June 25, 2009 (WASHINGTON) – The judges of the International Criminal Court (ICC) granted the prosecutor Luis Moreno-Ocampo his request to appeal their decision of scrapping genocide charges in the arrest warrant issued for Sudanese president Omer Hassan Al-Bashir.
- Sudan’s President Omer Hassan al-Bashir (AP)
Last year Ocampo asked the Pre-Trial Chamber I to issue an arrest warrant for Bashir on 10 charges: three counts of genocide, five of crimes against humanity and two of murder.
Ocampo accused Al-Bashir of masterminding a campaign to get rid of the African tribes in Darfur; Fur, Masalit and Zaghawa.
However, on March 4th the majority at the Chamber (2 out of the 3 judges) decided that the evidence presented by the prosecutor does not meet the threshold required by Genocide convention and Rome Statue to establish that the gravest crime has been committed in Darfur.
A week later, the prosecutor asked the judges to grant him a “Leave to appeal” the scrapping of the genocide charges from the warrant. He raised three issues within the judges’ decision that he wants to appeal.
Under the Rome Statute, the procedure is the a step before the actual appeal process and the party requesting it must prove that the decision they wish to challenge “involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial”.
The prosecutor central argument is that the Rome Statute only requires the judges to affirm that there is “reasonable evidence” that an individual committed a certain crime for the issuance if an arrest warrant.
He suggests that the judges applied a higher threshold of evidentiary proof than required at this stage of the proceedings.
The other two grounds per the prosecutor’s application is “whether the majority considered specific extraneous factors in assessing the existence of reasonable grounds to establish genocidal intent” and “whether the Majority failed to consider both separately and collectively specific critical factors in assessing the existence of reasonable grounds to establish genocidal intent”.
However, the Pre-Trial Chamber ruled that only the issue of evidentiary threshold in examining the genocide charges put forward by the prosecutor is appealable.
The Judges said in their decision that the other two grounds “consist of a mere disagreement with the Majority’s assessment of the evidence submitted by the Prosecutor to support his genocide-related allegations and, therefore, neither constitutes an "issue" as defined by the Appeals Chamber”.
Based on today’s decision the ICC prosecutor can now proceed to the five-member appeals chamber to seek addition of genocide charges to Bashir’s arrest warrant based on his interpretation of the “reasonable evidence” threshold in the Rome Statute.
The appeal chamber includes Judges’ Akua Kuenyehia from Ghana and Anita Usacka from Latvia who were part of Pre-Trial Chamber I that decided on the case against the Sudanese president.
Judge Usacka was the only one judge in the chamber to dissent from her peers decision to drop genocide charges against Bashir.
The genocide label has been a hotly debated subject among legal experts and human right advocates on Darfur.
A commission of inquiry established by the UN Security Council (UNSC) in 2004 said that it found no evidence of genocide in Darfur but stated that in some instances “individuals, including Government officials, may commit acts with genocidal intent… a determination that only a competent court can make on a case by case basis”.
The US has been the only country to label the Darfur conflict as genocide in 2004 by Secretary of State Collin Powell though some US officials later were reluctant to continue using the term including former US special envoy to Sudan Andrew Natsios.
Last week Obama’s special envoy to Sudan Scott Gration appeared to downplay the issue saying that Darfur is experiencing only “remnants of genocide”.
A day later the US state department stated that it “continues to characterize the circumstances in Darfur as genocide”.
UN officials say as many as 300,000 people have died and more than 2.7 million driven from their homes since 2003.
(ST)
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