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
Matthew C. Weed
Analyst in Foreign Policy Legislation
July 14, 2010
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 Statute of the International Criminal Court (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 war crimes, crimes against humanity, and genocide. As
of March 2010, 111 countries were parties to the Statute. The United States is not a party. The
ICC has, to-date, initiated investigations exclusively in Sub-Saharan Africa. The 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 has opened an investigation in Kenya and a preliminary examination in Guinea.
One of the individuals sought by the ICC is Sudanese President Omar Hassan al-Bashir. The
Court issued an arrest warrant for Bashir in March 2009. The prosecution, the first attempt by the
ICC to pursue a sitting head of state, has drawn praise from human rights advocates, while raising
concerns that ICC actions could endanger peace processes and access by humanitarian
organizations. Unlike the 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. 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.
Four suspects are currently in ICC custody. Three are alleged leaders of militias in the
Democratic Republic of Congo (DRC), and the fourth is a former Congolese rebel leader, vice
president, and senator who is accused of war crimes in neighboring Central African Republic. In
addition, two alleged Darfur rebel leaders have voluntarily answered summonses to appear before
the Court. A third alleged Darfur rebel leader voluntarily appeared in May 2009; the case against
him was dismissed. All other suspects are at large, and the Court has yet to secure a conviction.
Congressional interest in the work of the ICC in Africa has arisen in connection with concern
over gross human rights violations on the African continent and beyond, as well as concerns over
ICC jurisdiction and executive branch policy toward the Court. At the ICC’s recent review
conference in Kampala, Uganda, Obama Administration officials reiterated the United States’
intention to provide diplomatic and informational support to individual ICC prosecutions on a
case-by-case basis. Legislation before the 111th Congress references the ICC warrant against
Bashir and, more broadly, U.S. government support for ICC prosecutions.
This report provides background on the ICC and its investigations in Africa, with an overview of
cases currently before the Court. The report also examines issues raised by the ICC’s actions in
Africa, including the potential deterrence of future abuses and the potential impact on African
peace processes. Further background can be found in CRS Report RL31437, International
Criminal Court: Overview and Selected Legal Issues
, by Jennifer K. Elsea, and CRS Report
R41116, The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy, by
Emily C. Barbour and Matthew C. Weed.

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International Criminal Court Cases in Africa: Status and Policy Issues

Contents
Background ................................................................................................................................ 1
Overview of the International Criminal Court........................................................................ 1
The U.S. Position on the ICC .......................................................................................... 2
The ICC and Other International Courts and Tribunals .................................................... 4
Congressional Interest in the ICC in Africa.................................................................................. 5
The ICC and Human Rights in Africa .................................................................................... 5
ICC Cases and Investigations in Africa........................................................................................ 6
Sudan.................................................................................................................................... 7
U.N. Security Council Resolution 1593........................................................................... 7
Ahmad Muhammad Harun and Ali Kushayb ................................................................... 8
Investigation of Rebel Crimes ......................................................................................... 9
The Case Against Bashir ................................................................................................. 9
Security Council Considerations in July 2008: Context and Background ....................... 15
Uganda ............................................................................................................................... 17
Democratic Republic of Congo (DRC) ................................................................................ 18
Thomas Lubanga Dyilo................................................................................................. 19
Germain Katanga and Mathieu Ngudjolo Chui .............................................................. 19
Bosco Ntaganda ............................................................................................................ 19
Central African Republic (CAR) ......................................................................................... 20
Kenya ................................................................................................................................. 21
Guinea ................................................................................................................................ 21
Issues Raised by the ICC’s Actions in Africa ............................................................................. 22
Potential Deterrent Effect .................................................................................................... 22
Accusations of Bias............................................................................................................. 23
Justice vs. Peace? ................................................................................................................ 24

Tables
Table 1. Summary of ICC Activities in Africa.............................................................................. 6

Appendixes
Appendix. African States That Are ICC Parties and Have Concluded an “Article 98
Agreement” With the United States ........................................................................................ 26

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

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International Criminal Court Cases in Africa: Status and Policy Issues

Background
Overview of the International Criminal Court
The Statute of the ICC, also known as the Rome Statute (the Statute), entered into force on July 1,
2002, and established a permanent, independent Court to investigate and bring to justice
individuals who commit war crimes, crimes against humanity, and genocide.1 The ICC’s
jurisdiction extends over crimes committed since the entry into force of the Statute. The ICC is
headquartered in The Hague, Netherlands. As of March 2010, 111 countries were parties to the
Statute.2 The United States is not a party to the ICC. The ICC’s Assembly of States 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).3
As outlined in the Statute, situations4 may be referred to the ICC in one of three ways: 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—have referred situations to the Prosecutor. The U.N. Security Council has referred one
situation (Darfur, Sudan) to the Prosecutor. One situation, Kenya, is under investigation following
an application by the ICC Prosecutor. At least six others remain under consideration.5

1 The ICC began operating at its inauguration on March 11, 2003. 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. ICC states parties adopted amendments to the Rome Statute that define and
determine ICC jurisdiction over the crimes of aggression at the Review Conference of the Rome Statute that took place
in Kampala, Uganda, from May 31 to June 11, 2010. Under the amendments, the ICC may not take jurisdiction over
aggression crimes until at least January 2017, and only if states parties vote to activate such jurisdiction at that time.
2 For the current status of signatures, ratifications, and reservations, see the ICC’s website, http://www.icc-cpi.int/asp/
statesparties.html.
3 For background information on the International Criminal Court, see CRS Report RL31437, International Criminal
Court: Overview and Selected Legal Issues
, by Jennifer K. Elsea.
4 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.)
5 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.
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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.”6 Although many domestic legal
systems grant sitting heads of state immunity from criminal prosecution, the Statute grants the
ICC jurisdiction over any individual, regardless of official capacity.7
The U.S. Position on the ICC
The United States is not a party to the Rome Statute. The United States signed the Statute on
December 31, 2000, but at the time, the Clinton Administration had objections to it and said it
would not submit it to the Senate for its advice and consent to ratification. The Statute was never
submitted to the Senate. 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. The Bush Administration opposed the Court and renounced any U.S.
obligations under the treaty. Objections to the Court were based on a number of factors, including
• the Court’s assertion of jurisdiction (in certain circumstances) over citizens,
including military personnel, of countries that are not parties to the treaty;8
• 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 concluded bilateral immunity agreements (BIAs), known as “Article 98
agreements,” with most states parties to exempt U.S. citizens from possible surrender to the ICC.9
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 providing material assistance to the ICC in its
investigations, arrests, detentions, extraditions, or prosecutions of war crimes, under the American

