identifier: ICC-02/05-01/09 (Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir")

caseName: The Prosecutor v. Omar Hassan Ahmad Al Bashir

title: Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir"

text: Convention for the Protection of Human Rights and Fundamental Freedoms

text: European Convention on Human Rights, article 5

text: the Statute

text: the Statute, article 58

text: the Statute, article 61

text: the Statute, article 66

text: the Statute, article 82

text: Cour Pénale I n t e r n a t i o n a l e

text: I n t e r n a t i o n a l C r i m i n a l C o u r t

text: Original: English No. ICC-02/05-01/09-OA Date: 3 February 2010

text: THE APPEALS CHAMBER

text: Before: Judge Erkki Kourula, Presiding Judge Judge Sang-Hyun Song Judge Ekaterina Trendafîlova Judge Daniel David Ntanda Nsereko Judge Joyce Aluoch

text: SITUATION IN DARFUR, SUDAN THE PROSECUTOR v. OMAR HASSAN AHMAD AL BASHIR

text: Public document Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir"

text: Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Amicus Curiae Ms Fatou Bensouda, Deputy Prosecutor Mr Geoffrey Nice Mr Fabricio Guariglia Mr Rodney Dixon

text: Legal Representatives of Victims Mr Nicholas Kaufman

text: REGISTRY Registrar Ms Silvana Arbia

text: The Appeals Chamber of the International Criminal Court, In the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir" of 4 March 2009 (ICC-02/05-01/09-2-Conf), After deliberation, Unanimously, Delivers the following

text: JUDGMENT

text: The "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir" is reversed to the extent that Pre-Trial Chamber I decided not to issue a warrant of arrest in respect of the crime of genocide in view of an erroneous standard of proof. The Pre-Trial Chamber is directed to decide anew, on the basis of the correct standard of proof, whether a warrant of arrest in respect of the crime of genocide should be issued.

text: REASONS

text: I. KEY FINDING

text: A Pre-Trial Chamber acts erroneously if it denies to issue a warrant of arrest under

text: article 58

text: (1) of

text: the Statute

text: on the basis that "the existence of [...] genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution".^

text: / < ^ "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", ICC-02/05-01/09-2-Conf, 4 March 2009, para. 159 (emphasis added).

text: IL PROCEDURAL HISTORY

text: A. Proceedings Before the Pre-Trial Chamber

text: On 14 July 2008, the Prosecutor filed before Pre-Trial Chamber I an application^ under

text: article 58

text: of

text: the Statute

text: , requesting the issuance of a warrant for the arrest of Omar Hassan Ahmad Al Bashir for his alleged criminal responsibility in the commission of genocide, crimes against humanity, and war crimes against members of the Fur, Masalit and Zaghawa groups in Darfur from March 2003 to July 2008 (hereinafter: "Arrest Warrant Application").

text: On 4 March 2009, the Pre-Trial Chamber rendered the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir" (hereinafter: "Impugned Decision"). The Pre-Trial Chamber decided to issue an arrest warrant in respect of crimes against humanity and war crimes,"^ but rejected the Prosecutor's application in respect of the crime of genocide.^

text: On 13 March 2009, the Prosecutor filed the "Prosecution's Application for Leave to Appeal the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'"^ dated 10 March 2009 (hereinafter: "Application for Leave to Appeal"), requesting leave to appeal the Impugned Decision in respect of three issues.

text: On 24 June 2009, the Pre-Trial Chamber rendered the "Decision on the Prosecutor's Application for Leave to Appeal the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'"^ (hereinafter: "Decision Granting Leave to Appeal"), granting the Application for Leave to Appeal in respect of one of the issues and rejecting the remainder of the

text: ^ "Prosecutor's Application under Article 58", ICC-02/05-151-US-Exp; "Corrigendum to Prosecution's Application under Article 58 filed on 14 July 2008", ICC-02/05-151-US-Exp-Corr. A public redacted version was filed on 12 September 2009 under the number ICC-02/05-157-AnxA. ^ ICC-02/05-01/09-2-Conf A public redacted version was filed under the number ICC-02/05-01/09-3. In the present judgment, references are to the public redacted version. "^ Impugned Decision, p. 92. ^ Impugned Decision, para. 206. ""T^^C^ MCC-02/05-01/09-12. ^ICC-02/05-01/09-21.

text: application. The issue in respect of which leave to appeal was granted reads as follows:

text: Whether the correct standard of proof in the context of Article 58 requires that the onlv reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.^

text: B. Proceedings on Appeal

text: On 2 July 2009, the Prosecutor filed the "Prosecution Request for an Extension of the Page Limit for its Document in Support of the Appeal against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'"^^, in which the Prosecutor requested an extension of the page limit for his document in support of the appeal pursuant to regulation 37 (2) of the Regulations of the Court. The Appeals Chamber granted the Prosecutor's request on 3 July 2009.^^

text: On 6 July 2009, the Prosecutor filed the "Prosecution Document in Support of Appeal against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'" (hereinafter: "Document in Support of the Appeal").

text: On 20 July 2009, the Sudan Workers Trade Unions Federation (hereinafter: "SWTUF") and the Sudan Intemational Defence Group (hereinafter: "SIDG") filed an application for leave to make observations on the appeal under rule 103 of the Rules of Procedure and Evidence (hereinafter: "Application under Rule 103"), which the Prosecutor opposed. ^"^ On 18 September 2009, the Appeals Chamber granted the

text: ' Decision Granting Leave to Appeal, p. 10. 9 Decision Granting Leave to Appeal, p. 5. ^^ICC-02/05-01/09-22. ^^ "Decision on the 'Prosecution Request for an Extension of the Page Limit for its Document in Support of Appeal against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'"", ICC-02/05-01/09-24. ^MCC-02/05-01/09-25. ^^ "Application under Rule 103 in respect of Prosecution Appeal against 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'", ICC-02/05-01/09-27, registered on 21 July 2009. ^^ "Prosecution's Response to Application under Rule 103 in respect of Prosecution Appeal against 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashh-'", ICC-02/05-01/09-29, 11 August 2009. On 24 August 2009, the SWTUF and SIDG filed the "Application for Leave and Reply to the Prosecution's Response to the Application under Rule 103 in --^^^fx respect of Prosecutions Appeal against 'Decision on the Prosecution's Application for a Warrant of''^^'^V. Arrest against Omar Hassan Ahmad Al Bashir'", ICC-02/05-01/09-33.

text: Application under Rule 103.^^ The reasons for that decision were filed on 9 November 2009.^^ On 25 September 2009, the SWTUF and SIDG submitted their "Observations on behalf of Amici Curiae in respect of the Prosecution Appeal's [sic] against 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'"^^ (hereinafter: "Observations"). On 2 October 2009, the Prosecutor responded to the Observations^^ (hereinafter: "Response to Observations").

