On 14 July 2008, the prosecutor of the International Criminal Court (ICC) requested that an arrest warrant be issued against Al-Bashir for his alleged involvement in genocide, crimes against humanity and war crimes in the Darfur region between March 2003 and July 2008.
On 4 March 2009, the ICC Pre-Trial Chamber I issued an arrest warrant against Al-Bashir for war crimes and crimes against humanity committed in Darfur. This was the first time that the ICC had issued an arrest warrant against a head of state.
The arrest warrant that was issued against Al-Bashir contained a total of 7 charges, 5 of which were for crimes against humanity (murder, extermination, forced transfer, torture and rape), and 2 charges were for war crimes (intentionally directing attacks against civilians who did not directly participate in the hostilities and looting).
The ICC Pre-Trial Chamber I considered the acts of violence that were committed in Darfur to be part of a plan organised at highest level of State authority. Al-Bashir is suspected of criminal involvement, either directly or indirectly, in intentionally directing attacks against a large number of civilians in Darfur. These crimes were committed during the counter-insurgency campaign that began in April 2003, orchestrated and led for five years by the government of Sudan against the rebel movements that were present in Darfur, specifically the Sudan Liberation Movement / Army and the Justice and Equality Movement (JEM).
The ICC Pre-Trial Chamber I dismissed the charges for genocide given that there was not sufficient evidence or reasonable motive to believe that the Sudanese government acted with intention to destroy, in part or completely, the Fur, Masalit and Zaghawa ethnic groups.
On 6 July 2009, the prosecutor appealed against this decision because an arrest warrant for the charge of genocide had not been issued.
On 3 February 2010, the appeals Chamber resent the case file to the ICC Pre-Trial Chamber I for it to be looked into again.
On 12 July 2010, the ICC Pre-Trial Chamber I issued a second arrest warrant against Al-Bashir, as there was reason to believe that he was responsible for three charges of genocide committed against the Fur, Masalit and Zaghawa ethnic groups:
Genocide by killing members of the group (article 6a of the Rome Statute)
Genocide by causing serious bodily or mental harm to member of the group (article 6b of the Rome Statute)
Genocide by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part (article 6c of the Rome Statute)
This second arrest warrant neither replaced nor revoked the first arrest warrant issued on 4 March 2009, which remains in place.
In December 2014, the ICC Office of the Prosecutor called for the United Nations Security Council to do all within its power to arrest Al-Bashir and bring him to court. It also advised the UN Security Council that due to having limited resources and having several cases open, the investigation into Al-Bashir was suspended in order to prioritise other open cases. The office of the Prosecutor highlighted that the case against Al-Bashir would remain suspended but could be prioritised again at any time if there was any change in circumstance.
The ICC Pre-Trial Chamber I took the opportunity to remind certain member states (Chad, Malawi, DRC and Sudan) of the Rome Statute and of their obligation to cooperate with the ICC, and in particular of their obligation to arrest Al-Bashir and bring him to court if he were to travel to their territory.
When Al-Bashir travelled to South Africa between 13 and 15 June 2015, the ICC reminded the South African authorities of their obligation to arrest Omar Al-Bashir and to bring him to court.
PROCEEDINGS IN SOUTH AFRICA
On 13 June 2015, President Al-Bashir arrived in South Africa to participate in the 25th African Union Summit. On 14 June 2015, the NGO “Southern African Litigation Centre” seized the Supreme Court of North Gauteng in Pretoria to require the authorities to carry out the arrest warrant issued by the ICC against Al-Bashir. This request was based on the Rome Statute act no. 27 of 2002, a South African law which sets out the framework to ensure that the Rome Statute is effectively implemented in South African and that national authorities respect their national and international obligations to pursue alleged perpetrators of international crimes. In 2014, the Constitutional Court of South Africa deemed that this law obliged the national police service to pursue and arrest individuals suspected of crimes against humanity.
On 14 June 2015, the Supreme Court issued a temporary order preventing Al-Bashir from leaving South Africa until a decision was made on his arrest. On 15 June 2015, the Supreme Court ordered the arrest of Al-Bashir and his detention before being transferred to the ICC.
Yet, the South African government informed the Supreme Court that Al-Bashir had already left the country, an act which directly violated the ruling of the court on 14 June 2015 which aimed to stop him from leaving the country.