6 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). Even in such a case, the ICC may
retain jurisdiction if domestic proceedings are not conducted impartially or independently (Rome Statute, Article 17).
7 Article 27 of the Rome Statute.
8 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.
9 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 for a list of states parties to the ICC and Article 98
agreements in Africa.
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Servicemembers’ Protection Act of 2002, or ASPA (P.L. 107-206, Title II). The prohibition
covers, 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 personnel, and the sharing of classified and law
enforcement information.10 Section 2015 of ASPA (22 U.S.C. 7433, known as the “Dodd
Amendment”), however, provides an exception to these provisions:
Nothing in this title shall prohibit the United States from rendering assistance to international
efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other
members of Al Qaeda, leaders of Islamic Jihad, and other foreign nationals accused of
genocide, war crimes or crimes against humanity.
A review by the Department of Justice concluded in January 2010 that diplomatic support or
“informational support” for “particular investigations or prosecutions” by the ICC would not
violate existing laws.11
The Obama Administration is conducting a review of its policy toward the ICC. In her
confirmation hearing as Secretary of State before the Senate Foreign Relations Committee in
January 2009, 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.”12 Speaking in Nairobi, Kenya, in
August 2009, Secretary of State Clinton said that it was a “great regret” that the United States was
not a party to the ICC, but that the United States has supported the Court and “continue[s] to do
so.”13 Obama Administration officials have recently indicated, amid a wider review of U.S. policy
toward the Court, that the Administration is “considering ways in which we may be able to assist
the ICC, consistent with our law, in investigations involving atrocities.”14
In November 2009, the United States began formally attending meetings of the ICC’s Assembly
of States Parties as an observer nation, and recently sent a delegation led by Ambassador-at-Large
for War Crimes Issues Stephen Rapp and State Department Legal Advisor Harold Koh to the
Review Conference of the Rome Statute in Kampala, Uganda. Administration officials reiterated
at the Conference the United States’ intention to support current cases before the ICC. In addition,
Rapp stated that Administration officials had “renewed our commitment to the rule of law and
capacity-building projects in which we have ongoing in each” African country in which ICC
prosecutions are taking place. At the same time, Rapp averred that the Administration was
“nowhere near that point” of submitting the Rome Statute for ratification.15

10 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.
11 U.S. Department of Justice, Office of Legal Counsel, “Memorandum for Mary DeRosa, Legal Advisor, National
Security Council, Re: Engagement with the International Criminal Court,” January 15, 2010.
12 Walter Pincus, “Clinton’s Goals Detailed,” The Washington Post, January 19, 2009.
13 Mary Beth Sheridan, “Clinton Says U.S. Supports International Criminal Court,” August 6, 2009.
14 U.S. Mission in Geneva, “Press Briefing with Stephen J. Rapp, Ambassador-at-Large for War Crimes,” January 22,
2010.
15 State Department, “Briefing on the International Criminal Court Conference in Kampala, Uganda,” June 2, 2010.
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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 other
ad hoc international courts and tribunals, such as the International Criminal Tribunals for the
former Yugoslavia16 and for Rwanda.17 In addition, the United Nations authorized the creation of
a Special Court for Sierra Leone (SC-SL) to prosecute those with the greatest responsibility for
serious violations of international humanitarian law and domestic law committed in the territory
of Sierra Leone since November 30, 1996.18 Separate judicial mechanisms have also been set up
for cases involving East Timor (Timor-Leste) and Cambodia. Further, the U.N. Security Council
authorized establishment of a Special International Tribunal for Lebanon in 2007, which began
functioning in March 2009.
These courts and tribunals are distinct from the ICC. While established by the U.N. Security
Council to address allegations of crimes against humanity in various countries, these tribunals
were case-specific, limited in jurisdiction, and temporary. By contrast, the ICC was established by
multilateral treaty and is a permanent, international criminal tribunal. It is not a U.N. body.19
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
with international law, legal disputes submitted to it by states. Only states may submit cases for
consideration, although the ICJ will also give advisory opinions on legal questions when
requested to do so by authorized international organizations.20

16 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.
17 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).
18 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). 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 SC-SL for crimes against humanity and other violations of
international humanitarian law.
19 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 RL31437, International Criminal Court: Overview and Selected Legal Issues, by Jennifer
K. Elsea; CRS Report R41116, The International Criminal Court (ICC): Jurisdiction, Extradition, and U.S. Policy, by
Emily C. Barbour and Matthew C. Weed; and CRS Report RL32605, Genocide: Legal Precedent Surrounding the
Definition of the Crime
, by Judith Derenzo and Michael John Garcia.
20 See U.S. Department of State, United States Participation in the United Nations—2006, p. 130.
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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 and other grounds. For example, several pieces of draft legislation, such as H.R.
5351 (Ros-Lehtinen), S.Con.Res. 59 (Vitter), and H.Con.Res. 265 (Lamborn), express broad
objections to the ICC and to U.S. cooperation with it.
The ICC and Human Rights in Africa
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
Jurisdictional and other concerns led Congress to pass 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 (see
Appendix). However, despite continuing opposition among some Members, a combination of presidential waivers
and changes to the law have effectively nullified restrictions on U.S. assistance to African parties to the ICC.
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, citing concerns that the restrictions could preclude valuable military-to-military ties.21 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