text: On 27 August 2009, the applicants for victim status a/0443/09 to a/0450/09 (hereinafter: "Victims") filed the "Request for an Extension of the Time Limit Prescribed in the Regulations of the Court and Observations on the Victims' Right to Participate in the Prosecution's Appeal against the Decision on the Application for a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir".^^ The Prosecutor responded to this filing on 4 September 2009.^^ On 23 October 2009, the Appeals Chamber rendered the "Decision On the Applications by Victims a/0443/09 to a/0450/09 to Participate in the Appeal against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir' and on the Request for an Extension of Time", instructing the Registrar to transmit the applications of the Victims to Pre-Trial Chamber I and rejecting the Victims' request for an extension of the time limit for the submission of observations in the appeal.

text: On 4 January 2010, and after having been granted victim status by Pre-Trial 99 Chamber I, the Victims filed the "Second Request for Participation and

text: ^^ "Decision on the Application of 20 July 2009 for Participation under Rule 103 of the Rules of Procedure and Evidence and on the Application of 24 August 2009 for Leave to Reply", ICC-02/05- 01/09-43. ^^ "Reasons for 'Decision on the Application of 20 July 2009 for Participation under Rule 103 of the Rules of Procedure and Evidence and on the Application of 24 August 2009 for Leave to Reply'", ICC- 02/05-01/09-51. ^^ICC-02/05-01/09-44. ^^ "Prosecution Response to Observations of Amicus Curiae in respect of the Prosecution's Appeal against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'", ICC-02/05-01/09-47. ^^ICC-02/05-01/09-35. ^^ "Prosecution's Response to Victims' Request for Extension of Time and Observations on their Right to Participation in the Prosecution's Appeal against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'", ICC-02/05-01/09-39. ^^ ICC-02/05-01/09-48. ^^ See "Decision on Applications a/0011/06 to a/0013/06, a/0015/06 and a/0443/09 to a/0450/09 for Participation in the Proceedings at the Pre-Trial Stage of the Case", ICC-02/05-01/09-62, dated 1 December 2009 and registered on 15 December 2009.

text: Observations on the Prosecution's Appeal against the Decision on the Application for 9'^ a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir" (hereinafter: "Second Victims' Request for Participation"). On 6 January 2010, the Appeals Chamber issued an order, setting a time limit for the submission of a response by the Prosecutor to the Second Victims' Request for Participation."^"* The Prosecutor responded to the Second Victims' Request for Participation on 11 January 2010^^ (hereinafter: "Prosecutor's Response to Second Victims' Request"). 11. On 28 January 2010, the Appeals Chamber granted the Victims the right to participate in the present appeal and allowed the substantive submissions made in the Second Victims' Request for Participation."^^

text: m. MERITS

text: A. Relevant part of the Impugned Decision

text: In the Impugned Decision, the Pre-Trial Chamber stated:

text: The Prosecution highlights that it relies exclusively on proof by inference to substantiate its allegations concerning Omar Al Bashir's alleged responsibility for genocide. In particular, the Prosecution relies on inferences to prove the existence of Omar Al Bashir's dolus specialis I specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups. '^ 13. The Pre-Trial Chamber described the standard of proof that it would apply in such a situation as follows:

text: In applying the law on the proof by inference to the article 58 evidentiary standard in relation to the existence of a GoS's genocidal intent, the Majority agrees with the Prosecution in that such a standard would be met only if the materials provided by the Prosecution in support of the Prosecution Application show that the only reasonable conclusion to be drawn therefrom is the existence

text: ^^ ICC-02/05-01/09-65-Conf-Exp; a public redacted version was filed on the same day under the number ICC-02/05-01/09-65-Red. ^"^ "Order on the Filing of a Response to the 'Second Request for Participation and Observations on the Prosecution's Appeal against the Decision on the Application for a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir'", ICC-02/05-01/09-66. ^^ "Prosecution Response to the Victims' 'Second Request for Participation and Observations on the Prosecution's Appeal against the Decision on the Application for a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir'", ICC-02/05-01/09-68. ^^ "Decision on the Second Application by Victims a/0443/09 to a/0450/09 to Participate in the Appeal y against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan^"^zf^ Ahmad Al Bashir'", ICC-02/05-01/09-70. ^ ^ ^^ Impugned Decision, para. 147, (footnotes omitted).

text: of reasonable grounds to believe in the existence of à GoS's dolus specialis! specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups. 159. As a result, the Majority considers that, if the existence of a GoS's genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in

text: article 58

text: of

text: the Statute

text: would not have been met."^^ 14. The Pre-Trial Chamber assessed the evidence presented by the Prosecutor 9 0 against the standard developed in paragraphs 158 and 159 of the Impugned Decision and concluded that "the materials provided by the Prosecution in support of the Prosecution Application fail to provide reasonable grounds to believe that the GoS acted with dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups, and consequently no warrant of arrest for Omar Al Bashir shall be issued in relation to [the crime of genocide]".^^ B . T h e D i s s e n t i n g O p i n i o n 15. Judge Usacka filed a separate and partly dissenting opinion to the Impugned Decision (hereinafter: "Dissenting Opinion"). She underlined that

text: the Statute

text: provides for an increasingly demanding evidentiary threshold from the arrest warrant '^9 stage to conviction. She disagreed with the test adopted by the Pre-Trial Chamber, stating that it was "tantamount to requiring the Prosecution to present sufficient evidence to allow the Chamber to be convinced of genocidal intent beyond a reasonable doubt". In her view, it is sufficient that the inference of genocidal intent be a reasonable one, but it is not necessary that it be the only reasonable conclusion based on the evidence."^"* Judge Usacka assessed the evidence presented by the Prosecutor and concluded that the existence of genocidal intent was indeed a

text: ^^ Impugned Decision, paras 158-159 (footnotes omitted). ^^ See Impugned Decision, paras 162-205. ^^ Impugned Decision, para. 206. ^^ ICC-02/05-01/09-3, pp. 96-146. ^^ Dissenting Opinion, paras 7-10. ^^ Dissenting Opinion, para. 31. ._-gf^!^>^ ^"^ Dissenting Opinion, paras 32, 34. ""^^^^^T ne reasonable conclusion. In her opinion, the Pre-Trial Chamber should have issued a warrant of arrest in respect of genocide

text: C. A r g u m e n t s of t h e P r o s e c u t o r 16. In his Document in Support of the Appeal, the Prosecutor submits that he proved the genocidal intent of Mr Al Bashir before the Pre-Trial Chamber.^^ He argues that the Pre-Trial Chamber incorrectly required that genocidal intent be the only reasonable conclusion to be drawn on the basis of the evidence."^^ In the Prosecutor's view, the Pre-Trial Chamber "effectively required proof of an inference beyond reasonable doubt in order to establish 'reasonable grounds to believe' under OQ Article 58". The Prosecutor submits that

text: article 58

text: of

text: the Statute

text: does not require that "a conclusion be the only reasonable conclusion. Nor is this a generic requirement for proof by inference at all stages"."*^ The Prosecutor notes that although the Pre-Trial Chamber explained in the Decision Granting Leave that it had not required proof beyond reasonable doubt, the Chamber failed to explain why it nevertheless required that genocidal intent be the only reasonable conclusion."*^ In the view of the Prosecutor, this amounted to the imposition of an incorrect two-stage test."*^ The Prosecutor also contends that the Pre-Trial Chamber "implicitly acknowledged" that the inference of Mr Al Bashir's genocidal intent was reasonable."*^ 17. The Prosecutor emphasises that at the arrest warrant stage, he is not required to present his full case, but must meet only the lowest standard of proof set out in

