2 March 2009

Sudan: The Case Against Omar Hassan Ahmad Al-Bashir

Photo: ICC-CPI/Marco Okhuizen
The judges who will decide whether to add genocide to Omar al-Bashir's arrest warrant: Back row from left, Judge Anita Ušacka from Latvia, Judge Akua Kuenyehia (presiding judge) from Ghana and Judge Sylvia Steiner from Brazil.
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The International Criminal Court (ICC) in The Hague, Netherlands, will announce on Wednesday March 4 its decision on an application for an arrest warrant for President Omar al-Bashir of Sudan on charges of genocide, crimes against humanity and war crimes. The court's prosecutor, Luis Moreno-Ocampo, laid out his case – based on events in the conflict in Darfur – in a public redacted version of his application for the warrant. Excerpts from the prosecutor's summary:

The Context in which Crimes were Committed

AL BASHIR came to power in 1989 by force, and over the years he has resorted to force to maintain his grip on power. In this bid to retain total political control over the country, AL BASHIR has suppressed any influential group or entity that emerged in Khartoum or in the periphery of the Sudan (Southern, Eastern or Western regions) that potentially or actually threatened his power.

In Darfur, over the years, AL BASHIR developed a policy of exploiting real or perceived grievances between the different tribes struggling to prosper in the difficult environment. He promoted the idea of a polarization between tribes aligned with him, whom he labelled "Arabs" and the three ethnic groups he perceived as the main threats, the Fur, Masalit and Zaghawa (hereafter "target groups"), who became derogatorily referred to as "Zurgas" or "Africans". This exploitation is only one of many devices used by AL BASHIR to disguise his crimes. Both victims and perpetrators are "Africans" and speak Arabic.

The Darfur population is ethnically diverse with approximately 120 tribes living in rural areas. The division of land between individual tribes in existence in 2003 dates back to the beginning of the 20th century when the last sultan of Darfur, Sultan Ali Dinar, decreed this division which was generally accepted by all tribes. Co-existence and intermarriage have blurred physical differences. However historically the target groups occupied specific territories, Dar Fur, Dar Zaghawa and Dar Masalit, and also spoke their own languages, different from one another and from Arabic. Members of the groups see themselves, and are seen by their attackers, as different ethnic groups.

AL BASHIR's decision to destroy the target groups developed over time. He assessed that the Fur, Masalit and Zaghawa ethnic groups, as socially and politically dominant groups in the region, constituted a threat to his power. They challenged the economic and political marginalization of their region, and members of the three groups engaged in armed rebellions. AL BASHIR's motives were largely political. His pretext was a 'counterinsurgency'. His intent was genocide. The goal was not simply to defeat a rebellion, but to destroy those ethnic groups whose members challenged his power...

The crimes

The Prosecution submits that the evidence shows reasonable grounds to believe that AL BASHIR intended to destroy in substantial part the Fur, Masalit and Zaghawa ethnic groups as such. To this end, he used the entire state apparatus, the Armed Forces and the Militia/ Janjaweed (hereafter "AL BASHIR's forces"). Forces and agents controlled by AL BASHIR attacked civilians in towns and villages inhabited mainly by the target groups, committing killings, rapes, torture and destroying means of livelihood. AL BASHIR thus forced the displacement of a substantial part of the target groups and then continued to target them in the camps for internally displaced persons (hereafter "IDPs"), causing serious bodily and mental harm – through rapes, tortures and forced displacement in traumatising conditions – and deliberately inflicting on a substantial part of those groups conditions of life calculated to bring about their physical destruction, in particular by obstructing the delivery of humanitarian assistance.

AL BASHIR's conduct simultaneously constitutes genocide against the Fur, Masalit and Zaghawa ethnic groups, as well as crimes against humanity and war crimes against the civilian population in the area, including members of the target groups.