21 Presidential Determination No. 2006-27 of September 29, 2006; CRS interview with State Department official,
September 4, 2008.
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and EDA assistance.
Separately, the Nethercutt Amendment to the FY2005 Consolidated Appropriations Act (P.L. 108-447) prohibited
Economic Support Fund (ESF) assistance to ICC parties 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 was subsequently carried over via continuing resolutions on
February 15, 2007 (P.L. 110-5) and September 29, 2007 (P.L. 110-92). A substantial y identical restriction was included
in the Consolidated Appropriations Act of 2008 (P.L. 110-161, Section 671), signed into law December 26, 2007.
However, in practice, this restriction was not applied to African countries, due to presidential waivers with respect to
Kenya, Mali, Namibia, Niger, South Africa, and Tanzania.22 The Omnibus Appropriations Act of 2009 (P.L. 111-8) did
not carry forward Section 671, ending such restrictions on ESF assistance.
ICC Cases and Investigations in Africa
The ICC Prosecutor has opened cases against 16 individuals, all in connection with crimes
allegedly committed in African countries. ICC cases so far stem from investigations into the
Darfur region of Sudan, northern Uganda, eastern Democratic Republic of Congo (DRC), and the
Central African Republic. The Prosecutor has also opened an investigation into Kenya and is
examining the situation in Guinea, but has not publicly opened any cases in connection with these
countries. In contrast to Sudan, which has resisted ICC jurisdiction, Uganda, DRC, CAR, Kenya,
and Guinea are states parties to the ICC. Four suspects are currently in ICC custody, all
Congolese nationals; no convictions have been obtained.
Table 1. Summary of ICC Activities in Africa
Situation Case
Status
Darfur, Sudan
Former Interior Minister Ahmad
Arrest warrants issued.
Muhammad Harun; alleged former
Suspects at large.
militia leader Ali Kushayb
Darfur rebel leaders Bahar Idriss Abu
Prosecutor’s case against Abu
Garda, Abdallah Banda Abakaer
Garda dismissed by ICC
Nourain, and Saleh Mohammed Jerbo
judges. Banda and Jerbo
Jamus
surrendered voluntarily to the
Court in June 2010.
Sudanese President Omar Hassan al-
Arrest warrant issued. Suspect
Bashir
at large, reelected president in
April 2010.
“Situation of the Lord’s Resistance
LRA commanders Joseph Kony, Vincent Arrest warrants issued. Otti
Army (LRA)” [Uganda]
Otti, Okot Odhiambo, Dominic
and Lukwiya reportedly killed.
Ongwen, and Raska Lukwiya
Remaining suspects at large.
Democratic Republic of Congo
Alleged militia leader Thomas Lubanga
Suspect in ICC custody. Trial
Dyilo
initiated in January 2009.
Alleged militia leaders Germain
Suspects in ICC custody. Joint
Katanga; Mathieu Ngudjolo Chui
trial initiated in November
2009.

(...continued)
22 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.
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Situation Case
Status
Former militia and rebel leader turned
Arrest warrant issued. Suspect
DRC army officer Bosco Ntaganda
at large.
Central African Republic
Former Congolese rebel leader, later
Suspect in ICC custody.
Congolese transitional vice president
Charges confirmed in June
and Senator Jean-Pierre Bemba Gombo
2009. Pre-trial phase.
Kenya
No cases yet opened.
Investigation initiated in March
2010.
Guinea
No cases yet opened.
Preliminary examination
initiated in October 2009.
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
had established an International Commission of Inquiry on Darfur under Resolution 1564,
maintaining that the Sudanese government had not met its obligations under previous
Resolutions.23 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 to the ICC.24
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 and 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. The Sudanese government also
created its own special courts for Darfur in an apparent effort to stave off the ICC’s jurisdiction;
however, the courts’ efforts were widely criticized as insufficient.25
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.26 The Resolution was adopted by a vote of 11 in
favor, none against, and with four abstentions—the United States, China, Algeria, and Brazil.27

23 S/RES/1564 (2004), September 18, 2004.
24 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, S/2005/60,
January 25, 2005.
25 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.
26 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.
27 U.N. Security Council Resolution 1593 (2005), March 31, 2005.
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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
all U.N. member states, including Sudan. Under the ICC Statute, the ICC is authorized, but not
required, to accept the case.28
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.29 The Administration supported
the formation of the International Commission of Inquiry for Darfur.30 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.31 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.32 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.33 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 toward the ICC and it remains to be seen how it will address situations like Darfur.
Ahmad Muhammad Harun and Ali Kushayb
In May 2007, the ICC publicly issued arrest warrants for former Interior Minister Ahmad
Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb), an alleged former
Janjaweed leader in Darfur.34 They were each accused of over 40 counts of war crimes and crimes

28 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.
29 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.
30 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.
31 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.
32 See Paragraph 6 of Security Council Resolution 1593; also see Kirgis, Op. Cit.
33 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.
34 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. The Sudanese government has denied having control over the Janjaweed, a term
(continued...)
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against humanity in connection with abuses allegedly committed in Darfur in 2003 and 2004. The
Sudanese government refused to comply with either warrant. Although news reports suggest
Sudanese authorities arrested Kushayb in October 2008, 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.35 In May 2009, Harun was appointed governor of South
Kordofan State. In June 2010, the ICC Pre-Trial Chamber informed the U.N. Security Council
that “the Republic of Sudan is failing to comply with its cooperation obligations stemming from
Resolution 1593 (2005) in relation to the enforcement of the warrants of arrest issued by the
Chamber against Ahmad Harun and Ali Kushayb.”36
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, 2007. Twelve African
Union peacekeepers were allegedly killed and eight injured in the attack.37
In May 2009, ICC pretrial judges issued a summons to one of the three alleged rebels, Bahar
Idriss Abu Garda, to appear before the Court.38 Abu Garda reported to The Hague voluntarily,
where he maintained that he was innocent. In February 2010, ICC judges declined to confirm the
Prosecutor’s case, contending that there was insufficient evidence to establish that Abu Garda
could be held criminally responsible for the attack on peacekeepers. In June 2010, the two
remaining rebel commanders sought by the Prosecutor in connection with the attack, Abdallah
Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, voluntarily surrendered to the Court.
Their names had not previously been made public.
The Case Against Bashir
On March 4, 2009, ICC judges issued an arrest warrant for 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, referring 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. 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-