text: the Statute

text: ."^"* In his submission, this threshold is met if the evidence provides "reasonable (not conclusive or definitive) grounds to believe that the person committed a crime within the jurisdiction of the Court"."*^ He recalls that

text: the Statute

text: does not differentiate between various categories of evidence and that the test should not be different for

text: ^^ Dissenting Opinion, para. 86. ^^ Dissenting Opinion, para. 105. ^^ Document in Support of the Appeal, para. 19. ^^ Document in Support of the Appeal, paras 20-21. ^^ Document in Support of the Appeal, para. 27. "^^ Document in Support of the Appeal, para. 29. "^^Document in Support of the Appeal, para. 30, "^^ Document in Support of the Appeal, para. 30. "^^ Document in Support of the Appeal, paras 32, 33 "^"^ Document in Support of the Appeal, para. 42. ^^^^^^^ ^^ nocnment in Siinnorf of the Anneal, nara. 38. > ' Document in Support of the Appeal, para. 38.

text: circumstantial evidence than for direct evidence; in his view, the Court has to assess the circumstantial evidence to determine whether the requisite standard of proof is met."^^ He underlines that there will rarely be direct evidence of a person's state of mind.''

text: To support his argument that the Pre-Trial Chamber's standard was erroneous, the Prosecutor refers to previous practices of this Court. He underlines that in relation to other cases, Pre-Trial Chamber I has never required that the existence of a mental element of a crime be the only reasonable conclusion to be drawn from the evidence. He submits that requiring such proof might actually endanger witnesses, and that it is impossible at this stage of the proceedings to obtain proof beyond reasonable doubt."*^

text: Finally, the Prosecutor refers the Appeals Chamber to the jurisprudence of the ad hoc international criminal tribunals,^^ of the European Court of Human Rights,^ ^ and to national practice,^^ emphasising that none of these jurisdictions require at the arrest warrant stage that the existence of reasonable grounds to believe be the only reasonable conclusion that can be drawn on the basis of the evidence.

text: As to the relief sought, the Prosecutor submits that the Appeals Chamber should, on the basis of the factual findings made by the Pre-Trial Chamber, make a determination that there are reasonable grounds to believe that Mr Al Bashir has committed genocide, and should remand the matter to the Pre-Trial Chamber "with CO direction to authorize the arrest of President Al Bashir for genocide". The Prosecutor contends that the factual findings of the Pre-Trial Chamber support reasonable grounds to believe Mr Al Bashir committed the crime of genocide.^' The Prosecutor submits that the Appeals Chamber has the power to make factual determinations, as long as it has before it the relevant information.^^ In the alternative.

text: ^^ Document in Support of the Appeal, para. 40. "^^ Document in Support of the Appeal, para. 41. ^^ Document in Support of the Appeal, paras 44-45. "^^ Document in Support of the Appeal, para. 46. ^^ Document in Support of the Appeal, paras 47-48. ^^ Document in Support of the Appeal, para. 49. ^^ Document in Support of the Appeal, para. 50. ^^ Document in Support of the Appeal, para. 53. L ^ ^ ^"^ Document in Support of the Appeal, paras 55-61. "^^^^AT ^^ Document in Support of the Appeal, para. 54.

text: he requests that the Appeals Chamber should remand the matter to the Pre-Trial Chamber for a new decision.^^

text: D . O b s e r v a t i o n s of t h e SW^TUF a n d t h e S I D G a n d r e s p o n s e of t h e P r o s e c u t o r t h e r e t o 21. The SWTUF and the SIDG submit that the Pre-Trial Chamber did not err when rejecting the Prosecutor's Arrest Warrant Application in respect of the crime of genocide.^' They underline that

text: article 58

text: of

text: the Statute

text: stipulates that the Pre-Trial Chamber must be "satisfied" that reasonable grounds to believe exist, and that both the Pre-Trial Chamber and Judge Usacka in her dissenting opinion noted that this standard was the test to be applied.^^ The SWTUF and SIDG accept that a different standard of proof applies at the trial level.^^ However, in their view, the Pre-Trial Chamber must be certain that the standard of reasonable grounds to believe is met, failing which the Chamber would not be "satisfied" of the standard.^^ To support their submission, the SWTUF and the SIDG refer the Appeals Chamber to previous jurisprudence of the Pre-Trial Chambers.^^

text: The SWTUF and the SIDG submit furthermore that the Pre-Trial Chamber found that the Prosecutor had not presented sufficient evidence to establish reasonable ^ 9 grounds to believe regarding genocidal intent. The SWTUF and SIDG recall that throughout the Impugned Decision, the Pre-Trial Chamber referred to the correct standard under

text: article 58

text: of

text: the Statute

text: .^^ They also emphasise that the divergence of views between the Pre-Trial Chamber and Judge Usacka is one that relates to the assessment of the evidence and the conclusions drawn therefrom, but not to the standard itself^"* 23. The SWTUF and the SIDG submit that the Prosecutor is incorrect when he argues that the Pre-Trial Chamber implicitly accepted that there were reasonable

text: ^^ Document in Support of the Appeal, para. 64. ^^ Observations, para. 4. ^^ Observations, paras 8-9. ^^ Observations, para. 10. ^^ Observations, para. 11. ^^ Observations, paras 16-17. ^^ Observations, para. 19. ^^ Observations, para. 20. ^ ^^ Observations, para. 23.

text: grounds to believe that Mr Al Bashir had genocidal intent.^^ They refer the Appeals Chamber to the Pre-Trial Chamber's analysis of the evidence in the Impugned Decision,^^ underlining that the Pre-Trial Chamber did not make a finding that there were reasonable grounds to believe genocidal intent existed.

text: As to the appropriate relief, the SWTUF and the SIDG argue that the only issue on appeal is whether the Pre-Trial Chamber applied the correct evidentiary test when rejecting the Prosecutor's Arrest Warrant Application in respect of genocide, but not whether the Pre-Trial Chamber analysed the evidence correctly.^^ In their view, if the Appeals Chamber were to conclude that the Pre-Trial Chamber erred in respect of the standard of proof, the matter should be remanded to the Pre-Trial Chamber for a new decision.'^ They argue that the Appeals Chamber carmot overturn the Pre-Trial Chamber's finding without itself assessing all the evidence fully

text: The Prosecutor refutes the submissions of the SWTUF and the SIDG, repeating many of the arguments raised in his Document in Support of the Appeal. He emphasises that

text: article 58

text: (1) of

text: the Statute

text: does not require that there be "absolute certainty that the evidence exclude all hypotheses inconsistent with the requisite statutory elements of the alleged crime, [because] then the lower threshold showing of 79 'reasonable grounds' would be meaningless". The Prosecutor submits that the SWTUF and SIDG do not refer to any authority to support their view that a Pre-Trial Chamber must be certain that the standard of reasonable grounds is met, otherwise the Chamber would not be "satisfied" of the standard. The Prosecutor insists that both the Impugned Decision and the Observations are logically flawed because they are based on the premise that reasonable grounds can only exist if they are the only

