......................................... 9
ICC Warrants Issued in 2007 ................................................................................................. 9
Investigation of Rebel Crimes ............................................................................................. 10
The Case Against Bashir ..................................................................................................... 10
Arrest Warrant .............................................................................................................. 10
Genocide Accusations ................................................................................................... 11
Sudanese Reactions....................................................................................................... 13
Regional Reactions ....................................................................................................... 15
Security Council Considerations in July 2008: Context and Background ............................. 15
Other ICC Cases in Africa ......................................................................................................... 18
Uganda ............................................................................................................................... 18
Democratic Republic of Congo (DRC) ................................................................................ 20
Thomas Lubanga Dyilo................................................................................................. 20
Germain Katanga and Mathieu Ngudjolo Chui .............................................................. 20
Bosco Ntaganda ............................................................................................................ 21
Central African Republic (CAR) ......................................................................................... 21
Issues Raised by the ICC’s Actions in Africa ............................................................................. 22
Potential Deterrent Effect .................................................................................................... 22
Accusations of Bias............................................................................................................. 23
Justice vs. Peace? ................................................................................................................ 24

Appendixes
Appendix A. List of African States Showing Whether They Are Parties to the ICC and
Have Ratified an “Article 98 Agreement”............................................................................... 26

Contacts
Author Contact Information ...................................................................................................... 27

Congressional Research Service

International Criminal Court Cases in Africa: Status and Policy Issues

Recent Developments
On March 4, 2009, a panel of judges of the International Criminal Court (ICC) issued an arrest
warrant for Sudanese President Omar Hassan al-Bashir for war crimes and crimes against
humanity in the Darfur region of Sudan. This represents the first attempt by the ICC to prosecute
a sitting head of state. While the decision to seek Bashir’s arrest has drawn praise from human
rights advocates, it also has raised concerns that ICC actions could endanger peace processes in
Darfur and southern Sudan. Additional fears that the ICC could imperil humanitarian operations
in Sudan were heightened when the Sudanese government responded to the warrant by expelling
over a dozen international relief agencies. While the ICC judges approved the Prosecutor’s
request for a warrant for Bashir, they dismissed the Prosecutor’s attempt to prosecute Bashir for
the crime of genocide. The Prosecutor has appealed the dismissal.
The decision to prosecute an African head of state has sparked a backlash among African
countries, 30 of which are parties to the Court. The African Union (AU) has repeatedly called for
a deferral of the prosecution. In July 2009, AU members resolved not to cooperate with the ICC
on carrying out the Bashir arrest warrant.1 At the same time, African parties to the ICC suggested
they would refrain from withdrawing from the Court altogether.2 International human rights
groups criticized the move by the AU, and the government of Botswana, a party to the ICC, said
in a statement that Botswana “does not agree with this decision and wishes to reaffirm its position
that as a state party… it has treaty obligations to fully cooperate with the ICC in the arrest and
transfer of the president of Sudan to the ICC.”3 An AU panel on Darfur, headed by former South
African President Thabo Mbeki, said it had not taken a stance with regard to the Bashir warrant.4
The Obama Administration has expressed support for the ICC investigation and prosecution of
war crimes in Sudan, and an Administration spokesman stated that “those that have committed
atrocities [in Darfur] should be held accountable.”5 Secretary of State Hillary Clinton, speaking to
reporters, said “President Bashir would have a chance to have his day in court if he believes that
the indictment is wrongly charged. He can certainly contest it.”6 In late March 2009, then acting
State Department spokesman Robert Wood said, “We have said over and again that those who
commit atrocities need to be held accountable… We are under no obligation to the ICC to arrest
President Bashir. We’re not a party to the Rome Statute. And let’s leave it at that.”7 In July, the
Obama Administration’s Special Envoy on Sudan, Gen. Scott Gration, stated that the United
States would engage with Sudan’s president, “but that does not mean that [Bashir] does not need
to do what’s right in terms of facing the International Criminal Court and those charges.”8

1 Reuters, “AU Leaders Vote to End Bashir Cooperation with ICC,” July 3, 2009.
2 Barry Malone, “Africa ICC Members Will Not Quit Despite Bashir Move,” Reuters, June 9, 2009.
3 AFP, “Botswana Says Al-Bashir Must Stand Trial at ICC,” July 6, 2009.
4 Reuters, “Mbeki-Led African Panel Says No Stance on ICC,” July 11, 2009.
5 Agence France-Presse (AFP), “White House Demands ‘Accountability’ on Darfur After Warrant,” March 4, 2009;
Colum Lynch, “Sudan Retains Clout While Charges Loom,” The Washington Post, February 9, 2009.
6 Reuters, “Clinton Says Al-Bashir Can ‘Have His Day in Court,’ March 4, 2009.
7 AFP, “US Says ‘Under No Obligation’ to Arrest Beshir,” March 24, 2009.
8 AFP, “US Envoy: Must Cooperate With Sudan Even if New Warrant Issued,” July 9, 2009.
Congressional Research Service
1

International Criminal Court Cases in Africa: Status and Policy Issues

In July 2009, President Obama referred to the conflict in Darfur as a “genocide,” and averred that
it was a “millstone around Africa’s neck.”9 At the same time, Special Envoy Gration suggested at
a press briefing in June that the Sudanese government was no longer engaged in a “coordinated”
genocidal campaign in Darfur, contending that ongoing violence represented “the remnants of
genocide” and fighting “primarily between rebel groups, the Sudanese government, and… some
violence between Chad and Sudan.”10
Members of Congress have expressed a range of positions with regard to the warrant for Bashir.
Senator Russell Feingold has urged the Administration not to defer the ICC prosecution, stating,
“If there is significant progress made toward ending violence on the ground in Darfur, it may be
appropriate to consider a suspension at that time.”11 Senator John Kerry has said the warrant
“complicates matters,” but should not stop U.S. efforts to resolve the conflict in Darfur.12
Legislation before the 111th Congress references the ICC warrant against Bashir and, more
broadly, U.S. government support for ICC prosecutions.
Background
Overview of the International Criminal Court
The Statute of the ICC, also known as the Rome Statute, entered into force on July 1, 2002, and
established a permanent, independent Court to investigate and bring to justice individuals who
commit the most heinous violations of international law and human rights, namely war crimes,
crimes against humanity, and genocide.13 The ICC’s jurisdiction extends only over crimes
committed since the entry into force of the Statute. The ICC is headquartered in The Hague,
Netherlands. As of January 2009, 108 countries were parties to the Statute.14 The United States is
not a party to the ICC. The Assembly of States Parties (the body made up of the 108 parties)
provides administrative oversight and other support for the Court, including adoption of the
budget and election of 18 judges, a Prosecutor (currently Luis Moreno-Ocampo from Argentina),
and a Registrar (currently Bruno Cathala from France).15

9 AFP, “Sudan: Obama Comments ‘A Step Back,’” July 11, 2009.
10 Colum Lynch, “Sudan’s ‘Coordinated’ Genocide in Darfur is Over, U.S. Envoy Says,” The Washington Post, June
18, 2009.
11 AFP, “Obama Must Support Beshir Warrant: US senator,” March 4, 2009.
12 Reuters, “INTERVIEW-Kerry says ICC case no bar on Darfur peace drive,” April 17, 2009.
13 The ICC began operating at its inauguration on March 11, 2003. The ICC plans to define and determine its
jurisdiction over Crimes of Aggression in 2009. The Statute also established a second independent institution, the Trust
Fund for Victims, to help victims of these crimes. The Trust Fund for Victims can only act in situations where the ICC
has jurisdiction.
14 For the current status of signatures, ratifications, and reservations, see the ICC’s website, http://www.icc-cpi.int/asp/
statesparties.html.
15 For background information on the International Criminal Court, see CRS Report RL31437, International Criminal
Court: Overview and Selected Legal Issues
, by Jennifer K. Elsea.
Congressional Research Service
2

International Criminal Court Cases in Africa: Status and Policy Issues

Situations16 may be referred to the ICC in one of three ways as outlined in the articles of the
Statute: by a state party to the Statute, the ICC Prosecutor, or the United Nations (U.N.) Security
Council. Currently, four situations have been publicly referred to the Prosecutor. The
governments of three countries (all parties to the ICC)—Uganda, the Democratic Republic of
Congo, and the Central African Republic—each have referred situations to the Prosecutor. The
U.N. Security Council has referred one situation (Darfur, Sudan) to the Prosecutor.17 At least two
potential situations were dismissed following preliminary analysis, and at least six others remain
under consideration.18
The ICC is considered a court of last resort—it will only investigate or prosecute cases of the
most serious crimes perpetrated by individuals (not organizations or governments), and then, only
when national judicial systems are unwilling or unable to handle them. This principle of
admissibility before the Court is known as “complementarity.”19 Although many domestic legal
systems grant sitting heads of state immunity from criminal prosecution, the Rome Statute grants
the ICC jurisdiction over any individual, regardless of official capacity.20
The U.S. Position on the ICC
The United States is not a party to the Rome Statute. The Bush Administration opposed the Court
and renounced any U.S. obligations under the treaty.21 It objected to the Court on a number of
grounds, including:

16 Articles 13 and 14 (1) of the Rome Statute provide for both States Parties and U.N. Security Council referral of
“situations” to the Court. During the negotiations, the question arose of whether individual “cases” or “situations”
should be referred to the ICC Prosecutor. According to one author, writing on the jurisdiction of the ICC, “it was
suggested that States Parties should not be able to make complaints about individual crimes or cases: it would be more
appropriate, and less political, if ‘situations’ were instead referred to the Court.” (Elizabeth Wilmshurst, “Jurisdiction
of the Court,” Chapter 3, in Roy S. Lee, editor, The International Criminal Court. The Making of the Rome Statute:
Issues, Negotiations, Results
[Boston: Kluwer Law International, 1999], p. 131.) Another author, writing on the role of
the Prosecutor, noted that the “powers of the Prosecutor could also be broadened in the context of a State’s complaint
to the Court, if the complaint referred to ‘situations’ rather than to individual ‘cases.’” A proposal to this effect,
introduced by the U.S. delegation in 1996, was “very soon supported by a large majority of States,” many of whom had
been “uneasy” with allowing a party to “select individual cases of violations and lodge complaints...with respect to
such cases. This could...encourage politicization of the complaint procedure.” The Prosecutor, after referral of the
situation, could “initiate a case against the individual or individuals concerned.” (Silvia A. Fernandez de Gurmendi,
“The Role of the International Prosecutor,” Chapter 6, in Lee, The International Criminal Court, p. 180.)
17 See press releases on each referral at the ICC’s website, http://www.icc-cpi.int.
18 Reportedly, the ICC has received 1,700 communications about alleged crimes in 139 countries, but 80 percent have
been found to be outside the jurisdiction of the court. The Prosecutor has received self referrals only from African
countries. See Stephanie Hanson, Global Policy Forum, “Africa and the International Criminal Court,” Council on
Foreign Relations
, July 24, 2008.
19 The bar for proving complementarity has been set very high. In the ICC case against Congolese suspect Thomas
Lubanga Dyilo, the Pre-Trial Chamber ruled that in order for a case to be inadmissible, national proceedings must
encompass “both the person and the conduct which is the subject of the case before the Court” (ICC Pre-Trial Chamber
I, The Prosecutor Vs. Thomas Lubanga Dyilo, Decision on the Prosecutor’s Application for a Warrant of Arrest,
Article 38
, February 10, 2006). This language suggests that a domestic prosecution must essentially duplicate the ICC
prosecution in order for admissibility to be challenged. Even in such a case, the ICC may retain jurisdiction if domestic
proceedings are not conducted impartially or independently (Rome Statute, Article 17).
20 Article 27 of the Rome Statute.
21 The United States signed the Rome Statute under the Clinton Administration, on December 31, 2000, but did not
submit the agreement to the Senate for its advice and consent to treaty and ratification. In May 2002, the Bush
Administration notified the United Nations that it did not intend to become a party to the ICC, and that there were
therefore no legal obligations arising from the signature.
Congressional Research Service
3

