Indicting the Sudanese President by the ICC: Resolution 1593 revisited

The Prosecutor of the International Criminal Court (ICC) has on 14 July 2008, applied for an Arrest Warrant against Sudanese President, Al-Bashir for alleged complicity in genocide, crimes against humanity and war crimes in Darfur. This is the first time for the ICC in its infant history to consider charges of genocide, and for that matter, also for the first time ever to consider indicting a Head of State. The Prosecutor is undeterred by concerns that his endeavour might add fuel to an already igniting situation in Darfur. He says that 'I am a prosecutor doing a judicial case'. On 4 March 2009, the ICC issued a warrant of arrest for President Al-Bashir, listing five counts of crimes against humanity and two of war crimes. This development has necessitated a return to SC Resolution 1593 to unravel some of its controversial aspects such as those relating to the sources of funding of the referral; categorisation of States with respect to their co-operation with the ICC; how complementarity applies when the alleged suspect is himself the Head of State; the unpredictable manner in which the Resolution recognises immunity for nationals of non-party States; the role of sovereign immunity; conflict prevention role of the Prosecutor; and narrowing of the gap in the US opposition to the ICC.