text: ^^ Observations, paras 27-29. ^^ Observations, paras 33-48. ^^ Observations, para. 30. ^^ Observations, paras 49, 53. ^^ Observations, para. 53. ^^ Observations, paras 50, 53. ^^ Observations, para. 51. ^^ Response to Observations, para. 14 ^^ Response to Observations, para. 14. —:7^^^^ ^^ Resnonse to Observations, nara. 1.5 ^^ Response to Observations, para. 15. ^ ^ ^ S ^ ^ reasonable conclusion,'''* and that the "only reasonable conclusion" standard is the "logical equivalent" of the "beyond reasonable doubt" standard.'^

text: The Prosecutor rejects the argument that the Pre-Trial Chamber and Judge Usacka in her Dissenting Opinion agreed on the standard and merely assessed the evidence differently, submitting that under the Pre-Trial Chamber's standard a reasonable inference would not be sufficient to establish reasonable grounds to believe. Finally, the Prosecutor submits that the argument that the Appeals Chamber cannot overtum a factual finding by the Pre-Trial Chamber unless it assesses all evidence itself is misconstrued in the context of the present appeal.'^

text: E. Submissions of the Victims and response of the Prosecutor thereto

text: The Victims generally support the Prosecutor's arguments on appeal. In their view, the Pre-Trial Chamber developed a standard of proof that was "unduly stringent", and which was neither supported by the wording or intent of

text: the Statute

text: nor by precedent.'^ The Victims submit that the Pre-Trial Chamber's standard did not provide the flexibility required during the investigation stage of the proceedings. They refer the Appeals Chamber to decisions of the Intemational Criminal Tribunal for the Former Yugoslavia (hereinafter: "ICTY"), which reflect a lower standard of Q 1 proof, and which even indicate that the mental element does not have to be 89 established at the pre-trial stage of proceedings at the ICTY. The Victims are of the view that the Pre-Trial Chamber was "involving itself in an overly critical evaluation OT of the evidence". The Victims request that the matter be remitted to the Pre-Trial Chamber for a new evaluation of the evidence, in the course of which the Pre-Trial Chamber should also take into account information supplied by two of the Victims.^"*

text: '^^ Response to Observations, para. 16. ^^ Response to Observations, para. 18. ^^ Response to Observations, para. 21. ^^ Response to Observations, para. 34. ^^ Second Victims' Request for Participation, para. 25. ^^ Second Victims' Request for Participation, para. 26. ^° Second Victims' Request for Participation, para. 27. ^' Second Victims' Request for Participation, para. 30. ^^ Second Victims' Request for Participation, para. 31. ^^ Second Victims' Request for Participation, para. 32. ^^ Second Victims' Request for Participation, para. 34.

text: The Prosecutor supports the submissions of the Victims, noting that the Victims oc endorse the submissions he has made in the Document in Support of the Appeal. As to the Victims' request that the Pre-Trial Chamber should take into account the information provided by two of the Victims when evaluating anew the Prosecutor's evidence regarding genocidal intent, the Prosecutor notes that the present appeal is confined to a "precise legal matter", and that the Victims' submissions therefore should be disregarded.

text: F. Determination by the Appeals Chamber

text: Article 58

text: (1) of

text: the Statute

text: reads, in relevant part, as follows:

text: At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b)[...] 30. In the view of the Appeals Chamber, the evidentiary threshold of "reasonable grounds to believe" for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges ("substantial grounds to believe",

text: article 61

text: (7) of

text: the Statute

text: ) and the threshold for a conviction ("beyond reasonable doubt",

text: article 66

text: (3) of

text: the Statute

text: ). It is evident from the wording of the provisions that the standards of "substantial grounds to believe" and "beyond reasonable doubt" are higher standards of proof than "reasonable grounds to believe". Accordingly, when disposing of an application for a warrant of arrest under

text: article 58

text: (1) of

text: the Statute

text: , a Pre-Trial Chamber should not require a level of proof that would be required for the confirmation of charges or for conviction. 87 31. The Appeals Chamber notes that the Pre-Trial Chamber equated the "reasonable grounds to believe" standard with the "reasonable suspicion" standard as a prerequisite for lawful arrest or detention under article 5 (1) (c) of the European

text: ^^ Prosecutor's Response to Second Victims' Request, para. 24. ^ / V^^ ^^ Prosecutor's Response to Second Victims' Request, para. 25. /""^-JK^ ^^ See Impugned Decision, para. 160.

text: 88 Convention on Human Rights. In this context it is instructive to recall that the European Court of Human Rights has interpreted "reasonable suspicion" under

text: article 5

text: (1) (c) of the

text: European Convention on Human Rights

text: as "presuppos[ing] the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence".^^ Thus, at this preliminary stage, it does not have to be certain that that person committed the alleged offence. Certainty as to the commission of the crime is required only at the trial stage of the proceedings (see

text: article 66

text: (3) of

text: the Statute

text: ), when the Prosecutor has had a chance to submit more evidence. 32. In the Impugned Decision, the Pre-Trial Chamber developed a specific test to determine whether "reasonable grounds to believe" have been established by way of 'proof by inference'. The Pre-Trial Chamber stated that the "reasonable grounds" standard would be met (and a warrant would be issued) if the evidence provided by the Prosecutor "show[s] that the only reasonable conclusion to be drawn therefrom is the existence of reasonable grounds to believe in the existence" of the requisite specific genocidal intent.^^ The Chamber further explained its understanding of the applicable standard as follows:

text: [I]f the existence of [...] genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in

text: article 58

text: of

text: the Statute

text: would not have been met. ^ 33. In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely "reasonable grounds to believe". Rather, it establishes genocidal intent "beyond reasonable doubt".

text: European Convention on Human Rights

text: ), signed 4 November 1950, as amended by Protocol 11, entered into force 3 September 1953, 213 United Nations Treaty Series 2889. ^^ European Court of Human Rights, Fox, Campbell and Hartley v. United Kingdom, "Judgment", Application no. 12244/86, 12245/86, 12383/86, 30 August 1990, para. 32 (emphasis added). ^^ Impugned Decision, para. 158. ^^ Impugned Decision, para. 159 (emphasis added).

text: The Pre-Trial Chamber not only developed an erroneous standard regarding 'proof by inference', but actually applied this standard to the evidence put forward by the Prosecutor in respect of Mr Al Bashir's alleged genocidal intent. Notably, in paragraph 195 of the Impugned Decision, the Pre-Trial Chamber found that:

text: [T]here are a number of additional factors, resulting from the materials provided by the Prosecution, that must be taken into consideration in determining whether the existence of reasonable grounds to believe that the GoS acted with genocidal intent is the only reasonable conclusion from the commission by GoS forces, in a widespread and systematic manner, of the above-mentioned war crimes and crimes against humanity.^^

text: The "number of additional factors" to be considered by the Pre-Trial Chamber

text: were subsequently evaluated in paragraphs 196 to 200 of the Impugned Decision.

