On Monday 14 July, Ocampo charged the Sudanese President Omar Hassan Al-Bashir with 3 counts of genocide, 5 counts of crimes against humanity and 2 counts of war crimes.  This announcement marks an important milestone for international law and human rights, and is also the first time that genocide has been declared when it is still ongoing. It is the first time in the history of the Court that such charges of genocide, crimes against humanity and war crimes have been issued against an acting head of state.  It is also the first time that

Prosecutor Ocampo concluded that Al-Bashir had “masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity." In response to Sudanese claims that the death and destruction caused was the product of counterinsurgency operations against rebels, Ocampo stated, “the crimes covered in the Application are not the collateral damage of a military campaign. At all times relevant to the Application AL BASHIR specifically and purposefully targeted civilians who were not participants to any conflict with the intent to destroy them, as a group.”

“His alibi was a 'counterinsurgency'. His intent was genocide." The Prosecutor has determined that Al-Bashir bears criminal responsibility for the crime of genocide. Although he may not have committed these contemptible acts himself, he is deemed responsible for crimes committed through members of the state apparatus, the army and the Janjaweed.

The specific counts of genocide that Al Bashir has been charged are: Genocide by killing members of the target groups; Genocide by causing serious mental harm to members of the target group; and Genocide by deliberate infliction on members of the target groups conditions of life calculated to bring about the physical destruction of the group in whole or in part.

The Prosecutor has requested an arrest warrant, but the case now must go before the three judge panel (the judges are from Ghana, Brazil and Latvia) to decide whether the arrest warrant is justified or not. This process could take a matter of months.

Sudanese officials are in the process of trying to block the issuing of a formal arrest warrant. A summary of the case can be found at http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/14_07_08_darfur.pdf

ICC implications for Darfur

This has been the first manifestation of a strong committed international action against the current regime. The UN Security Council resolutions have stopped short of a concerted and effective expression of their disapproval. Even UNAMID has proved to be somewhat lacking, with a shortage of funding, resources and troops. Ocampo exclaimed, "The international community failed in the past, failed to stop Rwanda genocide, failed to stop Balkans crimes. So this time the new thing is, there is a court, an independent court ... who is saying, 'This is a genocide."'

Predictably however, opinions regarding the situation have been divided. On the whole, human rights groups have welcomed the idea of bringing Al-Bashir to justice viewing the move as a chance to improve accountability in a country ravaged by impunity. Conversely, some have lamented the negative effects this announcement may have on peace negotiations. Some, including the US and the African Union, are worried that this will further harden Khartoum’s position with regards to peace. However, peace negotiations have never had full commitment of the Sudanese Government in the past. The announcement could, instead, provide an opportunity for the international community to put increasing pressure on Bashir. If the international commuity were to rally behind the ICC this would send out a strong signal that genocide will not be tolerated and that war criminals will be punished regardless of their rank.

On the other hand, the situation in Sudan may not change dramatically. The Sudanese Government have avoided the commands of the ICC so far and is unlikely to change its actions now. Whatever the outcome, it is an important and pivotal step and openly and publicly condemns the atrocities being waged by the Sudanese Government and their allied Janjaweed militias in Darfur.

The investigation has now been passed to the Pre-Trial Chamber and it could be months before it is decided whether the arrest warrant is issued. In between now and then, there could be an opportunity for the international community to really pressure Khartoum and achieve some positive results.

A few days prior to the official announcement, security alerts were issued for all foreign nationals, UN/AU staff and humanitarian workers.  The UN have withdrawn all non-essential staff, although this is also a reaction to the killings of peacekeepers last week, not solely due to Ocampo’s decision.

Reactions around the world:

Abdul-Wahid Mohammad Noor, SLM leader: “This government, us, or anybody else who has committed a crime against the people of Sudan and Darfur, must be brought to justice, to be punished.”

AU spokesman: “The AU's position is that nothing should be done that might jeopardise the peace process in Sudan.” Tanzania, whose president chairs the African Union, called for the court to call a halt to the process.

Ban Ki-Moon: “We are counting on the government of Sudan to guarantee the safety and security of all UN personnel and property and also humanitarian workers.”

Gordon Brown: “We call on the government of Sudan to co-operate with the International Criminal Court. The International Criminal Court has our support for its activities.”

French Foreign Minister, Bernard Kouchner: “It is a decision of the International Criminal Court and President Bashir must respect it. We must respect justice.”

Ali al-Sadig, spokesman for Sudan’s foreign ministry: "We don't recognise whatever comes out from the ICC, to us it is non-existent."

Richard Dicker, International Justice Program: "Charging President al-Bashir for the hideous crimes in Darfur shows that no one is above the law. It is the prosecutor's job to follow the evidence wherever it leads, regardless of official position."

Release of the Arrest Warrant - March 2009

On March 4 2009, the International Criminal Court (ICC) issued an arrest warrant for the Sudanese President, Omar Hassan Ahmad Al-Bashir for seven counts of war crimes and crimes against humanity. This was the first instance of a sitting leader to be indicted by the court.

The warrant lists 5 counts of crimes against humanity- murder; extermination; forcible transfer; torture; and rape - and 2 counts of war crimes- intentionally directing attacks against a civilian population as such, or against individual civilians not taking part in hostilities and pillaging. The Court’s spokesperson said that the violence in Darfur was the result of a common plan organised at the highest level of the Sudanese government.

Predictably, since the arrest warrant was issued, the government of Sudan has strongly and openly opposed the International Criminal Court’s decision and has refused to turn President Al-Bashir over to the ICC for prosecution. A Sudanese government official said in response ‘This decision is exactly what we have been expecting from the court, which was created to target Sudan and to be part of the new mechanism of neo-colonialism.’

The President does risk being arrested and handed over to the court if he leaves Sudan and travels to other countries, since all countries that are signatories to the ICC charter are obligated to arrest any person entering their country who has been indicted by the court.

However, since the issuance of the warrant, Al-Bashir has continued to travel without repercussion throughout Africa and the Middle East, most notably to attend the Arab League Summit at the end of March 2009.  At the conclusion of this summit, the Arab League issued a join statement that read: “We stress our solidarity with Sudan and our rejection of the ICC decision.”

The arrest warrant has caused some division within the international community revolving around the same Justice vs. Peace issue it had previously encountered after the arrest warrant for Joseph Kony of Uganda was issued. The US, UK and France, human rights groups and Darfuris living in exile welcomed the ICC’s decision. Niemat Ahmadi, of the Save Darfur Coalition, called the warrant a lifeline for those living in camps. “It will change the mood of frustration and helplessness for our people.”

However, Russia, the African Union, Arab League and some of Sudan’s closest allies have chastised the ICC, claiming the arrest warrant for Al-Bashir will only serve to impede the peace process in Darfur.

The Sudanese government has used this decision as an excuse to retaliate against the international community by expelling from Sudan or dissolving 16 humanitarian and human rights groups, including Oxfam, Save the Children, MSF and CARE, all accused of “spying” for the ICC.  Bashir also accused them of taking "99% of the budget for humanitarian work themselves, and giving the people of Darfur 1%" – charges which the groups strongly deny. This now leaves 4.7 million Darfuris without emergency food, shelter and water aid.