Genocide charge now possible for Sudan’s al-Bashir

THE HAGUE, Netherlands — The International Criminal Court will again consider charging Sudanese President Omar al-Bashir with genocide in Darfur, after an appeals panel ruled that judges made an “error in law” when they refused to indict him on that charge last year.

“He should get a lawyer,” court prosecutor Luis Moreno Ocampo said after ruling today.

He accused al-Bashir of keeping 2.5 million refugees from specific ethnic groups in Darfur in camps “under genocide conditions, like a gigantic Auschwitz.”

The appeals decision — which said the burden of proof should be lower when prosecutors seek an indictment than when they try to secure a conviction at trial — fueled hopes among human rights activists that prosecutors will indict other leaders around the world for atrocities.

The court is currently considering allegations of atrocities in countries from Colombia to Kenya, Gaza to Afghanistan, but has so far launched formal prosecutions in just four countries, all of them in Africa.

“This gives a new wind to the sails of international justice,” said Kenyan human rights activist Njonjo Mue.

Moreno Ocampo welcomed the decision to reopen the Darfur genocide case and vowed to give judges even more evidence when they again consider charging al-Bashir with genocide.

A five-judge appeals chamber said the International Criminal Court wrongly concluded in March that there was insufficient evidence to charge al-Bashir with three counts of genocide for allegedly attempting to wipe out entire ethnic groups in the war-ravaged province of Darfur.

Instead, the court charged him with seven counts of war crimes and crimes against humanity for allegedly orchestrating a campaign of murder, torture, rape and forced expulsions in Darfur.

The Sudanese president refuses to recognize the court’s jurisdiction and has vowed never to surrender to it. Since the charges were issued, he has traveled to friendly countries but called off trips to nations where he fears he could be arrested and sent to The Hague.

Al-Bashir’s hardline regime also threw out 13 international aid agencies working in Darfur last March when the court first indicted him. The move further compounded the humanitarian crisis in a region where 300,000 people have died since fighting broke out in 2003 between the government and rebels. The United Nations says 2.7 million people have been driven from their homes by the conflict.

“For me, the fact that President Bashir expelled the humanitarian organizations is confirming that his intention is the physical destruction of these people,” Moreno Ocampo told The Associated Press in his office at the court.

Today’s ruling set an important precedent because it marked the first time the world’s first permanent war crimes court has dealt with a genocide case, said David Crane, a law professor at Syracuse University and former chief prosecutor at the Special Court for Sierra Leone.

The appeals bench effectively said “lower the bar, take a look at the evidence again and see what you come up with,” Crane said in a telephone interview.

William R. Pace of the Coalition for the ICC, a nongovernment group that supports the court, also hailed the decision’s significance, saying it could for the first time “lead to the inclusion of charges of genocide by ICC judges for a sitting head of state.”

What it didn’t do was bring al-Bashir any closer to justice. On Wednesday he was in Qatar at Darfur peace talks.

Rabie Abdel-Attie, a Sudan government spokesman, said Wednesday’s decision will not affect al-Bashir’s bid to run again for presidency at elections expected in April, and claimed it reflected the court’s isolation from reality on the ground in Sudan.

“The government doesn’t give the court any consideration and doesn’t care much for it. This is a matter of principle,” he told the AP from Khartoum. “The court is heading in one direction and we in the other.”

Moreno Ocampo credited his investigations in Darfur with energizing peace efforts.

Since he launched his case in 2008 “everything is moving,” Moreno Ocampo said. “When I presented my case, there was no peace process … now there are vibrant discussions.”

Moreno Ocampo accuses al-Bashir of mobilizing the entire Sudanese state apparatus with the aim of destroying a substantial part of the Fur, Masalit and Zaghawa ethnic groups in Darfur over more than six years.

Prosecutors accuse Sudanese troops and the janjaweed Arab militia they support of murdering civilians and preying on them in refugee camps. Moreno Ocampo said part of the alleged genocide was a campaign of rape to drive women into the desert, where they die of starvation.

The appeals ruling “put genocide back on the table,” Crane said. “It will certainly put the world’s leaders on notice once again that these types of crimes are now available (to prosecutors).”