The beginning of the genocidal campaign

In March 2003, after both negotiations and military action failed to end the rebellion in Darfur, AL BASHIR decided to destroy in part the Fur, Masalit and Zaghawa groups, on account of their ethnicity. He publicly instructed the army to quell the rebellion in two weeks and not to "bring back any prisoners or wounded", triggering a brutal series of attacks against the towns and villages mainly inhabited by the Fur, Masalit and Zaghawa.

The targeting of the Fur, Masalit and Zaghawa

The land historically occupied by the Fur, Masalit and Zaghawa defined the target. Most of the villages and towns inhabited mainly by members of the target groups were attacked and destroyed by AL BASHIR's forces. The attackers went out of their way to spare from attack so-called "Arab" villages, even where they were located very near target groups villages. For example in Habila, Wadi Salih and Mukjar localities 97% of predominantly Fur villages were attacked and either destroyed or abandoned and 85% of predominantly Masalit villages were attacked and either destroyed or abandoned, while fewer than 1% of predominantly so-called "Arab" villages were attacked.

The pattern of attacks

The attacks against villages have followed a common pattern for a period of more than five years from March 2003 up to the time of filing this Application. The Armed Forces, acting in concert with Militia/Janjaweed, surround a village and then enter that village or town and attack the civilian inhabitants. In many cases helicopters or aircraft dropped bombs on the town or village either before or during the attack. Ground forces kill men, women, children and the elderly; they subject women and girls to massive rapes. Farms are destroyed and grain stores are looted or set on fire. The attackers burn residential dwellings and community facilities including schools, mosques and hospitals. They destroy all the target groups' means of survival, poison sources of water including communal wells, destroy water pumps, steal livestock and strip the towns and villages of household and community assets.

As a result of the attacks, at least 2,700,000 people, including a very substantial part of the target groups attacked in their villages, have been forcibly expelled from their homes. As survivors fled the attacks, they were pursued into deserts, killed or left to die. Almost 2.5 million people, including a substantial part of the target groups, managed to reach the outskirts of bigger cities that would become camps for Internally Displaced Persons (hereafter "IDP camps") or refugee camps in Chad or Central African Republic.

The targeting of civilians

The targets are not rebel forces, but civilians. AL BASHIR's forces repeatedly attack the civilian populations in towns and villages where rebels are not present, and absent any valid military objective. Attacks do not cease until the town or village, as an entirety, has been victimized and its population forcibly displaced. Attacks on the displaced population in and around camps are clearly aimed at civilians, as exemplified in particular by the systematic raping of women. Thousands of women and girls belonging to the target groups were raped in all three States of Darfur by AL BASHIR's forces since 2003. Girls as young as 5 have been raped. A third of the victims of rape are children. Rapes, gang rapes, are used as a weapon of destruction in the attacks on the towns and around the camps.

There were instances that AL BASHIR's forces bypassed locations with a rebel presence, instead choosing to attack civilians in their homes. For instance, during attacks by the Armed Forces and Militia/Janjaweed in Wadi Salih and Mukjar localities in August 2003, the attackers knew that the rebels were located in the Sindu Hills. But instead of attacking the Sindu Hills, the Armed Forces and Militia/Janjaweed attacked civilians in the villages of Kodoom, Bindisi and Mukjar and their surrounding villages where there was no rebel presence. In July 2003, AL BASHIR's forces knew that rebels were based in Disa village, where no civilians were present. However, instead of attacking Disa, the local Armed Forces commander, after receiving orders from Khartoum, directed the combined Armed Forces and Militia/Janjaweed to attack all "Zurga" villages in the area, inhabited predominantly by the Zaghawa. The villages were attacked, not because they posed a military threat, but rather to destroy in part the Zaghawa group. At the end of July 2003, the combined attacks completely destroyed between 25 and 30 villages in which, with the exception of Disa, there were no rebels present.