(...continued)
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.
35 Jeffrey Gettleman, “Sudan Arrests Militia Chief Facing Trial,” The New York Times, October 14, 2008.
36 U.N. document S/2010/265.
37 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), which was later folded into the U.N.-African Union Mission in Darfur (UNAMID).
38 The ICC judges decided that an arrest warrant was not necessary to ensure Abu Garda’s appearance before the Court.
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perpetrator.”39 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.
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. 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.40
Human rights organizations hailed the warrant, the first issued by the ICC against a sitting head
of state, as an important step against impunity. Many governments, including France, Germany,
Canada, the United Kingdom, and Denmark, and the European Union, have called on Sudan to
cooperate. Reactions by African and Middle Eastern governments have been more critical, with
many condemning the ICC or calling for its prosecution to be deferred. The governments of
Russia and China also oppose the prosecution attempt.
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.41 However, most observers agree
that there is little chance of Bashir being arrested. 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.”42
Sudanese government officials have rejected the ICC’s jurisdiction, though some legal experts
argue that Sudan is obligated as a U.N. member state to cooperate because the warrant stems from
a U.N. Security Council resolution.43 Since the warrant was issued, Bashir has traveled to
numerous countries in the region, including Egypt, Ethiopia, Qatar, Saudi Arabia, and Zimbabwe;
however, he has not visited any countries that are parties to the ICC.
Genocide Accusations44
In his request for an arrest warrant in July 2008, the ICC Prosecutor accused Bashir of three
counts of genocide, making the Sudanese president the first individual to be accused of this crime
before the Court. The Prosecutor alleged that Bashir “intends to destroy in substantial part the

39 ICC Pre-Trial Chamber I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, March 4, 2009.
40 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.
41 ICC press release, “ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan,” March 4, 2009.
42 Patrick Worsnip, “No Quick Way to Enforce ICC Warrant for Bashir,” Reuters, March 5, 2009.
43 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.”)
44 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 the 1948
Convention on the Prevention and Punishment of the Crime of Genocide.
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Fur, Masalit and Zaghawa ethnic groups as such” through coordinated attacks by government
troops and Janjaweed militia.45 In 2009, ICC judges 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.46 The Prosecutor appealed, successfully,
against the decision to exclude genocide, and on July 12, 2010, ICC judges issued a second
warrant for Bashir, this time citing “reasonable grounds” to believe Bashir is criminally
responsible for three counts of genocide. The second warrant does not replace, revoke, or
otherwise alter the first warrant, which also remains in effect.47
Many human rights advocates welcomed the attempt to prosecute Bashir for genocide. However,
the formulation of the Prosecutor’s accusation has 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.”48 Darfur
activists accused the Commission of allowing political considerations to affect its conclusions.49
However, some critics contend that the Prosecutor’s application concerning genocide did not
sufficiently establish intent or Bashir’s alleged role.50
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.51 The Bashir administration has portrayed the ICC as an instrument of
Western pressure for regime change, has repeatedly denied that genocide or ethnic cleansing is
taking place in Darfur, and has accused the Prosecutor of basing his investigation on testimony by
rebel leaders and spies posing as humanitarian workers.52 The government has barred ICC

45 Darfur’s main rebel groups are associated with these ethnicities; the Prosecutor’s case against Bashir alleges that
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.
46 ICC press release, “ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan,” March 4, 2009.
47 ICC, “Pre-Trial Chamber I Issues a Second Warrant of Arrest Against Omar Al Bashir for Counts of Genocide,” July
12, 2010.
48 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.
49 E.g., Eric Reeves, “Report of the International Commission of Inquiry on Darfur: A critical analysis (Part II),”
Sudanreeves.org, February 6, 2005.
50 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.
51 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.
52 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; The Associated Press (hereafter, AP), “Sudan Dismisses ICC Proceedings on Darfur, Reiterates Refusal to Hand
Over Any Suspects,” July 11, 2008; and de Waal, Op. Cit.
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personnel from speaking to Sudanese officials, and authorities have taken a hardline stance
against Sudanese suspected of sympathizing with the ICC prosecution attempt.53 The government
also responded by expelling over a dozen international aid organizations that 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, one in a series of remarks by Sudanese officials that appeared to threaten
the safety of U.N. personnel in Sudan.54
Reactions to the warrant among Sudanese opposition groups have varied. Islamist opposition
leader Hassan Al-Turabi (and former Bashir ally) criticized the Bashir administration’s stance
toward the ICC and has called on the president to turn himself over to the international justice
system.55 Other Sudanese opposition members have displayed measured support for Bashir while
privately acknowledging mixed reactions.56 Three major Darfur rebel factions—the Sudan
Liberation Movement (SLM), Sudan Liberation Army (SLA), and Justice and Equality
Movement (JEM)—welcomed the arrest warrant.57 Reports suggest 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)—is ambivalent about the attempt
to prosecute Bashir.58 The SPLM initially called on the government “to cooperate with [the] ICC
on the legal processes.”59 However, after the arrest warrant was issued, the SPLM released a
statement saying that “Sudan should stand with Bashir at this hard time.”60 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.61
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.”62
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 to multiple friendly countries in the weeks following the warrant’s issuance.