text: The Pre-Trial Chamber summed up its analysis of the Prosecutor's evidence as follows:

text: In this regard, the Majority recalls that the above-mentioned analysis of the Prosecution's allegations conceming the GoS's genocidal intent and its supporting materials has led the Majority to make the following findings:

text: i. even if the existence of an alleged GoS strategy to deny and conceal the crimes committed in Darfur was to be proven, there can be a variety of plausible reasons for its adoption, including the intention to conceal the commission of war crimes and crimes against humanity;

text: ii. the Prosecution's allegations concerning the alleged insufficient resources allocated by the GoS to ensure adequate conditions of life in IDP Camps in Darfur are vague in light of the fact that, in addition to the Prosecution's failure to provide any specific information as to what possible additional resources could have been provided by the GoS, there existed an ongoing armed conflict at the relevant time and the number of IDPS s, according to the United Nations, was as high as two million by mid 2004, and as high as 2.7 million today;

text: iii. the materials submitted by the Prosecution in support of the Prosecution Application reflect a situation within the IDP Camps which significantly differs from the situation described by the Prosecution in the Prosecution Application;

text: iv. the materials submitted by the Prosecution in support of the Prosecution Application reflect a level of GoS hindrance of medical and humanitarian assistance in IDP Camps in Darfur which significantly differs from that described by the Prosecution in the Prosecution Application;

text: — - 7 ^

text: 92 Emphasis added.

text: No: ICC-02/05-01/09 OA 16/18 v. despite the particular seriousness of those war crimes and crimes against humanity that appeared to have been committed by GoS forces in Darfür between 2003 and 2008, a number of materials provided by the Prosecution point to the existence of several factors indicating that the commission of such crimes can reasonably be explained by reasons other than the existence of a GoS's genocidal intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups;

text: vi. the handful of GoS official statements (including three allegedly made by Omar Al Bashir himself) and public documents relied upon by the Prosecution provide only indicia of a GoS's persecutory intent (as opposed to a genocidal intent) against the members of the Fur, Masalit and Zaghawa groups; and

text: vii. as shown by the Prosecution's allegations in the case of The Prosecutor v. Ahmad Harun and All Kushayb, the Prosecution has not found any indicia of genocidal intent on the part of Ahmad Harun, in spite of the fact that the harsher language contained in the above-mentioned GoS official statements and documents comes allegedly from him.

text: The Pre-Trial Chamber stated:

text: [W]hen all materials provided by the Prosecution in support of the Prosecution Application are analysed together, and consequently, the above-mentioned findings are jointly assessed, the Majority cannot but conclude that the existence of reasonable grounds to believe that the GoS acted with [genocidal] intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups is not the only reasonable conclusion that can be drawn therefrom.^"*

text: Based on this conclusion, the Pre-Trial Chamber found "that the materials provided by the Prosecution [...] fail to provide reasonable grounds to believe that the GoS acted with [genocidal intent] [...], and consequently no warrant of arrest for Omar Al Bashir shall be issued in relation to [genocide] counts 1 to 3".^^

text: The above indicates that the Pre-Trial Chamber would be satisfied that there were reasonable grounds to believe that Mr Al Bashir acted with genocidal intent only if the existence of such intent was the only reasonable conclusion. The Appeals Chamber finds that, although the Pre-Trial Chamber appreciated the appropriate standard to be "reasonable grounds to believe",^^ it applied this standard erroneously. The standard it developed and applied in relation to 'proof by inference' was higher

text: ^^ Impugned Decision, para. 204. ^^ Impugned Decision, para. 205 (emphasis added). ^^ Impugned Decision, para. 206. j ^ ^ ^ T ^^ See for e.g.. Impugned Decision, paras 155-157. ^ ^

text: No: ICC-02/05-01/09 OA 17/18 and more demanding than what is required under

text: article 58

text: (1) (a) of

text: the Statute

text: . This amounted to an error of law.

text: IV. APPROPRIATE RELIEF

text: On an appeal under

text: article 82

text: (1) (d) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of Procedure and Evidence).

text: In the instant case, the Pre-Trial Chamber applied an erroneous standard of proof when evaluating the evidence submitted by the Prosecutor and, consequently, rejected his application for a warrant of arrest in respect of the crime of genocide. Therefore, the decision by the Pre-Trial Chamber not to issue a warrant of arrest in respect of that crime was materially affected by an error of law. It is therefore appropriate to reverse the Impugned Decision to that extent.

text: The Appeals Chamber notes that the Prosecutor has requested the Appeals Chamber to "apply the correct standard to the facts found by the Pre-Trial Chamber, entering a finding that there are reasonable grounds to believe that President Omar Al Bashir is criminally responsible for genocide".^' He also requests the Appeals Chamber to "direct the Pre-Trial Chamber to issue a warrant of arrest on those counts".^^ The Appeals Chamber is of the view that the substance of the matter should be considered by the Pre-Trial Chamber, and not by the Appeals Chamber. Therefore, the matter is remanded to the Pre-Trial Chamber for a new decision, using the correct standard of proof

text: Judge ErkUi Kourula Presiding Judge Dated this 3'"* day of February 2010 At The Hague, The Netherlands ^^ Document in Support of the Appeal, para. 65. ^^ Document in Support of the Appeal, para. 65.


court: icc

doctype: arrest-warrant

identifier: ICC-02/05-01/09 (Second Decision on the Prosecution's Application for a Warrant of Arrest)

chamber: Pre-Trial Chamber I

decisionType: arrest-warrant

publisher: International Criminal Court

title: Second Decision on the Prosecution's Application for a Warrant of Arrest

text: Rome Statute

text: the Statute, article 25

text: the Statute, article 58

text: the Statute, article 6

text: the Statute, article 7

text: the Statute, article 82

text: the Statute, article 86

text: the Statute, article 87

text: the Statute, article 89

text: the Statute, article 91

text: the Statute, article 92

text: Cour Pénale I n t e r n a t i o n a l e

type: stycke

text: I n t e r n a t i o n a l

text: ^o^

text: Criminal

text: Court

text: Original: English No.: ICC-02/05-01/09 Date: 12 July 2010

text: PRE-TRIAL CHAMBER I

type: rubrik

text: Before: Judge Sylvia Steiner, Presiding Judge Judge Sanji Mmasenono Monageng Judge Cuno Tarfusser

text: SITUATION IN DARFUR, SUDAN THE PROSECUTOR V. OMAR HASSAN AHMAD AL BASHIR Public Document Second Decision on the Prosecution's Application for a Warrant of Arrest

text: No. ICC-02/05-01/09 1/30 12 July 2010

text: Document to be notified, in accordance with regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Ad Hoc Counsel for the Defence Mr Luis Moreno-Ocampo Ms Michelyne C. St-Laurent Mr Essa Faal

text: Legal Representatives of Victims Legal Representatives of Applicants Mr Nicholas Kaufman Ms Wanda M. Akin Mr Raymond M. Brown

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms Paolina Massidda Mr Xavier-Jean Keïta

text: States Representatives Amicus Curiae Applicants Sir Geoffrey Nice QC Mr Rodney Dixon

text: REGISTRY Registrar Defence Support Section Ms Silvana Arbia Mr Didier Preira