International Criminal Court Cases in Africa: Status and Policy Issues

• the Court’s assertion of jurisdiction (in certain circumstances) over citizens,
including military personnel, of countries that are not parties to the treaty22;
• the perceived lack of adequate checks and balances on the powers of the ICC
prosecutors and judges;
• the perceived dilution of the role of the U.N. Security Council in maintaining
peace and security; and
• the ICC’s potentially chilling effect on America’s willingness to project power in
the defense of its interests.
The Bush Administration sought to conclude bilateral immunity agreements (BIAs), known as
“Article 98 agreements,” with most states parties to exempt U.S. citizens from possible surrender
to the ICC.23 These agreements are named for Article 98(2) of the Statute, which bars the ICC
from asking for surrender of persons from a state party that would require it to act contrary to its
international obligations.
The U.S. government is prohibited by law from assisting the ICC in its investigations, arrests,
detentions, extraditions, or prosecutions of war crimes, under the American Servicemembers’
Protection Act of 2002, or ASPA (P.L. 107-206, Title II). The prohibition is extensive, covering,
among other things, the obligation of appropriated funds, assistance in investigations on U.S.
territory, participation in U.N. peacekeeping operations unless certain protections from ICC
actions are provided to specific categories of people, and the sharing of classified and law
enforcement information.24
The Obama Administration is conducting a high-level review of its policy toward the ICC. In her
confirmation hearing before the Senate Foreign Relations Committee in January 2009, Secretary
of State Hillary Clinton said, “Whether we work toward joining or not, we will end hostility
toward the ICC and look for opportunities to encourage effective ICC action in ways that promote
U.S. interests by bringing war criminals to justice.”25 In March 2009, then-acting Assistant
Secretary for International Organizations James B. Warlick said, in response to a question on the
Administration’s position on joining the ICC, “There will be a policy process that will address
this Administration’s position on the International Criminal Court, so it’s too early to say.”26

22 The United States had supported a version of the Rome Statute that would have allowed the U.N. Security Council to
refer cases involving non-states parties to the ICC, but would not have allowed other states or the Prosecutor to refer
cases.
23 Each state party to an Article 98 agreement promises that it will not surrender citizens of the other state party to
international tribunals or the ICC, unless both parties agree in advance. An Article 98 agreement would prevent the
surrender of certain persons to the ICC by parties to the agreement, but would not bind the ICC if it were to obtain
custody of the accused through other means. See the Appendix A for a list of states parties to the ICC and Article 98
agreements in Africa.
24 These prohibitions do not apply to cooperation with an ad hoc international criminal tribunal established by the U.N.
Security Council such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) or the International
Criminal Tribunal for Rwanda (ICTR). See 22 U.S.C. 7423(a)(1). In the case of Darfur, the Darfur Accountability and
Divestment Act of 2007
(H.R. 180), passed by the House on August 3, 2007, would have offered U.S. support to the
ICC’s efforts to prosecute those responsible for acts of genocide in Darfur, but was not enacted into law.
25 Walter Pincus, “Clinton’s Goals Detailed,” The Washington Post, January 19, 2009.
26 U.S. State Department, “U.S. Reengagement with the U.N.” March 20, 2009, Foreign Press Center briefing
transcript.
Congressional Research Service
4

International Criminal Court Cases in Africa: Status and Policy Issues

The ICC and Other International Courts and Tribunals
The post-World War II Nuremberg and Tokyo tribunals to prosecute Nazi and Japanese leaders
for crimes against peace, war crimes, and crimes against humanity established precedent for the
ICC. Other international courts and tribunals, such as the International Criminal Tribunals for the
former Yugoslavia and for Rwanda, also built on these precedents. However, there are some
important distinctions between the work of the ICC and that of courts created with limited
jurisdiction. The ICC was established through a multilateral treaty and is a permanent,
international criminal tribunal.27 It is not a U.N. body. By contrast, the tribunals for the former
Yugoslavia28 and Rwanda,29 which were created under separate U.N. Security Council resolutions
to address the allegations of crimes against humanity in those countries, are case specific, limited
in jurisdiction, and temporary. The Security Council may establish international criminal tribunals
on a case-by-case basis.
Numerous regional and other international courts and tribunals also have been created, some on
an ad hoc basis, to address particular issues.30 For example, there are options for mixed courts,
which may consist of both international judges and prosecutors as well as judges and prosecutors
having the nationality of the state in which the trial takes place. Moreover, a mixed court may
draw on domestic as well as international law. The mixed court may be part of the judicial organ
of the state, as in Kosovo, Cambodia, or Timor-Leste, or it may be more international in the form
of a special court, such as the one established for Sierra Leone.31 These courts and tribunals are
distinct from the ICC.
International Court of Justice
The International Court of Justice (ICJ), also located in The Hague, is the principal judicial organ
of the United Nations. The ICJ does not prosecute individuals; its role is to settle, in accordance

27 The creation of the ICC is the culmination of a decades-long effort to establish an international court with the
jurisdiction to try individuals for the commission of crimes against humanity. For a general background and discussion
of the ICC, see CRS Report RL30020, The International Criminal Court Treaty: Description, Policy Issues, and
Congressional Concerns
, by Ellen Grigorian; CRS Report RL31437, International Criminal Court: Overview and
Selected Legal Issues
, by Jennifer K. Elsea; and CRS Report RL32605, Genocide: Legal Precedent Surrounding the
Definition of the Crime
, by Judith Derenzo and Michael John Garcia.
28 On May 25, 1993, U.N. Security Council Resolution 827 (1993) established the International Criminal Tribunal for
the former Yugoslavia (ICTY). It had its precursors in U.N. Security Council Resolution 752, which asked parties to
respect humanitarian law; U.N. Security Council Resolution 771, which condemned ethnic cleansing and demanded
access by international observers; and U.N. Security Council Resolution 780, which requested the U.N. Secretary-
General to establish a Commission of Experts to investigate alleged violations of humanitarian law.
29 U.N. Security Council Resolution 935 (2004) asked the Secretary-General to establish a Commission of Experts to
examine the allegations of genocide and grave violations of international humanitarian law in Rwanda. After its
investigation, the Commission recommended that an international tribunal be established to address the crimes. On
November 8, 2004, the Security Council, in Resolution 955, established the International Criminal Tribunal for
Rwanda (ICTR).
30 See, for example, “African International Courts and Tribunals” website, at http://www.aict-cita.org.
31 The Special Court for Sierra Leone (SCSL), a hybrid international-domestic court based in Sierra Leone’s capital,
Freetown, was set up jointly by the Government of Sierra Leone and the United Nations under Security Council
Resolution 1315 (2000). It is mandated to try those who bear the greatest responsibility for serious violations of
international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone after November 30,
1996. While most suspects have been tried in Freetown, former President Charles Taylor of Liberia is in custody in the
Hague, where he is being tried by the SCSL for crimes against humanity and other violations of international
humanitarian law.
Congressional Research Service
5

International Criminal Court Cases in Africa: Status and Policy Issues

with international law, legal disputes submitted to it by states. Only states may submit cases for
consideration, although the ICJ also will give advisory opinions on legal questions when
requested to do so by authorized international organizations.32
Congressional Interest in the ICC in Africa
Members of Congress have taken a range of positions on the ICC with regard to Africa. Many in
Congress are concerned about massive human rights violations on the continent, and some see the
ICC as a possible means of redress for these crimes. At the same time, some oppose the Court on
jurisdictional grounds. A combination of presidential waivers and changes to the law have
effectively nullified restrictions on U.S. assistance to African parties to the ICC. Restrictions on
military assistance to ICC members under the American Servicemembers’ Protection Act of 2002,
or ASPA (P.L. 107-206, Title II), were repealed under the National Defense Authorization Acts for
FY2007 and FY2008. Separately, a restriction on Economic Support Fund (ESF) assistance to
certain foreign governments that were parties to the ICC was not carried forward in the Omnibus
Appropriations Act of 2009 (P.L. 111-8).
The ICC and Human Rights
Recent draft legislation before Congress has referenced the ICC in connection with
human rights abuses in conflicts in Uganda and the Democratic Republic of Congo, and
in connection with the global use of child soldiers. Additionally, there has been particular
congressional interest in the ICC’s work related to Darfur. Relevant legislation before the
111th Congress includes:
• H.Con.Res. 97 (“Calling on the President to support United Nations Security
Council referrals of situations involving genocide, war crimes, and crimes against
humanity to the International Criminal Court, to cooperate with investigations
and prosecutions conducted by the International Criminal Court, and participate
as an observer at meetings of the Assembly of States Parties to the Rome
Statute”), introduced on April 2, 2009 and referred to the House Committee on
Foreign Affairs; and
• H.Res. 241 (“Commending the International Criminal Court for issuing a warrant
for the arrest of Omar Hassan Ahmad al-Bashir, President of the Republic of the
Sudan, for war crimes and crimes against humanity, and expressing the hope that
this will be a significant step in the long road towards achieving peace and
stability in the Darfur region”), introduced on March 12, 2009 and referred to the
House Committee on Foreign Affairs.
Restrictions on U.S. Assistance to African Parties to the ICC
Observers have raised concerns over the possible assertion of ICC jurisdiction over U.S. military
personnel in connection with U.S. participation in U.N. peacekeeping missions in Africa, and
with respect to the new U.S. Combatant Command for Africa, AFRICOM.33 Jurisdictional and

32 See U.S. Department of State, United States Participation in the United Nations—2006, p. 130.
33 See CRS Report RL34003, Africa Command: U.S. Strategic Interests and the Role of the U.S. Military in Africa, by
(continued...)
Congressional Research Service
6