The fate of the displaced persons

In 2003, the total population of Darfur was 6,360,000. The last census was carried out in 1955/56 and indicated that the target groups together formed approximately 40% of the population of Darfur (23 % Fur 1,462.800; 10 % Masalit 636,000; and 7% Zaghawa 445,200). Assuming a consistent growth of the different groups the population of the three groups in 2003 would have been approximately 2.5 million.

Almost the entire population of the target groups has been forcibly displaced. Data from refugee camps in Chad and IDP camps within Darfur confirm that most of those displaced belong to the target groups...

Massive rapes causing serious bodily and mental harm

AL BASHIR's forces and agents subjected those approximately 2.5 million living in IDP camps, including a substantial part of the target groups, to serious bodily and mental harm through rape and other forms of sexual violence against thousands of women in the camps.

Rapes are under-reported. They are used as a weapon, a silent weapon, to destroy the target groups in and around the IDP camps.

Militia/Janjaweed, which AL BASHIR has recruited, armed, and purposefully failed to disarm, are stationed in the vicinity of the camps. Periodic reports and testimonies conclude that rape has been committed systematically and continuously for 5 years. Women and girls going to collect firewood, grass or water are repeatedly raped by Militia/Janjaweed, Armed Forces and other GoS [government of Sudan] security agents: "when we see them, we run. Some of us succeed in getting away, and some are caught and taken to be raped -- gang-raped. Maybe around 20 men rape one woman […] These things are normal for us here in Darfur. These things happen all the time. I have seen rapes too. It does not matter who sees them raping the women -- they don't care. They rape women in front of their mothers and fathers".

Between March and October 2005, a health specialist treated at least 28 victims of rape and sexual trauma in IDP camps in Darfur. She told the Prosecution that most of the victims exhibited symptoms of post-traumatic stress disorder, including extreme shame, grief, hopelessness, anger and rage, flashbacks, nightmares, and inability to interpret their environment. The witness noted that many of the girls who had been raped when they went to get firewood outside IDP camps were repeatedly re-traumatised because they had no choice but to revisit the places where they had been raped. She recalled the situation of an 18-year-old girl in one of the camps. As explained by the girl's sister, their village had been attacked and bombed by an airplane. The girl was raped, beaten, and left to die. Members of the community eventually found her, but from that day she had not spoken. The girl was psychotic from her trauma and displayed no initiative. She was robotic and had to be told to dress and eat.

Babies born as a result of these assaults have been termed "Janjaweed babies" and are rarely accepted as members of the community. The high number of such unwanted babies has led to an explosion of infanticides and abandonment of babies in Darfur. As one victim explained: "they kill our males and dilute our blood with rape. [They]…want to finish us as a people, end our history".

The mental harm caused by rape has been compounded by the impunity afforded to the perpetrators. As depicted by one victim: "those who rape you wear fatigues and those who protect you wear fatigues. We don't know any more who to run from and who to run to."

Rape is an integral part of the pattern of destruction that AL BASHIR is inflicting upon the target groups in Darfur. As described by the ICTR [International Criminal Tribunal for Rwanda] in the Akayesu case, rape is used to "kill the will, the spirit, and life itself". Particularly in view of the social stigma associated with rape and other forms of sexual violence among the Fur, Masalit and Zaghawa, these acts caused significant and irreversible harm, to individual women, and also to their communities.

Mental harm caused by forced displacement

Massive forced displacements were conducted in such a manner as to traumatize the victims and prevent the reconstitution of the group. Such forced displacement constitutes serious mental harm for the target groups. Victims suffered the trauma of being forced to witness their own homes and possessions destroyed and/or looted; family members raped and/or killed. They were subjected to the mental harm caused by having to leave homelands with which they, their families, friends and entire communities have deep historical connections. The victims thereafter endured the anguish of learning that, in many cases, prior homelands had been occupied and resettled by members of other communities – and thus, that there was no prospect of ever returning. Organized insecurity in and around the camps by AL BASHIR's forces and agents, including through spying and harassment by members of the Humanitarian Aid Commission has exacerbated the fear of IDPs. Unable to rely on their own Government for protection, victims can only turn to their local leadership for support. However as soon as leaders, Sheiks, emerge and speak up, they become targets themselves. There are numerous examples of arrests and killings of camp leaders. The cumulative effect of the crimes described above is that many of the surviving members of the target groups, in particular those in IDP camps, suffer serious mental harm.

