The ICC and the Case of Sudan’s Omar Al Bashir: Is Plea-Bargaining a Valid Option?

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U.C. Davis Journal of International Law & Policy,


On July 14, 2008, Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC), ignited a firestorm in international law and politics when he applied to the Court’s Pre-Trial Chamber III for the issuance of an arrest warrant against the President of Sudan, Omar Hassan Ahmad al Bashir, based on ten counts of international crimes ranging from genocide, to crimes against humanity, to war crimes. Al Bashir’s case, arising from the UN Security Council’s submission of the “situation” in Darfur to the ICC, has created more than the usual divisions between those who approve and those who disapprove of actions under universal international criminal law. The seemingly simple consideration that the undeterred Prosecutor is merely “doing a judicial case” turns out to be much more complicated. Numerous questions have arisen: Are there any problems with the alleged lack of immunity of the head of a non-member state to the ICC? Will this formal prosecution help or hinder the fragile peace process in Sudan? Will it cause turmoil in the already spiked relations between the West and the African continent? Why are the African Union and the Arab League considering this act a “political” rather than a “legal” one? Will their support of the Sudanese President tarnish the reputation and fatally impair the effectiveness and, ultimately, independence of the Court? Will the Security Council step in and stop the prosecution? Then, the key issue: Will President al Bashir ever stand trial? If so, with what outcome? In the middle of this heated discussion, this paper is approaching the problem from a slightly different angle: it considers calling into play Article 65, Proceedings on an Admission of Guilt, of the Rome Statute, in order to assess whether it could help in the case of al Bashir by potentially reconciling the goals of international criminal law and the needs of the political process, by working on a negotiated justice. Upon presenting the case at issue, this paper will first look into the most common domestic form of negotiated justice, i.e. plea-bargaining, as developed under the U.S. common law, and contrast it with models in civil law systems. This discussion will be followed by an analysis of pertinent past trends in international criminal justice and its hybrid criminal procedure developed mostly, but not exclusively, in the jurisprudence of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). Finally, the article will appraise these developments as they pertain to cases before the ICC and recommend a potential solution.

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Publication Date

Spring 2009