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ICC judges were divided over genocide charges against Sudan president

March 4, 2009 (WASHINGTON) — The decision of the International Criminal Court (ICC) judges today failed to agree on three counts of genocide pressed by prosecutor Luis Moreno-Ocampo against Sudanese president Omer Hassan Al-Bashir.

Last year Ocampo asked the Pre-Trial Chamber I to issue an arrest warrant for Bashir on 10 charges: three counts of genocide, five of crimes against humanity and two of murder.

However the majority at the Chamber decided that the evidence presented by the prosecutor does not meet the threshold required by Genocide convention and Rome Statue to establish that the gravest crime has been committed in Darfur.

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

Genocide is generally defined as the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group.

Ocampo accused Al-Bashir of masterminding a campaign to get rid of the African tribes in Darfur; Fur, Masalit and Zaghawa.

Judges Kuenyehia and Steiner emphasized that the targeted group “must have particular positive characteristics (national, ethnic, racial or religious), and not a lack thereof”.

“The Majority [Kuenyehia and Steiner] considers that there are no reasonable grounds to believe that nationality, race and/or religion are a distinctive feature of any of the three different groups - the Fur, the Masalit and the Zaghawa - that, according to the Prosecution, have been targeted” the decision read.

They also noted that the three African groups “as well as others in the region, appear to have Sudanese nationality, similar racial features, and a shared Muslim religion… As a result, the question arises as to whether any of the three said groups is a distinct ethnic group”.

The ICC prosecutor have said in his application for an arrest warrant that genocidal intent by Bashir can be inferred from the pattern of attacks against the Fur, Masalit and Zaghawa civilian population.

Ocampo also alleged that Khartoum’s hindrance of humanitarian access to the three groups in camps is a proof of genocidal intent as well.

But the two judges decided that “hindrance of humanitarian assistance, as well as cutting off supplies of food and other essential goods, can be carried out for a variety of reasons other than intending to destroy in whole or in part the targeted group”.

They also questioned as to why the crime of genocide was not pressed by the prosecutor in the 2007 cases against Ahmed Haroun, state minister for humanitarian affairs and against militia commander Ali Mohamed Ali Abdel-Rahman, also know as Ali Kushayb.

However the judges left the door open for the prosecutor to appeal the rejection of genocide counts if he presents new evidence.

Judge Anita Usacka attached her dissenting opinion on the counts of genocide to the decision.

“For me, there are reasonable grounds to believe that the Fur, Masalit and Zaghawa population itself was targeted as the result of a perception of an affiliation between the Fur, Masalit and Zaghawa and the rebel groups” Usacka said in court documents.

The Latvian judge suggested that to issue an arrest warrant for a crime per the Rome Statute it only requires “reasonable evidence” threshold as opposed to “beyond reasonable doubt” at the trial stage.

“Thus, once sufficient evidence is presented to render an inference of genocidal intent reasonable, one can be satisfied that there are reasonable grounds to believe that genocidal intent exists, unless evidence is also presented which would render an inference of genocidal intent unreasonable. Applying this lower evidentiary threshold is, in my view, consistent with the preliminary nature of the proceedings at the arrest warrant stage” her decision read.

Usacka also determined that evidence provided by the prosecutor demonstrates the genocidal intent against African tribes in Darfur.

“I do not consider that any evidence submitted by the Prosecution renders an inference of genocidal intent unreasonable” she said.

Judge Anita Usacka is the latest addition to the Pre-Trial Chamber I she replaced French judge Claude Jorda who resigned in August 2007 because of ill health.