53 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. In November 2008, Sudanese
police detained a human rights activist they accused of being in contact with the ICC, and 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. Also in January, a Sudanese man was convicted of “spying” for the ICC and sentenced to prison.
54 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.
55 Turabi was detained for two months in early 2009 in apparent connection with statements to this effect.
56 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.
57 Reuters, “Reaction to Warrant for Bashir’s Arrest,” March 4, 2009.
58 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.
59 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.
60 Reuters, “Reaction to Warrant for Bashir’s Arrest,” March 4, 2009.
61 Opheera McDoom, “Analysis-Justice Clashes With Peace on Darfur Bashir Warrant,” Reuters, July 14, 2008;
Mushtaq, Op. Cit.
62 Marlise Simons, “Court Issues Warrant for Arrest of Sudan President,” The New York Times, March 5, 2009.
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Regional Reactions
The Sudanese government has rallied support among many 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),63 all of which have criticized the ICC and called
(unsuccessfully) for a deferral of prosecution by the U.N. Security Council. Some African and
Middle Eastern commentators and civil society groups have praised the decision to pursue Bashir
as a step against impunity in the region, while others expressed concern that the move displayed
bias or a neocolonial attitude toward Africa.64 In October 2009, an AU panel on Darfur led by
former South African President Thabo Mbeki concluded that a special “hybrid” court consisting
of Sudanese and international judges, should try the gravest crimes committed in Darfur, but did
not take a position on whether such a court would seek to try cases currently before the ICC.
Despite support for the prosecution among a small number of African leaders, notably Uganda,
Botswana, and Chad, the decision to prosecute an African head of state appears to have sparked a
backlash among African governments, 30 of which are parties to the Court. In July 2009, the AU
resolved not to cooperate with the ICC in carrying out Bashir’s arrest. At the same time, African
parties to the Court suggested they would refrain from withdrawing from the Court altogether.65
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.”66 The government of Chad, which has had very tense relations with Sudan, also stated it
would arrest Bashir, while news reports have suggested contradictory stances toward a possible
arrest by the governments of Uganda and South Africa.67
Obama Administration Reactions
The Obama Administration has expressed support for the ICC investigation and prosecution of
war crimes in Sudan, and Administration officials have repeatedly stated that those responsible
for serious crimes in Darfur should be held “accountable.”68 In July 2009, the Obama

63 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).
64 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; HRW, “AU: African Civil Society Presses States for ICC Support,” November 2,
2009. 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.”
65 Barry Malone, “Africa ICC Members Will Not Quit Despite Bashir Move,” Reuters, June 9, 2009.
66 AFP, “Botswana Says Al-Bashir Must Stand Trial at ICC,” July 6, 2009.
67 Radio France Internationale (RFI), “Chadian Leader Vows to Cooperate With ICC Over Bashir Warrant,” via BBC
Monitoring, July 14, 2009; Reuters, “Uganda Says Sudan’s Bashir to Send Deputy Over ICC,” July 16, 2009; AFP,
“SAfrica Will Arrest Beshir If He Visits: Foreign Ministry,” July 30, 2009.
68 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; AFP, “US
Envoy: Must Cooperate With Sudan Even if New Warrant Issued,” July 9, 2009.
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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.”69 In response to a
question at an August 2009 press conference in Nairobi, Kenya, Secretary of State Hillary Clinton
said, “The actions by the ICC sent a clear message that the behavior of Bashir and his government
were outside the bounds of accepted standards and that there would no longer be impunity.... The
United States and others have continued to support the need to eventually bring President Bashir
to justice.”70 Also in Nairobi, Clinton said that it was a “great regret” that the United States was
not a party to the ICC, but that “we have supported the court and continue to do so.”71
Administration officials have at times appeared to express divergent characterizations of the
situation in Darfur. In June 2009, Special Envoy Gration suggested at a press briefing 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 ongoing fighting
between rebel groups, the Sudanese government, and Chadian actors.72 Previously, U.N.
Ambassador Susan Rice had characterized Darfur as a “genocide.” In response to questions
following Gration’s remarks, a State Department spokesman stated, “I think there is no question
that genocide has taken place in Darfur. We continue to characterize the circumstances in Darfur
as genocide.”73 In July 2009, President Obama referred to Darfur as a “genocide,” calling it a
“millstone around Africa’s neck.”74
Congressional Reactions
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.”75 Senator John Kerry has stated the warrant
“complicates matters,” but should not stop U.S. efforts to resolve the conflict in Darfur.76 In
remarks on behalf of the Congressional Black Caucus, Congresswoman Barbara Lee commented,
“it’s so important to do the right thing now, which is to support the International Criminal Court
in its efforts to hold Sudan’s President Bashir accountable for his crimes against humanity.” The
draft bill H.Res. 241 (Hastings) expresses support for the ICC’s arrest warrant for Bashir.

69 AFP, “US Envoy: Must Cooperate With Sudan Even if New Warrant Issued,” July 9, 2009.
70 U.S. State Department/Hillary Rodham Clinton, “Remarks With Kenyan Foreign Minister Moses Wetangula,”
Kenyatta International Conference Centre, Nairobi, Kenya, August 5, 2009. In March 2009, Clinton 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.” Reuters, “Clinton Says Al-Bashir Can ‘Have His Day in Court,’” March 4, 2009. While many
refer to the ICC proceedings against Bashir as an “indictment,” the warrant is not equivalent to an indictment; any
charges must be confirmed at a pre-trial hearing.
71 Mary Beth Sheridan, “Clinton Says U.S. Supports International Criminal Court,” August 6, 2009.
72 Colum Lynch, “Sudan’s ‘Coordinated’ Genocide in Darfur is Over, U.S. Envoy Says,” The Washington Post, June
18, 2009.
73 ABC News, “US Tries to Walk Back From Comments Downplaying Genocide in Darfur,” June 18, 2009.
74 AFP, “Sudan: Obama Comments ‘A Step Back,’” July 11, 2009.
75 AFP, “Obama Must Support Beshir Warrant: US senator,” March 4, 2009.
76 Reuters, “INTERVIEW-Kerry says ICC case no bar on Darfur peace drive,” April 17, 2009.
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Security Council Considerations in July 2008: Context and Background
The ICC Prosecutor’s request for an arrest warrant for Bashir on July 14, 2008, occurred during
the time that the U.N. Security Council was considering extension of the Council mandate for the
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 2008.77 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.78
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.”79 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

77 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.
78 Security Council Report, “Update Report, Sudan,” July 28, 2008, available at http://www.securitycouncilreport.org.
79 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.
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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
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.”80
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.81 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.”82 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.83
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.