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section Ms Fiona McKay

text: No. ICC-02/05-01/09 2/30 12 July 2010

text: PRE-TRIAL CHAMBER I of the International Criminal Court ("Chamber'' and "Court" respectively);

text: NOTING the "Prosecutor's Application under Article 58"i ("Prosecution's Application") regarding the request for a warrant of arrest against Omar Hassan Ahmad Al Bashir ("Omar Al Bashir" or "Al Bashir") for his alleged criminal responsibility under the

text: Rome Statute

text: ("Statute") for crimes of genocide under article 6(a), (b) and (c); for crimes against humanity under article 7(l)(a), (b), (d), (f) and (g); and for war crimes under article 8(2)(e)(i) and (v), filed by the Prosecution on 14 July 2008, and the supporting and additional information submitted thereafter;^

text: NOTING the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir"^ ("First Decision") issued on 4 March 2009, in which: (i) the Chamber decided to issue a warrant of arrest against Omar Al Bashir for his alleged responsibility under

text: article 25

text: (3)(a) of

text: the Statute

text: for the crimes against humanity and war crimes alleged by the Prosecution;^ and (ii) the Majority of the Chamber ("Majority") decided not to include the counts of genocide listed in the Prosecution's Application—genocide by killing (count 1); genocide by causing serious bodily or mental harm (count 2); and genocide by deliberately inflicting conditions of life

text: 1 ICC-02/05-157-AnxA. 2 ICC-02/05-160 and ICC-02/05-160-Conf-Exp-AnxI; ICC-02/05-161 and ICC-02/05-161- Conf-AnxsA-J. 3 ICC-02/05-01/09-3. 4 ICC-02/05-01/09-3, page 92.

text: No. ICC-02/05-01/09 3/30 12 July 2010 calculated to bring about the group's physical destruction (count 3) — among the crimes with respect to which the warrant of arrest was issued;

text: NOTING the "Prosecution's Application for Leave to Appeal the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'"^ filed by the Prosecution on 10 March 2009, pursuant to

text: article 82

text: (l)(d) of

text: the Statute

text: NOTING the "Decision on the Prosecutor's Application for Leave to Appeal the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'" issued on 24 June 2009, in which the Chamber granted the Prosecution's Application for Leave to Appeal with respect to one of the issues raised;^

text: NOTING the "Judgment on the Appeal of the Prosecutor against the 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir'" ("Appeals Decision") dated 3 February 2010;7

text: NOTING the "Prosecution's Request for an ex parte Hearing"^ filed on 24 February 2010, whereby the Prosecution requested that an ex 'parte hearing

text: 5 ICC-02/05-01/09-12. ^ ICC-02/05-01/09-21, pages 6-8. The only issue for which the Chamber granted the leave to appeal reads as follows: "Whether the correct standard of proof in the context of Article 58 requires that the only reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court". 7

text: . 8 ICC-02/05-01/09-74.

text: No. ICC-02/05-01/09 4/30 12 July 2010 be held in order for the Prosecution to obtain the Chamber's guidance in relation to the Prosecution's intention to file additional information;

text: NOTING the "Application of Legal Representatives of Victims a/0011/06, a/0012/06, a/0013/06 and a/0015/06 to Participate in and Submit Observations on the Proceedings on Remand In Connection with the Application for a Warrant for the Arrest of Omar Hassan Ahmad al- Bashir"^ filed on 10 March 2010, whereby those victims sought leave to submit their views and concerns or, in the alternative, observations in the proceedings, and the subsequent "Réponse de la Défense à la procédure intitulée : «Application of Legal Representatives of Victims a/0011/06, a/0012/06, a/0013/06 and a/0015/06 to Participate in and Submit Observations on the Proceedings on Remand In Connection with the Application for a Warrant for the Arrest of Omar Hassan Ahmad al- Bashir»"io filed on 6 April 2010 by Ad-Hoc Counsel for the Defense,ii wherein it was submitted that the participation of the victims in the current proceedings would cause prejudice to the rights of the suspect, as he has no right to present evidence at this stage;

text: NOTING the "Victims' Application for Participation in the Proceedings arising out of the Appeal Judgment of 3 February 2010 (ICC-02/05- 01/09/73)"i2 filed on 24 March 2010, whereby Victims a/0443/09, a/0444/09, a/0445/09, a/0446/09, a/0447/09, a/0448/09, a/0449/09 and a/0450/09 sought leave to present further written or oral submissions relevant to the

text: 9 ICC-02/05-01/09-75. 10 ICC-02/05-01/09-80. 11 Ad hoc counsel for the Defense appointed by the Chamber to represent and protect the interests of the Defence within the context and for the purposes of victims' applications for participation in the present case (see ICC-02/05-01/09-38 and ICC-02/05-01/09-50).

text: No. ICC-02/05-01/09 5/30 12 July 2010 genocidal intent and the subsequent "Réponse de la Défense à la procédure intitulée: «Victims' Application for Participation in the Proceedings arising out of the Appeal Judgment of 3 February 2010 (ICC- 02/05-01/09-73) » "13 filed on 13 April 2010, whereby the Ad-Hoc Counsel for the Defense reiterated that victims' participation in the current proceedings would cause prejudice to the rights of the suspect;

text: NOTING the "Application under Rule 103 to Participate in the Proceedings before the Pre-Trial Chamber concerning the Prosecutor's Application to Add Genocide Charges"i4 filed on 15 June 2010, whereby the Sudan Workers Trade Unions Federation and the Sudan International Defence Group sought leave under Rule 103 of the Rules to submit further observations as amid curiae;

text: NOTING the "Requête de la Conseil ad hoc de la Défense pour permission de répondre à la procédure intitulée : « Application under Rule 103 to Participate in the Proceedings before the Pre-Trial Chamber concerning the Prosecutor's Application to Add Genocide Charges »"i^ filed on 1 July 2010, whereby the Ad-Hoc Counsel for the Defence seeks leave to respond to the application under Rule 103, made by the Sudan Workers Trade Unions Federation and the Sudan International Defence Group;

text: 12 ICC-02/05-01/09-77. 13 ICC-02/05-01/09-80. 14ICC-02/05-01/09-88. 15 ICC-02/05-01/09-92.

text: No. ICC-02/05-01/09 6/30 12 July 2010

text: NOTING

text: articles 6

text: (a), 6 (b) and 6 (c) of

text: the Statute

text: and the Elements of Crimes,

text: articles 25

text: and

text: of

text: the Statute

text: and rules 176(2) and 187 of the Rules of Procedure and Evidence ("Rules");

text: HEREBY RENDERS THIS DECISION

text: It must be established at the outset that the key findings of the Appeals Decision are binding on the Chamber in this case and determine the scope of the present decision. The Appeals Chamber reversed the First Decision to the extent that the Chamber "decided not to issue a warrant of arrest in respect of the crime of genocide in view of an erroneous standard of proof(...)".i^ In particular, the Appeals Chamber held that the Chamber had acted erroneously in rejecting the application for a warrant of arrest in relation to the counts of genocide on the basis that the existence of genocidal intent of the suspect was "only one of several reasonable conclusions available on the materials provided by the Prosecution(...)".i7 In the view of the Appeals Chamber, "requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt(...)".i^ Imposition of such a standard would be tantamount to the creation of an obligation on the part of the Prosecution to prove genocidal intent beyond reasonable doubt, a "higher and more demanding" i^ standard than the one required under

text: article 58

text: (l)(a) of

text: the Statute

text: , page 3. 17

text: , para. 1. 18

text: , para. 33. 19

text: , para. 39.

