al-Bashir's genocide charge: Frequently Asked Questions

This morning the International Criminal Court (ICC) issued a second warrant for the arrest of Sudanese President Omar al-Bashir on three counts of genocide for targeting the Fur, Masalit, and Zaghawa tribes of Darfur in Sudan’s ongoing counter insurgency campaign in the Western-most region of the country. Given the complex nature of international law, Genocide Intervention Network has compiled a FAQ to help the average activist navigate the charges against al-Bashir and what they mean internationally and to Sudan.

Wasn’t Bashir already charged with genocide by the ICC?

In March of 2009, the ICC issued a warrant for the arrest of Omar al-Bashir on charges of war crimes and crimes against humanity. At the time, it was ruled that there was insufficient evidence to try Bashir on charges of genocide by the Pre-Trial Chamber at the ICC. The decision was appealed by ICC Chief Prosecutor Luis Moreno-Ocampo, which led to the ICC’s Appeals Chamber reversing the Pre-Trial chamber’s ruling earlier this year, citing an erroneous standard of proof used in the original ruling.

With this decision in hand, Moreno-Ocampo once again applied to charge al-Bashir with genocide to the Pre-Trial Chamber, which came back with approval for the new charge. Now that a warrant has been issued for the charge of genocide in addition to crimes against humanity and war crimes, the original warrant will likely be rewritten to include the genocide charge and if brought to trial, evidence for the genocide charge will appear alongside evidence for the other charges, expanding the focus of the trial.

It’s been a year since the original indictment—why hasn’t al-Bashir been arrested?

The ICC itself does not have the power to arrest an individual, only to issue a warrant for their arrest. According to the ICC’s charter, it is the responsibility of participating countries to arrest and deliver suspects to the court to stand trial. This type of arrest can occur when a suspect is traveling abroad to a country that is a signatory to the ICC, by the suspect’s home country, or even by the suspect giving themselves up for arrest. Of the fourteen people currently under indictment by the ICC, four have been arrested and another three are appearing voluntarily before the court.

Since being charged with crimes against humanity and war crimes, al-Bashir has yet to travel to any countries participating in the ICC. The addition of the charge of genocide may expand the number of countries willing to detain al-Bashir as he travels and increase the odds of his arrest.

Does this mean that the ICC has confirmed that genocide has taken place in Darfur

Not yet: currently, the judges of the ICC’s pre-trial chamber have found that there are “reasonable grounds to believe” that genocide has been committed in Darfur and that Omar al-Bashir holds criminal responsibility for these crimes. However, “reasonable grounds to believe” should not be interpreted as an ICC declaration of genocide in Darfur.

If al-Bashir stands trial and is found guilty of the charge of genocide, the ICC will have found the crime of genocide to have occurred and therefore that genocide has occurred in Darfur.

What Should We Look For Next?

When the International Criminal Court issued its last arrest warrant for President al-Bashir in March 2009, he reacted by expelling 16 aid agencies from Darfur. Thus, in the coming days, GI-NET will be conducting research to determine if there are any signs of additional deterioration in the humanitarian situation in Darfur. To keep updated on the humanitarian situation in Darfur, GI-NET will be consulting information from Reliefweb, Radio Dabanga, Radio Miraya, and the United Nations Peacekeeping Missions in Sudan, UNMIS and UNAMID among other sources.

We will also be monitoring reports of attacks on civilians, due to the increase in fatal violence due to conflict and criminality in Darfur over the last two months. Even though the 800 fatalities in Darfur (nearly 600 in May and another 200 in June) over this time period may have been concentrated among combatants, there is a danger that these incidents increase the threat to civilians in Darfur.

The arrest warrants issued in March 2009 may also have been the motivations behind several kidnappings of aid workers throughout the year and GI-NET will be watching for an increase in violence against humanitarian workers and peacekeeping forces in the aftermath of this announcement.

What Do We Want the U.S. To Do?

The United States should lead an international effort to prevent Sudanese government retaliation against civilians, peacekeepers and humanitarian workers in Darfur, through the immediate use of diplomatic tools and other leverage to ensure the safety and protection of civilians and humanitarians throughout Darfur.

The United States should also support actions to hold President al-Bashir and others indicted by the International Criminal Court accountable for crimes committed in Darfur. This includes playing an active role at the United Nations Security Council to ensure that the outstanding arrest warrants are executed and those responsible for war crimes and crimes against humanity in Darfur are brought to trial.

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