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Darfur, Part 1: Member Statements on OTP Request Against Sudanese President Al-Bashir

14 July 2008

Dear all,

This is the first of a two-part message on the ICC Prosecutor's
application today requesting Pre-Trial Chamber I to issue a warrant of
arrest under against Sudanese President Omar Hassan Ahmad Al-Bashir
for genocide, crimes against humanity and war crimes in Darfur.
Please find below Coalition member statements and links to related
background papers. The second of our two-part message will follow
later today and will contain a selection of news articles and analysis
regarding today's application.

The Office of the Prosecutor's Press Release and Application are
accessible at http://www.icc-cpi.int/press/pressreleases/406.html and
http://www.icc-cpi.int/library/organs/otp/ICC-OTP-Summary-20081704-ENG.pdf
respectively.

For more information on Darfur and the ICC, please visit the
Coalition's site at http://coalitionfortheicc.org/?mod=darfur

Please take note of the Coalition's policy on situations before the
ICC (below), which explicitly states that the CICC will not take a
position on potential and current situations before the Court or
situations under analysis. The Coalition, however, will continue to
provide the most
up-to-date information about the ICC.

Best regards,
CICC Communications
[email protected]

*************

I. CICC MEMBER STATEMENTS

i. "Darfur: ICC Moves Against Sudan's Leader: Charges Against
al-Bashir a Major Step to Ending Impunity," Human Rights Press
Release, 14 July 2008,
http://hrw.org/english/docs/2008/07/14/sudan19335.htm

"The International Criminal Court (ICC) prosecutor's request for an
arrest warrant against Sudan's president is a significant step towards
ending impunity for the horrific crimes in Darfur, Human Rights Watch
said today...

`Charging President al-Bashir for the hideous crimes in Darfur shows
that no one is above the law,' said Richard Dicker, director of Human
Rights Watch's International Justice Program. `It is the prosecutor's
job to follow the evidence wherever it leads, regardless of official
position.'

The ICC's Pre-Trial Chamber will review the information in the
prosecutor's application to determine whether to grant the request for
a warrant. If the Pre-Trial Chamber judges are satisfied that there
are `reasonable grounds to believe' that al-Bashir has committed ICC
crimes and that arrest is necessary to bring him to trial, it will
issue the warrant.

...In a December 2005 report, "Entrenching Impunity: Government
responsibility for international crimes in Darfur"
(http://hrw.org/reports/2005/darfur1205/), Human Rights Watch called
for investigations of senior Sudanese government officials, including
al-Bashir, for crimes against humanity and war crimes. To date, no
senior officials have been brought to justice in Sudan for these
massive crimes. The Sudanese government has shown no willingness to
end its deliberate attacks on civilians in Darfur – attacks which
continue to this day.

`The warrant request against President al-Bashir is one step towards
ending the environment of total impunity that continues in Sudan
today,' said Dicker. `The warrant in no way lessens the government's
obligations to ensure protection of civilians and justice for abuses
carried out in Darfur.'

Human Rights Watch called upon Sudan to abide by its agreement to
permit deployment of the African Union/United Nations hybrid operation
in Darfur (UNAMID) as set out in Security Council Resolution 1769.
Under international humanitarian law, Sudan is also required to ensure
the full, safe, and unhindered access of humanitarian relief to all
those in need in Darfur, in particular to internally displaced persons
and refugees.

On March 31, 2005, the UN Security Council referred the situation in
Darfur to the ICC prosecutor. In April 2007, the ICC issued its first
arrest warrants against State Minister for Humanitarian Affairs Ahmed
Haroun and Janjaweed leader Ali Kosheib for their leading roles in
crimes in West Darfur. The Sudanese government has refused to
surrender the first two suspects. On June 16, 2008, the UN Security
Council unanimously called on Sudan to cooperate with the ICC.

In his June 2008 briefing to the Security Council, ICC Prosecutor
Moreno Ocampo announced that he had collected evidence of a `criminal
plan based on the mobilization of the whole state apparatus, including
the armed forces, the intelligence services, the diplomatic and public
information bureaucracies, and the justice system.'

