THE HAGUE (Reuters) - The International Criminal Court on Wednesday opened the possibility of Sudanese President Omar Hassan al-Bashir being charged with genocide in Darfur.
Appeals judges at the tribunal reversed a decision that prosecutors had not provided enough evidence to add genocide to Bashir’s charge sheet, ruling that the ICC’s pre-trial chamber must look again at whether he should face the charge.
The Sudanese leader has already been charged with seven counts of crimes against humanity and war crimes, including murder, extermination, torture and rape.
“The decision by the pre-trial chamber not to issue a warrant in the respect of the charge of genocide was materially affected by an error of law,” ICC judge Erkki Kourula said in reading the appeal ruling.
Kourula said the appeals chamber would not grant the prosecutor’s request for a ruling that there were reasonable grounds to believe that Bashir acted with genocidal intent.
But legal observers said the decision to require the pre-trial chamber to review the genocide question brought the prospect of such a charge a step closer.
The ICC has no police force, however, and depends on national authorities and states that have signed up to the court to make arrests. It does not hold trials in absentia, so Bashir cannot be tried or convicted until his arrest.
A ruling on whether to add genocide to the list of charges will not take place quickly, but could take a few months.
Sudan said the ruling was political in its timing and aimed at hindering Sudan’s first democratic elections in 24 years, which are due to be held in April.
“This procedure of the ICC is only to stop the efforts of the Sudanese government toward elections and a peaceful exchange of power,” Rabie Abdelati, a senior information ministry official, told Reuters in Khartoum.
He said last year’s ICC arrest warrant for Bashir had not affected his movements or his nomination for the presidential elections and the latest ruling would be no different. He said Bashir was in Qatar on Wednesday.
Bashir has repeatedly dismissed the allegations made by the ICC, the world’s first permanent court for prosecuting war crimes, as part of a Western conspiracy. The Sudanese government has refused to co-operate with the court.
U.S. Assistant Secretary of State for African Affairs Johnnie Carson said in Ghana that Bashir should go to the ICC to face justice. “We think that President Bashir should present himself to the court to face charges,” Carson told reporters.
ICC Chief Prosecutor Luis Moreno-Ocampo welcomed the decision and warned Bashir he needed to “get a lawyer,” adding he would present fresh evidence to the court in a second bid to have Bashir charged with genocide.
“Expelling humanitarian assistance is a great element of his genocidal intentions,” Moreno-Ocampo told Reuters.
“When he expelled these people who were providing the water and the food he confirmed his intention to destroy his people. So I would like to present this new aspect of the case.”
The arrest warrant against Bashir was the first ever issued against a sitting head of state by the ICC. It prompted Bashir to expel international aid agencies last year.
Darfur’s main rebel group welcomed the ICC’s decision, saying they would now reconsider taking part in peace talks.
“This is a correct decision,” said the chief negotiator for the Justice and Equality Movement (JEM) Ahmed Tugud. “We believe that what we have seen on the ground in Darfur amounts to a crime of genocide.”
“Now we are assessing our situation on whether it is ethically possible to negotiate with a government accused of committing genocidal crimes against our people.”
Tugud spoke from Doha, where JEM has been holding discussions with Khartoum supposed to lead to full peace talks.
Adding a charge of genocide to the arrest warrant could further isolate Bashir, increase international pressure on him and provoke further unrest in Darfur, where 4.7 million people have been left dependent on aid by a seven-year conflict.
The Darfur investigation was launched in June 2005 after the U.N. Security Council referred the situation to the ICC.
In its ruling on Wednesday, the appeals chamber said the pre-trial chamber had placed too high a threshold on the evidence needed to include genocide in the arrest warrant.
Mostly non-Arab rebels took up arms in Darfur in 2003 accusing the central government of neglecting the remote region.
Khartoum mobilized militias to quell the revolt, sparking a humanitarian crisis which the United Nations estimates has claimed 300,000 lives. Bashir puts the death toll at 10,000.
Washington, Darfur rebels and activists all call Darfur’s conflict genocide. A U.N.-appointed commission of inquiry found no genocide, but said some individuals may have acted with genocidal intent.
Additional reporting by Andrew Heavens and Opheera McDoom in Khartoum and Kwasi Kpodo in Accra; Editing by Giles Elgood