text: No. ICC-02/05-01/09 7/30 12 July 2010

text: The re-examination of the matter remanded to the Chamber is confined, therefore, to the application of the standard of proof—as identified by the Appeals Decision—namely, in relation to Al Bashir's genocidal intent. As a result, the present decision only amends the First Decision to the extent necessary to implement the Appeals Decision and neither a re-assessment of the materials originally supporting the Prosecution's Application, nor the analysis of materials other than those are warranted. 3. The Prosecution's request for an ex parte hearing, the applications of Victims a/0011/06 to a/0013/06, a/0015/06, and of Victims a/0443/09 to a/0450/09 to participate in the current proceedings, the application of the Sudan Workers Trade Unions Federation and the Sudan International Defence Group to submit observations as amid curiae, as well as the request of the Ad-Hoc Counsel for the Defense to file a response, are thus to be rejected.

text: I. Whether, on the basis of the evidentiary standard identified by the Appeals Chamber, there are reasonable grounds to believe that Omar Al Bashir acted with dolus specialis/speciiic intent to destroy in whole or in part the Fur, Masalit and Zaghawa ethnic groups

text: The Chamber notes that in paragraph 205 of the First Decision it stated that the existence of reasonable grounds to believe that the suspect acted with a specific genocidal intent "is not the only reasonable conclusion that can be drawn" from the materials supporting the Prosecution's Application.20 jt can be inferred from this finding that the Chamber considered such a conclusion to be a reasonable one, albeit not the only

text: 20 ICC-02/05-01/09-3, para. 205.

text: No. ICC-02/05-01/09 8/30 12 July 2010 reasonable conclusion. Therefore, the First Decision already found, although not expressly and a contrario, that there were reasonable grounds to believe that the suspect acted with a specific genocidal intent as one of a number of reasonable conclusions. The Chamber re-affirms this finding. 5. The Chamber is therefore satisfied, on the basis of the standard of proof as identified by the Appeals Chamber, that there are reasonable grounds to believe that Al Bashir acted with dolus specialis/speciiic intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups.

text: II. Whether there are reasonable grounds to believe that the remaining elements of the counts of genocide included in the Prosecution's Application are fulfilled

text: Having found that the material provided in support of the Prosecution's Application was not sufficient to establish reasonable grounds to believe that Omar Al Bashir acted with dolus specialis/speciiic intent to destroy in part the Fur, Masalit and Zaghawa groups, the Majority in the First Decision did not proceed to examine whether there were reasonable grounds to believe that the material elements, common and specific, of each of the alleged counts of genocide were fulfilled. Following the application of the evidentiary standard with respect to the genocidal specific intent as indentified by the Appeals Chamber, an examination of the remaining elements for each of the counts of genocide is now required. 7. The Chamber will first analyse whether there are reasonable grounds to believe that the material elements common to the three counts of genocide included in the Prosecution's Application are present; only if the answer is in the affirmative, will the Chamber examine the specific material elements for each counts of genocide.

text: No. ICC-02/05-01/09 9/30 12 July 2010

text: A. Common Elements

text: In its First Decision the Chamber noted that the Elements of Crimes set out the following elements that are common to each of the five categories of genocidal acts listed in

text: article 6

text: of

text: the Statute

text: : "i. the victims must belong to the targeted group; ii. the killings, the serious bodily harm, the serious mental harm, the conditions of life, the measures to prevent births or the forcible transfer of children must take place "in the context of a manifest pattern of similar conduct directed against the group or was conduct that could itself effect such destruction" 21

text: (i) Whether there are reasonable grounds to believe t h a t the victims of the alleged acts belonged to the targeted group 9. The Majority in the First Decision found reasonable grounds to believe that the Fur, the Masalit and the Zaghawa constituted distinct ethnic groups as each of them has its own language, its own tribal customs and its own traditional links to their lands.22 10. In relation to the issue of whether or not such ethnic groups were the specific target of the alleged acts, the Chamber also held in the First Decision that there were reasonable grounds to believe that: "[a] core component of the GoS counter-insurgency campaign, and consequently a GoS policy, was the unlawful attack on that part of the civilian population of Darfur - belonging largely to the Fur, Masalit and Zaghawa groups perceived by the GoS as being close to the SLM/A, the JEM and the other

text: 21 ICC-02/05-01/09-3, para. 113. 22 ICC-02/05-01/09-3, para. 137. Judge Anita Usacka's dissenting opinion defined the "protected group - and the target of the counter-insurgency campaign - as a single ethnic group of the 'African tribes', which is in turn comprised of smaller groups, including the Fur, Masalit and Zaghawa." See ICC-02/05-01/09-3, Separate and Partly Dissenting Opinion of Judge Anita Usacka, para. 26.

text: No. ICC-02/05-01/09 10/30 12 July 2010 armed groups opposing the GoS in the ongoing armed conflict in Darfur."23 11. Based on the information and evidence submitted by the Prosecution, the Chamber is further satisfied that there are reasonable grounds to believe that the villages and towns targeted as part of the GoS's counterinsurgency campaign were selected on the basis of their ethnic composition and that towns and villages inhabited by other tribes, as well as rebel locations, were bypassed in order to attack towns and villages known to be inhabited by civilians belonging to the Fur, Masalit and Zaghawa ethnic groups.24 12. The Chamber is therefore satisfied that there are reasonable grounds to believe that the first material element common to the three counts of genocide presented by the Prosecution, i.e. that the victims of the alleged acts belonged to the targeted groups, is fulfilled.

text: (ii) Whether there are reasonable grounds to believe t h a t the contextual element of the counts of genocide included in the Prosecution's Application has been fulfilled

text: 23 ICC-02/05-01/09-3, para. 83. This finding of the Chamber in the First Decision was supported by the following evidence: Witness Statement (Anx 28) DAR-OTP-0097-0619 at 0624, para. 21; Witness Statement (Anx 33) DAR-OTP-0107-0313 at 0331, para. 73; Witness Statement (Anx 41) DAR-OTP-0024-0200 at 0067, para. 52; Witness Statement (Anex J45) DAR-OTP-088-0060 at 071-072, para. 45; Witness Statement (Anx 42) DAR-OTP-0112-0142 at 0151, para. 45; HRW Report, They Shot at Us as We Fled, 18 May 2008, (Anx 77) DAR- OTP-0143-0273 at 0017, para. 52; Report of the International Commission of Inquiry on Darfur, (Anx 17) DAR-OTP-0018-0010 at 084 and 086, para 304 and 315. 24 ICC-02/05-157-Anx, paras. 13, 17, 93, 97, 101, and 102; Human Rights Watch April Darfur in Flames: Atrocities in Western Sudan 2004, Vol. 16, No. 5 (A) (Anx 10) DAR.00003.185 at DAR.00003.187; DAR.00003.203 and DAR.00003.208; Report of the International Commission of Inquiry on Darfur (Anx 17) DAR.00018.010 at DAR.00018.058- DAR 00018.059, Para 192-193 and DAR.00018.068, para 245; H u m a n Rights Watch Targeting the Fur: Mass Killings in Darfur: A Human Rights Watch Briefing Paper January 21, 2005 (Anx 22) DAR-00090-173 at DAR-00090-177; Witness Statement (Anx 25)