Conditions of life calculated to bring about the physical destruction of the group in whole or in part

The mass displacement operations in Darfur were conducted in conditions which, during the deliberations preceding adoption of the Genocide Convention, were found to constitute genocide: "Mass displacements of populations from one region to another […] do not constitute genocide […] unless the operation were attended by such circumstances as to lead to the death of the whole or part of the displaced population. If for example, people were driven from their homes and forced to travel long distances in a country where they were exposed to starvation, thirst, hunger, cold and epidemics".

The attacks on villages across Darfur from March 2003 to the present were designed to kill members of the targeted groups and force the survivors from their lands, but also to destroy the very means of survival of the groups as such as described… above. The goal was to ensure that those inhabitants not killed outright would not be able to survive without assistance. Ensuring adequate access to water has long been an essential component of livelihood strategies in Darfur. To facilitate access to water by both humans and animals, many villagers dug communal wells or maintained other communal water sources. Militia/Janjaweed and the Armed Forces repeatedly destroyed, polluted or poisoned these wells so as to deprive the villagers of water needed for survival.

The attackers did not only force the survivors out of their homes. They pursued them into inhospitable terrain, into the hills and the desert. A victim in the desert overheard one attacker say to another: "Don't waste the bullet, they've got nothing to eat and they will die from hunger".

Not only did they persecute them, AL BASHIR's agents facilitated the usurpation of their lands, now occupied by new settlers. A victim was told: "This land is liberated and you have no land and no right to cultivate on liberated areas". AL BASHIR created conditions to prevent returns as other tribes more supportive of the Government, often affiliated with Militia/Janjaweed, are resettled on land previously inhabited by the IDPs. The removal from the land and the subsequent usurpation of the land, occupied by new settlers, are destructive of the Fur, Masalit and Zaghawa groups as such.

Finally, the victims are attacked in the camps. AL BASHIR and his subordinates systematically refused to provide any meaningful Government aid, and hindered other efforts to bring humanitarian aid to the approximately 2.5 million civilians who found a haven in the camps, including a substantial part of the target groups. The Ministry of Humanitarian Affairs and the HAC [Humanitarian Aid Commission] within the Ministry, which work in close association with the intelligence and security apparatus of the GoS, have blocked the publication of nutrition surveys, delayed the delivery of aid, expelled relief staff denouncing such acts, denied visas and travel permits, and imposed unnecessary bureaucratic requirements on aid workers. This has had the effect of reducing nutrition and access to medical services for protracted periods of time. Thus after forcibly expelling members of the target groups from their homes, they subjected them to, at best, a subsistence diet and the reduction of essential medical services below minimum requirements.

AL BASHIR has intended to subject a substantial part of the target groups to conditions calculated to slowly bring about their physical destruction.

Killing members of the groups

AL BASHIR's forces and agents killed outright at least 35,000 civilians, including a substantial number of members of the target groups, in physical attacks on towns and villages. Further, the conditions imposed during displacement and in the camps by AL BASHIR's forces and agents have already resulted in the "slow death" of between 80,000 and 265,000 people, including a substantial part of the target groups.

Crimes against humanity

Charges of crimes against humanity are also required to represent the full extent of criminal activity in Darfur since 2003. These charges reflect the acts of murder, rape, forcible displacement and extermination committed against members of the target groups and other, smaller ethnic groups, such as the Tunjur, Erenga, Birgid, Misseriya Jebel, Meidob, Dajo and Birgo.

