ICC judges receive 700 pages of additional evidence on Bashir warrant

By Wasil Ali

November 21, 2008 (WASHINGTON) — The prosecutor of the International Criminal Court (ICC) submitted to the judges last Monday more than 700 pages of additional supporting material on the his application requesting the issuance of an arrest warrant for Sudanese president Omer Hassan Al-Bashir.

On October 15th the judges of the Pre-Trial Chamber I which is handling the case against Al-Bashir said in court documents that there are aspects of the ICC prosecutor’s application which require “additional supporting materials”.

The judges of the Pre-Trial Chamber I consist of Akua Kuenyehia from Ghana, Sylvia Steiner from Brazil and Anita Usacka from Latvia.

The judges attached a confidential annex to their request which contained items for which the prosecutor is required to furnish extra documentation by November 17th.

The annex contained seven questions believed to be related to the charges of genocide contained in the counts against Al-Bashir.

In mid-July the ICC’s prosecutor Luis Moreno- Ocampo filed 10 charges: three counts of genocide, five of crimes against humanity and two of murder and accused Al-Bashir of masterminding a campaign to get rid of the African tribes in Darfur; Fur, Masalit and Zaghawa.

The prosecutor submitted a response to the judges consisting of 17 parts that contained additional documents and more than 200 excerpts of witnesses’ statements.

In each of the answers provided to the questions Ocampo provided a table listing the supporting evidence in his possession relating to the issue being considered.

The filing stated that one of the confidential annexes contained a “648 page Matrix of all materials referred to in Prosecution’s Application of 14 July 2008 linked to relevant issues comprising 969 excerpts from witness statements and other documentary evidence”.

Furthermore the prosecutor attached “individual items of supporting materials provided together with this filing comprising 101 of documents including additional witness statements and other documentary evidence”.

On October 1st the ICC judges met with Ocampo for over 3 hours in a closed session for oral discussions on his case against Sudanese president. The transcript of the hearing has not been released.

Ocampo was present at the hearing along with Essa Faal from Gambia working as the senior Trial lawyer on the Bashir case.

ICC Judges routinely meet with the prosecutor following a request submitted by him for an arrest warrant or summons to appear to question aspects of the case before making a decision.

The Sudanese government hailed the ICC judges request for additional and saw it as a sign of a “weak case”.

An unidentified Sudanese official speaking to the daily Al-Sharq Al-Awsat published in London last month said that judges’ request “proves that Ocampo’s evidence is weak and fabricated and that Al-Bashir is innocent”.

The head of the Sudanese lawyers syndicate Fathi Khalil also said that the judges found that the evidence is non-compelling to build a case.

Khalil said that the prosecutor exceeded his mandate by the UN Security Council (UNSC) which did not find genocide being committed in Darfur.

Sudanese newspapers described the judges’ decision as an indication that Al-Bashir will be able to escape an arrest warrant.

Even though the questions asked by the judges are not known, the matrixes provided for every question suggests that they may have requested a summary of the evidence to address specific parts of the case.

The prosecutor’s July application well exceeded the 50 page limit mandated by the ICC rules. The rule can be suspended if prosecutor request it from the judges and it is granted.

Many observers are anxiously waiting to see whether the judges will endorse genocide counts brought against the Sudanese president which are likely to have political consequences particularly for Khartoum’s allies in the Arab world and Africa.

European Union (EU) rules prohibit its officials from communicating with individuals indicted of war crimes.

Some legal experts have expressed skepticism over whether the ICC prosecutor is in possession of evidence that establishes the genocide counts which requires a higher threshold.

But Ocampo insisted that he has a “strong case” on the counts of genocide.

Genocide is legally defined as acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

So far the ICC prosecutor has maintained a 100% success rate in all the requests for arrest warrants he previously made to the judges in the other cases handled by the court.

To issue an arrest warrant on the charges filed by the prosecutor the ICC judges have to be convinced that there are ‘reasonable grounds’ that the individual(s) committed the crimes listed in the filing.

Once the individual(s) are in custody a confirmation of charges hearing is held before a trial is commenced. The judges could confirm or decline the charges for which an arrest warrant was issued.

If the judges affirm Ocampo’s application Al-Bashir will be the first sitting head of state indicted while in office of war crimes.

It is unlikely that the Judges would reach a decision before they go into recess mid-December. Furthermore they could request further clarifications or information from the prosecutor.

Sudan has not ratified the Rome Statute, but the UN Security Council (UNSC) triggered the provisions under the Statute that enables it to refer situations in non-State parties to the world court if it deems that it is a threat to international peace and security.

(ST)