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  • Melissa Wu
    On 4 March 2009 the judges of Pre-Trial Chamber I issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir named by the Prosecutor of the
    Message 1 of 1 , Mar 4, 2009
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      On 4 March 2009 the judges of Pre-Trial Chamber I issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir named by the Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo in his July 2008 filing in the Darfur situation. The Chamber held that there are reasonable grounds to believe that President al-Bashir bears criminal responsibility for crimes against humanity and war crimes allegedly committed in Darfur in the past five years. Omar Hassan Ahmad al-Bashir has been the president of Sudan since 1993.

      Please find below the press release issued by the International Criminal Court (ICC) and links to related information materials produced by the ICC (I) as well as a press release issued by the Coalition for the International Criminal Court (CICC) (II).

      Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

      Regards,
      CICC Secretariat

      I. ICC PRESS RELEASE AND RELATED ICC DOCUMENTS

      1) "ICC ISSUES A WARRANT OF ARREST FOR OMAR AL BASHIR, PRESIDENT OF SUDAN ", ICC Press release, 4 MARCH 2009, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/icc%20issues%20a%20warrant%20of%20arrest%20for%20omar%20al%20bashir_%20president%20of%20sudan

      "Today, Pre-Trial Chamber I of the International Criminal Court (ICC) issued a warrant for the arrest of Omar Hassan Ahmad Al Bashir, President of Sudan, for war crimes and crimes against humanity. He is suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property. This is the first warrant of arrest ever issued for a sitting Head of State by the ICC.

      Omar Al Bashir's official capacity as a sitting Head of State does not exclude his criminal responsibility, nor does it grant him immunity against prosecution before the ICC, according to Pre-Trial Chamber I.

      According to the Judges, the above-mentioned crimes were allegedly committed during a five year counter-insurgency campaign by the Government of Sudan against the Sudanese Liberation Movement/Army (SLM/A), the Justice and Equality Movement (JEM) and other armed groups opposing the Government of Sudan in Darfur. It is alleged that this campaign started soon after the April 2003 attack on El Fasher airport as a result of a common plan agreed upon at the highest level of the Government of Sudan by Omar Al Bashir and other high-ranking Sudanese political and military leaders. It lasted at least until 14 July 2008, the date of the filling of the Prosecution's Application for the warrant of arrest for Omar Al Bashir.

      A core component of that campaign was the unlawful attack on that part of the civilian population of Darfur - belonging largely to the Fur, Masalit and Zaghawa groups - perceived to be close to the organised armed groups opposing the Government of Sudan in Darfur. The said civilian population was to be unlawfully attacked by Government of Sudan forces, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Force, the National Intelligence and Security Service and the Humanitarian Aid Commission.

      The Chamber found that Omar al Bashir, as the de jure and de facto President of Sudan and Commander-in-Chief of the Sudanese Armed Forces, is suspected of having coordinated the design and implementation of the counter-insurgency campaign. In the alternative, it also found that there are reasonable grounds to believe that he was in control of all branches of the "apparatus" of the State of Sudan and used such control to secure the implementation of the counter-insurgency campaign.

      The counts

      The warrant of arrest for Omar Al Bashir lists 7 counts on the basis of his individual criminal responsibility (article 25(3)(a)) including:

      five counts of crimes against humanity: murder - article 7(1)(a); extermination - article 7(1)(b); forcible transfer - article 7(1)(d);
      torture - article 7(1)(f); and rape - article 7(1)(g);
      two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities - article 8(2)(e)(i); and pillaging - article 8(2)(e)(v).
      Findings concerning genocide

      The majority of the Chamber, Judge Anita U¹acka dissenting, found that the material provided by the Prosecution in support of its application for a warrant of arrest failed to provide reasonable grounds to believe that the Government of Sudan acted with specific intent to destroy, in whole or in part, the Fur, Masalit and Zaghawa groups. Consequently, the crime of genocide is not included in the warrant issued for the arrest of Omar Al Bashir. Nevertheless, the Judges stressed that if additional evidence is gathered by the Prosecution, the decision would not prevent the Prosecution from requesting an amendment to the warrant of arrest in order to include the crime of genocide.

      Cooperation of States

      The Judges directed the Registrar to prepare and transmit, as soon as practicable, a request for cooperation for the arrest and surrender of Omar Al Bashir to Sudan, and to all States Parties to the Rome Statute and all United Nations Security Council (UNSC) members that are not party to the Statute, as well as to any other State as may be necessary.

      The Judges found that, according to UNSC resolution 1593 and articles 25 and 103 of the UN Charter, the obligation of the Government of Sudan to fully cooperate with the Court prevails over any other international obligation that the Government of Sudan may have undertaken pursuant to any other international agreement.

