International Criminal Court issues warrant for Sudan president

Judges at the International Criminal Court ordered the arrest Wednesday of President Omar Hassan al-Bashir of Sudan, charging him with war crimes and crimes against humanity for a concerted government campaign against civilians.

They did not include the charge of genocide requested by the prosecutor.

In issuing the order, the three judges brushed aside diplomatic requests for more time for peace talks and fears of a violent backlash in the country. They had taken more than seven months to examine the evidence.

It is the first time the court, which opened in 2002, has sought the arrest of a sitting head of state, though other international war crimes courts have issued warrants for Slobodan Milosevic of Serbia and Charles Taylor of Liberia while they were sitting presidents.

The judges charged Bashir with five counts of crimes against humanity, including murder, extermination, forcible transfer, torture and rape. The two counts of war crimes were for attacks against a civilian population and for pillaging.

In their statement, they said the court did not recognize immunity for a head of state and called on all countries, including those who were members of the court and of the United Nations to cooperate with the court.

Thousands of Sudanese gathered in central Khartoum within minutes of the court's announcement, waving Sudanese flags and posters showing the president's face to demonstrate their support for him and denounce the court's decision. The government in Khartoum vowed to ignore the court's ruling.

"The court is only one mechanism of neo-colonialist policy used by the West against free and independent countries," said a Sudanese presidential adviser, Mustafa Osman Ismail, according to Reuters.

The question of genocide in Darfur has been divisive, and was so among the judges, who said two to one that the prosecutor had not provided sufficient evidence of the government's intent, the key issue in determining genocide. The Bush administration and other governments as well as human rights activists have called the government's actions genocide.

Proving genocide in court is a high hurdle because it is not about the magnitude of the atrocities. Genocide requires proof that an accused had "specific intent" to "destroy, in whole or in part, a national, ethnical, racial or religious group as such" on the basis of their identity. The prosecutor had argued that the government specifically tried to exterminate three ethnic groups - the Fur, Masalit and Zaghawa African tribes in Darfur - and that even after driving them of their lands and killing many people, armed militia continued their genocidal campaign by raping and impregnating the women in the refugee camps, thereby further subverting the tribes.

The registrar for the court, Silvana Arbia, said at a news conference that the crimes took place during a five-year campaign against rebel organizations in Darfur which opposed the government in Khartoum that began in 2003. The campaign, the court said, was the result of a plan agreed upon at the highest level of the government in Khartoum, and lasted at least until July 14, 2008, the date of the arrest warrant.

The arrest warrant is likely to complicate the international debate over how to solve the crisis in Darfur. It came despite concerns voiced by UN diplomats, the African Union, the Arab League, and some humanitarian organizations that it could provoke renewed violence in the country and put at risk the peace process in southern Sudan.

Even if Bashir is not brought to the court in the near future, analysts said the warrant will weaken Bashir's position internationally and isolate him.

The question now is who will execute the warrant. Sudan is legally obliged to arrest Bashir, but that is not expected to happen any time soon. The Hague court has no police force or military of its own, and the 24,000 or so UN peacekeepers stationed in Sudan have no mandate to detain war crimes suspects.

If Bashir travels to any of the 108 nations that are members of the court, he risks arrest, because court members will be obliged to detain him. The 80 or so countries that are not court members, including China, Russia and the United States, have no such obligation. But lawyers say those nations can arrest Bashir because several treaties state that heads of state enjoy no immunity if they are charged with genocide, crimes against humanity or war crimes.

Even if Bashir remains free, analysts who favored his arrest say the warrant is likely to have a worldwide effect.

"This means he will be a fugitive, a man on a wanted poster held to be most responsible for the atrocities of Darfur," said Richard Dicker, a director of Human Rights Watch.

Some analysts and activists argued that the warrant could undermine his political position at home. Nick Grono, deputy president of the International Crisis Group, wrote recently that "although Bashir and his security apparatus are still entrenched in power, the indictment is likely to weaken their hold. It may even cause the army and intelligence agencies, the ultimate wielders of power, to contemplate a future without Bashir."

Others fear, however, that weakening Bashir could result in more violence in the region, at least in the near term.

"I am sure there will be some crowd movements, there will be some violence here and there," said Alain Le Roy, the UN undersecretary general for peacekeeping operations.

Some figures in the government have threatened bloodshed in response to an indictment. Salah Gosh, the head of Sudanese intelligence, was quoted in Sudanese press reports as calling for the "amputation of the hands and the slitting of the throats of any person who dares badmouth al-Bashir or support the International Criminal Court's allegations against him."

Another worry, Le Roy said, was that any of the groups involved in the conflict, including the governments of Sudan and Chad as well as the rebels, might take advantage of any uproar surrounding the court's decision to foment violence. And the delays in deploying UN peacekeeping troops to Darfur, with only about 64 percent of the force there, will likely worsen because of possible new tension in the region.

Le Roy also said, however, Sudan had reassured the UN officials that the government would respect its commitment to protect UN peacekeeping missions and other agencies. There were no immediate plans to scale back patrols or otherwise retreat from the prescribed mission he said.

The court issued warrants for two Sudanese citizens in 2007 in connection with the bloodshed and humanitarian disaster of Darfur. The two men are Ahmad Muhammad Harun, a former security official, now a government minister, and Ali Kushayb, a former militia leader. Judges said that there were reasonable grounds to conclude that they were responsible for torture, mass rape and the forced displacement of entire villages in Darfur in 2003 and 2004. Neither has been arrested.

The Security Council can postpone action against Bashir and even stop a trial. But on the eve of the ruling, the council remained largely divided over how to react. Sudan's supporters, including the African Union and Arab League, called again Tuesday for the council to invoke Article 16 of the statute creating the court which allows it to suspend any indictment. But France, Britain or the United States would likely use its veto to block such a move.

Sudanese and other African officials have criticized the court as a neo-colonial tool that so far has singled out Africa. But court officials point out at three of the four criminal investigations under way at the court, involving Congo, Central African Republic and Uganda, were all brought by the governments of those countries themselves, while the case of Sudan was referred to the prosecutor by the UN Security Council.

Source: Herald Tribune - New York