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Appeals Decision in Al Bashir

05 Feb 2010

Dear all,

On 3 February 2010, the Appeals Chamber of the International Criminal Court (ICC) unanimously reversed ICC Pre-Trial Chamber I's decision of March 2009 not to include the crime of genocide in the arrest warrant against President Bashir of Sudan. The Pre-Trial Chamber was directed to decide anew whether the warrant of arrest should be extended to cover the crime of genocide based on the correct standard of proof.

You will find below statements made after the decision by CICC NGO members (I); as well as related media coverage and reactions (II).

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.

Regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. NGO MEMBERS STATEMENTS
 
i. “Sudanese President Could Face Genocide Charges After ICC Reverses Ruling, Amnesty International”, 3 February 2010, http://www.amnesty.org/en/news-and-updates/news/sudanese-president-could-face-genocide-charges-after-icc-reverses-ruling-20100203
 
“Amnesty International reiterated its call on the Sudanese authorities to arrest President Omar al Bashir immediately, after the International Criminal Court (ICC) in The Hague today reversed a ruling that held that there was insufficient evidence to charge the Sudanese President with genocide in Darfur.

The ICC issued an arrest warrant for crimes against humanity and war crimes in March 2009 against President Bashir, but did not include genocide charges because the court's Pre-Trial Chamber applied too high a standard of proof to the evidence. ICC Prosecutor Luis Moreno-Ocampo today won his appeal against the Pre-Trial Chamber's ruling.

'The ICC Prosecutor was asked to prove that the only reasonable inference from the evidence he presented was that the President was responsible for genocide,' said Christopher Keith Hall, Senior Legal Adviser at Amnesty International. 'In effect, this was requiring the Prosecutor to prove him guilty - something that can only be done at trial.'

'The Pre-Trial Chamber must now reassess the evidence against President Bashir to decide whether it can charge him with genocide,' said Christopher Keith Hall.

Amnesty International urged President al Bashir to surrender himself to stand trial over the war crimes and crimes against humanity charges he already faces.

'President Bashir is a fugitive from international justice, charged with responsibility for crimes against men, women and children, including murder, rape, torture and forced displacement,' said Christopher Keith Hall.

President Bashir has travelled outside Sudan on a number of occasions following the charges brought by the ICC, however, he has not yet been arrested.

'All states who have signed up to the Rome Statue underpinning the ICC which have an absolute obligation under that treaty to arrest him immediately if he enters their territory and to surrender him promptly to the court,' said Christopher Keith Hall

'Sudan is required by Security Council Resolution 1593 to cooperate with the International Criminal Court, which means to arrest and surrender him. In addition, other states which have not yet ratified the Rome Statute must not offer him a safe haven when he visits.'

An arrest warrant for President Omar al Bashir was issued by the ICC over his role in the Darfur conflict that has seen more than 300,000 killed, thousands raped, and millions forcibly displaced. "

ii. “Darfur: International Criminal Court’s Decision on Bashir Arrest Warrant,” Human Rights Watch, 3 February 2010, http://www.hrw.org/en/news/2009/03/04/q-international-criminal-court-s-decision-al-bashir-s-arrest-warrant

"On February 3, 2010, the International Criminal Court (ICC) appeals chamber decided to reject the standard used to exclude genocide charges in the ICC's arrest warrant for President Omar al-Bashir of Sudan.

Last year, on March 4, 2009, ICC Pre-Trial Chamber I issued an arrest warrant for al-Bashir for war crimes and crimes against humanity committed in Darfur. At that time, the Pre-Trial Chamber rejected the inclusion of genocide charges in the warrant on the basis that the prosecutor did not present "reasonable grounds to believe" that the Sudanese government possessed the necessary intent for the crime of genocide.

'Today's decision is a strong reminder that President al-Bashir is wanted for heinous crimes committed in Darfur,' said Elise Keppler, International Justice Program senior counsel at Human Rights Watch.' President al-Bashir is a fugitive from justice who needs to appear in The Hague to answer to the allegations against him.'

With today's decision, the appeals chamber instructed the pre-trial chamber to reassess the inclusion of genocide charges under a revised standard and amend the arrest warrant as necessary...."

iii. “Save Darfur Coalition Welcomes ICC Ruling on Genocide Appeal -- Coalition Stresses Need for Comprehensive Solution to Resolve Darfur Crisis,” Save Darfur, 3 February 2010, http://www.savedarfur.org/pages/press/save-darfur-coalition-welcomes-icc-ruling-on-genocide-appeal/  

 “The Save Darfur Coalition today welcomed the decision by the Appeals Chamber of the International Criminal Court (ICC) to accept an appeal by Prosecutor Luis Moreno-Ocampo over the Court’s decision last year to exclude the crime of genocide from charges faced by Sudanese President Omar al-Bashir. In March 2009, ICC judges issued an arrest warrant for Bashir on charges of crimes against humanity and war crimes but did not include the charges of genocide requested by the Prosecutor.