International Criminal Court Cases in Africa: Status and Policy Issues

other concerns led Congress to pass the American Servicemembers’ Protection Act of 2002, or
ASPA (P.L. 107-206, Title II), which was signed into law on August 2, 2002. Section 2007 of
ASPA prohibited U.S. military assistance to ICC member-states, except for NATO countries,
major non-NATO allies, and countries subject to various other waiver provisions. Permanent
waivers were granted to countries that ratified Article 98 agreements promising not to surrender
U.S. nationals to the Court.
In Sub-Saharan Africa, ASPA effectively froze International Military Education and Training
(IMET), Foreign Military Financing (FMF), and Excess Defense Articles (EDA) accounts for
Kenya, Mali, Namibia, Niger, South Africa, and Tanzania. However, President Bush waived the
prohibition on IMET assistance to 21 countries, including these six, on September 29, 2006, due
to concerns that the restrictions could preclude valuable military-to-military ties.34 Congress
repealed the ASPA restriction on IMET funding in the National Defense Authorization Act for
FY2007 (P.L. 109-364), which was signed into law on October 17, 2006. The National Defense
Authorization Act for FY2008 (P.L. 110-181), signed into law on January 28, 2008, repealed
Section 2007 of ASPA entirely, ending remaining prohibitions on FMF and EDA assistance.
Separately, the Nethercutt Amendment to the FY2005 Consolidated Appropriations Act (P.L. 108-
447) prohibited Economic Support Fund (ESF) assistance to members of the ICC that had not
entered into an Article 98 agreement with the United States, with certain waiver provisions. This
prohibition was included as part of the FY2006 Consolidated Appropriations Act (P.L. 109-102,
Section 574), and subsequently carried over via continuing resolutions on February 15, 2007 (P.L.
110-5) and September 29, 2007 (P.L. 110-92). A substantially identical restriction was included in
the Consolidated Appropriations Act of 2008 (P.L. 110-161, Section 671), signed into law
December 26, 2007. However, this restriction was not applied to African countries, due to
presidential waivers with respect to Kenya, Mali, Namibia, Niger, South Africa, and Tanzania.35
The Omnibus Appropriations Act of 2009 (P.L. 111-8) did not carry forward Section 671, which
contained the restrictions. This ended such limitations on ESF assistance.
The ICC and Sudan
Sudan is a unique case because of the circumstances of ICC involvement, and because of whom
the ICC Prosecutor has chosen to pursue. ICC jurisdiction in Sudan was referred by the U.N.
Security Council, as Sudan is not a party to the Court. In September 2004, the Security Council
established an International Commission of Inquiry on Darfur under Resolution 1564, citing

(...continued)
Lauren Ploch. The Defense Department has signaled its intention to locate an AFRICOM staff presence on the
continent, either in the form of a headquarters or regional offices. Depending on the country, the United States may or
may not have a Status of Forces Agreement (SOFA) that appropriately covers military personnel not detailed to the
Embassy. The United States also has a semi-permanent troop presence known as Combined Joint Task Force-Horn of
Africa (CJTF-HOA), in Djibouti. Personnel associated with CJTF-HOA conduct activities throughout the region. The
command authority for CJTF-HOA, previously under Central Command (CENTCOM), was transferred to AFRICOM
in 2008.
34 Presidential Determination No. 2006-27 of September 29, 2006; CRS interview with State Department official,
September 4, 2008.
35 Presidential Determination No. 2007-5 of November 27, 2006, waives restrictions on FY2006 ESF assistance;
Presidential Determination No. 2008-21 of June 20, 2008, does not specify a fiscal year.
Congressional Research Service
7

International Criminal Court Cases in Africa: Status and Policy Issues

concern that the Sudanese government had not met its obligations under previous Resolutions.36
In January 2005, the Commission reported that it had compiled a confidential list of potential war
crimes suspects, and “strongly recommend[ed]” that the Security Council refer the situation in
Darfur to the ICC.37 On March 31, 2005, U.N. Security Council Resolution 1593 referred the
situation in Darfur to the ICC Prosecutor. Following the referral, the ICC Prosecutor received the
document archive of the Commission of Inquiry. The Prosecutor also received the Commission’s
sealed list of individuals suspected of committing serious abuses in Darfur, though this list is not
binding on the selection of suspects. The Office of the Prosecutor initiated its own investigation
in June 2005.
In April 2007, the ICC issued arrest warrants for a former Sudanese Cabinet Minister and an
alleged former leader of the Janjaweed militia in Darfur. The Sudanese government has refused to
comply with the warrants, and both suspects remain at large. The Prosecutor is also investigating
alleged attacks on peacekeepers and aid workers in Darfur, and in December 2008 filed cases
against three rebel commanders in connection with an attack in 2008 that killed twelve African
Union peacekeeping troops.
On March 4, 2009, ICC judges issued an arrest warrant for Sudanese President Omar Hassan al-
Bashir for crimes against humanity and war crimes in the Darfur region. The warrant, which was
issued in response to a request by the ICC Prosecutor in July 2008, represents the first time the
ICC has attempted to prosecute a sitting head of state. The judges’ decision, welcomed by many
as a step toward ending impunity in Darfur, has provoked condemnation in Sudan and
controversy in the region. Sudanese government officials have rejected the ICC’s jurisdiction, as
Sudan is not a party to the Court,38 while many international legal experts argue that Sudan is
obligated as a U.N. member state to cooperate with ICC actions because they stem from a U.N.
Security Council resolution.
U.N. Security Council Resolution 1593
On March 31, 2005, the U.N. Security Council, acting under Chapter VII of the U.N. Charter,
adopted Resolution 1593 (2005), which refers reports about the situation in Darfur, Sudan (dating
back to July 1, 2002) to the ICC Prosecutor.39 The Resolution was adopted by a vote of 11 in
favor, none against, and with four abstentions—the United States, China, Algeria, and Brazil.40
While Sudan is not a party to the ICC and has not consented to its jurisdiction, the case can be
referred to the ICC by the U.N. Security Council under Chapter VII. The Resolution is binding on

36 S/RES/1564 (2004), September 18, 2004.
37 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, S/2005/60,
January 25, 2005.
38 The Sudanese government signed the Rome Statute on September 8, 2000, but did not ratify it. On August 26, 2008,
Sudan notified the Secretary-General of the United Nations, as depositary of Rome Statute of the International Criminal
Court, that Sudan “does not intend to become a party to the Rome Statute. Accordingly, Sudan has no legal obligation
arising from its signature on 8 September 2000.” (Reference: C.N.612.2008.TREATIES-6 [Depositary Notification],
Rome Statute of the International Criminal Court, “Sudan: Notification.”)
39 See U.N. Press Release, “Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal
Court,” SC/8351; and U.N. Press Release, “Secretary-General Welcomes Adoption of Security Council Resolution
Referring Situation in Darfur, Sudan to International Criminal Court Prosecutor,” March 31, 2005, SG/SM/9797-
AFR/1132.
40 U.N. Security Council Resolution 1593 (2005), March 31, 2005.
Congressional Research Service
8

International Criminal Court Cases in Africa: Status and Policy Issues

all U.N. member states, including Sudan. Under the ICC Statute, the ICC is authorized, but not
required, to accept the case.41
The U.S. Position on U.N. Security Council Resolution 1593
In statements made in July and September 2004, respectively, Congress and the Bush
Administration declared that genocide was taking place in Darfur.42 The Administration supported
the formation of the International Commission of Inquiry for Darfur.43 However, the Bush
Administration preferred a special tribunal in Africa to be the mechanism of accountability for
those who committed crimes in Darfur. It objected to the U.N. Security Council referral to the
ICC because of its stated objections to the ICC’s jurisdiction over nationals of states not party to
the Rome Statute.44 However, the United States had at one time supported a version of the Rome
Statute that would have allowed the U.N. Security Council to refer cases involving non-states
parties to the ICC, but would not have allowed other states or the Prosecutor to refer cases. The
United States abstained on Resolution 1593 (which is not equivalent to a veto in the Security
Council) because the Resolution included language that dealt with the sovereignty questions of
concern and essentially protected U.S. nationals and other persons of non-party States other than
Sudan from prosecution.45 The abstention did not change the fundamental objections of the Bush
Administration to the ICC.
At the same time, the Bush Administration supported international cooperation to stop atrocities
occurring in Darfur.46 The Administration and Congress expressed support for bringing to justice
those who perpetrate genocide, war crimes, and crimes against humanity in the region. However,
U.S. legal restrictions on providing assistance to the ICC presented an obstacle to the use of the
ICC for that purpose. As discussed above, the Obama Administration is conducting a review of its
policy towards the ICC and it remains to be seen how it will address situations like Darfur.
ICC Warrants Issued in 2007
In April 2007, the ICC issued arrest warrants for Ahmad Muhammad Harun, who had served as
Interior Minister from 2003 and 2005, and Ali Muhammad Ali Abd-Al-Rahman (known as Ali
Kushayb), who had allegedly acted as leader of the Janjaweed in the Wadi Salih area of Darfur.47

41 Frederic L. Kirgis, “U.N. Commission’s Report on Violations of International Humanitarian Law in Darfur: Security
Council Referral to the International Criminal Court,” American Society of International Law Insight Addendum, April
5, 2005.
42 Concurrent Resolution Declaring Genocide in Darfur, Sudan (H.Con.Res. 467 [108th], July 22, 2004; Congressional
Testimony by then-Secretary of State Colin Powell, September 9, 2004.
43 U.N. Press Release, “Security Council Declares Intention to Consider Sanctions to Obtain Sudan’s Full Compliance
with Security, Disarmament Obligations on Darfur,” SC/8191, September 18, 2004.
44 U.S. Mission to the United Nations (USUN) Press Release #055, “Explanation of Vote on the Sudan Accountability
Resolution,” Ambassador Ann W. Patterson, March 31, 2005.
45 See Paragraph 6 of Security Council Resolution 1593; also see Kirgis, Op. Cit.
46 USUN Press Release #055, Op. Cit.; USUN Press Release #229, “Statement on the Report of the International
Criminal Court,” Carolyn Willson, Minister Counselor for International Legal Affairs, November 23, 2005.
47 The Sudanese government has denied having control over the Janjaweed, a term for ethnic Arab militias accused of
perpetrating human rights abuses in Darfur. However, consensus exists among human rights researchers, journalists,
and others who have visited Darfur that the Janjaweed have received arms and support from the government. The
warrants were made public in early May 2007.
Congressional Research Service
9

International Criminal Court Cases in Africa: Status and Policy Issues

They were each accused of over 40 counts of war crimes and crimes against humanity in
connection with abuses allegedly committed in Darfur in 2003 and 2004.48
While the Sudanese government initially refused to comply with either warrant, news reports
suggest that Sudanese authorities arrested Kushayb in October 2008.49 However, Sudanese
officials stated they would conduct their own investigation into his alleged crimes in Darfur, and
did not indicate that they planned to turn him over to the ICC. Harun was promoted to Minister of
Humanitarian Affairs and co-president of a committee to investigate human rights violations in
Sudan.50 In May, Harun was reportedly appointed Governor of South Kordofan State. In 2005,
following the initiation of the ICC’s investigation, the Sudanese government created its own
special courts for Darfur in an apparent effort to stave off the ICC’s jurisdiction under the
principle of complementarity. However, the courts’ efforts were widely criticized as insufficient.51
Investigation of Rebel Crimes
In December 2007, the ICC Prosecutor announced the opening of a new investigation into the
targeting of peacekeepers and aid workers in Darfur. In November 2008, the Prosecutor submitted
a sealed case against three alleged rebel commanders in Darfur whom he accused of committing
war crimes during an attack on the town of Haskanita on September 29, 2008. According to the
office of the Prosecutor, twelve African Union peacekeepers were killed and eight were injured in
the attack.52 In May, ICC pretrial judges issued a summons to one of the three, Bahar Idriss Abu
Garda, to appear before the Court on May 18.53 Abu Garda reported to The Hague voluntarily.
The judges are still deliberating on whether to issue summonses, or warrants, for the two other
alleged rebel commanders sought by the Prosecutor, whose names remain undisclosed.
The Case Against Bashir
Arrest Warrant
On March 4, 2009, ICC judges issued a warrant for the arrest of Sudanese President Omar Hassan
al-Bashir. The warrant holds that there are “reasonable grounds” to believe Bashir is criminally
responsible for five counts of crimes against humanity and two counts of war crimes. The

