Charges Against Sudan's Omar al-Bashir Accusing a President of Genocide

It may be the most spectacular decision in the history of international criminal law: ICC Prosecutor Moreno-Ocampo wants to bring Sudan's president before the international tribunal for atrocities in Darfur. "I can no longer tolerate denial," says the jurist.
An estimated two million residents have been displaced and tens of thousands killed in the civil war in Sudan's Darfur region. The prosecutor of the International Criminal Court in The Hague says they are the victims of genocide and crimes against humanity committed by the government.

An estimated two million residents have been displaced and tens of thousands killed in the civil war in Sudan's Darfur region. The prosecutor of the International Criminal Court in The Hague says they are the victims of genocide and crimes against humanity committed by the government.

Foto: Getty Images

Everything is set for the president: In the basement of the white court building in The Hague, a rarely used detention cell sits empty for Omar Hassan Ahmad al-Bashir. Before he goes in, he'll have to pass the contents of his pockets through a scanner in Room K 127. The walls in the reception building for political criminals are painted a trendy violet and blue, the floor is light green, and thick concrete separates a prisoner from the rest of the world. The chair where he would wait for his trial has been bolted to the floor.

This is how President al-Bashir's life would look if Luis Moreno-Ocampo had his way. The chief prosecutor at the International Criminal Court, or ICC, wants to bring Sudan's head of state to The Hague. On Monday he announced his request for an arrest warrant and an indictment against the African dictator. The charges include genocide, crimes against humanity and war crimes.

The president of Sudan (who is also its military commander-in-chief) has been held responsible for the most appalling war of our time -- the slaughter in the Sudanese province of Darfur, which is about the size of France.

The current toll in Sudan's civil war involves hundreds of thousands killed, thousands of villages burned and millions of refugees on the verge of starvation. Al-Bashir's regular troops, along with the gruesomely helpful militias under his command, have waged an ethnic-cleansing campaign in Darfur for several years, under the pretext of a revolt by Sudanese rebels. The Fur, Masalit and Zaghawa tribes have been systematically displaced and exterminated, according to eyewitness reports as well as Moreno-Ocampo's charges.

The Sudanese president denied all charges within hours and rejected the ICC's authority. The accusations, he said on state TV, were lies. The international court, he added, had no jurisdiction in Sudan. The country's ambassador to the UN, Abdalmahmood Abdalhaleem Mohamed, warned against the "disastrous consequences for peace and security in Darfur and the entire region." Other UN diplomats fear for the safety of the roughly 10,000 UN peacekeepers in Darfur. Ambassador Mohamed called Moreno-Ocampo's charges illegal and politically motivated.

A Murderous Conspiracy?

The chief prosecutor, on the other hand, argues that there was a murderous conspiracy by the country's leading politicians against the people of Darfur.

Soldiers and militia attacked villages, one after another, according to reports, plundering and then setting them on fire. Villagers were killed, women raped, survivors forced into the desert where they died of hunger and thirst.

Refugees who managed to reach camps were condemned to slowly die there: Government soldiers surround the camps and prevent aid workers from helping people. Moreno-Ocampo says al-Bashir didn’t even need weapons for the genocide he ordered. "Rape, hunger and fear," were sufficient to kill the people, he argues.

The prosecutor's attack on a sitting head of state is more spectacular than any previous charge brought to the ICC. The dictator of Khartoum had sworn "three times by Allah," never to allow a single one of his compatriots to be delivered to the court. He could hardly have expected that he might one day be delivered to the cellar in The Hague.

For years the Sudanese leader had kept other world leaders on tenterhooks as they tried to mediate and reach a peace deal for Darfur. Al-Bashir repeatedly announced that he was going to call back the murder squads -- as soon as the world just gave him a chance. The 10,000 peacekeepers from the United Nations and the African Union have tried in the meantime to prevent the bloody attacks, without much success.

But just as the prosecutor has filed his charges, it looks as if once again, for the hundredth time, that peace may be reached through compromise and negotiations with the bloodthirsty Sudanese ruler.

The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, left, has filed genocide charges against Sudanese President Omar al-Bashir. The ICC has never moved against a sitting head of state before.

The prosecutor of the International Criminal Court, Luis Moreno-Ocampo, left, has filed genocide charges against Sudanese President Omar al-Bashir. The ICC has never moved against a sitting head of state before.

Foto: AP; DPA

The prosecutors and judges at the ICC are now faced with the moral dilemma of whether to negotiate or to arrest. Do the threats by international justice undermine the painstaking efforts to reach peace diplomatically? Will a politician who is facing indictment be willing to enter talks? Will he not make it a condition that Moreno-Ocampo's people leave him alone? And can the ICC, or should the ICC, agree to such conditions?