The judges of the ICC’s Pre-Trial Chamber will now decide whether to add a genocide charge to the outstanding arrest warrant.  Previously approved charges of crimes against humanity and war crimes are not affected by today’s decision, and al-Bashir remains wanted on those charges.

The U.S. and the international community must immediately make clear to Khartoum that no retaliation against civilians, humanitarian aid operations or peacekeepers in Darfur will be tolerated. After the arrest warrant was announced last March, Bashir expelled over a dozen international aid groups and disbanded three Sudanese aid organizations, forcing an emergency response from the United Nations and international community to prevent a humanitarian catastrophe in Darfur. 

'Justice and accountability are essential components of the comprehensive solution required to finally end the crisis in Darfur,” said Jerry Fowler, the president of the Save Darfur Coalition.  “President Obama and other world leaders must ensure humanitarian aid and protection for Darfuri civilians – especially following the court’s latest decision -- and push for a just and inclusive peace agreement to finally end the crisis in Darfur.'”

iv. “ICC to Reconsider Genocide Charge in Bashir Case,” Posted by Veronica Glick, Citizens for Global Solutions Blog, 3 February 2010, http://www.globalsolutions.org/blog/2010/02/icc_reconsider_genocide_charge_bashir_case  

"Today (February 3rd 2010) the Appeals Chamber of the International Criminal Court unanimously reversed ICC Pre-Trial Chamber I’s decision of March 2009 which excluded the charge of genocide on the arrest warrant for President Omar al-Bashir.  The decision was based on the grounds that the judges had set the standard of proof too high for the Pre-Trial stage. The Appeals Chamber remanded the decision to the Pre-Trial Chamber to decide, based on the correct standard of proof, whether a warrant of arrest should be extended to cover the crime of genocide.

In 1989 Omar Al-Bashir came to power in a military coup. Throughout his presidency, there have been several violent struggles between the Janjaweed militia and rebel groups such as the Sudan People's Liberation Army (SPLA), Sudanese Liberation Army (SLA) and the Justice and Equality Movement (JEM) in the form of guerilla warfare in the Darfur region. Since 2003 violent conflict in Darfur has resulted in 2.5 million people reportedly being displaced and death tolls estimated at between 200,000 and 400,000.

Don Kraus, Chief Executive Officer of Citizens for Global Solutions stated:

'Today’s ruling by the International Criminal Court (ICC) judges demonstrates the wheels of international justice at work.  We are now one step closer to holding accused war criminal Omar Al-Bashir in front of the world’s premier court for trying perpetrators of mass atrocities. Adding a charge of genocide to Al-Bashir’s arrest warrant, would be a first for the ICC and for a sitting head of state. This charge would add to the equally grave charges Al-Bashir faces of Crimes against Humanity and War Crime, including murder, extermination and rape.… President Al-Bashir is still evading arrest, despite the grave charges against him and still presides over a government that is harboring a fugitive from the law.  Each day that Al-Bashir is free from remand is another win for impunity for the world’s most egregious crimes.'

With this decision, the issue of genocide is once again in the spotlight.  Citizens for Global Solutions has worked on the issue of genocide prevention and the importance of engaging internationally to help prevent circumstances like those that occurred in Darfur.  The focus of this year’s annual meeting, to be held May 19-22, 2010, is on the United Nations and measures for the prevention of genocide.  Activists, scholars and Citizens for Global Solutions members from across the country will be convening in Washington, D.C. to participate in a Model UN simulation, with additional opportunities to lobby members of Congress and hear from experts in the field."

SEE ALSO:

v. Q & A , Human Rights Watch, 3 February 2010, http://www.hrw.org/en/news/2009/03/04/q-international-criminal-court-s-decision-al-bashir-s-arrest-warrant

II. RELATED MEDIA ARTICLES AND REACTIONS

i. “Appeals judges say decision not to charge Sudan's president with genocide in Darfur was wrong,” By Mike Corder (AP), 3 February 2010.
http://www.google.com/hostednews/canadianpress/article/ALeqM5jE3TRad_PvrlYeW75Fbzdv-c-f8Q

“The International Criminal Court will again consider charging Sudanese President Omar al-Bashir with genocide in Darfur, after an appeals panel ruled that judges made an 'error in law' when they refused to indict him on that charge last year.

'He should get a lawyer,' court prosecutor Luis Moreno Ocampo said after ruling Wednesday.

