UN court to reconsider charging al Bashir with genocide

In a major legal victory for war crimes prosecutors, judges at the ICC revived the prospect that Sudan's president could be charged with genocide.

In a major legal victory for war crimes prosecutors yesterday, appeals judges at the International Criminal Court revived the prospect that Sudan's president, Omar al Bashir, could be charged with international law's gravest crime: genocide. Mr al Bashir was indicted by the Netherlands-based UN court last March on seven counts of war crimes and crimes against humanity - including the rape, murder, extermination and forcible expulsion of civilians - in connection with Khartoum's clampdown on rebel groups in the western region of Darfur.

Along with the indictment, the world's first permanent war crimes tribunal also issued an international warrant for Mr al Bashir's arrest, the first-ever for a sitting head of state. The move was met with howls of outrage from the Arab League and the 57-member Organization of the Islamic Conference and from Mr al Bashir, who was quoted saying he would "eat" the warrant if it was served. The charges could have been harsher. In issuing it, the court's pretrial chamber, made up of jurists from Brazil, Ghana and Latvia, rejected the request by the chief prosecutor, Luis Moreno-Ocampo, to include three counts of genocide - to whit, attempting to destroy entire ethnic groups in war-ravaged Darfur.

The pretrial chamber said the prosecution had failed to provide "reasonable grounds" to believe that Mr al Bashir had the "specific intent to destroy, in whole or in part" the Fur, Masalit and Zaghawa ethnic groups. Mr Moreno-Ocampo immediately appealed the decision, saying the judges had "misunderstood the prosecution's arguments". Yesterday, the court's five-judge appellate panel essentially agreed.

"The pretrial chamber is directed to decide anew," said the presiding judge, Erkki Kourula, adding that the order was not a declaration of Mr al Bashir's guilt or innocence on the genocide counts. Rather, the pretrial chamber had applied the wrong legal standard in reaching its conclusion, Mr Kourula said. Officials at court headquarters in The Hague gave no indication when a decision on the genocide charges would be made.

Rabie Abdel Attie, a Sudanese government spokesman, said the decision reflected the court's increasing isolation from reality on the ground in Sudan. He said the decision would not affect Mr al Bashir's bid to run again for president during elections set for April. "The government doesn't give the court any consideration and doesn't care much for it. This is a matter of principle," the Associated Press quoted Mr Abdel-Attie as saying. "The court is heading in one direction and we in the other."

Since 2003, when war broke out between the Khartoum government and rebels, 300,000 people have died in Darfur and, according to the UN, 2.7 million have been driven from their homes. In court documents, Mr Moreno-Ocampo argues that the Khartoum government's failure to defeat armed fighters following the start of the rebellion in 2003 triggered a critical turn. Calling the tribes allied with him "Arabs" and those ethnic groups aligned against him "Africans", even though they spoke Arabic, he began targeting Darfur's civilians. "His motives were largely political. His alibi was a 'counterinsurgency'. His intent was genocide," Mr Moreno-Ocampo states. Part of the alleged genocide, he said, was a campaign of rape to drive women into the desert, where they would die of starvation. An ultimate rejection of the genocide charges by the UN court would not end the 76-year-old president's legal troubles.

In the weeks immediately after the warrant was issued, Mr al Bashir struck a defiant stance, rejecting the court as an "instrument of colonisation" and declaring that he would never surrender. He immediately expelled 13 aid agencies, which according to the UN accounted for more than half of the capacity of the aid operation in Darfur. His government pitted justice against attempts to broker peace among Sudan's warring factions, saying misguided attempts by the international community to pursue the former undermined the latter.

He also travelled to Qatar, Egypt, Libya, Ethiopia and Eritrea, where he was warmly received by heads of state.The support Mr al Bashir received from traditionally friendly countries, however, appeared to wane. Contrary to the positions of their governments, majorities in three nations (Kenya, Nigeria, Turkey) and a majority of those who had an opinion in one (Pakistan) supported his indictment, according to a July WorldPublicOpinion.org poll of seven African and majority-Muslim nations.

Today, the seven war-crimes charges remain in place and the warrant for his arrest casts a lengthening shadow. While he continues to visit friendly countries, he has cancelled trips to destinations where he could be arrested and sent to The Hague. @Email:[e-mail]