48 ICC Press Release, “Warrants of Arrest for the Minister of State for Humanitarian Affairs of Sudan, and a Leader of
the Militia/Janjaweed,” May 2, 2007.
49 Jeffrey Gettleman, “Sudan Arrests Militia Chief Facing Trial,” The New York Times, October 14, 2008.
50 International Federation of Human Rights, “The International Criminal Court and Darfur: Questions and Answers,”
available online at http://www.iccnow.org/documents/FIDH_QA_Darfur_ENG.pdf.
51 See e.g. Human Rights Watch, Lack of Conviction: The Special Criminal Court on the Events in Darfur, June 2006;
U.N. News, “Sudan’s Special Court On Darfur Crimes Not Satisfactory, UN Genocide Expert Says,” December 16,
2005.
52 ICC Office of the Prosecutor, “Attacks on Peacekeepers Will Not Be Tolerated; ICC Prosecutor presents evidence in
third case in Darfur,” November 20, 2008. The peacekeepers were serving under the African Union Mission in Sudan
(AMIS).
53 The ICC judges issued a summons for Abu Garda, having decided that an arrest warrant was not necessary to ensure
the suspect’s appearance before the Court. ICC, “Questions and Answers on the Summons to Appear Issued for Bahr
Idriss Abu Garda,” May 18, 2009.
Congressional Research Service
10

International Criminal Court Cases in Africa: Status and Policy Issues

accusations refer to alleged attacks by Sudanese security forces and pro-government militia in the
Darfur region of Sudan during the government’s six-year counter-insurgency campaign.54
The ICC warrant states that there are reasonable grounds to believe attacks against civilians in
Darfur were a “core component” of the Sudanese government’s military strategy, that such attacks
were widespread and systematic, and that Bashir acted “as an indirect perpetrator, or as an
indirect co-perpetrator.” In his application for an arrest warrant, filed in July 2008, the ICC
Prosecutor affirmed that while Bashir did not “physically or directly” carry out abuses, “he
committed these crimes through members of the state apparatus, the army, and the
Militia/Janjaweed” as president and commander-in-chief of the Sudanese armed forces.
Although many domestic legal systems grant sitting heads of state immunity from criminal
prosecution, the Rome Statute grants the ICC jurisdiction regardless of official capacity.55 Human
rights organizations, including Amnesty International and Human Rights Watch, hailed the arrest
warrant, the first issued by the ICC against a sitting head of state, as an important step against
impunity. Many Western governments, including France, Germany, Canada, the United Kingdom,
and Denmark, and the European Union as an entity, have called on Sudan to cooperate with the
warrant. Reactions by African and Middle Eastern governments have been more critical, with
many condemning the ICC or calling for its prosecution to be deferred. Additionally, the
governments of Russia and China have opposed the prosecution attempt.
The arrest warrant is not an indictment; under ICC procedures, charges must be confirmed at a
pre-trial hearing. The decision to issue a warrant is expected to take into account whether there
are reasonable grounds to believe that a suspect committed crimes as alleged by the Prosecutor
and whether a warrant is necessary to ensure the suspect’s appearance in court. The ICC urged
“all States, whether party or not to the Rome Statute, as well as international and regional
organizations,” to “cooperate fully” with the warrant.56 One analysis noted that while Bashir may
risk arrest if he travels overseas, “no one expects Sudan to hand over Bashir, who has been
executive ruler of the country for more than 15 years, absent major political changes in the
country.”57
Genocide Accusations58
In his request for an arrest warrant in July 2008, the ICC Prosecutor accused Bashir of three
counts of genocide, making Bashir the first individual to be accused of genocide before the Court.
The Prosecutor alleged that Bashir “intends to destroy in substantial part the Fur, Masalit and
Zaghawa ethnic groups as such” through coordinated attacks by government troops and
Janjaweed militia.59 However, the panel of ICC judges who responded to the application for a

54 ICC Pre-Trial Chamber I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, March 4, 2009.
55 Rome Statute, Art. 27. International legal experts are, however, divided as to whether the Rome Statute waives
“procedural” immunity for sitting heads of state – i.e., protection from arrest while traveling in official capacity – under
customary international law.
56 ICC press release, “ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan,” March 4, 2009.
57 Patrick Worsnip, “No Quick Way to Enforce ICC Warrant for Bashir,” Reuters, March 5, 2009.
58 See CRS Report RL32605, Genocide: Legal Precedent Surrounding the Definition of the Crime, by Judith Derenzo
and Michael John Garcia, for a discussion of the legal elements of genocide under the Rome Statute and under the 1948
Convention on the Prevention and Punishment of the Crime of Genocide.
59 Darfur’s main rebel groups are associated with these ethnicities; the Prosecutor’s case against Bashir alleges that
(continued...)
Congressional Research Service
11

International Criminal Court Cases in Africa: Status and Policy Issues

warrant found, by a ruling of two-to-one, that the Prosecutor had “failed to provide reasonable
grounds to believe that the Government of Sudan acted with specific intent” to destroy these
groups.60 The judges added, however, that the arrest warrant could be amended to include
accusations of genocide if further evidence was submitted by the Prosecutor. The Prosecutor is
appealing the judges’ decision to omit the genocide counts from the arrest warrant.61
Many human rights advocates had welcomed the attempt to prosecute Bashir for genocide.62
However, the formulation of the Prosecutor’s accusation had drawn some criticism. The U.N.
Commission of Inquiry concluded in its January 2005 report that the violence in Darfur did not
amount to genocide, although “international offences such as the crimes against humanity and
war crimes that have been committed in Darfur may be no less serious and heinous than
genocide.”63 Many Darfur activists accused the Commission of allowing political considerations
to affect its conclusions.64 Other analysts argue that while the Sudanese government is responsible
for serious crimes in Darfur, the Prosecutor’s justification for genocide charges did not
sufficiently establish intent or Bashir’s alleged role.65
In July 2009, President Obama referred to the conflict in Darfur as a “genocide,” and averred that
it was a “millstone around Africa’s neck.”66 At the same time, Special Envoy Gration suggested at
a press briefing in June that the Sudanese government was no longer engaged in a “coordinated”
genocidal campaign in Darfur, contending that ongoing violence represented “the remnants of
genocide” and fighting “primarily between rebel groups, the Sudanese government, and… some
violence between Chad and Sudan.”67

(...continued)
military and militia attacks specifically targeted civilians even where rebel locations were spatially separate and well-
known. The Prosecutor’s application for a warrant referenced additional attacks against other ethnic groups in
connection with alleged war crimes and crimes against humanity.
60 ICC press release, “ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan,” March 4, 2009.
61 ICC Office of the Prosecutor, “Prosecution’s Application for Leave to Appeal the “Decision on the Prosecution’s
Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir,” March 10, 2009.
62 See e.g. Human Rights Watch, “Darfur: ICC Moves Against Sudan’s Leader; Charges Against al-Bashir a Major
Step to Ending Impunity,” July 14, 2008; Amnesty International, “President Of Sudan Could Face Arrest Over Darfur
War Crimes,” July 18, 2008.
63 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to
Security Council Resolution 1564 of 18 September 2004, January 25, 2005.
64 E.g., Eric Reeves, “Report of the International Commission of Inquiry on Darfur: A critical analysis (Part II),”
Sudanreeves.org, February 6, 2005.
65 See e.g. Alex de Waal, “Darfur, the Court and Khartoum: The Politics of State Non-Cooperation,” in Nicholas
Waddell and Phil Clark, eds., Courting Conflict? Justice, Peace and the ICC in Africa (London: The Royal Africa
Society, March 2008); Andrew Heavens, “ICC Case Against Bashir Has Holes – Sudan Expert,” Reuters, January 27,
2009; Rony Brauman, “The ICC’s Bashir Indictment: Law Against Peace,” World Politics Review, July 23, 2008. For
further background, see Human Rights Watch, Entrenching Impunity: Government Responsibility for International
Crimes in Darfur
, December 2005.
66 AFP, “Sudan: Obama Comments ‘A Step Back,’” July 11, 2009.
67 Colum Lynch, “Sudan’s ‘Coordinated’ Genocide in Darfur is Over, U.S. Envoy Says,” The Washington Post, June
18, 2009.
Congressional Research Service
12

International Criminal Court Cases in Africa: Status and Policy Issues

Sudanese Reactions
The Bashir Administration has rejected ICC jurisdiction over Darfur as a violation of its
sovereignty and accused the Court of being part of a neocolonialist plot against a sovereign
African and Muslim state.68 Other Sudanese reactions have focused on the potential impact of an
arrest warrant on ongoing peace processes, peacekeeping operations, and humanitarian relief, and
on the potential impact on legislative and presidential elections scheduled to take place in 2010.
The Bashir Administration
The Bashir Administration has portrayed the ICC as an instrument of Western pressure for regime
change.69 The Sudanese president has repeatedly denied that genocide or ethnic cleansing is
taking place in Darfur and has rejected ICC jurisdiction as an infringement on Sudanese
sovereignty. The last mission to Sudan by ICC prosecutorial staff was in January-February 2007,
after which the government announced it would no longer allow ICC personnel to speak to
Sudanese officials.70 Days before the request for a warrant against Bashir was announced, a
presidential spokesman reportedly called the Prosecutor a “terrorist” whose investigation was
based on testimony by rebel leaders and spies posing as humanitarian workers.71
Government authorities have taken a hardline stance against Sudanese suspected of sympathizing
with the ICC prosecution attempt. In November 2008, Sudanese police detained a human rights
activist they accused of being in contact with the ICC, while in January 2009, authorities jailed a
prominent Islamist opposition leader who had called for Bashir to surrender to the ICC in order to
avoid internal strife.72 Also in January, a Sudanese man was reportedly convicted of “spying” for
the ICC and sentenced to 17 years in prison.73 In February, a senior official warned that an arrest
warrant for Bashir would derail peace talks with Darfur rebels.74
The government responded to the arrest warrant by expelling over a dozen international aid
organizations it accused of collaborating with the ICC, including Oxfam and Doctors Without
Borders. Bashir reportedly warned that “all the diplomatic missions in Sudan, the NGOs, and the
peacekeepers” could face the same punishment, the latest in a series of remarks by Sudanese
officials that appeared the threaten the safety of U.N. personnel in Sudan if an arrest warrant were
issued.75 Officials reportedly threatened to retaliate harshly against anyone who “cooperated”

