Agony as Sudan Government set to handover over Former President Omar-Bashir to the ICC for Trials on counts of Genocide, war crimes and crimes against Humanity

The international Criminal court ICC) has accused Omar Hassan al-Bashir of genocide, war crimes and crimes against humanity in the western region of Darfur, where over 300,000 were killed. The Sudan’s government has agreed to hand over Omar Hassan al-Bashir to the International Criminal Court, officials said, marking the highest-level commitment in years to send the deposed dictator to face charges of genocide and war crimes and seek a measure of justice for victims of his 30-year rule.Buyinza.com

Date of birth: 1 January 1944
Place of birth: Hoshe Bannaga, Shendi Governorate in Sudan
Nationality: Sudanese
Current status: Former President of the Republic of Sudan
First Warrant of arrest: 4 March 2009
Second Warrant of arrest: 12 July 2010
Status of proceedings: The execution of the arrest warrant is pending

CHARGES –OMAR AL-BASHIR AT THE ICC
The warrants of arrest for Omar Al Bashir list ten counts on the basis of his individual criminal responsibility under article 25(3)(a) of the Rome Statute as an indirect (co)perpetrator including:

• Five counts of crimes against humanity: murder (article 7(1)(a)); extermination (article 7(1)(b)); forcible transfer (article 7(1)(d)); torture (article 7(1)(f)); and rape (article 7(1)(g));
• Two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities (article 8(2)(e)(i)); and pillaging (article 8(2)(e)(v)); and
• Three counts of genocide: genocide by killing (article 6-a), genocide by causing serious bodily or mental harm (article 6-b) and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction (article 6-c).

ALLEGED CRIMES (NON-EXHAUSTIVE LIST):
Pre-Trial Chamber I considered that there are reasonable grounds to believe that:

• From March, 2003 to at least 14 July 2008, a protracted armed conflict not of an international character existed in Darfur between the Government of Sudan (GoS) and several organized armed groups, in particular the Sudanese Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM).
• Soon after the April, 2003 attack on the El Fasher airport, Omar Al Bashir and other high-ranking Sudanese political and military leaders of the GoS agreed upon a common plan to carry out a counter-insurgency campaign against the SLM/A, the JEM and other armed groups opposing the Government of Sudan in Darfur.
• A core component of that campaign was the unlawful attack on part of the civilian population of Darfur – belonging largely to the Fur, Masalit and Zaghawa groups – who were perceived to be close to the organised armed groups opposing the Government of Sudan in Darfur. The campaign was conducted through GoS forces, including the Sudanese Armed Forces and their allied Janjaweed militia, the Sudanese Police Forces, the National Intelligence and Security Service (NISS) and the Humanitarian Aid Commission (HAC). It lasted at least until the date of the filing of the Prosecution Application on 14 July 2008.

During the campaign, GoS forces allegedly committed crimes against humanity, war crimes, and crimes of genocide, and in particular:

1. carried out numerous unlawful attacks, followed by systematic acts of pillage, on towns and villages, mainly inhabited by civilians belonging to the Fur, Masalit and Zaghawa groups; Case Information Sheet The Prosecutor v. Omar Hassan Ahmad Al Bashir
2. subjected thousands of civilians – belonging primarily to the Fur, Masalit and Zaghawa groups – to acts of murder, as well as to acts of extermination;
3. subjected thousands of civilian women – belonging primarily to the said groups – to acts of rape;
4. subjected hundreds of thousands of civilians – belonging primarily to the said groups – to acts of forcible transfer;
5. subjected civilians – belonging primarily to the said groups – to acts of torture; and
6. Contamined the wells and water pumps of the towns and villages primarily inhabited by members of the Fur, Masalit and Zaghawa groups that they attacked; and encouraged members of other tribes, which were allied with the GoS, to resettle in the villages and lands previously mainly inhabited by members of the Fur, Masalit and Zaghawa groups.

Pre-Trial Chamber I found that there are reasonable grounds to believe that Omar Al Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups.

Key judicial developments -REFERRAL AND OPENING OF THE INVESTIGATION

The International Commission of Inquiry on Darfur was established by former United Nations (UN) Secretary-General Kofi Annan pursuant the Security Council resolution 1564. The Commission reported to the UN in January 2005 that there was reason to believe that crimes against humanity and war crimes had been committed in Darfur and recommended that the situation be referred to the ICC.

Using its authority under the Rome Statute, the UN Security Council referred the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court in resolution 1593 on 31 March 2005.

Following the referral from the UN Security Council, the Prosecutor received the conclusion of the International Commission of Inquiry on Darfur. In addition, the Office of the Prosecutor requested information from a variety of sources, leading to the collection of thousands of documents. The Prosecutor concluded that the statutory requirements for initiating an investigation were satisfied and decided to open the investigation on 6 June 2005.