The Security Council's referral to the ICC stemmed from the January
2005 UN International Commission of Inquiry on Darfur report to the UN
secretary-general. The report found that the government of Sudan and
its allied Janjaweed militias were responsible for serious violations
of international human rights and humanitarian law amounting to crimes
under international law and strongly recommended referral to the ICC.
The commission created a sealed list of 51 suspects bearing further
investigation, including a number of senior government officials and
military commanders. The list was handed over to the UN
secretary-general with the recommendation that it be disclosed to the
ICC prosecutor.

`It is hardly news that senior leaders in Khartoum are implicated in
the devastation in Darfur, but it is noteworthy that the request for
criminal charges has been brought against the person at the top," said
Dicker.'"

ii. "President Al-Bashir sought by the ICC," FIDH Press Release, 14
July 2008, http://www.coalitionfortheicc.org/documents/sd1407a.pdf

"The International Federation for Human Rights (FIDH) and its member
organisation the Sudan Organisation against Torture (SOAT) welcome
today's announcement by the Prosecutor of the International Criminal
Court on the request for an arrest warrant against Omar Hassan Al-
Bashir, President of the Sudan, for charges of genocide and crimes
against humanity committed in Darfur.

`This is the first time judicial evidence is presented to prove that
the crime of genocide has been perpetrated in Darfur. The Prosecutor's
filing confirms that the highest authority of the government has been
personally involved in planning the mass campaign of violence against
the population of Darfur. We believe that disclosing this evidence and
indicting Al-Bashir could contribute to stability in the region `,
said Souhayr Belhassen, President of FIDH.

`Concealing his crimes under the guise of a `counterinsurgency
strategy', or `inter tribal clashes', or the `actions of lawless
autonomous militia', Al-Bashir made possible the commission of further
crimes. He promoted and provided impunity to his subordinates in order
to secure their willingness to commit genocide', the Prosecutor said.

FIDH and SOAT call upon the Security Council, the African Union and
the League of Arab States to support the actions carried out by the
Prosecutor and the ICC.
`States must protect the civilian population in Darfur and the joint
military force deployed in this territory. They must also intensify
their efforts to work towards a legal and political solution', added
Souhayr Belhassen.

According to the treaty founding the ICC, there is no immunity from
prosecution for crimes against humanity, genocide and war crimes:
those who have committed the most serious crimes cannot escape
international justice regardless of their official capacity.

The ICC has already issued arrest warrants for Ahmad Harun, Sudanese
Minister for Humanitarian Affairs, and Ali Kushayb, a Janjaweed
militia leader. Both men are still at large and have been protected by
the Government of Sudan and by President Al-Bashir himself. Mr. Ocampo
had indicated in previous speeches that protecting the indicted, in
particular Ahmad Harun, demonstrated that other members of the
Sudanese government were involved in the commission of the massive
atrocities committed in Darfur.

The decision now lies with the judges, who will consider the evidence
and decide whether an arrest warrant should be issued against Al-Bashir."

iii. "Countries Shipping Arms to Sudan May Violate Genocide
Convention," Human Rights First, 11 July 2008,
http://www.humanrightsfirst.org/media/darfur/2008/statement/318/index.htm

"If the Prosecutor for the International Criminal Court (ICC) names
Sudan's president as a suspect and includes genocide charges,
countries providing arms to Sudan may be violating the Genocide
Convention by failing to take action to prevent it, said Human Rights
First.

According to news reports, ICC Prosecutor Luis Moreno Ocampo will
refer President Bashir to the Court's Pre-Trial Chamber I, and request
that the chamber issue a warrant for his arrest for his role in
perpetrating genocide in Darfur from 2003-2008, resulting in deaths of
more than 300,000 people. This request for a warrant will mark the end
of the initial phase of what is thus far a three-year investigation
into crimes committed in all of Darfur.
`If, indeed, genocide charges are alleged against Bashir on Monday,
the whole landscape of legal liability changes, especially for the
countries that have been providing weapons to Sudan,' said Betsy
Apple, director of Human Rights First's Crimes Against Humanity program.

...`If the ICC Prosecutor does include genocide charges on Monday,
this would put the onus on the world to do more than shrug its
shoulders. Such a decision could galvanize the world to match its
expressions of concern with concrete actions to halt arms transfers,'
said Apple.

If Bashir is named on Monday, the decision of if and how to pursue the
case will rest with the Chamber, which will assess whether there are
reasonable grounds to charge the suspects with crimes committed within
the jurisdiction of the Court. There is no fixed deadline for the
Pre-Trial Chamber to issue warrants; in past cases, this process has
taken up to two months.