      Pre-Trial Chamber I also found that the Government of Sudan has systematically refused to cooperate with the Court since the issuance of warrants for the arrest of the Sudanese Minister for Humanitarian Affairs, Ahmad Harun, and a regional Janjaweed militia leader, Ali Kushayb, on 2 May 2007. As a result, the Judges emphasised that, according to article 87(7) of the Statute, if the Government of Sudan continues to fail to comply with its cooperation obligations to the Court, the competent Chamber "may make a finding to that effect" and decide to "refer the matter [.] to the Security Council."

      Furthermore, the Judges noted that the dispositive part of UNSC resolution 1593 expressly urges all States, whether party or not to the Rome Statute, as well as international and regional organisations to "cooperate fully" with the Court."

      2)
      Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir
      http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf

      Warrant of Arrest for Omar Hassan Ahmad Al Bashir
      http://www.icc-cpi.int/iccdocs/doc/doc639078.pdf

      II. CICC PRESS RELEASE

      ICC ISSUES ARREST WARRANT FOR SUDANESE PRESIDENT OMAR AL-BASHIR
      Pre-trial Judges Request Arrest of Sudanese Head of State for Crimes against Humanity and War Crimes in Darfur

      The Hague. On 4 March 2009 the judges of Pre-Trial Chamber I issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir named by the Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo in his July filing in the Darfur situation. Omar Hassan Ahmad al-Bashir has been the president of Sudan since 1993.

      The Chamber held that there are reasonable grounds to believe that President al-Bashir bears criminal responsibility for crimes against humanity and war crimes allegedly committed in Darfur in the past five years. The judges decided, with a dissenting opinion, not to seek the arrest of al-Bashir for the crime of genocide, but stated that the decision does not prevent the Prosecutor from requesting amendments, based on additional evidence, at a later stage.

      "The ICC was created to enforce the principle that no one, not even the president of a country, is above the law and that any one who commits mass atrocities should face justice." said William R. Pace, convener of the Coalition for the International Criminal Court (CICC), a network of civil society organizations in 150 countries advocating for a fair, effective and independent ICC.

      "The President of Sudan is now a fugitive from justice in his own country. Sudan has a clear obligation, imposed by the UN Security Council, to arrest and surrender Mr. Bashir to the ICC. It is now up to ICC states parties and other governments and international organizations to do what they can to ensure that this happens without delay," said Pace. "In the meanwhile, there must be zero tolerance for any retaliatory violence against civilians, humanitarian workers or others in Sudan by Mr. Bashir and his government."

      The Rome Statute does not differentiate between the gravity of any of the three crimes currently under the Court's jurisdiction. "What is essential is that an arrest warrant against Bashir has been issued. Crimes against humanity and war crimes are as serious as genocide," said Osman Hummaida, human rights researcher and former Director of the Sudanese Organization Against Torture. "That Bashir is being held accountable for the widespread and systematic attacks against civilians that took place in Darfur as part of the counterinsurgency campaign is what matters most."

      "The arrest warrant issued today against President Al-Bashir sends a positive message within Sudan and across the whole of Africa that impunity will no longer be tolerated," Osman Hummaida added. "Today's precedent-setting decision marks the beginning of the end of impunity. Those who rule by oppressive means and by committing war crimes will not go unpunished. Victims and their families long affected by the vicious cycle of impunity and violence in the country are seeing that for the first time in Sudan's history since independence, there must be accountability for heinous crimes. Justice will bring peace. Today's decision has the power to get more people engaged in the peace process in Darfur."

      This is the Court's first case against a sitting head of state. Since the ICC does not have its own police force, the execution of a request to arrest President al-Bashir requires cooperation from Sudan, or any other government capable of arresting him. Security Council Resolution 1593, which referred the Darfur situation to the ICC, obliges Sudan to fully cooperate with the Court and urges all states and international organizations to cooperate with the Court. In accordance with the ICC Statute, a person's official capacity as a head of state shall in no way prevent the ICC from prosecuting that person for acts amounting to crimes within the jurisdiction of the Court.

      On 31 March 2005, the United Nations Security Council referred the situation in Darfur, Sudan to the ICC prosecutor through Resolution 1593, "determining that the situation in Sudan continues to constitute a threat to international peace and security." On 6 June 2005, the ICC prosecutor officially opened his investigation into the situation in Darfur.

      On 14 July 2008, the prosecutor requested pre-trial judges to issue an arrest warrant for President al-Bashir. Notwithstanding the possible existence of sealed arrest warrants, today's warrant is the third issued in the Darfur investigation.

      On 2 May 2007, arrest warrants were issued for Ahmad Muhammad Harun and Ali Kushayb for war crimes and crimes against humanity allegedly committed in Darfur in 2003 and 2004. On 20 November 2008, the prosecutor also requested an arrest warrant for three rebel commanders for war crimes allegedly committed against the African Union peacekeeping forces at the Haskanita base (Darfur) on 29 September 2007.

      Since the referral and the issuance of the warrants, the Sudanese government has openly defied and consistently refused to cooperate with the Court and the international community. To date, none of the outstanding arrest warrants have been executed.
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