^* Assistant Professor of Law, Cleveland-Marshall College of Law. J.D., Cornell Law School, magna cum laude, 2002; Maitrise en Droit (French law degree), Université Paris I-Panthéon-Sorbonne, cum laude, 2002; D.E.A. (master’s degree), Private International Law, Université Paris I-Panthéon-Sorbonne, cum laude, 2003; B.A., Rutgers University, French Literature and Political Science, summa cum laude, 1998.

^* This text was reproduced and reformatted from the text available at the International Criminal Court website: (visited March 10, 2009) <http://www.icc-cpi.int/iccdocs/doc/doc589950.pdf>

¹ Situation in Darfur, the Sudan, Case No. ICC-02/05-162, Summary of the Prosecutor’s Application under Article 58 (Pre-Trial Chamber I, Nov. 20, 2008), ¶ 1, at http://www2.icc-cpi.int/iccdocs/doc/doc589950.pdf) [hereinafter Application].

² The Prosecutor initially maintained the confidential character of the identity of the three Defendants from the Application, as it filed the Application confidential and ex parte. Id. Subsequently, however, the Prosecutor requested from PTC1 authorization to disclose the Defendants’ names, in filings of December 22, 2008 and December 24, 2008. Situation in Darfur, the Sudan, Case No. ICC-02/05-167-Conf-Exp, Notification to Pre-Trial Chamber I Pursuant to Article 58 (Dec. 22, 2008); and Situation in Darfur, the Sudan, Case No. ICC-02/05-168-Conf-Exp, Notification to Pre-Trial Chamber I Pursuant to Article 58 (Dec. 24, 2008). PTC1 denied the Prosecutor’s request to disclose the Defendants’ names on December 24, 2008. See Situation in Darfur, the Sudan, Case No. ICC-02/05-169-Conf-Exp, Notification to the Chamber Pursuant to Article 58 (Dec. 24, 2008). Thus, the Defendants’ names have remained confidential. (Note that the decisions here are all referenced in the Decision on Prosecution’s Request for Expedited Decision on the Prosecution’s Application of 20 November 2008, Case No. ICC-02/05-199, n.7-8 (Mar. 2, 2009) [hereinafter Decision on Request for Expatiated Decision]; these decisions are confidential and are not part of the Court’s public records/documents, and are thus not available on the Court’s website).

³ Application, supra note 1, ¶¶ 3-4.

⁴ Id. ¶ 4.

⁵ Id.

⁶ Rome Statute of the International Criminal Court, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome Statute on the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.189/9 (1998), 37 I.L.M. 999 (1998) [hereinafter Rome Statute].

⁷ Application, supra note 1, ¶5. More specifically, the Prosecutor requested the issuance of arrest warrants against the three named military commanders for the war crimes of violence to live (murder and casing severe injury to peacekeepers) under Art. 8(2)(c)(i), intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission under Art. 8(2)(e)(iii), and pillaging under Art. 8(2)(e)(v) of the Rome Statute, committed on Sept. 29, 2007 in Darfur. Id. ¶ 1.

⁸ Application, supra note 1, ¶ 10.

⁹ S.C. Res. 1593, 6, U.N. Doc. S/RES/1593 (Mar. 31, 2005).

¹⁰ Situation in Darfur, the Sudan, Case No. ICC-02/05-55-US- Exp, Prosecutor’s Application under Art. 58(7) (Feb. 27, 2007), at http://www2.icc-cpi.int/iccdocs/doc/doc259838.PDF; Situation in the Central African Republic, Prosecutor v. Jean- Pierre Bemba Gombo, Case No. ICC-01/05-15 1-US-Exp, Application for Request for Provisional Arrest under Article 92 (May 23, 2008); and ICC-02/05-151-US-Exp-Anxs I-89; Corrigendum ICC-02/05-151-US-Exp-Corr and Corrigendum ICC-02/05-151-US-Exp-Corr-Annxs 1&2; and the public redacted version ICC-02/05-157 and ICC-02/05-157-Annx A (note that these documents are referenced in n.1 of the Decision on Prosecution’s Request for Expedited Decision, supra note 2. They refer to the Prosecution’s application under Article 58 of July 14, 2008 for the arrest warrant of Al Bashir).

¹¹ Prosecutor v. Ahmad Muhammad Harun & Ali Muhammad Ali Abd-al-Rahman, Case No. ICC-02/05-01/07, Decision on the Temporary Designation of a Single Judge (Aug. 16, 2007), at http://www2.icc-cpi.int/iccdocs/doc/doc319275.PDF [here inafter Harun & al-Rahman]; Warrant of Arrest for Omar Hassan Ahmad Al Bashir of March 4, 2009, Case No. ICC-02/05-01/09-1(Mar. 4, 2009), at http://www.icc-cpi.int/iccdocs/doc/doc639078.pdf.

¹² Article 58(1) of the Rome Statute of the ICC states: ‘‘At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.’’

¹³ Harun & al-Rahman, supra note 11, ¶ 26.

¹⁴ See supra note 8.

¹⁵ Application, supra note 1, ¶ 10.

