International Criminal Court Issues Another Warrant for Sudanese President Bashir

The International Criminal Court (ICC) Pretrial Chamber I has issued another arrest warrant for the President of Sudan, Omar Al-Bashir.  This decision follows an earlier direction from the appeals chamber, detailed here, that determined that the Pre-Trial Chamber had used the wrong standard in failing to indict Bashir for genocide.

Bashir is the first sitting head of state to be indicted by an international tribunal and have a warrant issued for his arrest, he now also bears the distinction of being the first person to be indicted for genocide by the International Criminal Court and the first person for whom an arrest warrant for genocide was issued.  There are now two arrest warrants out for Bashir.  The ICC’ press release is available here.

The situation in Darfur was referred to the ICC by the U.N. Security Council. Sudan is not a signatory to the  ICC treaty.  Bashir and the minister of Humanitarian Affairs in Sudan, Ahmad Harun are the Sudanese government officials who have been indicted.  Ali Kushayab, reputed head of the Janjaweed militia has also been indicted.  None of those three have appeared before the court.  Three other accused from Sudan have appeared voluntarily before the court.  Of the three who have voluntarily appeared, one,  Bahar Idriss Abu Garda had his case dismissed at the confirmation of charges hearing.  The other two are awaiting their confirmation of charges hearings.

Sudan was referred to the ICC for investigation of crimes against humanity, war crimes and genocide.  Several victims have been granted the right to participate in these cases when they commence.  Persons who are victims of war crimes have a right to participate in the ICC cases and to seek reparations if there is a conviction.

New Sudan Accused Appear Voluntarily Before the International Criminal Court

Two new suspects in the International Criminal Court (ICC) situation in Darfur have now voluntarily appeared before the court to answer charges of war crimes involving attacks on U.N. peacekeepers.  Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) were issued summonses under seal in August of 2009.  Banda and Jerbo are scheduled to make their  appearances before the court on June 17, 2010.  A previous accused from Sudan, Bahar Idriss Abu Garda appeared voluntarily before the court and his case was dismissed at the confirmation of charges hearing.  That case was previously described here.

The court’s press release on the arrest of Banda and Jerbo is available here.  The International Criminal Law Bureau has blogged about the scheduled appearance here.

The President of Sudan, Omar Al Bashir remains under indictment for the crimes against humanity alleged in Darfur.  The Minister of Humanitarian Affairs of Sudan, Ahmad Harun and Ali Kushayb, the leader of the Janajaweed militia have also been indicted under public indictments.  None of those three have appeared before the court.  It is not known how many other indictments, summonses or warrants remain under seal.

ICC Pre-Trial Chamber Notifies Security Council of Sudan's Failure to Cooperate

Pre-Trial Chamber I of the International Criminal Court (ICC) in The Hague has issued a document titled “Decision informing the United Nation’s Security Council about the lack of cooperation by the Republic of Sudan.”  The decision gives notice to the Security Council that the one situation referred to the ICC by the Security Council has not been able to proceed, in large part because the indicted parties in the Sudanese government have not appeared before the court.

The President of Sudan, Omar Hassan Al-Bashir has been indicted by the court for crimes against humanity and war crimes, as have the Minister of State for Humanitarian Affairs, Omar Harun, and the leader of the Janjaweed Militia, Ali Kushayb.  Interestingly the decision does not mention President Bashir, only Harun and Kushayb.  A fourth leader from Sudan, Bahar Idriss Abu Garda appeared voluntarily before the court and the charges were dismissed at the confirmation of charges hearing.

At least one commentator has suggested the decision is of “lamentable quality” and poor timing, coming out just before the Association of States Parties are to meet in Kampala for a review of the progess of the court and the Rome Statute.  111 nations have ratified the Rome Treaty and joined the court.  Three notable holdouts have been Security Council members Russia, China and the United States.    Kofi Annan, who was U.N. Secretary General at the time of the creation the court has argued the need for universal ratification.

The Situation in Darfur was referred to the ICC by the Security Council because of the concerns of an ongoing genocide.  Bashir is the first sitting head of state to be indicted by an international tribunal.  Some governments have promised to arrest him if he enters their territory, others have allowed him safe passage.  When or whether he appears before the court is an open question.

ICC Appeals Chamber Rejects Prosecution Appeal

The office of the prosecutor appealed the decision of the pre-trial chamber declining to confirm charges again Bahar Idriss Abu Garda.  The trial chamber decision, originally blogged here,  found that the office of the prosecutor had not produced enough evidence to continue the case for trial.   The standard of proof at the confirmation of charges hearing is “substantial grounds.” Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.

The court issues indictments when the prosecutor establishes “reasonable grounds” for the charges.  If the pre-trial chamber finds “substantial grounds,” the case is continued for trial where the case must be established beyond a reasonable doubt.

The Abu Garda case is unique in a number of ways.  Abu Garda is the first defendant from the situation in Darfur to appear before the court, and the first accused in any situation to appear voluntarily before the court.  He is now the first to have his case dismissed at the confirmation of charges hearing and the first to have a dismissal affirmed by the appeals chamber.

The Hague Justice Portal blog on the appeals chamber decision is available here. The  appeals chamber decision was issued on April 23, 2010, the pre-trial chamber declined to confirm the charges on February 8, 2010.  The other three accused from the Darfur situation,  Omar Al Bashir, the President of Sudan, the country’s Minister of Humanitarian Affairs, and the leader of the Janjaweed militia all remain at large.  The Government of Sudan has not cooperated with the court and is not a signatory to the treaty.  The situation in Darfur was referred to the court by the U.N. Security Council.

The International Criminal Court sits in The Hague and is intended to be a permanent court to decide charges of war crimes, crimes against humanity and genocide that cannot or will not be prosecuted by national authorities.

Appeals Chamber Reverses Pre-Trial Chamber in Bashir Warrant Decision.

The International Criminal Court made history in March of 2009 by issuing an arrest warrant for a sitting head of state, Omar Al Bashir, the President of Sudan. The warrant for his arrest was based on allegations of war crimes and crimes against humanity. The pre-trial chamber though declined to issue a warrant for the charge of genocide, finding at the time that the prosecutor had not established sufficient evidence of genocidal intent.

Today the appeals chamber of the ICC issued a decision, available here, determining that the pre-trial chamber erred by using the wrong standard for making its determination. The pre-trial chamber decided that since genocidal intent was only one of the reasonable inferences based on the evidence submitted and that a warrant should not issue for genocide. The appeals chamber reasoned that the pre-trial chamber read in too high a requirement when reading the statute’s requirement that a warrant of arrest required “reasonable grounds to believe” that a crime within the jurisdiction of the court occurred.

The appeals chamber said the pre-trial chamber’s determination effectively required the prosecutor to establish its case beyond a reasonable doubt and “disprove any other reasonable conclusions.”  The appeals chamber determined that this effectively required a trial standard of proof at the issuance of an arrest warrant and did not recognize the statute’s escalating standards of proof, “reasonable grounds to believe” at the warrant stage, “substantial grounds to believe” at the confirmation of charges stage and “beyond reasonable doubt” for a conviction at trial.

The appeals chamber did not issue a warrant based on charges of genocide but sent the matter back to the pre-trial chamber for a determination based on whether or not there are reasonable grounds to believe that Bashir and the Government of acted with genocidal intent in Darfur.  The court’s press release summary of the decision is available here.