The Whereabouts of the 4 Accused in the ICC Darfur cases are known; Why Have They Not Been Arrested?

By Elina Shtrakhman, Advocacy & Policy

During my first week at the International Justice Project (IJP), I was outraged to learn that while the locations of the four accused, Ali Kushayb, Ahmad Harun, President Omar al-Bashir, and Abdel Raheem Hussein, in the Darfur cases at the International Criminal Court (ICC) in The Hague are known, they have yet to be arrested. It is normally difficult to trace the location of fugitives; however, in these cases, according to ICC Chief Prosecutor, Fatou Bensouda, finding these individuals would be “easy.”[1] At the May 2012 United Nations Security Council (UNSC) briefing by the Chief Prosecutor, Bensouda stated, “Ali Kushayb remains in Darfur, Ahmad Harun can be found in his Governor’s residence in South Kordofan, Abdel Raheem Hussein sits in his office at the Ministry of Defence in Khartoum, and Al Bashir can be found in the Presidential Palace in Khartoum.”[2]

The warrants for the arrests of Kushayb and Harun were issued by the ICC in April 2007. The first warrant for President Bashir’s arrest was issued in 2009, the second in 2010, and the warrant for Hussein was issued most recently in 2012. For six years Kushayb and Harun have had a warrant issued in their name; however, even with their whereabouts well known by the Sudanese government, they have yet to be arrested. Without understanding the complexities of the situation, it would be difficult to comprehend how the Sudanese government could allow this to occur, knowing the atrocities these men caused and enabled. These men are allegedly responsible for crimes against humanity and war crimes, including but not limited to, murder, rape, imprisonment, torture, pillaging, and intentionally directing attacks against civilian populations. In addition to five counts of crimes against humanity and two counts of war crimes, President Bashir is also charged with three counts of genocide.[3]

Unfortunately, while the UNSC granted jurisdiction to the ICC in 2005 for the crimes committed in Darfur, the ICC does not have a police force and is severely underfunded (with no funding support from the UNSC). Therefore, without the cooperation of the international community and the Sudanese government, the ICC does not have the resources to effectuate the Darfur arrest warrants. “According to UNSC resolution 1593 and articles 25 and 103 of the UN Charter, the obligation of the Government of Sudan to fully cooperate with the Court prevails over any other international obligation that the Government of Sudan may have undertaken pursuant to any other international agreement.”[4]

Although the Sudanese government has the legal obligation to arrest these individuals, there is the realization that President Bashir, also an accused, has no intention of complying with these obligations. He is not only taking advantage of his power in order to continue the violence in the region and ensure his impunity, but he is also protecting the other fugitives in Sudan.[5]

The issue becomes even more complex due to the lack of cooperation internationally. Because an arrest warrant has been issued by the ICC for President Bashir for genocide, among other crimes, he should be arrested if he enters a country that has ratified the Rome Statute, the founding treaty of the ICC. But President Bashir continues to travel with impunity, including most recently to Chad, a State Party to the Rome Statute. Almost a half a million people have been killed in Darfur, and over 2.5 million people have been displaced. People’s homes, livelihood, and survival are at stake, and countries are still not cooperating with the ICC, even when the individual in question requires no search party to track the accused down or detain them.

As of 2012, unfortunately, there is no indication that the crimes in Darfur, including the genocide, have ceased.[6] It is evident that without the support of the international community, these individuals will continue to torture, murder, rape, and displace civilian populations. I hope that in short time, the international community will come together and take action in order to save the lives of innocent men, women and children suffering under the Bashir regime.