68 E.g., BBC Monitoring, “Sudanese Leader Calls International Court ‘Tool of Imperialist Forces,’” [State-owned]
Suna News Agency, August 20, 2008; Marlise Simons and Neil MacFarquhar, “Bashir Defies Arrest Order on War
Crime Charges,” The New York Times, March 6, 2009.
69 See e.g. Al-Sahafah [Khartoum], “Sudanese Aide Accuses West of Striving to Replace Al-Bashir,” via BBC
Monitoring, August 21, 2008; Sudan Tribune, “Sudan Warns UN Chief Over ICC,” via BBC Monitoring, August 18,
2008; and de Waal, Op. Cit.
70 CRS interview with ICC Office of the Prosecutor official, September 3, 2008. ICC prosecutorial staff have conducted
extensive interviews with witnesses outside of Sudan, including in neighboring countries.
71 The Associated Press (hereafter, AP), “Sudan Dismisses ICC Proceedings on Darfur, Reiterates Refusal to Hand
Over Any Suspects,” July 11, 2008.
72 AFP, “Sudan Police Detain Rights Activist for Contact with the ICC,” November 26, 2008; Mohamed Osman,
“Sudan Detains Opposition Leader Who Urged President to Face Darfur Genocide Charges,” AP, January 15, 2009.
73 BBC News Online, “Sudanese ‘War Crimes Spy’ Jailed,” January 28, 2009.
74 Andrew Heavens, “Darfur War Crimes Warrant Will Ruin Talks – Official,” Reuters, February 16, 2009.
75 Abdelmoniem Abu Edries Ali, “Defiant Beshir in Darfur, Warns Foreigners,” AFP, March 8, 2009; AFP, “ICC
Action Against Sudan’s Beshir Could Hurt UN: Ban,” February 4, 2009.
Congressional Research Service
13

International Criminal Court Cases in Africa: Status and Policy Issues

with the court, while government supporters organized mass rallies in the president’s favor. A
New York Times analysis noted that while many advocates hope the arrest warrant will weaken
Bashir’s hold in power, “Sudanese resentment of the court’s actions could have the reverse effect
and rally the nation to his side. After the court’s prosecutor first announced that he was seeking a
warrant for Mr. Bashir, some of the president’s political enemies closed ranks behind him.”76
Similarly, analysts disagree over whether the warrant has intensified Bashir’s international
isolation. The Sudanese leader has engaged in aggressive diplomatic outreach to allied states,
traveling overseas to multiple friendly countries in the weeks following the warrant’s issuance.
Other Sudanese Reactions
Islamist opposition leader Hassan Al-Turabi (and former key Bashir ally) has criticized the Bashir
Administration’s stance toward the ICC and has called on the president to turn himself over to the
international justice system.77 (Turabi was detained for two months in 2009 in apparent
connection with statements to this effect.) Other Sudanese opposition members have displayed
measured support for Bashir, reportedly due to concerns that ICC actions could derail elections
scheduled for early 2010, while privately acknowledging mixed reactions.78 Spokesmen for three
major Darfur rebel factions—the Sudan Liberation Movement (SLM), Sudan Liberation Army
(SLA), and Justice and Equality Movement (JEM)—welcomed the prosecution of Bashir, as have
many Darfuri refugees, according to news reports.79 The JEM, which in February had signed a
deal on confidence-building measures with the government, stated in March that the arrest
warrant precluded the continuation of peace talks.80
Reports suggest southern Sudanese are ambivalent about the attempt to prosecute Bashir.81 The
Sudan People’s Liberation Movement (SPLM)—the former southern rebel group and partner in
the Government of National Unity under the 2005 Comprehensive Peace Agreement (CPA)—
initially called on the Government of National Unity “to forge an understanding with the
international community and to cooperate with [the] ICC on the legal processes.”82 However,
after the arrest warrant was issued, the SPLM released a statement saying that “Sudan should
stand with Bashir at this hard time.”83 The SPLM nevertheless criticized the expulsion of aid
organizations. Some SPLM officials are reportedly concerned that ICC actions could endanger
the CPA, while others have expressed hope that prosecution could leverage international pressure
on Khartoum.84

76 Marlise Simons, “Court Issues Warrant for Arrest of Sudan President,” The New York Times, March 5, 2009.
77 Guillaume Lavallee, “Freed Opposition Leader Slams Sudan Response to Warrant,” AFP, March 9, 2009.
78 Lydia Polgreen and Jeffrey Gettleman, “Sudan Rallies Behind Leader Reviled Abroad,” The New York Times, July
28, 2008; Sarah El Deeb, “Indicted Sudanese President Seeks Help From Rivals,” AP, August 6, 2008.
79 Reuters, “Reaction to Warrant for Bashir’s Arrest,” March 4, 2009; Sarah El Deeb, “Darfur Refugees Say Genocide
Trial for Sudan President is Only Path to Real Peace,” AP, November 15, 2008.
80 Samer al-Atrush, “Darfur Rebel Group Says Peace Talks Not Possible,” AFP, March 4, 2009.
81 See e.g. “Sudan: Saving Omer,” Africa Confidential, August 1, 2008; and Naseem Badiey, “Ocampo v Bashir: The
Perspective from Juba,” Oxford Transitional Justice Research Working Paper Series, July 18, 2008.
82 SPLM Press Release, “SPLM Position On ICC Indictment,” July 21, 2008; see also Wasil Ali, “SPLM Official Calls
on Sudan to ‘Deal Legally’ With ICC,” Sudan Tribune, August 15, 2008.
83 Reuters, “Reaction to Warrant for Bashir’s Arrest,” March 4, 2009.
84 Opheera McDoom, “Analysis-Justice Clashes With Peace on Darfur Bashir Warrant,” Reuters, July 14, 2008;
Mushtaq, Op. Cit.
Congressional Research Service
14

International Criminal Court Cases in Africa: Status and Policy Issues

Regional Reactions
The Sudanese government has rallied support among Arab and African leaders, as well as among
regional organizations such as the African Union (AU), the Arab League, and the Organization of
the Islamic Conference (OIC),85 all of which have criticized the ICC arrest warrant and called for
a deferral of prosecution. Many African and Middle Eastern governments expressed concern over
the arrest warrant, including the governments of South Africa, Nigeria, Kenya, Rwanda,
Tanzania, Benin, Eritrea, Egypt, Iran, Syria, Libya, Algeria, and Morocco. Some African leaders,
notably Botswana’s President Ian Khama and Uganda’s President Yoweri Museveni, have taken a
more supportive stance toward the ICC.86 Some African and Middle Eastern commentators have
praised the ICC decision to pursue Bashir as an important step against impunity in the region,
while others expressed concern that the move displayed bias against African countries or a
neocolonial attitude.87
By mid-2009, the decision to prosecute an African head of state appeared to have sparked a
backlash among African countries, 30 of which are parties to the Court. In July 2009, AU
members resolved not to cooperate with the ICC on carrying out Bashir’s arrest.88 At the same
time, African states parties suggested they would refrain from withdrawing from the Court
altogether.89 International human rights groups criticized the AU resolution, and the government
of Botswana, a party to the ICC, said in a statement that Botswana “does not agree with this
decision and wishes to reaffirm its position that as a state party… it has treaty obligations to fully
cooperate with the ICC in the arrest and transfer of the president of Sudan to the ICC.”90 An AU
panel on Darfur, headed by former South African President Thabo Mbeki, said it had not taken a
stance with regard to the Bashir warrant.91
Security Council Considerations in July 2008: Context and
Background

The July 14, 2008, ICC Prosecutor’s request for an arrest warrant for Bashir occurred during the
time that the U.N. Security Council was considering extension of the Council mandate for the

85 The OIC is an inter-governmental organization of 57 states that aims to “project the interests of the Muslim world”
(OIC website, at http://www.oic-oci.org/oicnew/page_detail.asp?p_id=52).
86 Rodney Muhumuza, “We Can’t Condemn ICC Over Bashir—Museveni,” The Monitor [Kampala], August 4, 2008;
BBC Monitoring Africa, “AU differs with Botswana leader over ICC warrant against Sudan’s Bashir” (via Factiva),
May 6, 2009.
87 See e.g., The Daily Champion [Lagos, Nigeria], “Al-Bashir’s Indictment,” August 6, 2008; Paul Ejime, “Before Al-
Bashir Goes on Trial,” The Guardian [Lagos], July 28, 2008; Al-Jazeera, “The Opposite Direction,” presented by
Faysal al-Qasim, August 12, 2008, via the Open Source Center; AFP, “Praise and Criticism for ICC From African
Rights Organizations,” July 16, 2008. Archbishop Desmond Tutu of South Africa, who serves on the board of directors
of the ICC’s Trust Fund for Victims, has criticized African governments for supporting Bashir, writing, “I regret that
the charges against President Bashir are being used to stir up the sentiment that the justice system—and in particular,
the international court—is biased against Africa. Justice is in the interest of victims, and the victims of these crimes are
African. To imply that the prosecution is a plot by the West is demeaning to Africans and understates the commitment
to justice we have seen across the continent.”
88 Reuters, “AU Leaders Vote to End Bashir Cooperation with ICC,” July 3, 2009.
89 Barry Malone, “Africa ICC Members Will Not Quit Despite Bashir Move,” Reuters, June 9, 2009.
90 AFP, “Botswana Says Al-Bashir Must Stand Trial at ICC,” July 6, 2009.
91 Reuters, “Mbeki-Led African Panel Says No Stance on ICC,” July 11, 2009.
Congressional Research Service
15

International Criminal Court Cases in Africa: Status and Policy Issues

African Union-United Nations Hybrid Operation in Darfur (UNAMID). The Council had before
it the report of the U.N. Secretary-General on the deployment of the operation, dated July 7 and
covering the period April to June 2008.92 It was expected that this mandate, which was to expire
July 31, would be extended, albeit with some discussion of UNAMID-related issues.
Council considerations were significantly impacted by the ICC Prosecutor’s announcement. In
the light of reactions to this request (see previous section) and in view of the fact that the Council
had sent the case to the ICC for investigation, protracted consultations within the Council on the
content of a resolution extending the UNAMID mandate delayed Council action until nearly the
final hour.93
Among the issues engaging Council members after the July 14 action was the oft-made
suggestion that the Council include in its resolution a request, under Article 16 of the ICC Statute,
for a deferral or suspension of further ICC action on the case for up to 12 months for the purpose
of, among other things, facilitating efforts toward a peaceful settlement of the situations in Darfur
and south Sudan. Some governments also expressed concerns that a positive ICC response to the
request for an arrest warrant would exacerbate the situation on the ground in Darfur, making both
peacekeepers and humanitarian workers subject to further attacks.
Article 16 of the ICC Statute is entitled Deferral of investigation or prosecution and provides that
No investigation or prosecution can be commenced or proceeded with under this Statute for a
period of 12 months after the Security Council, in a resolution adopted under Chapter VII of
the Charter of the United Nations, has requested the Court to that effect; that request may be
renewed by the Council under the same conditions.
Thus, if the U.N. Security Council, acting under Chapter VII of the Charter, adopts a resolution
requesting the ICC to suspend or defer any further investigation or prosecution of the case against
Bashir, the ICC, including the Prosecutor, would be obliged to cease its investigation in that
particular situation and the Pre-Trial Chamber, before which the warrant request is pending,
would have to suspend its considerations. The Council request would be applicable for 12 months
and would be renewable.
David Scheffer, who headed the U.S. delegation to the conference that drafted the ICC Statute, in
an August 20, 2008, Op-ed in Jurist, noted that the “negotiating history of Article 16 should be
instructive to how the Council currently examines the Darfur situation.”94 Scheffer alleged that
Article 16 was drafted and adopted to enable the U.N. Security Council to suspend or defer an
ICC investigation or prosecution of a situation “before either is launched if priorities of peace and
security compelled a delay of international justice.” He stated that “the original intent behind
Article 16 was for the Security Council to act pre-emptively to delay the application of
international justice for atrocity crimes in a particular situation in order to focus exclusively on
performing the Council’s mandated responsibilities for international peace and security
objectives.” This was a tool to be employed by the Council in instances of “premature State Party