80 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.
81 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.
82 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.”
83 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.
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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
circumstances, the ICC might have a role.84 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.
Uganda
The government of Uganda, a party to the ICC, referred “the situation concerning the Lord’s
Resistance Army” to the Court in 2003.85 The Lord’s Resistance Army (LRA) is a rebel group that
has fought for over two decades in northern Uganda.86 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.87 None of the suspects are in custody. Lukwiya and Otti have reportedly been killed since
the warrants were issued, while other LRA commanders are thought to be in hiding in
neighboring countries. The Prosecutor is also reportedly investigating actions by the Ugandan
military in northern Uganda.
Although LRA atrocities have been widely documented, ICC actions in Uganda have met with
some 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.88 Some observers argue that ICC arrest warrants were a crucial

84 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.
85 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
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.
86 See CRS Report RL33701, Uganda: Current Conditions and the Crisis in North Uganda, by Ted Dagne.
87 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.
88 See Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books,
(continued...)
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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, the
LRA has demanded that ICC arrest warrants be annulled as a prerequisite to a final agreement,
and threats of ICC prosecution are considered by many to be a stumbling block to achieving an
elusive final peace deal.89
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.90 In March 2010, the Ugandan parliament
passed legislation known as the International Criminal Court Bill, which creates provisions in
Ugandan law for the punishment of genocide, crimes against humanity, and war crimes. Ugandan
attempts to prosecute the LRA leaders domestically 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, and only the ICC
Prosecutor can move to drop the case.91
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 2004.92
Despite the end of a five-year civil war in 2003 and the holding of national elections in 2006,
DRC continues 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.93 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, which could potentially include officials from neighboring
countries as well as members of the Congolese government and military.94

(...continued)
2006).
89 E.g. AFP, “Uganda Rebel Negotiating Team Wants Peace Deal Revised,” August 28, 2009.
90 In July 2009, the Ugandan government initiated the first prosecution of an alleged LRA commander, Thomas
Kwoyelo (who has not been sought by the ICC). Kwoyelo has been charged with kidnap with intent to murder, and not
with war crimes. Bill Oketch, Institute for War & Peace Reporting, “Test Case for Ugandan Justice,” July 29, 2009.
91 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.
92 ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral of the Situation in the Democratic
Republic of Congo,” April 19, 2004.
93 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.
94 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
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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 of Congolese Patriots (UPC, after its French acronym) in Ituri
and its military wing, the Patriotic Forces for the Liberation of Congo (FPLC). At the time,
Lubanga was in Congolese custody and had been charged in the domestic justice system.95 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.96 Following a lengthy delay due to a procedural challenge, Lubanga’s
trial began in January 2009. The prosecution wrapped up its presentation of evidence in July
2009; 28 witnesses, including three experts, testified.97 Lubanga has pleaded not guilty.
Germain Katanga and Mathieu Ngudjolo Chui
Germain Katanga, the alleged 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 2003.98 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.99 In November 2009, the joint trial of Katanga and Ngudjolo opened.
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. The warrant
was unsealed in April 2008. Ntaganda is accused of three counts of war crimes related to the
recruitment and use of child soldiers in 2002 and 2003.100 At the time the warrant was unsealed,
Ntaganda was reportedly a commander of a different rebel group, the National Congress for the
People’s Defense (CNDP), in the DRC’s North Kivu province.101 Ntaganda later agreed to be
integrated into the Congolese military, where he was reportedly promoted to the rank of general.

95 Lubanga was reportedly 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.)
96 ICC, The Prosecutor Vs. Thomas Lubanga Dyilo, Document Containing the Charges, Article 61(3)(a) (Public
Redacted Version), August 28, 2006.
97 UN News, “Prosecution Wraps Up Case of Warlord at International Criminal Court,” July 15, 2009.
98 ICC, Combined Factsheet: Situation in the Democratic Republic of the Congo, Germain Katanga and Mathieu
Ngudjolo Chui, June 27, 2008. Their cases were joined in March 2008.
99 ICC, Combined Factsheet, Op. Cit.
100 ICC Pre-Trial Chamber, The Prosecutor Vs. Bosco Ntaganda, Warrant of Arrest, August 22, 2006. Ntaganda has
reportedly been named by former child soldiers testifying before the ICC in the trial of Thomas Lubanga.
101 In January 2009, Ntaganda ousted CNDP founder Laurent Nkunda, who was later taken into Rwandan custody. For
background on the conflict, see International Crisis Group, Congo: Bringing Peace to North Kivu, Africa Report No.
133, October 31, 2007.
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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.102 While Ntaganda officially does
not have a role in military operations, news reports and human rights advocates allege that he has
played a command role in a military offensive in the east since early 2009.103 In November 2009,
the Obama Administration’s Special Advisor on the Great Lakes Region, Howard Wolpe, stated
that the DRC’s protection of Ntaganda was “inexcusable” and said that the United States would
press Congolese authorities to allow Ntaganda’s transfer to the ICC. 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 2005.104 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 2003.105 Bemba’s MLC, based in the DRC’s north, was allegedly invited into CAR by
then-President Ange-Félix Patassé to help quell a rebellion. The Prosecutor accused Bemba of
five counts of war crimes and three counts of crimes against humanity for alleged rape, torture,
pillaging, and other abuses.106
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. A panel of ICC
judges confirmed most of the prosecutors’ charges against him in June 2009, paving the way for a
trial.107 Bemba’s prosecution by the ICC has been controversial in the DRC, where the MLC is a
major opposition party.108 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.109