¹⁶ See David Scheffer, Decision on the Prosecution Application under Article 58(7) of the Statute In the Case of The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Al Abd-A-Rahman, 46 I.L.M. 532 (describing why the Prosecutor had originally filed an application for a summons to appear instead of an application for an arrest warrant in the case of Ahmad Harun and Ali Kushayb).

¹⁷ Harun & al-Rahman, supra note 11.

¹⁸ Id. ¶ 115.

¹⁹ Id. ¶¶ 117-18.

²⁰ Id.

²¹ Situation in Darfur, the Sudan, Case No. ICC-02/05-166, Decision Requesting Additional Information and Supporting Materials (Dec. 9, 2008), at http://www2.icc-cpi.int/iccdocs/doc/doc608293.PDF.

²² Situation in Darfur, the Sudan, Case No. ICC-02/05-172, Prosecution’s Provision of Further Information in Compliance with the ‘‘Decision Requesting Additional Information and Sup porting Materials’’ (Jan. 16, 2009).

²³ Situation in Darfur, the Sudan, Case No. ICC-02/05-203, Prosecution’s Provision of Further Information Pursuant to the ‘‘Decision Requesting Additional Information and Supporting Materials’’, and Urgent Request for Expedited Consideration of the Prosecution’s Application under Article 58 (Mar. 6, 2009), ¶ 5, at http://www.icc-cpi.int/iccdocs/doc/doc641539.pdf [hereinafter Urgent Request].

²⁴ Situation in Darfur, the Sudan, Case No. ICC-02/05-194-Conf- Ex, Submission of Information on the Prosecution’s Application Pursuant to Article 58 and Request for Summonses to Appear (Feb. 23, 2009); Situation in Darfur, the Sudan, Case No. ICC-02/05-195-Conf-Exp (Feb. 25, 2009) (Note that these are all probably confidential documents; they are references in n.11, 12 of the Decision on Prosecution’s Request for Expedited Decision, supra note 2).

²⁵ Decision on Prosecution’s Request for Expedited Decision, supra note 2.

²⁶ Urgent Request, supra note 23.

²⁷ Situation in Darfur, the Sudan, Case No. ICC-02/05-205, Decision on the Prosecution’s Requests of 5 and 6 March 2009 (Mar. 10, 2009).

²⁸ Rome Statute, supra note 6, art. 89. In fact, should PTC1 decide to issue an arrest warrant in this case over the Defendants, PTC1 would then direct the ICC registry to prepare requests for cooperation, which would be submitted to Sudanese authorities, all State Parties to the Rome Statute, all U.N. Security Council member that are not already party to the Rome Statute, and Sudan’s neighboring states, such as Egypt, Eritrea, Ethiopia, and Libya. PTC1 would direct the ICC Registrar to comply with Article 92 of the Rome Statute and Rule 176(2) of the ICC Rules of Procedure and Evidence to ensure that the requests for cooperation and the transmittal are property made by the Registrar. Scheffer, supra note 16, at 533. The United Nations Security Council would be involved in this situation because the Darfur investigation was referred to the ICC by the Security Council itself, under Resolution 1593 (2005). Thus, all Security Council members, including those not party to the ICC, are theoretically obligated to consider requests for cooperation. It will be interesting to follow how China, a country with significant investments and influence in Sudan, responds to such requests for cooperation. It will also be interesting to examine how the United States, which had taken a negative stance toward the ICC in general throughout the least eight years, responds to the same requests for cooperation. In light of such politically important considerations, it is understandable why ICC judges are reluctant to issue rash arrest warrants under Article 58.

²⁹ See, e.g., Decision on Prosecution’s Request for Expedited Decision, supra note 2, (PTC1 explicitly stated in this decision, responding to the Prosecutor’s request to expedite the Application request, that in light of the complexity of the issues involved, it needed time to study the full evidentiary record before it).

¹ The AMIS mandate further indicates: “In order to meet these objectives, the following tasks were delineated...to monitor and verify the provision of security for returning IDPs and in the vicinity of existing IDP camps; to monitor and verify the cessation of all hostile acts by all the Parties; to monitor and verify hostile militia activities against the population; to monitor and verify efforts of the GoS to disarm Government controlled militias; to investigate and report about allegations of violations of the Humanitarian Ceasefire Agreement; to protect civilians whom it encounters under imminent threat and in the Immediate vicinity, within resources and capability, it being understood that the protection of the civilian population is the responsibility of the GoS; to protect both static and mobile humanitarian operations under imminent threat and in the immediate vicinity, within capabilities; to provide visible military presence by patrolling and by the establishment of temporary outposts in order to deter uncontrolled armed groups from committing hostile acts against the population; to assist in the development of proactive public confidence-building measures; to establish and maintain contact with the Sudanese police authorities; to establish and maintain contact with community leaders to receive complaints or seek advice on the issues of concerns; to observe, monitor and report the effective service delivery of the local police; and to investigate and report all matters of police non-compliance with the Humanitarian Ceasefire Agreement.”

² A/51/10 (1996), ILC Commentary to Art. 19, Draft Code of Crimes.

³ ILC Commentary.

⁴ Summary of the Proceedings of the Preparatory Committee, A/AC.249/1, 7 May 1996.

⁵ A/51/10 (1996), ILC Commentary to Art 19, Draft Code of Crimes