The ICC and Sudan

14 July 2008 - The Indictment of President Al-Bashir.

On Monday 14 July, Ocampo charged the Sudanese President Omar Hassan Al-Bashir with 3 counts of genocide, 5 counts of crimes against humanity and 2 counts of war crimes. This announcement marks an important milestone for international law and human rights, and is also the first time that genocide has been declared when it is still ongoing. It is the first time in the history of the Court that such charges of genocide, crimes against humanity and war crimes have been issued against an acting head of state. It is also the first time that

Prosecutor Ocampo concluded that Al-Bashir had “masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity." In response to Sudanese claims that the death and destruction caused was the product of counterinsurgency operations against rebels, Ocampo stated,

“the crimes covered in the Application are not the collateral damage of a military campaign. At all times relevant to the Application AL BASHIR specifically and purposefully targeted civilians who were not participants to any conflict with the intent to destroy them, as a group.”

“His alibi was a 'counterinsurgency'. His intent was genocide."

The Prosecutor has determined that Al-Bashir bears criminal responsibility for the crime of genocide. Although he may not have committed these contemptible acts himself, he is deemed responsible for crimes committed through members of the state apparatus, the army and the Janjaweed.

The specific counts of genocide that Al Bashir has been charged are: Genocide by killing members of the target groups; Genocide by causing serious mental harm to members of the target group; and Genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.

The Prosecutor has requested an arrest warrant, but the case now must go before the three judge panel (the judges are from Ghana, Brazil and Latvia) to decide whether the arrest warrant is justified or not. This process could take a matter of months.

Sudanese officials are in the process of trying to block the issuing of a formal arrest warrant.

July 2008

Sudanese officials warn against any indictments by the ICC will jeopardise peace process in Darfur and vow not to deal with the court. China echoes Sudan’s warnings and informally attempts to introduce a resolution suspending any indictments.

The ICC prosecutor took an unusually long time to conduct the investigations, which is evidential of a thorough and comprehensive undertaking of the task. Since June 2005 statements and evidence have been assembled during 105 missions in 18 different countries. Five of these missions were to Sudan itself (November 2005, February 2006, June 2007, August 2006 and January/February 2007.)

The Sudanese Government has since labelled Ocampo a criminal and has on numerous occasions reiterated its vow not to hand over the suspects.

June 2008

A senior official at Sudan ruling National Congress Party (NCP) confirms that militia leader Ali Kushayb has been released for lack of evidence. He voices readiness to cooperate with ICC on national proceedings only.

June 2008

The ICC prosecutor discloses to Sudan Tribune that a plane carrying Haroun to Saudi Arabia was going to be diverted. Sudan says this is an "act of terrorism" and that they will press charges against Ocampo.

June 2008

The ICC prosecutor tells the UNSC that his Office collected evidence showing that "the entire state apparatus has been utilized to commit and cover up massive crimes. The scale of the crimes, over such a period of time, in such a systematic manner, suggests the responsibility of high officials." He says his new case will be ready in July 2008.

December 2007

The ICC prosecutor says that he plans to open two new cases in Sudan over attacks on humanitarian workers and peacekeepers in Darfur.

October 2007

Sudan’s foreign minister announces that his government released Kushayb, who was in custody since November 2006, for lack of incriminating evidence.

June 2007

The ICC transmits a formal request to the Sudanese government for the extradition of the two Darfur war crimes suspects. Similar requests were sent simultaneously to the member countries of the UN Security Council, State parties of the ICC in addition to Egypt, Libya, Ethiopia and Eritrea.

May 2007

The judges of the ICC request an arrest warrant against Haroun and Kushayb instead of a summons to appear as requested by the prosecutor. The Chamber determined that

"there are reasonable grounds to believe that Ahmad Harun, by virtue of his position, had knowledge of the crimes committed against the civilian population and of the methods used by the Janjaweed militia; and that in his public speeches Ahmad Harun not only demonstrated that he knew that the Janjaweed militia were attacking civilians and pillaging towns and villages, but also personally encouraging the commission of such illegal acts."

Ahmed Muhammed Harun, former Sudanese Secretary of State for the Interior was charged with 20 counts of crimes against humanity (including persecution, rape and torture) and 22 counts of war crimes (including attacks against the civilian population, destruction of property and outrage upon personal dignity.)

Ali Mohammed Ali Abd Al Rahman (aka Ali Kushayb), former leader of the Janjaweed militia was also charged with 22 counts of crimes against humanity (including inhumane acts of inflicting serious bodily injury and suffering and imprisonment in violation of fundamental rules of international law) and 28 counts of war crimes (including intentionally directing an attack against a civilian population, pillaging and rape.)

The Court decided to issue warrants for arrest of the two suspects rather than just summons to appear as the ICC did not believe they would voluntarily give themselves up; a prediction that appears to have been accurate.

April 2007

The ICC prosecutor sends a letter to the Sudanese government requesting clarification on its position regarding the voluntary extradition of the Darfur suspects to court. Khartoum ignores the letter.

February 2007

The ICC prosecutor requests the issuance of summons to appear from the Judges against Ahmad Muhammad Haroun, former Minister of State for the Interior of the Government of Sudan, and Mr. Ali Muhammad Ali Abd-Al-Rahman also known as Ali Kushayb, alleged leader of the Militia/Janjaweed. The Sudanese government dismisses the jurisdiction of the court.

December 2006

The ICC prosecutor announces that he has nearly completed an investigation into some of the worst crimes committed in Darfur.

June 2006

The ICC prosecutor tells the UNSC that he will carry out his investigations from outside Darfur because of his office’s inability to protect the witnesses.

June 2005

The ICC prosecutor announced his decision to open an investigation into the situation in Darfur.

31 March 2005

UNSC passed Resolution 1593 which referred the situation in Darfur to the ICC. Although the Court officially only has jurisdiction over member states, this condition does not apply if the referral is made by the Security Council. In this instance, the resolutions made by the UN are binding upon all states and therefore the judgement of the court applies to these countries. Resolution 1593 declares that the Security Council:

“Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.”

This was the first resolution of its kind from the UNSC and was adopted by a vote of 11 in favour, none against with 4 abstentions (Algeria, Brazil, China and United States).

January 2005

The International Commission of Inquiry on Darfur recommended the referral of situation in Darfur to the ICC. The commission identifies 51 individuals as potential suspects but does not reveal their names.

September 2004

The UN Security Council (UNSC) established an international commission of inquiry into reports of human rights violation in Darfur headed by the former President of the International Criminal Tribunal for the former Yugoslavia (ICTY) Professor Antonio Cassese.