102 AFP, “Peace Before Justice, Congo Minister Tells ICC,” February 12, 2009.
103 Xinhua, “UN Mission in DR Congo Denies Ntaganda’s Role in Military Operations,” September 10, 2009; Agence
France-Presse (AFP), “No Arrest Yet for Ex-Rebel Leader Ntaganda: Kinshasa,” October 29, 2009.
104 ICC Office of the Prosecutor Press Release, “Prosecutor Receives Referral Concerning Central African Republic,”
January 7, 2005.
105 Bozizé took power in a coup in 2003 and is the current president of CAR.
106 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.
107 UN News Service, “ICC Confirms Charges Against Former DR Congo Leader,” June 16, 2009.
108 The MLC converted itself into a political party following the end of the DRC civil war in 2003. 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; his supporters accused the
president of electoral fraud. Bemba won a Senate seat in January 2007, but he went into exile in April 2007 after
relations with Kabila continued to deteriorate.
109 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.
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Kenya
In March 2010, a panel of ICC judges approved, in a two-to-one decision, the Prosecutor’s
request to open an investigation into post-election violence in Kenya in late 2007 and early 2008,
in which over 1,100 were reportedly killed along with other abuses. A government of national
unity was formed following the disputed elections, but many believe high-ranking officials
planned and instigated large-scale abuses, a view supported by independent investigations into
the violence. Kenya is a party to the ICC, but the decision marks the first time ICC judges have
authorized an investigation on a recommendation from the Prosecutor, as opposed to a state
referral or U.N. Security Council directive. The Prosecutor has stated that he will seek to
prosecute up to six Kenyans, representing those most responsible from “both sides” of the
election violence.110 Those sought reportedly include senior officials in the power-sharing
government. The Kenyan government has pledged to cooperate with ICC actions.
An official investigation into the post-election violence, known as the Waki Commission,
identified potential suspects and recommended the establishment of an independent Kenyan
tribunal with international participation. Donors, including the United States and the European
Union, expressed support for an independent domestic tribunal.111 In December 2008, the
government accepted the Waki Commission’s findings and agreed that it would refer the situation
to the ICC if the Commission’s recommendations were not implemented. The Kenyan parliament
was expected to pass legislation establishing such a tribunal by March 2009. In July 2009, noting
delays, chief mediator Koffi Annan submitted information on 10 individuals suspected of
orchestrating the violence to the ICC. The Cabinet later announced that it would not establish a
special tribunal, but would instead convene a “Truth, Justice and Reconciliation Commission”
(TJRC) which would not prosecute suspects but rather to oversee reforms in the judiciary, police,
and other investigatory bodies that may, in turn, deal with the issue. Some Kenyans are reportedly
concerned that local prosecutions could stir up the same ethnic tensions that led to the post-
election turmoil, while others fear that a lack of prosecutions could lead to future electoral
violence.112 Other concerns center around the protection of witnesses and victims, who have
already reportedly been subjected to intimidation and threats.113
Guinea
ICC prosecutors announced a “preliminary examination” of the situation in Guinea in October
2009, following a violent military crackdown on opposition supporters in late September in which
over 150 were reportedly killed and dozens of women sexually assaulted. A U.N. commission of
inquiry concluded in December 2009 that crimes against humanity may have been committed for
which the Guinean state carried legal responsibility, in addition to the potential individual liability

110 Reuters, “Interview—ICC Prosecutor Targets Up To Six Kenyans,” May 12, 2010.
111 The Nation (Nairobi), “EU Piles Pressure on Govt Over Poll Trials,” July 27, 2009; U.S. State Department/Hillary
Rodham Clinton, “Remarks with Kenyan Foreign Minister Moses Wetangula,” Kenyatta International Conference
Centre, Nairobi, Kenya, August 5, 2009. Secretary of State Hillary Clinton added, “If there’s not going to be a special
local tribunal that has confidence of the people, then I think the people deserve to know that someone is going to put in
motion the process to hold people accountable, and it may well be that that is the ICC.” (State Department, “Remarks at
‘Townterview’ Hosted by CNN and KTN—Hillary Rodham Clinton, Secretary of State,” August 6, 2009.
112 Reuters, “Most Kenyans Want Violence Suspects Tried by ICC,” July 18, 2009; Reuters, “Kenya Keeps Options
Open on Violence Court,” July 30, 2009.
113 Andrew Teyie, “Kenya: Ocampo Witnesses Fear Leak,” Nairobi Star, April 21, 2010.
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of Guinean junta leader Capt. Moussa Dadis Camara and certain other commanders of the
security forces.114 The commission recommended that cases in which there was a “strong
presumption” of crimes against humanity should be referred to the ICC.115 In February 2010, ICC
deputy prosecutor Fatou Bensouda visited Guinea and promised that perpetrators of abuses in
September 2009 would be brought to justice.116
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, ICC 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.117 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.”118 (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.119)
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.120 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 Sudan, in particular, has bared
tensions between the ICC’s universal mandate and its reliance on the enforcement power of

114 Report of the International Commission of Inquiry Mandated to Establish the Facts and Circumstances of the Events
of 29 September 2009 in Guinea, December 29, 2009.
115 For further background on Guinea and the events of September 2009, see CRS Report R40703, Guinea:
Background and Relations with the United States
, by Alexis Arieff and Nicolas Cook.
116 Kissy Agyeman-Togobo, “International Criminal Court Vows ‘No Impunity’ for Perpetrators of Guinea Massacre,”
IHS Global Insight Daily Analysis, February 19, 2010.
117 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.
118 Waddell and Clark, “Introduction,” in Courting Conflict?
119 CRS interview with ICC prosecutorial official, September 3, 2008.
120 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.
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states.121 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, a country which is not a party to the Court, has portrayed the ICC as a form
of “imperialism” that seeks to “undermine people from poor and African countries, and other
powerless countries in terms of economic development and politics.”122 Some 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.123 The attempt to prosecute Bashir has been particularly controversial, drawing rebuke
from African governments and regional organizations. Jean Ping, president of the AU
Commission, has accused the ICC of hypocrisy, contending that “we are not against the ICC, but
there are two systems of measurement … the ICC seems to exist solely for judging Africans.”124
Supporters of the Court respond that most 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. 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.125 In addition, supporters contend that national legal systems
in Africa are particularly weak, which has allowed the ICC to assert its jurisdiction under the
principle of complementarity.126 These sentiments were echoed by former U.N. Secretary-General
Kofi Annan, who stated, “In all of these cases, it is the culture of impunity, not African countries,
which are the target. This is exactly the role of the I.C.C. It is a court of last resort.”127 At the June
2010 meeting of ICC states parties in Kampala, Uganda, participants initiated mechanisms for
increasing coordination between donors on strengthening national justice systems; the United
States, which participated in the meeting as an observer, has expressed support for such efforts.128
The Prosecutor’s selection of cases also has proven controversial. 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