There is considerable concern that the potential decision to prosecute
Bashir could, in the immediate term, complicate the situation on the
ground in Darfur. The prospect of prosecution might cause the
Government of Sudan to further obstruct the deployment of peacekeeping
forces, retaliate against humanitarian organizations in Darfur, or
otherwise thwart international efforts to resolve the crisis in
Darfur. It is entirely unclear, however, if and how Khartoum might
retaliate, and it is well-known that the Government of Sudan has
failed to cooperate with the international community thus far even
before the prospect of additional prosecutions.

Recent history demonstrates that whenever short-term peace efforts are
prioritized over justice, the people suffering from the conflict are
the losers. Sudan is a case in point....

`The notion that you can and even must forsake the pursuit of justice
and accountability to achieve peace is based on a false and dangerous
dichotomy,' said Apple....'Peace and justice efforts really need to
work hand-in-hand in order for the peace to be durable.'"

iv. " New ICC Prosecution: Opportunities and Risks for Peace in
Sudan," International Crisis Group Press Release, 14 July 2008,
http://www.crisisgroup.org/home/index.cfm?id=5571&l=1&m=1

"Today's application by the Prosecutor of the International Criminal
Court (ICC) for a warrant of arrest for Sudanese President Omar Bashir
for genocide, crimes against humanity and war crimes committed in
Darfur creates both big opportunities and big risks for peace in Sudan.
These are the first charges of genocide and the first charges against
a head of state to be brought before the ICC. The judges will now have
to weigh the Prosecutor's evidence and decide – a process that could
take some months – whether to issue the arrest warrant.

In seeking this warrant, the Prosecutor is acting within his mandate
under the Rome Statute and from the UN Security Council, which in 2005
referred crimes committed in Darfur to him for investigation and
prosecution. That mandate has been consistently frustrated by the
Sudanese government – not least in its refusal to hand over the
government minister, Ahmad Harun, and Janjaweed commander, Ali
Kushayb, against whom warrants were issued in April 2007 – and it is
important for the Prosecutor to protect the credibility of the Court
by pursuing further prosecutions.

It may also prove to be the case that in initiating this process the
Prosecutor will be advancing the interests of peace. That is not his
official role – which is rather to act, in the interests of justice,
to end impunity for those believed guilty of atrocity crimes. But it
may be that the increased pressure now placed on the NCP governing
regime will lead it to take long overdue steps to cease all violence,
implement genuine and credible measures to resolve the Darfur crisis –
including allowing the full and effective deployment of the UNAMID
peacekeeping force – and fully carry out its side of the bargain to
implement the North-South Comprehensive Peace Agreement (CPA).

The problem for international policymakers is that the Prosecutor's
legal strategy also poses major risks for the fragile peace and
security environment in Sudan, with a real chance of greatly
increasing the suffering of very large numbers of its people.
Hard-liners on all sides may be reinforced, with the governing regime
and other actors reacting to today's application, and any subsequent
warrant, in ways that seriously undermine the fragile North-South
peace process, bring an end to any chance of political negotiations in
Darfur, make impossible the effective deployment of UNAMID, put at
risk the humanitarian relief operations presently keeping alive over 2
million people in Darfur, and lead to inflammation of wider regional
tensions. These are significant risks, particularly given that the
likelihood of actually executing any warrant issued against Bashir is
remote, at least in the short term.

The best way through this dilemma may be for the UN Security Council
to take advantage of the likely two to three month window before the
judges' decision on the arrest warrant, to assess whether genuine and
substantial progress is in fact being made in stopping the continuing
violence for which the governing regime bears responsibility, engaging
in genuine peace negotiations in Darfur, expediting UNAMID deployment
and advancing the CPA. If it believes such progress is being made, and
that the interests of peace justify this course being taken, the
Security Council could – even if the Prosecutor and the ICC wanted to
proceed – exercise its power under Article 16 of the Rome Statute to
suspend any prosecutions, for an initial twelve months but with such
suspension able to be renewed indefinitely.

Such a decision would have to be made in light of the regime's history
of repeatedly flouting agreements it has entered into. But the need
for any Article 16 deferral to be renewed on an annual basis would
provide an incentive, hitherto lacking, for the regime to abide by
commitments made under threat of ICC prosecution.