He accused al-Bashir of keeping 2.5 million refugees from specific ethnic groups in Darfur in camps 'under genocide conditions, like a gigantic Auschwitz.'

... ’This gives a new wind to the sails of international justice,’ said Kenyan human rights activist Njonjo Mue.

…. William R. Pace of the Coalition for the ICC, a nongovernment group that supports the court, also hailed the decision's significance, saying it could for the first time ‘lead to the inclusion of charges of genocide by ICC judges for a sitting head of state.’..."

ii. “AU quandary over Sudan ‘genocide’, by Hopewell Radebe  (Business Day), 4 February 2010, http://www.businessday.co.za/articles/Content.aspx?id=92850

"A landmark ruling yesterday paving the way for the International Criminal Court (ICC) to indict Sudanese President Omar al-Bashir for genocide has left the African Union (AU) in a quandary.

... The ruling puts other leaders on notice that the court will not balk at charging them with genocide if they persecute their own people. It may also mean the court ignored the AU plea for al-Bashir’s warrant to be suspended to give peace efforts in Darfur a chance.

... A ruling on whether to add genocide to the list of charges would not take place quickly, but could take a few months.

Activists welcomed yesterday’s ground-breaking decision, which helps define just how much evidence prosecutors need before judges at the world’s first permanent war crimes tribunal issue an indictment.

'Today’s ruling is hugely significant as it could lead to the inclusion of charges of genocide by ICC judges for a sitting head of state and for the first time in the history of the court,' said William R Pace of the Coalition for the ICC, a nongovernment group that supports the court.

Rabie Abdel-Attie, a Sudanese government spokesman, said that the court’s decision reflected its increasing isolation from reality on the ground in Sudan.  ... 'The government doesn’t give the court any consideration, and doesn’t care much for it.' ..."

iii. “Bashir to be charged with genocide as well,” Dave Fish Eagle, 4 February 2010, http://www.zimbabwemetro.com/current-affairs/bashir-to-be-charged-with-genocide-as-well/   

"The International Criminal Court are still resolute to pursue a decision it has taken to arrest the Sudanese President Omar Hassan Ahmad AL-Bashir who remains a fugitive of justice.

… ‘Today’s ruling is hugely significant as it could lead to the inclusion of charges of genocide by ICC Judges for a sitting head of state and for the first time in the history of the Court,’ explained William R. Pace, Convenor of the Coalition for the ICC – a civil society network in 150 countries advocating for a fair, effective and independent ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity.

‘As we speak President Al-Bashir is still evading arrest, despite the charges against him and Sudan’s obligation to arrest and surrender him,’ Pace added. ‘We urge the Sudanese government; ICC states parties, other governments and international organizations to do their utmost to ensure that Al-Bashir faces justice without delay,’ he noted.

‘The pursuit of justice is extremely crucial for the survival of our hope as Darfuri people, said Niemat Ahmadi, Darfuri Liaison Officer with the Save Darfur Coalition. ‘It strikes me that many leaders of the world community have repeatedly said ‘never again,’ but sadly have failed to fulfill this commitment, instead allowing the first genocide of the 21st century to continue for more than six years,’ she added.

‘Today’s announcement makes me confident that the ICC will help uphold this promise. The ICC’s commitment to justice has set a great example for the rest of the international community to follow.’ ..."

iv. “Groups Welcome Appeal of Genocide Charges against Sudan’s Bashir,” By Howard Lesser (VOA), 4 February 2010, http://www1.voanews.com/english/news/africa/Groups-Welcome-Appeal-of-Genocide-Charges-against-Sudans-Bashir--83514552.html

“Reactions to Wednesday’s International Criminal Court (ICC) appeal of genocide charges against Sudan’s President Omar Hassan al-Bashir range from a broadside against the U.S. government by Sudan’s foreign ministry, to measured comments from members of the American anti-genocide community. ...

...' For victims of attacks in Darfur, most of whom believe that they are victims of genocide, it gets a reconsideration of that particular charge.  I think in the broader scheme of things, it underscores, though, that regardless of the ultimate outcome on this charge, President Bashir remains a fugitive internationally, and his ability to travel is very limited, and the prospects that he will ultimately face justice continue to be strong,' said Fowler.

Last March, Sudan’s President became the first sitting head of state to be indicted by the International Criminal Court.  In their original ruling, the judges of the ICC’s Pre-Trial Chamber issued an arrest warrant against Mr. Bashir for a total of five counts of war crimes and crimes against humanity, but the panel threw out charges of genocide that had also been requested by Prosecutor Luis Moreno-Ocampo.