92 The U.N. Security Council requested that the Secretary-General report every 90 days on progress made in
implementation of UNAMID and the status of the political process.
93 Security Council Report, “Update Report, Sudan,” July 28, 2008, available at http://www.securitycouncilreport.org.
94 David Scheffer, “The Security Council’s Struggle over Darfur and International Justice,” Jurist—Forum (Jurist,
University of Pittsburgh School of Law), online at http://jurist.law.pitt/forumy/2008/08/security-councils-struggle-over-
darfur.php.
Congressional Research Service
16

International Criminal Court Cases in Africa: Status and Policy Issues

or Prosecutor referrals.” In addition, Scheffer claimed that if the current proposals for Council
suspension of further ICC action on a situation referred to the ICC by the Council had been
foreseen, “Article 16 never would have been approved by the...majority of governments attending
the U.N. talks on the Rome Statute for it would have been viewed as creating rights for the
Security Council far beyond the original intent of the Singapore compromise.”
Scheffer noted, “Nonetheless, one plausibly may argue that the language of Article 16 of the
Rome Statute technically empowers the Security Council to intervene at this late date and block
approval of an arrest warrant against President Bashir or even suspend its execution following
any approval of it by the judges.”95
U.N. Security Council Resolution 1828 (2008), adopted on July 31, 2008, by a vote of 14 in favor
and with the United States abstaining, extended UNAMID for a further 12 months.96 In abstaining
on the vote rather than voting against it, the United States supported renewal of the UNAMID
mandate but noted that the language in preambular paragraph 9 “would send the wrong signal to
President Bashir and undermine efforts to bring him and others to justice.”97 In remarks with the
press following the vote, U.S. Deputy Permanent Representative Alejandro Wolff stated:
The reason for our abstention...had to do with one paragraph that would send the wrong
signal at a very important time when we are trying to eliminate the climate of impunity, to
deal with justice, and to address crimes in Darfur, by suggesting that there might be a way
out. There is no compromise on the issue of justice. The ... United States felt it was time to
stand up on this point of moral clarity and make clear that this Permanent Member of the
Security Council will not compromise on the issue of justice.98
The United States also abstained on Council Resolution 1828 (2008), extending the UNAMID
mandate, pointing to the language in a preambular paragraph that referred to the July 14
application by the ICC prosecutor and the possibility of a Council request for deferral of further
consideration of ICC consideration of that case as the reason for the abstention. While the Bush
Administration would have likely preferred a different venue for consideration of the genocide
conditions in Darfur, it did not halt referral to the ICC by vetoing the resolution.
Some observers have suggested that the U.S. position in the past would not have permitted
abstention on the two Council resolutions. Thus, they maintain that under the Bush
Administration, the United States moved to a policy that recognized that under certain

95 Scheffer, Op. Cit. A more academic commentary on Article 16 may be found in Luigi Condorelli and Santiago
Villalpando, Referral and Deferral by the Security Council, Chapter 17.2, in The International Criminal Court: A
Commentary
, edited by Antonio Cassese, Paola Gaeta, and John R.W.D. Jones ( New York: Oxford University Press,
2002), vol. I, pp. 644-654.
96 See S/PV.5947 for verbatim record of the meeting and U.N. Press Release S/9412 for an unofficial summary of the
statements made and the text of the adopted resolution. For links to both items, see under July 31 at http://www.un.org/
Depts/dhl/resguide/scact2008.htm. A U.S. vote against the resolution would have defeated the resolution since that
“no” vote would have been a veto.
97 Explanation of vote by Ambassador Alejandro Wolff, U.S. Deputy Permanent Representative, USUN Press Release
# 209 (08), July 31, 2008. The text of preambular paragraph 9 follows: “Taking note of the African Union (AU)
communiqué of the 142nd [AU] Peace and Security Council (PSC) Meeting dated 21 July (S/2008/481, annex), having
in mind concerns raised by members of the Council regarding potential developments subsequent to the application by
the Prosecutor of the International Criminal Court of 14 July 2008, and taking note of their intention to consider these
matters further.”
98 Remarks by Ambassador Alejandro Wolff, U.S. Deputy Permanent Representative, at the Security Council Stakeout
[with the press], USUN Press Release #210 (08), July 31, 2008.
Congressional Research Service
17

International Criminal Court Cases in Africa: Status and Policy Issues

circumstances, the ICC might have a role.99 Others have pointed out, however, that any perceived
moderation in U.S. views toward the Court did not affect its overall position not to become a
party to the ICC Statute.
The two U.S. abstentions in the Council appear to have been driven by non-ICC foreign policy
issues that were perceived as more important. The need to support the U.S. policy against
genocide in Darfur was perceived as more important than overall U.S. opposition to the ICC.
(This broader policy drove the U.S. abstention on Council referral of the situation to the ICC in
2005.) Moreover, the need to ensure that the UNAMID mandate, on the brink of expiring, was
extended for another 12 months was also perceived as more important and led to the U.S.
abstention in July 2008.
Other ICC Cases in Africa
The ICC Prosecutor has opened five cases in connection with northern Uganda, four in
connection with the Democratic Republic of Congo (DRC), and one in connection with the
Central African Republic (CAR). In contrast to Sudan, which has resisted ICC jurisdiction, these
three countries are states parties to the ICC; all three and referred situations in their countries to
the Prosecutor. Four suspects are currently in ICC custody, all Africans: Jean-Pierre Bemba,
Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo. No one has yet been convicted by
the ICC.
In addition, the ICC Prosecutor is analyzing situations in Kenya, Côte d’Ivoire, and Chad, a
preliminary step toward opening a full investigation. In Kenya, an official inquiry into abuses
committed in the aftermath of disputed elections in late 2007 has stalled, prompting mediator
Koffi Annan to submit information on individuals suspected of orchestrating the violence to the
ICC Prosecutor in July 2009.100 Additionally, many observers of Zimbabwe, including local
human rights activists, Archbishop Desmond Tutu of South Africa, and the organization
Physicians for Human Rights, have called for an ICC investigation into human rights abuses
reportedly committed by government forces in Zimbabwe.101
Uganda
The government of Uganda, a party to the ICC, referred “the situation concerning the Lord’s
Resistance Army” to the Court in 2003.102 The Lord’s Resistance Army (LRA) is a rebel group

99 See, for example, Council on Foreign Relations, “Bellinger Says International Court Flawed But Deserving of Help
in Some Cases,” Interview, July 10, 2007; AP, “U.S. Ambivalent on Genocide Charge Against Sudan’s President,”
International Herald Tribune, July 15, 2008; Hanson, Op. Cit.; and Council on Foreign Relations, “The Dilemma of
International Justice,” Interview, July 28, 2008.
100 United Nations via States News Service, “International Criminal Court Receives Materials on Kenyan Post-Election
Violence,” July 9, 2009.
101 AFP, “Rape in Zimbabwe: Human rights lawyers build prosecution case,” August 7, 2008; Angus Shaw, “Nobel
Peace Prize Winner Tutu Says Time Has Come for Threat of Force Against Zimbabwe’s Leader,” AP, December 24,
2008; Michelle Faul, “Physicians: Corruption killing people in Zimbabwe,” AP, January 13, 2009. Zimbabwe is not a
party to the ICC, but ICC jurisdiction could be referred through a U.N. Security Council resolution, as with Sudan.
102 ICC Office of the Prosecutor Press Release, “President of Uganda Refers Situation Concerning the Lord’s
Resistance Army (LRA) to the ICC,” January 29, 2004. According to an Office of the Prosecutor official, referrals by
the governments of Uganda and DRC followed moves by the Office of the Prosecutor to open investigations under its
(continued...)
Congressional Research Service
18

International Criminal Court Cases in Africa: Status and Policy Issues

that has fought for over two decades in northern Uganda.103 In October 2005, the ICC unsealed
arrest warrants—the first issued by the Court—for LRA leader Joseph Kony and LRA
commanders Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. The
Prosecutor accused the LRA of establishing “a pattern of brutalization of civilians,” including
murder, forced abduction, sexual enslavement, and mutilation, amounting to crimes against
humanity and war crimes.104 None of the suspects are in custody; Lukwiya and Otti have
reportedly been killed since the warrants were issued, while other LRA commanders are
reportedly in hiding in neighboring countries. In February 2009, Odhiambo and Ongwen
reportedly entered negotiations on surrendering to the ICC, under the auspices of the U.N.
peacekeeping force in southern Sudan.105 While Uganda’s referral specifically mentioned the
Lord’s Resistance Army, the Prosecutor also is investigating crimes allegedly committed by the
Ugandan military in northern Uganda.
Despite widespread documentation of LRA abuses, the ICC’s actions in Uganda have met with
some strong domestic and international opposition due to debates over what would constitute
justice for the war-torn communities of northern Uganda and whether the ICC has helped or
hindered the pursuit of a peace agreement.106 Some observers argue that ICC arrest warrants were
a crucial factor in bringing the LRA to the negotiating table in 2006 for peace talks brokered by
the Government of South Sudan. In August 2006, rebel and government representatives signed a
landmark cessation of hostilities agreement; in February 2008, the government and the LRA
reached several significant further agreements, including a permanent cease-fire. However,
threats of ICC prosecution are considered by some to be a stumbling block to achieving an
elusive final peace deal. The LRA has reportedly demanded that ICC arrest warrants be annulled
as a prerequisite to a final agreement. The Ugandan government has offered a combination of
amnesty and domestic prosecutions for lower-and mid-ranking LRA fighters, and is reportedly
willing to prosecute LRA leaders in domestic courts if the rebels accept a peace agreement. This
could entail challenging the LRA cases’ admissibility before the ICC under the principle of
complementarity. However, only the ICC’s Pre-Trial Chamber has the authority to make a
decision on admissibility. The ICC Prosecutor has reportedly stated that he will fight any move to
drop the LRA prosecutions.107

(...continued)
discretionary power (CRS interview, September 3, 2008); see also Payam Akhavan, “The Lord’s Resistance Army
Case: Uganda’s Submission of the First State Referral to the International Criminal Court,” The American Journal of
International Law
, 99, 2 (April 2005), pp. 405-406.
103 See CRS Report RL33701, Uganda: Current Conditions and the Crisis in North Uganda, by Ted Dagne.
104 ICC Press Release, “Warrant of Arrest Unsealed Against Five LRA Commanders,” October 14, 2005. Kony is
wanted for 12 counts of crimes against humanity, including murder, enslavement, sexual enslavement, rape, and
“inhumane acts,” and 21 counts of war crimes, including murder, cruel treatment of civilians, directing an attack
against a civilian population, pillaging, inducing rape, and the forced enlistment of children; the other LRA
commanders are accused of crimes against humanity and war crimes, ranging from four to 32 counts.
105 AFP, “Two Ugandan Rebel Chiefs Want to Surrender,” February 6, 2009; AFP, “LRA Fighters Trapped: Congo
spokesman,” February 14, 2009.
106 See Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed
Books, 2006).
107 CRS interview with ICC Office of the Prosecutor official, September 3, 2008. According to the official, the
Ugandan government has expressed continued commitment to arresting the LRA leaders in discussions with the ICC.
Congressional Research Service
19

