Today, Monday July 12, 2010, the ICC’s Pre-Trial Chamber 1 judges issued a second warrant for the arrest of President al-Bashir. The judges found that there are reasonable grounds to believe al-Bashir is responsible for three counts of genocide committed against the Fur, Masalit and Zaghawa ethnic groups. The Save Darfur Coalition, together with the Enough Project at the Center for American Progress, the Genocide Intervention Network and the American Jewish World Service issued a joint statement in response.
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Below are answers to some fundamental questions about the meaning of today’s ICC decision and how the United States and international community must respond.
Background: Why a second arrest warrant?
On March 4, 2009, the ICC’s Pre-Trial Chamber 1 judges directed that a warrant be issued for al-Bashir’s arrest on charges of crimes against humanity and war crimes. At that time, the judges rejected the ICC prosecutor’s request to include three counts of genocide in the warrant. The ICC prosecutor appealed this decision, leading to a subsequent ruling by the ICC’s Appeals Chamber that the Pre-Trial Chamber had applied an incorrect standard of evidence in their original decision. After applying the correct standard, the Pre-Trial Chamber has concluded that there are reasonable grounds to believe al-Bashir is responsible for genocide. The new arrest warrant does not replace the first warrant for al-Bashir’s arrest issued by the Court for crimes against humanity and war crimes. Rather, the ICC judges have requested international cooperation to seek the arrest and surrender of al-Bashir for the counts contained in both the first and second arrest warrants.
What does (and doesn’t) today’s news mean?
The ICC’s Pre-Trial Chamber 1 judges have found reasonable grounds to believe that Omar al-Bashir is criminally responsible for genocide. The evidentiary standard of “reasonable grounds to believe”, necessary to issue an arrest warrant, is a lower evidentiary standard than the one that would need to be met for the ICC to confirm charges against al-Bashir at a preliminary confirmation of charges hearing, and than the still-higher standard needed to convict on these charges in a future trial. It is important to note that the new arrest warrant does not mean that the ICC has declared genocide has occurred or is occurring in Darfur.
What happens next with the case?
If al-Bashir is arrested or otherwise appears before the ICC, a confirmation of charges hearing would be scheduled. At this hearing, ICC judges would decide whether to uphold the charges included in the two arrest warrants. If charges are upheld, a trial would be scheduled. At the conclusion of a trial, ICC judges could find al-Bashir guilty or not guilty of any of the charges he faces. Only if al-Bashir is found guilty of charges of genocide could we then say that the ICC judges have found that genocide has occurred in Darfur.
What does the genocide warrant mean for the peace process?
Justice and accountability are critical components of the comprehensive solution that will be necessary to end the conflict in Darfur and build a lasting peace in Sudan. Justice and peace in Sudan can and must be pursued simultaneously. While the ICC has sometimes been accused of jeopardizing peace efforts in Darfur, in reality there has been somewhat more progress made toward peace since ICC Prosecutor Ocampo first announced he would seek al-Bashir’s arrest in July 2008. At that point in time, there was no set forum for dialogue or direct negotiations between the Government of Sudan and the various Darfuri rebel movements. Ocampo’s announcement seemed to push the African Union, League of Arab States, and others in the international community to provide new support to the peace process. Doha, Qatar ultimately emerged as the generally accepted venue for negotiations, and various rebel movements – most notably the Justice and Equality Movement (JEM) and the Liberation and Justice Movement (LJM) – signed two ceasefire agreements with the Government of Sudan in February and March 2010 respectively. While the talks have stalled and even broken down in the last few months, this recent history demonstrates the lack of merit in arguments that peace and justice are conflicting goals and cannot be pursued in parallel.
After the first arrest warrant, al-Bashir kicked out humanitarian groups. Does this warrant put Darfuri civilians in danger again?
After the first ICC arrest warrant was announced in March 2009, al-Bashir expelled over a dozen international aid groups and disbanded three Sudanese aid organizations, forcing an emergency response from the United Nations and international community to prevent a humanitarian catastrophe in Darfur. In addition, the National Intelligence and Security Services (NISS) detained and tortured prominent Sudanese human rights activists in the weeks before and after the decision. It is important to note that it was not the ICC warrant that endangered civilian lives in Darfur and in Khartoum, but rather the calculated response of a regime that has time and again proven willing to endanger the lives and livelihoods of its own citizens.
How should the United States respond?
The Obama Administration must send a clear signal to the Government of Sudan that any acts that threaten civilians, Sudanese human rights activists, aid workers or peacekeepers in Darfur will not be tolerated. You can take action now to urge the US to work to prevent any retaliation by al-Bashir’s regime.
As a leader in the international community and a permanent member of the UN Security Council (UNSC), which referred the situation in Darfur to the ICC in 2005, the United States should publicly reaffirm its support for the ICC’s pursuit of justice in Darfur and work together with the UNSC and ICC member states to ensure the swift enforcement of this and all ICC arrest warrants for atrocities in Darfur. Finally, the United States must intensify its diplomatic efforts to negotiate a just agreement that addresses the root causes of the conflict in Darfur and to press for the full implementation of the Comprehensive Peace Agreement in its last stages. The Government of Sudan must not be allowed to manipulate the ICC warrants in any way to disrupt or distract from the fragile Darfur peace process or preparations for the upcoming referendum on southern secession.
For more information, check out the Genocide Intervention Network’s Frequently Asked Questions page.