121 See e.g. Kenneth A. Rodman, “Darfur and the Limits of Legal Deterrence,” Human Rights Quarterly, 30, 3, August
2008.
122 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.
123 See e.g. Oraib Al Rantawi, “A Step Forward or Backward?” Bitter Lemons, 32, 6, August 14, 2008 ; Charles
Kazooba, "African Legislators See Bias in ICC’s Workings," June 7, 2010.
124 Christophe Ayad, “Nous Sommes Faibles, Alors On Nous Juge et On Nous Punit,” Libération (Paris), CRS transl.
125 CRS interview with Office of the Prosecutor official, September 3, 2008.
126 See e.g. Stephanie Hanson, “Africa and the International Criminal Court,” Council on Foreign Relations, July 24,
2008.
127 Kofi A. Annan, “Justice Vs. Impunity,” International Herald Tribune, May 30, 2010.
128 State Department, “U.S. Engagement With The International Criminal Court and The Outcome Of The Recently
Concluded Review Conference,” June 15, 2010.
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of particular charges, while those of apparently equal culpability have not.”129 For example, 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.130 The decision to pursue DRC opposition leader Jean-Pierre Bemba Gombo has provoked
accusations that the Prosecutor was swayed by political bias or, potentially, excessive
pragmatism, since other Congolese and CAR political actors accused of similar abuses have not
been pursued to date. ICC supporters have responded that the Prosecutor is mandated to focus on
particularly serious cases, and that investigations are ongoing in these countries.
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.”131
Concerns that the aims of “justice” and “peace” may conflict have been particularly prominent in
Uganda and Sudan. In Uganda, some argue that ICC arrest warrants against LRA commanders
have acted as an impediment to achieving a final peace agreement. Ugandan critics reportedly
include ethnic Acholi elders who support the use of traditional reconciliation mechanisms instead
of international prosecution.132 Conversely, others contend that the threat of ICC prosecution
could serve as “an important ingredient in a political solution” for the conflict-plagued north.133 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. For example, according to former U.S.
special 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.”134
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

129 Waddell and Clark, Op. Cit.
130 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.; and Kiwanuka Lawrence, “ICC Should Indict
Museveni—Otunnu,” The Weekly Observer (Kampala), August 20, 2009. 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.
131 Nick Grono and Adam O’Brien, “Justice in Conflict? The ICC and Peace Processes,” in Courting Conflict?
132 E.g. Moses Akena and David L. Okumu, “Acholi Leaders Criticize ICC’s Operations,” The Monitor, August 6,
2009.
133 Akhavan, “The Lord’s Resistance Army Case,” Op. Cit.
134 Quoted in Opheera McDoom, “Analysis: Justice Clashes With Peace on Darfur Bashir Warrant,” Reuters, July 14,
2008.
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testimony before Congress, when asked about the impact of the ICC warrant on U.N.
peacekeeping operations in Darfur, Director of National Intelligence Dennis C. Blair said that
“the indictment and President Bashir’s reaction have made him less cooperative than he was” and
that the warrant would “make it harder” for the U.N. to run peacekeeping operations in Darfur.135
In early August 2009, the outgoing commander of the hybrid U.N.-AU peacekeeping mission in
Darfur (UNAMID), General Martin Luther Agwai, reportedly stated that the decision to pursue
Bashir had been a “big blow” for UNAMID and the peace process, although it had not as drastic
an effect on the ground as he had feared.136 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.137
Supporters of the Court maintain that the ICC warrant against Bashir may open 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.138 For example, Priscilla Hayner of the
International Center for Transitional Justice has written that “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.”139 Some argue that “peace deals that sacrifice justice
often fail to produce peace” in the long run.140 Many observers have pointed out that discerning
the effect of ICC actions on complex processes is extremely difficult.

135 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.
136 Louis Charbonneau, “INTERVIEW-Dialogue With Sudan Govt, Rebels Needed—US Envoy,” Reuters, August 6,
2009; U.N. News, “Press Conference by United Nations Force Commanders in Darfur, Democratic Republic of
Congo,” August 6, 2009.
137 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.
138 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.
139 Priscilla Hayner, “Seeking Justice as War Crimes Rage On,” The Chicago Tribune, July 16, 2008.
140 Grono and O’Brien, Op. Cit.
Congressional Research Service
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International Criminal Court Cases in Africa: Status and Policy Issues

Appendix. African States That Are ICC Parties and
Have Concluded an “Article 98 Agreement” With
the United States

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
Kenya X


Lesotho X

X
Liberia X

X
Libya


Madagascar X

X
Malawi X

X
Mali X


Mauritania

X
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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
Namibia X


Niger X


Nigeria X

X
Rwanda

X
São Tomé and Príncipe


X
Senegal X

X
Seychel es

X
Sierra Leone
X

X
Somalia


South Africa
X


Sudan


Swaziland

X
Tanzania X


Togo

X
Tunisia

X
Uganda X

X
Zambia X

X
Zimbabwe


Sources: United Nations, Multilateral Treaties Deposited with the Secretary-General; U.S. Department of State,
Treaties in Force 2007.

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
Matthew C. Weed
Specialist in International Humanitarian Policy
Analyst in Foreign Policy Legislation
rmargesson@crs.loc.gov, 7-0425
mweed@crs.loc.gov, 7-4589


Congressional Research Service
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