International Criminal Court Cases in Africa: Status and Policy Issues

Democratic Republic of Congo (DRC)
The DRC government referred “the situation of crimes within the jurisdiction of the Court
allegedly committed anywhere in the territory of the DRC” to the Prosecutor in April 2004.108
Despite the end of a five-year nationwide civil war in 2003 and the conduct of national elections
in 2006, the DRC has continued to suffer from armed conflict, particularly in the volatile eastern
regions bordering Rwanda, Uganda, and Burundi. The ICC has issued four arrest warrants in its
first DRC investigation, which focuses on the eastern Congolese district of Ituri, where an inter-
ethnic war erupted in June 2003 with reported involvement by neighboring governments.109 Three
suspects are in custody, while a fourth remains at large. The Prosecutor has stated that a second
investigation in the DRC will focus on sexual crimes committed in the eastern provinces of North
and South Kivu, while a third will look into “the role of those who organized and financed”
armed groups throughout the country.110 The latter investigation could potentially target officials
from neighboring countries along with members of the Congolese government and military.111
Thomas Lubanga Dyilo
The ICC issued a sealed arrest warrant in February 2006 for Thomas Lubanga Dyilo, the alleged
founder and leader of the Union des Patriotes Congolais (UPC) in Ituri and its military wing, the
Forces Patriotiques pour la Libération du Congo (FPLC). At the time, Lubanga was in
Congolese custody and had been charged in the domestic justice system.112 After a determination
of admissibility by the ICC, Lubanga was transferred to ICC custody in March 2006. The ICC has
charged Lubanga with three counts of war crimes related to the recruitment and use of child
soldiers.113 Despite a lengthy delay due to a procedural challenge, Lubanga’s trial began in
January 2009. Lubanga has pleaded not guilty.
Germain Katanga and Mathieu Ngudjolo Chui
Germain Katanga, the alleged highest-ranking commander of the Force de Résistance Patriotique
en Ituri
(FRPI) and Ngudjolo, the alleged highest-ranking commander of the Front des
Nationalistes et Intégrationnistes
(FNI), are being prosecuted as co-perpetrators for allegedly
having “acted in concert to mount an attack targeted mainly at Hema civilians” in Ituri in 2003.114

108 ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral of the Situation in the Democratic
Republic of Congo,” April 19, 2004.
109 Ituri’s armed groups did not participate in the peace process between DRC’s major rebel movements that brought
the country’s nationwide civil war to an end in 2003. While U.N. peacekeepers and DRC government troops have
succeeded in staunching much of the violence in Ituri, many of the groups have not disarmed, and the area is still
considered unstable. See International Crisis Group, Congo: Four Priorities for Sustainable Peace in Ituri, Africa
Report No. 140, May 13, 2008.
110 ICC Press Release, “DRC: ICC Warrant of Arrest Unsealed Against Bosco Ntaganda,” April 29, 2008.
111 CRS interview with Office of the Prosecutor official, September 3, 2008. Nationals of non-member states are
subject to ICC jurisdiction for crimes committed on the territory of a member state.
112 According to Human Rights Watch, Lubanga was arrested by Congolese authorities after the killing of nine U.N.
peacekeepers in Ituri in February 2005. He and other Ituri militia members had been charged with genocide, war
crimes, and crimes against humanity, but had not been brought to trial when the ICC warrant was issued. (Human
Rights Watch, “D.R. Congo: ICC Arrest First Step to Justice,” March 17, 2006.)
113 ICC, The Prosecutor Vs. Thomas Lubanga Dyilo, Document Containing the Charges, Article 61(3)(a) (Public
Redacted Version), August 28, 2006.
114 ICC, Combined Factsheet: Situation in the Democratic Republic of the Congo, Germain Katanga and Mathieu
(continued...)
Congressional Research Service
20

International Criminal Court Cases in Africa: Status and Policy Issues

The ICC issued sealed arrest warrants for Katanga and Ngudjolo in July 2007, and they were
transferred by Congolese authorities to ICC custody in October 2007 and February 2008,
respectively. The Prosecutor has accused them jointly of four counts of crimes against humanity
and nine counts of war crimes related to murder, “inhumane acts,” sexual crimes, the use of child
soldiers, rape, and other abuses.115 The case is in the pre-trial phase.
Bosco Ntaganda
The ICC issued a sealed warrant for the arrest of Bosco Ntaganda, the alleged former Deputy
Chief of General Staff for Military Operations in Lubanga’s FPLC, in August 2006. In April
2008, the ICC unsealed the warrant, having determined that public knowledge of ICC
proceedings would neither endanger witnesses nor further obstruct attempts to bring Ntaganda
into custody.116 The ICC Prosecutor has accused Ntaganda of three counts of war crimes related
to the alleged recruitment and use of child soldiers in 2002 and 2003.117 Attempts to arrest
Ntaganda have been complicated by the fact that he is reportedly currently leading the Congrès
National pour la Défense du Peuple
(CNDP) in the DRC’s North Kivu province. The CNDP was
founded by Laurent Nkunda, a dissident military general.118 However, in January 2009, Ntaganda,
who was formerly second in command, ousted Nkunda, who was later taken into Rwandan
custody. Ntaganda agreed to be integrated into the Congolese military, where he was promoted to
the rank of general.119 The Congolese government has since refused to pursue Ntaganda on behalf
of the ICC, arguing that to do so would jeopardize peace efforts in the Kivu region.120 Congolese
human rights advocates have rejected this reasoning.121 Ntaganda remains at large.
Central African Republic (CAR)
The government of CAR, a party to the ICC, referred “the situation of crimes within the
jurisdiction of the Court committed anywhere on [CAR] territory” to the ICC Prosecutor in
January 2005.122 In May 2008, the ICC issued a sealed warrant of arrest for Jean-Pierre Bemba
Gombo, a former DRC rebel leader. The warrant alleged that as commander of the Mouvement de
Libération du Congo
(MLC), one of two main DRC rebel groups during that country’s civil war,
Bemba had overseen systematic attacks on civilians in CAR territory between October 2002 and
March 2003.123 Bemba’s MLC, based in the DRC’s north, was reportedly invited into CAR by
then-President Ange-Félix Patassé to help quell a rebellion led by François Bozizé. The

(...continued)
Ngudjolo Chui, June 27, 2008. Their cases were joined in March 2008.
115 ICC, Combined Factsheet, Op. Cit.
116 ICC Press Release, “Warrant of Arrest Against Bosco Ntaganda Unsealed,” April 29, 2008.
117 ICC Pre-Trial Chamber, The Prosecutor Vs. Bosco Ntaganda, Warrant of Arrest, August 22, 2006. The warrant
states that Ntaganda is “believed to be” a Rwandan national.
118 For background on the conflict, see International Crisis Group, Congo: Bringing Peace to North Kivu, Africa Report
No. 133, October 31, 2007.
119 HRW, “DR Congo: Brutal Rapes by Rebels and Army,” press release, April 8, 2009.
120 AFP, “Peace Before Justice, Congo Minister Tells ICC,” February 12, 2009.
121 AFP, “Hand Over Rebel Leader Ntaganda to ICC, Say DR Congo NGOs,” February 19, 2009.
122 ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral Concerning Central African Republic,”
January 7, 2005.
123 Bozizé took power in a coup in 2003 and is the current president of CAR.
Congressional Research Service
21

International Criminal Court Cases in Africa: Status and Policy Issues

Prosecutor accused Bemba of five counts of war crimes and three counts of crimes against
humanity for alleged rape, torture, pillaging, and other abuses.124 Bemba, in exile in Europe since
2007, was arrested by Belgian authorities in May 2008 and turned over to the ICC in July 2008.
Bemba’s prosecution is in the pre-trial phase.
Bemba’s prosecution by the ICC has been controversial in the DRC, where the MLC is now the
largest opposition party.125 After serving as one of four vice-presidents in the DRC transitional
government from 2003 to 2006, Bemba took 42% of the vote in the DRC’s 2006 presidential
election, second only to the incumbent president, Joseph Kabila; Bemba’s supporters accused the
president of electoral fraud. Bemba won a Senate seat in January 2007, but he went into exile in
April after relations with Kabila continued to deteriorate. Some observers consider Bemba’s
prosecution by the ICC to be politically expeditious for President Kabila, whose main rival is now
in international custody. The Office of the Prosecutor has denied that political considerations
played a role in the decision to pursue Bemba, and the government of DRC has denied
involvement in the ICC case against him.126
Issues Raised by the ICC’s Actions in Africa
Some observers have praised the ICC’s investigations in Africa as a crucial step against impunity
on the continent. Nevertheless, the ICC’s actions have provoked debates over the court’s potential
impact, its perceived prioritization of Africa over other regions, its selection of cases, and the
effect of international prosecutions on peace processes. Most persistently, critics have accused the
ICC of potentially jeopardizing the settlement of long-running civil wars in the pursuit of an often
abstract “justice.” Supporters of the Court reject these criticisms, and hope that ICC
investigations will build accountability for the world’s gravest atrocities and contribute to Africa’s
long-term peace and stability.
Potential Deterrent Effect
Many hope that the ICC will usher in a new period of international accountability for the gravest
human rights abuses by ensuring that perpetrators are brought to justice. The ICC’s founders
anticipated that by ending impunity, the ICC would deter future atrocities.127 Indeed, some
observers have argued that the ICC’s success should be evaluated not just based on the
punishment of past atrocities, but also in terms of “the effect its investigations have on reducing
abysmal conduct in the present and future.”128 (The Office of the Prosecutor maintains that the
choice of cases is not based on calculations of deterrent effect, though the Office acknowledges
that strategic communications related to ICC prosecutions may play a role in deterrence.129)

124 ICC Press Release, “Surrender of Jean-Pierre Bemba to the International Criminal Court,” July 3, 2008. The counts
as listed in this document appear to have changed slightly from those listed in the original arrest warrant.
125 The MLC converted itself into a political party following the end of the DRC civil war in 2003.
126 CRS interview with Office of the Prosecutor official, September 3, 2008; Voice of America, “Congo Denies
Instigating ICC Charges Against Former VP Bemba,” June 16, 2009.
127 Preamble of the Rome Statute; see also International Criminal Court Assembly of States Parties, “Court Adopts
Agreements to Launch Court’s Operation,” United Nations Press Release L/3013, September 9, 2002.
128 Waddell and Clark, “Introduction,” in Courting Conflict?
129 CRS interview, September 3, 2008.
Congressional Research Service
22