WARRANTS OF ARREST

On 14 July 2008, the Prosecutor submitted an application for the issuance of a warrant of arrest for the Sudanese president Omar Al Bashir.

On 15 October 2008, Pre-Trial Chamber I requested additional supporting material in relation with the Prosecution Application.

On 17 November 2008, the Prosecutor submitted further material in compliance with the above-mentioned decision of the Pre-Trial Chamber.

On 4 March 2009, Pre-Trial Chamber I issued a warrant of arrest for Omar Al Bashir for charges of war crimes and crimes against humanity.

On 6 July 2009, the Prosecutor appealed the decision to the extent that Pre-Trial Chamber I decided not to issue a warrant of arrest in respect of the charge of genocide.

On 3 February 2010, the Appeals Chamber directed the Pre-Trial Chamber to decide anew whether or not the arrest warrant should be extended to cover the charge of genocide.

Applying the standard of proof as identified by the Appeals Chamber, Pre-Trial Chamber I concluded, on 12 July 2010, that there are reasonable grounds to believe that Omar Al Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups. The Chamber delivered a second warrant of arrest against the President of Sudan, Omar Hassan Ahmad Al Bashir, considering that there are reasonable grounds to believe him responsible for three counts of genocide committed against the ethnic groups of Fur, Masalit and Zaghawa.

On 15 March 2012, the ICC Presidency assigned to Pre-Trial Chamber II to this case.

NON-COOPERATION

The suspect remains at large in spite of the arrest warrants issued against him. ICC judges have made a number of decisions regarding the non- compliance of certain States with the requests to arrest and surrender Mr Al Bashir and have referred the matter to the United Nations Security Council (UNSC) and the Assembly of the States Parties (ASP) to take the necessary measures they deem appropriate. See: https://asp.icc-cpi.int/EN_Menus/asp/non-cooperation/pages/default.aspx

PARTICIPATION OF VICTIMS
Pre-Trial Chamber I granted 12 persons the status of victim authorised to participate in this case.

Composition of Pre-Trial Chamber II
 Judge Antoine Kesia-Mbe Mindua, Presiding  Judge
Judge Tomoko Akane
Judge Rosario Salvatore Aitala

Representation of the Office of the Prosecutor
Karim A.A. Khan QC, Prosecutor
James Stewart, Deputy Prosecutor

Defence Counsel for Omar Al Bashir
Legal Representatives of the Victims
Wanda M Akin
Raymond M Brown

Mr. al-Bashir, 77, was ousted two years ago and has been imprisoned since then. He has been wanted by the international criminal court in The Hague in the Netherlands since 2009 over atrocities committed by his government in the western region of Darfur, where about 300,000 people were killed and 2.7 million displaced in a war from 2003 to 2008, according to the United Nations.

The court has pressed Sudanese officials in recent months to hand over Mr. al-Bashir and other leaders accused of crimes in Darfur. If he is transferred, it would mark a major step in the nascent Sudanese government’s efforts to heed victims’ demands for justice, hold rights abusers to account and end decades of impunity for perpetrators of atrocities.

On Wednesday, Sudan’s foreign minister, Mariam al-Sadiq al-Mahdi, said the cabinet had agreed to transfer Mr. al-Bashir after meeting with the international court’s chief prosecutor, Karim Khan.

On Wednesday, the U.S. State Department welcomed the decision to transfer Mr. al-Bashir. Its spokesman, Ned Price, urged both the cabinet and the council to work together “to finalize and execute this decision.”Mr. Khan arrived in Sudan this week and met officials, including the attorney general, members of the Sovereignty Council and Prime Minister Abdalla Hamdok in a bid to improve cooperation and seek justice for victims of the Darfur war.

The foreign minister’s announcement on Wednesday came days after the cabinet voted to ratify the Rome Statute, the founding treaty of the I.C.C., inching the northeast African state closer to fully joining the court and increasing the likelihood that Mr. al-Bashir would face trial.Mr. al-Bashir, an army commander at the time, came to power in Sudan in 1989 after ousting the democratically elected government. For the next three decades, he ruled with an iron fist, overseeing a government that restricted media freedoms, curtailed human rights, crippled economic growth and waged war on its own people.

Mr. al-Bashir fought a war with the country’s south with the aim of keeping it under control. But as part of a peace agreement signed in Kenya in 2005, he agreed to a referendum that would decide the future of the south as an independent nation.

That became a reality in January 2011 when a majority voted to secede — breaking up Africa’s largest country to form the world’s youngest state.

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