The dispute is as old as international criminal law itself. For example, Serbian dictator Slobodan Milosevic once tried to make his support for peace in the Balkans dependent on an assurance that he would not be indicted on war crimes. He failed.

Immunity for Peace?

The deal of immunity for peace is one that applies to any situation where a dictator is clinging onto power. There has been diplomatic wrangling for weeks attempting to prevent sanctions or even an indictment against the Zimbabwean ruler Robert Mugabe. The argument goes that the chance of reaching a compromise with the arrogant oppressor should not be jeopardized.

In the case of al-Bashir, the UN Secretary General Ban Ki-moon has said he fears that the indictment could have negative affects on the peacekeeping mission there, putting the lives of the UN peacekeepers in danger. Yet it was the UN that first asked the prosecutors in The Hague to investigate crimes in Darfur.

In 2005 the UN Security Council referred the Darfur case to the ICC, which had just begun its work in The Hague. The unusual referral was necessary because while Sudan had indeed signed the Rome Statute, the founding treaty for the court, it had never ratified it. That means that the regime in Khartoum would not have to comply with any proceedings in The Hague. It required a specific UN resolution.

But the Security Council didn't share the Secretary General's concerns back then and it doesn't appear to now. After all, legally it would be easy to stop prosecutor Moreno-Ocampo -- all it would take is a decision to suspend the case in New York.

For his part, Moreno-Ocampo is confident of his case. "I believe that peace and justice should go hand in hand," he said, adding that justice can be a part of the peace process. But peace without justice cannot be sustainable. "I don't have the luxury to look away," he said. "I have evidence."

Now it is up to Moreno-Ocampo to convince the three judges in a tribunal of the international court that they should accept his indictment and issue an arrest order for the president. He succeeded last year in getting indictments for two high-ranking members of al-Bashir's military.

A 'Highly Explosive' Case

To build the case against al-Bashir, Moreno-Ocampo deployed a team of specially trained investigators for three years in Darfur and the surrounding region. Each researcher was armed with a laptop that could be used to type the brutal accounts of victims and witnesses directly into a computer system. For perilous missions, Moreno-Ocampo developed "case matrix" software -- a sophisticated database that enables investigators to immediately identify which facts are still needed in a particular case to back up each charge the prosecutor is seeking.

But will that be enough to secure an indictment against a head of state for genocide? It's a charge that can seldom be proven.

There are few historical precedents. International law enabling the prosecution of genocide first evolved after the Allied Tribunal, during the Nuremberg Trials, failed to find an appropriate legal framework to prosecute German Holocaust criminals. The last time the world attempted to prosecute the attempted physical decimation of an entire ethnicity was after the Srebrenica massacre. The Yugoslavian Tribunal recognized the mass murder of all of the city's men as genocide, and the International Court of Justice, or ICJ, in The Hague agreed.

But the ICJ isn't the International Criminal Court -- and its judges could once again view the situation differently.

Were the victims in Darfur really killed because they, like the Jews, were members of a recognized ethnic group? Can it also be called genocide when those responsible allow people to slowly perish in refugee camps? These legal questions will pose a minefield for Moreno-Ocampo's case.

Either way, Moreno-Ocampo's move is "highly explosive," argues Cologne-based international law professor Claus Kress. Kress represented Germany in negotiations on the Rome Statute founding the ICC. He is also one of the authors of the rules of procedure that are now being applied to the Sudanese. He says a "central preliminary question in the proceedings" will be whether the court accepts that a serving head of state should appear before a tribunal in The Hague. If so, under what conditions?

ICC statutes rule out the possibility of automatic immunity for statesmen -- in other words, the right to veto legal proceedings in order to keep a leader from going on trial. But Sudan's potentate could still insist on immunity. After all, his state hasn't ratified the International Criminal Court.

This is where things could get suspenseful. Former Serbian leader Slobodan Milosevic and ex-Liberian President Charles Taylor were both indicted while in office, but through different courts, and under different rules.

Has it become an option under international law for lawyers to ignore the immunity of their clients? And who would be the next unjust leader to be hauled out of his palace by the functionaries of the world legal system? Which president will be the first to leave diplomatic peace talks in one of the world's capital cities in handcuffs?

If, in the near future, a van with bars pulls up to the International Criminal Court carrying al-Bashir, and if judges dressed in dark blue assemble to hear the Darfur case, then they will be writing legal history. Perhaps world history.

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