International Criminal Court Cases in Africa: Status and Policy Issues

The goal of deterrence has been particularly salient in the ICC’s investigations in Africa, which
have focused to-date on regions where conflict is ongoing or only recently settled.130 However,
difficulties in enforcing ICC arrest warrants and the fact that the Court has yet to convict any
suspects have led some to question whether the threat of ICC prosecution is credible. Some
observers suggest that the Court’s failure to apprehend suspects in Darfur in particular has bared
tensions between the ICC’s universal mandate and its reliance on the enforcement power of
states.131 Others maintain that deterrence is difficult to evaluate and that changes in perpetrators’
behavior may be visible only over the long-run. Some argue that the Court’s compilation of
evidence, including transcribed interviews with witnesses, may serve future prosecutions or
reconciliation processes even if they do not immediately lead to convictions.
Accusations of Bias
The ICC’s investigations in Sub-Saharan Africa have stirred concerns over African sovereignty
and the long history of foreign intervention on the continent. For example, President Paul
Kagame of Rwanda, which is not a state party to the Court, has portrayed the ICC as a new form
of “imperialism” that seeks to “undermine people from poor and African countries, and other
powerless countries in terms of economic development and politics.”132 Other commentators
allege that the Prosecutor has limited investigations to Africa because of geopolitical pressures,
either out of a desire to avoid confrontation with major powers or as a tool of Western foreign
policy.133 The attempt to prosecute Bashir has been particularly controversial, drawing rebuke
from African governments and regional organizations. Supporters of the Court respond that
investigations to-date have been determined by referrals, either by African states or the Security
Council, and that the Prosecutor continues to analyze situations outside of Africa. In addition,
observers have pointed out that national legal systems in Africa are particularly weak, which has
allowed the ICC to assert its jurisdiction under the principle of complementarity.134 The Office of
the Prosecutor maintains that its choice of cases is based on the relative gravity of abuses, and
that crimes committed in Sub-Saharan Africa are among the world’s most serious.135
The Prosecutor’s selection of cases also has proven controversial. ICC prosecutions in Sudan had,
prior to the request for a warrant against President Bashir, drawn criticism for targeting mid-level
officials rather than those with alleged higher-order responsibility for abuses in Darfur. Some
have criticized ICC prosecutions in Uganda, the DRC, and CAR for focusing on alleged abuses
committed by rebel fighters to the exclusion of those reportedly committed by government troops.
In Uganda, some observers suggest that the ICC is locally seen as associated with the
administration of President Museveni, as only LRA commanders have been targeted since the
Prosecutor’s investigation in northern Uganda began despite reported abuses by government

130 The ICC’s temporal jurisdiction, which limits prosecution to crimes committed after the entry into force of the
Rome Statute, has contributed to this phenomenon.
131 See e.g. Kenneth A. Rodman, “Darfur and the Limits of Legal Deterrence,” Human Rights Quarterly, 30, 3, August
2008.
132 AFP, “Rwanda’s Kagame says ICC Targeting Poor, African Countries,” July 31, 2008; Rwanda Radio via BBC
Monitoring, “Rwandan President Dismisses ICC as Court Meant to ‘Undermine’ Africa,” August 1, 2008.
133 See e.g. Oraib Al Rantawi, “A Step Forward or Backward?” Bitter Lemons, 32, 6, August 14, 2008.
134 See e.g. Stephanie Hanson, “Africa and the International Criminal Court,” Council on Foreign Relations, July 24,
2008.
135 CRS interview with Office of the Prosecutor official, September 3, 2008.
Congressional Research Service
23

International Criminal Court Cases in Africa: Status and Policy Issues

troops.136 The decision to pursue DRC opposition leader Jean-Pierre Bemba Gombo has provoked
accusations that the Prosecutor was swayed by political bias, as Bemba was seen as a leading
opposition figure in DRC before he entered into exile and was arrested; or excessive pragmatism,
since other Congolese political actors accused of similar abuses have not been pursued to date. As
one pair of authors has written, “perceptions of the ICC on the ground have at times been
damaged by insufficient efforts by the Court to make clear the basis on which individuals have
been the subject of warrants and of particular charges, while those of apparently equal culpability
have not.”137 ICC supporters have responded that the Prosecutor is mandated to focus on a limited
number of particularly serious cases, and that investigations are ongoing and could lead to
prosecutions against members of opposing sides in the future.
Justice vs. Peace?
One of the most persistent criticisms of the ICC’s actions in Africa has been that by prosecuting
active participants in ongoing or recently settled conflicts, the Court risks prolonging violence or
endangering fragile peace processes. By removing the bargaining chip of amnesty from the
negotiating table, critics allege, the ICC may remove incentives for peace settlements while
encouraging perpetrators to remain in power in order to shield themselves from prosecution.
Some observe that in such cases, “it is difficult to tell victims of these conflicts that the
prosecution of a small number of people should take precedence over a peace deal that may end
the appalling conditions they endure and the daily risks they face.”138
Concerns that the aims of “justice” and “peace” may conflict have been particularly prominent in
Uganda and Sudan. In Uganda, some observers argue that ICC arrest warrants against LRA
commanders have acted as an impediment to achieving a final peace agreement. However, others
counter that the threat of ICC prosecution, on top of other shifts in the conflict, was a decisive
factor in bringing the LRA to the negotiating table in 2006. This observation has led some to see
the ICC in Uganda as “an important ingredient in a political solution” for the conflict-plagued
north.139 In Sudan, some observers have argued that the attempt to prosecute President Bashir
could endanger the Comprehensive Peace Agreement for southern Sudan and the peace process in
Darfur, or provide an incentive to the ruling party to cling to power ahead of elections scheduled
for 2009. For example, according to former U.S. envoy to Sudan Andrew Natsios, “the regime
will now avoid any compromise or anything that would weaken their already weakened position,
because if they are forced from office they face trials before the ICC... [An ICC warrant for
Bashir] may well shut off the last remaining hope for a peaceful settlement for the country.”140
These criticisms were reinforced when the Sudanese government responded to the ICC arrest
warrant for Bashir by expelling aid agencies and threatening NGOs and peacekeeping troops. In
testimony before Congress, when asked about the impact of the ICC warrant on U.N.

136 Michael Otim and Marieke Wierda, “Justice at Juba: International Obligations and Local Demands in Northern
Uganda,” in Courting Conflict? See also Tim Allen, Op. Cit. The Prosecutor is investigating alleged abuses by the
Ugandan military. Observers agree, however, that alleged abuses by government troops are not equal in gravity to those
reportedly committed by the LRA.
137 Waddell and Clark, Op. Cit.
138 Nick Grono and Adam O’Brien, “Justice in Conflict? The ICC and Peace Processes,” in Courting Conflict?
139 Akhavan, “The Lord’s Resistance Army Case,” Op. Cit.
140 Quoted in Opheera McDoom, “Analysis: Justice Clashes With Peace on Darfur Bashir Warrant,” Reuters, July 14,
2008.
Congressional Research Service
24

International Criminal Court Cases in Africa: Status and Policy Issues

peacekeeping operations in Darfur, Director of National Intelligence Dennis C. Blair said, “the
indictment and President Bashir’s reaction have made him less cooperative than he was—than he
was before… I think it will make it harder [for the U.N. to run peacekeeping operations in
Darfur].”141 U.N. Secretary-General Ban Ki-moon, who has maintained a neutral position on the
ICC’s actions in Sudan, has nonetheless argued that the international community must seek to
balance “peace” and “justice” in dealing with the conflict in Darfur and expressed concern that
the expulsion of aid organizations was extremely detrimental to relief and peacekeeping
operations.142
Supporters of the Court argue the ICC request for a warrant against Bashir has opened up new
opportunities to secure peace in Darfur, as a credible threat of prosecution may serve as an
important lever of pressure on actors in a conflict.143 For example, Priscilla Hayner of the
International Center for Transitional Justice writes, “it would be wrong to suggest that
pragmatism always trumps principle in matters of life and death, and thus that one must ease up
on justice in order to achieve peace. In some cases, the interest of peace has been well served by
strong, forthright efforts to advance justice.”144 Some argue that “peace deals that sacrifice justice
often fail to produce peace” in the long-run.145 Observers have pointed out that discerning the
effect of ICC actions on complex processes is extremely difficult.

141 Transcript of Senate Committee on Armed Services hearing on “Current and Future Worldwide Threats to the
National Security of the United States, provided by CQ Transcriptions, via Factiva, March 10, 2009.
142 U.N. Security Council, Report of the Secretary-General on the deployment of the African Union-United Nations
Hybrid Operation in Darfur, S/2008/558, August 18, 2008; UN News Service, “Ban-Aid Workers’ Expulsion Impeding
Peacekeeping, Relief Efforts,” April 22, 2009.
143 E.g., Caroline Flintoft [International Crisis Group], “Our Silence on Sudan Shames Us,” The Globe and Mail, June
16, 2008; Sara Darehshori [Human Rights Watch], “Doing the Right Thing for Darfur: An ICC indictment of Sudan’s
president serves peace and justice,” The Los Angeles Times, July 15, 2008.
144 Priscilla Hayner, “Seeking Justice as War Crimes Rage On,” The Chicago Tribune, July 16, 2008.
145 Grono and O’Brien, Op. Cit.
Congressional Research Service
25

International Criminal Court Cases in Africa: Status and Policy Issues

Appendix A. List of African States Showing
Whether They Are Parties to the ICC and Have
Ratified an “Article 98 Agreement”

Country
Party to ICC
Ratified Article 98 Agreement
Algeria
X
Angola
X
Benin X
X
Botswana X
X
Burkina Faso
X
X
Burundi X
X
Cameroon
X
Cape Verde

X
Central African Republic
X
X
Chad X
X
Comoros X
X
Congo, Republic of
X
X
Congo, Democratic Republic of
X
X
Côte d’Ivoire

X
Djibouti X
X
Egypt
X
Equatorial Guinea

X
Eritrea
X
Ethiopia

Gabon X
X
Gambia, The
X
X
Ghana X
X
Guinea X
X
Guinea-Bissau
X
Kenyaa X

Lesotho X
X
Liberia X
X
Libya

Madagascar X
X
Malawi X
X
Malia X

Mauritania
X
Congressional Research Service
26

International Criminal Court Cases in Africa: Status and Policy Issues

Country
Party to ICC
Ratified Article 98 Agreement
Mauritius X
X
Morocco
X
Mozambique
X
Namibiaa X

Nigera X

Nigeria X
X
Rwanda
X
São Tomé and Príncipe

X
Senegal X
X
Seychel es
X
Sierra Leone
X
X
Somalia

South Africaa X

Sudan

Swaziland
X
Tanzaniaa X

Togo
X
Tunisia
X
Uganda X
X
Zambia X
X
Zimbabwe

Sources: International Criminal Court; U.S. Department of State, Treaties in Force 2007.
a. Economic Support Fund (ESF) assistance to these countries, which are parties to the ICC but have not
signed Article 98 agreements, remains restricted under the Nethercutt Amendment. However, the
restriction was waived by President Bush in 2006 and 2008 (see report).


Author Contact Information

Alexis Arieff
Marjorie Ann Browne
Analyst in African Affairs
Specialist in International Relations
aarieff@crs.loc.gov, 7-2459
mbrowne@crs.loc.gov, 7-7695
Rhoda Margesson

Specialist in International Humanitarian Policy
rmargesson@crs.loc.gov, 7-0425


Congressional Research Service
27