Implications of ICC genocide indictment for arrest of Sudanese president remain unclear.
By Tajeldin Adam and Assadig Mustafa
Legal experts are uncertain over whether the new arrest warrant for Omar al-Bashir on charges of genocide will expedite the arrest of the Sudanese president.
They argue that, because of the nature of the latest charge, states will now be under a much stronger obligation to arrest Bashir, but wonder if this will have any effect on countries already reluctant to cooperate in action against him.
The decision to include genocide charges in the Sudanese president's indictment was reached by International Criminal Court, ICC, judges on July 11 indicated that there were reasonable grounds to believe that, during the conflict in Darfur, Bashir had the specific intention to partly destroy the Fur, Masalit and Zaghawa peoples.
Bashir is charged with three counts of genocide, on top of his existing charges of five counts of crimes against humanity and two counts of war crimes.
This is the first time that the ICC has accused anyone of genocide.
The prosecution allege that the government of Sudan conducted genocide by killing through the use of the national armed forces and their allied Janjaweed militia, by causing serious bodily or mental harm and by deliberately bringing about the physical destruction of ethnic groups.
Refugees from Darfur living in camps in eastern Chad, welcomed the new charges. But for them the priority remains Bashir’s actual arrest and transfer to The Hague.
"As women refugees, we completely support the decision of the court and we want to see it implemented immediately," a woman living in Jabal refugee camp told Radio Dabanga. "We are willing to return back to our home country but that is not possible unless Bashir is put on trial."
The decision to add genocide charges to the case against Bashir comes after ICC judges initially rejected them when Bashir was first indicted on March 4, 2009.
Judges this week backtracked on the previous decision after appeals judges ruled in February this year that the pre-trial chamber had sought a higher standard of proof than was necessary.
Lawyers representing victims of all three affected ethnic groups in the Bashir case said the genocide charge represented a realistic assessment of the atrocities committed in Darfur.
"What is important for us to see, as victims’ legal representatives, is that these charges more closely reflect what is going on on the ground from the [victims’] point of view," American human rights lawyer, Wanda Akin, told IWPR.
The government of Sudan has firmly rejected the genocide charges.
The political secretary of the ruling National Congress Party, Ibrahim Gandor, criticised the court for disrupting ongoing peace negotiations.
"It is a political decision and its timing aims to obstruct the peace talks in Doha,” he said. “We continue to reject all ICC decisions and will mobilise Arab, African and international [stakeholders] to prove that the ICC has no relation to justice."
Now that Bashir is charged with genocide, speculation has increased as to whether the more serious indictment will expedite his arrest.
Kai Ambos, professor of international criminal law at the University of Göttingen in Germany, said that the fact that genocide was left off the original arrest warrant had weakened the impact of the charge in the international community.
He argued that it would have been much more effective to include the charge when the media’s attention was focused on the decision.
"Everyone took the decision as a non-genocide decision and now this second decision doesn’t have the same force," said Ambos.
The willingness of states that have signed up to the court to arrest Bashir has been questioned, while those that haven’t have made no secret of their reluctance to cooperate in Bashir’s arrest.
While the new warrant is not expected to prompt any immediate progress on an arrest, under the 1948 United States Genocide Convention, states that have ratified that treaty are obligated to prevent and punish the perpetration of genocide.
In theory, this means that, now Bashir has been charged with genocide, it is not just ICC member states and Sudan - under the United Nations Security Council resolution referring Darfur to the ICC - that are legally bound to act.
Countries that have not backed the court but are parties to the Genocide Convention could now have a legal obligation to arrest Bashir if he entered their territory.
Case law from the UN’s International Court of Justice also confirms a signatory’s duty to act in a case of genocide. In 2007, the court ruled that Serbia had violated its duty under the Genocide Convention by failing to prevent genocide in the Bosnian enclave of Srebrenica in July 1995.
"The Genocide Convention Article Six says a national court should [uphold the Convention by prosecuting or preventing genocide] or an international court and also the court created by a treaty [such as] the ICC," said the court’s chief prosecutor Luis Moreno-Ocampo.
"It is a new scenario in which states have new duties and new possibilities. Because it is a genocide now [states who have signed the Genocide Convention] have an obligation to arrest if the person goes to their territory."
"There is no more evidence [than there was for the first arrest warrant]," pointed out Ambos. "It is the same factual basis. It is just a different legal standard [that has been applied by judges].
"In this sense [states] are certainly under a stronger obligation. It is more difficult for a state to say it will not cooperate because we are now at the level of genocide."
Raymond Brown, who represents victims in the Darfur case along with Akin, believed that the resistance of certain states will not change, but added that the genocide charge has made it harder to justify non-cooperation with the warrant.
“Of course there is going to be resistance,” Brown explained. “[Although] this [genocide charge] puts a much finer point on [the seriousness of the case].”
Bashir, who has just won the first elections in Sudan in more than 20 years, is unlikely to be arrested within the country in the near future.
The cooperation of the international community is therefore seen as crucial in apprehending him.
"The net [is closing] on the excuses for not supporting and working with international institutions like the ICC,” added Akin. “This is a little bit more of something [resistant states] cannot ignore."
But Ambos said that states who did not wish to cooperate, despite their legal obligations, may still find a way out by arguing that the qualification given by the ICC - that there were reasonable grounds to believe genocide occurred in Darfur - was not legally binding.
He added that Libya and other African states not party to the ICC were unlikely to change their positions.
Up to now there has been no legal judgement on the atrocities committed in Darfur.
Ambos argued that, if there was already a legal ruling that genocide had occurred in Darfur, then the charges against Bashir would carry more weight with the international community.
Without an existing judgement about genocide, he said, the charges at the ICC remained open to manipulation.
"We should not forget we are still in the pre-trial phase, [we are] talking about an arrest warrant," he said.
Tajeldin Abdhalla Adam is a Radio Dabanga reporter and IWPR trainee. Assadig Mustafa is working with Radio Dabanga. Simon Jennings is an IWPR reporter in The Hague and producer of a radio show for Radio Dabanga about justice issues. The article was produced in cooperation with Radio Dabanga, a radio station for Darfuris run by Darfuris from The Netherlands, and originally appeared in ACR Issue 264 (16 June 2010), produced by the Institute for War and Peace Reporting, www.iwpr.net.