...   Save Darfur’s Jerry Fowler says that Prosecutor Moreno-Ocampo advanced his appeal of that ruling on Wednesday by convincing the appeals panel that President Bashir should be held accountable for masterminding a campaign of rape, murder, and other crimes against civilians in Darfur.

'The statute of the International Criminal Court is pretty clear in saying that at the arrest warrant stage, you just have to establish a reasonable basis that the crime was committed.  And the Pre-Trial Chamber kind of twisted that standard, and they basically insisted that the only reasonable inference from the evidence would be genocide, which made it that the Prosecutor had to show beyond a reasonable doubt.  And I think what the Appeals Chamber did was put it back into perspective that at this stage, you have to establish a reasonable basis to believe that the crime was committed,' he explained. ..."

v. "Decision important for Darfur victims, says prosecutor," AFP, 3 February 2010, http://www.gulf-times.com/site/topics/article.asp?cu_no=2&item_no=340908&version=1&template_id=37&parent_id=17

"... Luis Moreno-Ocampo said he wanted a genocide charge imposed to 'be sure the world knows what happened' to victims of the conflict in Sudan’s western province.

... “I believe it is important for the victims,' he said in The Hague. 'That is why I am pursuing these charges.'

... After yesterday’s ruling in his favour, Moreno-Ocampo said he would ask permission to provide additional evidence of what he believes is Bashir’s 'genocidal intention'.

'I believe the decision of President Bashir to expel humanitarian organisations (from Darfur following the issuing of the warrant) is confirming his genocidal intention.'

Thousands of people, Moreno-Ocampo said, 'were in the desert with no food and no water. When President Bashir ordered the expelling he basically is confirming that his intention is to physically destroy them.'

The prosecutor added it was clearly Bashir’s 'destiny to face charges'.

'He cannot travel to South Africa, to Nigeria, to Ghana, to Venezuela - all these countries told him in different ways that he will be arrested'  ..."

"Communique on the 3 February 2010 judgment of the International Criminal Court appeals chamber on Darfur," African Union, 5 February 2010, http://appablog.wordpress.com/2010/02/05/communique-on-the-3-february-2010-judgment-of-the-international-criminal-court-appeals-chamber-on-darfur/

"...The African Union has always emphasized its commitment to justice and its total rejection of impunity, in line with the relevant provisions of its Constitutive Act. At the same time, the AU reiterates that the search for justice should be pursued in a manner not detrimental to the search for peace. The latest decision by the ICC runs in the opposite direction...."

SEE ALSO:

vi. “Senegal: Rights groups want President Bashir to face 'justice',” PANA,
4 February 2010, http://www.afriquejet.com/news/africa-news/senegal:-rights-groups-want-president-bashir-to-face-'justice'-2010020443492.html

vii. Radio Interview with  Oriane Maillet, CICC “La CPI devra statuer sur l'inculpation de génocide contre El Béshir”, http://www.dw-world.de/dw/article/0,,5210807,00.html  (In French)
 
viii. “ICC: Appeal Chamber upholds Arrest Warrant appeal,” The Hague Justice Portal, 3 February 2010, http://www.haguejusticeportal.net/eCache/DEF/11/428.TGFuZz1FTg.html   

ix. "Court Ordered to Rule Again on Bashir Genocide Charge," Reuters/ NYT, 3 February 2010, http://www.nytimes.com/reuters/2010/02/03/world/international-us-warcrimes-bashir.html?_r=1

x. "Darfur crimes: Hague reverses Bashir genocide ruling, BBC News, 3 February 2010, http://news.bbc.co.uk/2/hi/africa/8494759.stm

xi. "ICC to review absence of genocide on Beshir warrant," By Mariette le Roux (AFP), 3 February 2010, http://www.google.com/hostednews/afp/article/ALeqM5j879nHAJ7ATp49fSeiQB5zQAkcxw

xii. "Bashir genocide charge under review," Al Jazeera, 3 February 2010, http://english.aljazeera.net/news/africa/2010/02/20102355920514636.html

xiii. "ICC appeal judges remand Bashir case to Pre-trial chamber for genocide review, Sudan tribune, 3 February 2010, http://www.sudantribune.com/spip.php?article34002

xiv. “Bashir's prosecutor: Darfur camps 'like a gigantic Auschwitz', Ynet News http://www.ynetnews.com/articles/0,7340,L-3844039,00.html 

xv. "The ICC's blunder on Sudan," By Nesrine Malik (Guardian - UK), 4 February 2010, http://www.guardian.co.uk/commentisfree/2010/feb/04/sudan-icc-omar-bashir  

xvi. "ICC undermining Darfur peace talks, says Sudan," Press TV, 3 February 2010, http://www.presstv.ir/detail.aspx?id=117807&sectionid=351020504