This is not the time to be relieving pressure on the Bashir regime –
or the rebel groups who are making their own major contribution to
conflict in Darfur. But the most critical of all needs is to end the
horrific suffering of the Sudanese people and to ensure there is no
new explosion of mass violence.

Crisis Group President Gareth Evans said that the international
community now faced a hard policy choice in balancing risk and
opportunity: `The Sudanese governing regime has until now utterly
failed in its responsibility to protect its own people. The judgement
call the Security Council now has to make is whether Khartoum can be
most effectively pressured to stop the violence and build a new Sudan
by simply letting the Court process proceed, or – after assessing the
regime's initial response, and continuing to monitor it thereafter –
by suspending that process in the larger interests of peace'."

v. "The merits of justice: Would more people, or less people, rob
banks if there was no penalty for robbing banks?" ENOUGH Project
Strategy Paper 35, By John Norris, David Sullivan, and John
Prendergast, July 2008 (Footnotes removed from excerpted text),
http://www.americanprogress.org/issues/2008/07/merits_of_justice.html

"This week the International Criminal Court, or ICC, took important
steps toward promoting peace and accountability in Sudan by urging an
arrest warrant for crimes against humanity against the Sudanese
President Omar al-Bashir. Sadly, but somewhat unsurprisingly, the step
has set off a chorus of hand-wringing among certain diplomats,
academics, and pundits, who are now arguing that holding perpetrators
of crimes against humanity accountable for their actions is
unhelpful....Holding people accountable for war crimes is not only the
right thing to do from a moral perspective—it directly promotes peace
and makes future such abuses less likely....The International Criminal
Court is doing no more than acknowledging the plain, painful truth of
Sudan's tragedy. The prosecutor should be congratulated for
recognizing that turning a blind eye to war crimes is not helpful.

If the hand-wringing all feels a bit familiar, it is because we have
been through this more than once before. In 1999, during the Kosovo conflict, Slobodan Milosevic was indicted in the middle of not only a NATO bombing campaign to reverse the ethnic cleaning in Kosovo, but of high-level peace talks between the United States, Russia, and Finland to end the war. Very few commentators took exception with the notion that Milosevic had been intimately involved in directing ethnic cleansing, genocide, and sundry other war crimes in Bosnia and Kosovo....Instead of appreciating that Milosevic employed ethnic cleansing in Kosovo in large part because he had used such tactics with impunity in the earlier Bosnia conflict, commentators appeared deathly afraid that the international community might somehow offend Mr. Milosevic's delicate sensibilities. Yet, in retrospect, the work of the Yugoslav tribunal and the indictment of Milosevic led to none of the doomsday scenarios envisioned by the skeptics.

...Indictments don't necessarily derail peace talks and, indeed, they
seem to be most helpful in clarifying the minds of dictators that their very existence is at stake.

...Taylor's indictment, combined with unprecedented levels of
international pressure (including a U.S. warship on the horizon) helped to build the leverage necessary to actually move him out of
Monrovia into a negotiated exile in Nigeria.

...International pressure in the form of his indictment dramatically
changed the contextof conflict in Liberia and helped to bring about genuine civilian protection on the ground.

...Today, self-professed realists argue that Taylor's handover to
justice sent the wrong message to dictators like Bashir and Zimbabwe's
Robert Mugabe, maintaining that it undermines the credibility of
amnesty offers to dictators who are all the more likely to hold on to
power at any cost. This facile misreading of history misses the real
lessons from Taylor: Conditional asylum remains a viable option.
Taylor opted for exile because the right combination of pressures was
belatedly applied by regional and international actors. It is the
responsibility of international mediators to make clear the terms of such a deal and for the countries involved to ensure its credibility.

...Skeptics warn that the ICC's action against Bashir may cause Sudan
to implode. But hundreds of thousands in Darfur have been killed or
displaced by violence and its fallout. The UN-led peacekeeping effort
remains largely stillborn, with seven peacekeepers killed in an ambush
on July 8. Peace talks have been a dead-end, and tensions between
North-South in Sudan threaten to unravel an earlier peace deal and
could hasten Sudan's disintegration. This is not a status quo that we
should worry about upsetting with an arrest warrant.

On the contrary, the only way by which the fundamental dynamics of
conflict in Sudan will change is by introducing accountability....