War crimes

As mentioned, there is an ongoing armed conflict in Darfur. AL BASHIR also committed the war crimes of attacking civilians and pillaging towns and villages in Darfur, including but not limited to Kodoom, Bindisi, Mukjar, Arawala, Shataya, Kailek, Buram, Muhajeriya, Siraf Jidad, Silea, Sirba, Abu Suruj and Jebel Moon.

The Personal Responsibility of AL BASHIR

The Prosecution does not allege that AL BASHIR physically or directly carried out any of the crimes. He committed the crimes through members of the state apparatus, the army and the Militia/Janjaweed in accordance with Art. 25 (3) (a) of the [Rome] Statute [which set up the ICC].

At all times relevant to this Application, AL BASHIR was President of the Republic of the Sudan, exercising both de jure and de facto sovereign authority, Head of the National Congress Party and Commander in Chief of the Armed Forces. He appointed the Governors of all the 26 states of the Sudan and they reported directly to him. He sat at the apex of, and personally directed, the state's hierarchical structure and the integration of the Militia/Janjaweed within such structure. He had absolute control.

As Commander in Chief, AL BASHIR ordered the incorporation of most of the Militia/ Janjaweed into the reserve forces, and exercised both formal and informal control over such forces. AL BASHIR's control of the state apparatus as reflected in the formal hierarchy has been reinforced in practice by the elaborate network of reporting lines that he established. The evidence shows that AL BASHIR regularly received reports of the crimes committed in Darfur from ministers, military officers and Militia/Janjaweed leaders. AL BASHIR's control of the state apparatus was not only formal; it was absolute. And AL BASHIR used his supreme authority within the hierarchical structure of the GoS in furtherance of the crimes charged.

AL BASHIR ensured that all components of the GoS, the Armed Forces and the Militia/ Janjaweed worked together in carrying out his plan. He used the state resources inter alia as follows: (i) the Locality and State Security Committees - to assist in planning and to coordinate the implementation of the activities in Darfur; (ii) the intelligence apparatus including Military Intelligence and National Intelligence and Security Service (hereafter the "NISS") - to provide intelligence and other support to the Armed Forces and Militia/Janjaweed and to facilitate usurpation of the land previously inhabited by the targeted groups; (iii) the Ministry of Interior - to mobilize the Militia/Janjaweed into reserve forces and to ensure that the police would not intervene to protect the civilians; (iv) the Ministry of Defence, including the Armed Forces and Militia/Janjaweed - to carry out the attacks against the target groups; (v) the Ministry of Humanitarian Affairs - to hinder and obstruct the delivery of humanitarian aid to the IDPs, to ensure destitution and insecurity within and around the IDP camps and to physically and psychologically abuse the IDPs; (vi) the Ministry of Information and Communication and the Ministry of Foreign Affairs - to pursue a campaign of misinformation, denial and concealment of the crimes; censor or suppress media coverage exposing the roles of AL BASHIR, the state apparatus and his forces in the crimes; (vii) the Ministry of Finance - to fund the operations/ activities of Militia/Janjaweed and to ensure that limited funds were dedicated to aiding the IDPs; (viii) the Ministry of Justice and the Judiciary - to conduct sham investigations and pretend that crimes were being investigated and prosecuted, to threaten the victims and to provide impunity to those who followed AL BASHIR's orders.

AL BASHIR repeatedly used his control to eliminate internal dissent and ensure uniform enforcement of his plan by his subordinates. Individuals who refused to implement assigned tasks were dismissed, reassigned, and/or replaced.

AL BASHIR denied victims access to the criminal justice system, while using the system against those who did not comply with his genocidal orders; the only officers investigated were those who refused to cooperate in implementation of his plan. AL BASHIR provided impunity to those who followed his orders so as to ensure the control of the state apparatus…

Read the full public redacted version of the application for an arrest warrant

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