On Wednesday, 4 March, the Pre-Trial Chamber of the International Criminal Court (ICC) announced its decision to issue a warrant for the arrest of the Sudanese President, Omar Hassan al-Bashir, for crimes against humanity and war crimes (Read here Decision [PDF], Summary of the Decision [PDF], Arrest Warrant [PDF], and Press Release).

The ruling comes in response to the June 2008 application of ICC Prosecutor Luis Moreno-Ocampo for an arrest warrant against al-Bashir on charges of genocide, crimes against humanity, and war crimes committed in the Darfur region in violation of articles 6, 7, and 8 of the Rome Statute. In the application the prosecutor accused al-Bashir of masterminding and implementing a plan to destroy in substantial part three ethnic and historically influential groups in Darfur, namely the Fur, Masalit and Zaghawa, on account of their ethnicity. The alleged crimes stem from the brutal counterinsurgency campaign conducted by the Sudanese government since 2003. Prosecutor Moreno-Ocampo maintained that because of his absolute control over the country al-Bashir is bearing ultimate criminal responsibility.

With regard to its jurisdiction over the case, the Pre-Trial Chamber found that, "Al-Bashir's official capacity as sitting head of state does not exclude his criminal responsibility or get him immunity from prosecution before the ICC."

In the arrest warrant al-Bashir is charged with five counts of crimes against humanity: murder, art. 7(1)(a); extermination, art. 7(1)(b); forcible transfer, art. 7(1)(d); torture, art. 7(1)(f); and rape, art. 7(1)(f). Al-Bashir is also charged with two counts of war crimes: intentionally directing attacks against civilians, art. 8(2)(e)(i); and pillaging, art. 8(2)(e)(v).

The warrant does not mention genocide. The Pre-Trial Chamber (Judge Anita Ušacka dissenting) found that the evidence gathered by Prosecutor Moreno-Ocampo “failed to provide reasonable grounds to believe that the Government of Sudan acted with specific intent to destroy, in whole or in part, the Fur, Masalit and Zaghawa groups.” However, the Pre-Trial Chamber indicated that if the Prosecution would provide additional evidence at a later stage, it might issue an amended warrant upon the prosecutor's request to include the genocide charge.

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