...Like Milosevic and Taylor, impunity has emboldened Bashir over the
years. It would be illogical for him to alter a brutal but successful
formula for retaining power.

...The case against Bashir introduces three new elements into the
Darfur equation: leverage, deterrence, and protection. How they are
utilized by the international community will help determine whether or
not a solution for Darfur is at hand.

...Bashir now must understand that his fate is tied to a peaceful
resolution of the Darfur crisis, a
sensible peace deal, and deployment of the UN-led protection force.
After Moreno-Ocampo presents his case, the ICC judges will most likely
take several months to make a decision on issuing a warrant for
arrest. During this time the Security Council should vigorously build
leverage in support of a peace deal and deployment of peacekeepers.
Equally, the Security Council needs to understand that any effort to
derail justice or interfere with the chief Prosecutor's work would be
a disaster. Deterrence is also a positive new potential factor.
Proper follow up to Bashir's warrant could deter future perpetrators
of crimes against humanity in Sudan. Least discussed but potentially
most important are the implications the arrest warrant will have for
protecting civilians. The record shows over the last two decades that
General Bashir's regime has backed off its most deadly war strategies
when international pressure has been well coordinated and at its high
points.

...Absent from all too many discussions about peace and justice in
Darfur is the voice of the Darfurians themselves. In our visits to the
region, from reports coming from inside Darfur as well as the
Darfurian diaspora, the people of Darfur stand united behind the
demand to end impunity.

...The people of Darfur demand that the government of Sudan adheres to
the rule of international law by arresting and surrendering suspects
to the ICC. They are very clear on who they think was the perpetrator
in this case....Some people mention the name of President Bashir as
the culprit, others mention Director of National Intelligence Salah
Gosh and other state officials, but the message is clear: It is the
regime that is responsible for the genocide.

...ICC charges against Bashir, or any high-level official from his
government, will be welcomed by Darfurians of all walks of life,
because to them it represents the first step in ending impunity, and a
hope for closure to a life of misery that seemed endless.

...Several spurious arguments continually obstruct efforts to secure
both peace and justice in wartorn corners of the globe. World weary
`experts' are often far too quick to speak about Sudan the same way
they used to speak about the Balkans and West Africa—as a hopeless
wellspring of endless ethnic tensions doomed to perpetual violence. It
is baffling why anyone would think that acceding to the demands of war
criminals is a sensible path to securing peace....Unless concerted
international action is taken to impose a cost on the perpetrators of
these crimes, they will not change their behavior. And although
international politics may preclude punishment for every regime that
may be guilty of atrocities, just because we cannot yet go after every
war criminal does not mean we should go after none....Yes, there will
be many perilous days ahead in Sudan full of high-stakes diplomacy,
confrontation, and difficult choices before Bashir and his
accomplishes face justice. Yes, the voices of the naysayers at times
will reach a crescendo. However, the International Criminal Court
should be applauded for taking the first brave step down this
important road. The world will ultimately be a better place for its
action."

II. NGO FACTSHEETS AND BACKGROUNDERS

i. To read a Human Rights Watch Q&A on the ICC prosecutor's request
for an arrest warrant against Al-Bashir, please visit:
http://hrw.org/english/docs/2008/01/14/sudan19333.htm

ii. To read an Amnesty Q & A on the same, please visit at
http://www.amnesty.org/en/for-media/press-releases/international-criminal-court-possible-arrest-warrants-against-sudanese-o

iii. To read an ENOUGH Project backgrounder on Al-Bashir, please visit
http://www.americanprogress.org/issues/2008/07/pdf/factsheet_bashir.pdf

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CICC's policy on the referral and prosecution of situations before the
ICC:

The Coalition for the ICC is not an organ of the court. The CICC is an
independent NGO movement dedicated to the establishment of the
International Criminal Court as a fair, effective, and independent
international organization.

The Coalition will continue to provide the most up-to-date information
about the ICC and to help coordinate global action to effectively
implement the Rome Statute of the ICC. The Coalition will also endeavor
to respond to basic queries and to raise awareness about the ICC's
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whole, and its secretariat, do not endorse or promote specific
investigations or prosecutions or take a position on situations before
the ICC. However, individual CICC members may endorse referrals, provide
legal and other support on investigations, or develop partnerships with
local and other organizations in the course of their efforts.

Communications to the ICC can be sent to:

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