text: No. ICC-02/05-01/09 1V30 12 July 2010

text: The Chamber recalls the findings made by the Majority in the First Decision in relation to the lack of any irreconcilable contradiction between the definition of the crime of genocide of

text: article 6

text: of

text: the Statute

text: and the contextual element provided for in the Elements of Crimes.25 Accordingly, following the Elements of Crimes, the Chamber required as a contextual element of the crime of genocide that the conduct "must have taken place in the context of a manifest pattern of similar conduct directed against the target group or must have had such a nature so as to itself effect, the total or partial destruction of the targeted group."26 14. According to the Prosecution's Application, the contextual element of the three charges of genocide is unequivocally demonstrated by the "[m]agnitude, consistency and planned nature of the crimes".2^ 15. The Chamber observes that in the First Decision it already found reasonable grounds to believe that: (i) "[t]he above-mentioned attack on the said part of the civilian population of Darfur was large in scale, as it affected hundreds of thousands of individuals and took place across large swathes of the territory of the Darfur region";28 and

text: DAR.00095.049 at 076-077, para. 128; Witness Statement (Anx 28) DAR-OTP-0097-0619 at 0624, para 21. 25 ICC-02/05-01/09-3, para. 132. 26 ICC-02/05-01/09-3, para. 123. 27 ICC-02/05-157-AnxA, para. 209 28 ICC-02/05-01/09-3, para. 84. This finding of the Chamber in the First Decision was supported by the following evidence: Witness Statement (Anx J45) DAR-OTP-0088-0060 at 065-066, paras. 19-24; Witness Statement (Anx J70) DAR-OTP-0094-0119 at 135-136, paras. 69-75; Witness Statement (Anx 19) DAR-OTP-0088-0129 at 135-136, paras. 26-28; Amnesty International Report, Darfur. Too Many People Killed for No Reason (Anx J5) at DAR-OTP-0002-0207 at 0209-0211; Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369; Intemational Crisis Group Report, Darfur Deadline: A new International Action Plan, 23 August 2004 (Anx 11 ) at DAR- OTP-0004-005 5ICC-02/05-151-US-Exp-Anxl; Office of the UN Resident and Humanitarian Coordinator for the Sudan report (Anx J69) at DAR-OTP-0149-0537, HRW Report, Sudan Darfur in Flames: Atrocities in Western Sudan, April 2004 (Anx 10) at DAR-

text: No. ICC-02/05-01/09 12/30 12 July 2010

text: (ii) "[t]he above-mentioned attack was systematic as it lasted for well over

text: five years and the acts of violence of which it was comprised followed, to a

text: considerable extent, a similar pattern."29

text: The Chamber is therefore satisfied that, as the attacks and acts of

text: violence committed by GoS against a part of the Fur, Masalit and

text: Zaghawa groups were large in scale, systematic and followed a similar

text: pattern—as found by the Chamber in the First Decision—there are

text: reasonable grounds to believe that the acts took place in the context of a

text: manifest pattern of similar conduct directed against the target group.

text: The Chamber thus concludes that there are reasonable grounds to

text: believe that the contextual element common to the three charges of

text: genocide presented by the Prosecution is fulfilled.

text: OTP-0003-0185; International Crisis Group Report, Darfur Deadline. A new International Action Plan, 23 August 2004 (Anx 11) at DAR-OTP-0004-0055. 29 ICC-02/05-01/09-3, para. 85. The Chamber found in the First Decision that the attacks followed, to a considerable extent, a similar pattern. They were coordinated ground attacks on towns and villages inhabited mainly by members of the Fur, Masalit and Zaghawa groups, in which the attackers had previously encircled the targeted village or came to such village with tens or hundreds of vehicles and camels, forming a sort of wide line. Such grounds attacks were often preceded by aerial bombings by planes, and Janjaweed Militia arrived on horse or camel-back along with, or shortly followed by, members of Sudanese Armed Forces in motor vehicles. Such findings were supported in the First Decision by the following evidence: Report of the International Commission of Inquiry on Darfur (Anx 17) at DAR-OTP-0018-0010 at 0057, para. 186; Witness Statement (Anx J45) DAR-OTP-0088-0060 at 0065-0066, paras. 19-24; Witness Statement (Anx 66) DAR-OTP-0119-0711 at 0718, para. 34; Ninth periodic report of the UN High Commissioner for Human Rights, Sudan, (Anx J76) DAR-OTP-0136-0369 at 0373 and 0375; Witness Statement (Anx J70) DAR-OTP-0094-0119 at 0133-0134, paras. 60-64; Witness Statement (Anx J45) DAR-OTP-0088-0060 at 0065-0066, paras. 19-24; Witness Statement (Anx 19) DAR-OTP-0088-0129 at 0136, paras. 27-28; Witness Statement (Anx 66) DAR-OTP-0119-0711 at 0718, para. 34; Ninth periodic report of the United Nations High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369 at 0373; HRW Report, They Shot at Us as We Fled. 18 May 2008, (Anx 80) DAR-OTP-0143-0273 at 0291 and 0292-0294.

text: No. ICC-02/05-01/09 13/30 12 July 2010

text: B. Specific Elements

text: Having found that the specific intent and common elements of the three counts of genocide presented by the Prosecution are met, the Chamber will now analyse whether the specific elements of each of the counts of genocide are met.

text: Count 1: Genocide by killing 19. As regards the first count, the Prosecution's Application alleges that:

text: "Count 1 Genocide by killing of members of each target group Art.6 (a) From March 2003 to the date of filing of this Application AL BASHIR committed, through other persons, genocide against the Fur, Masalit and Zaghawa ethnic groups in Darfur, the Sudan, by using the state apparatus, the Armed Forces and Militia/Janjaweed to commit acts of killing members of these groups with intent to destroy the groups as such, in part, in violation of Arts 6(a) and 25(3)(a) of the

text: Rome Statute

text: According to the Elements of Crimes, the specific material element of the crime of genocide by killing is that the perpetrator killed one or more persons. It is worth noting that this element is common to both the crime of genocide by killing under article 6(a) and the crime against humanity of murder under

text: article 7

text: (l)(a) of

text: the Statute

text: with the exception that the former provides that the acts of killings must be directed against members of a national, ethnical, racial or religious group, while the latter requires that the acts be directed against a civilian population. The legal characterisation of the act of killing may change from a crime against humanity to genocide depending on the following factors: (i) their specific contextual elements; (ii) the requirement that victims belonged to a

text: 30 ICC-02/05-157-AnxA, para. 62.

text: No. ICC-02/05-01/09 14/30 12 July 2010 targeted group (in the case of genocide); and (iii) the different mens rea that

text: each of them require. In both cases, however, the underlying act is

text: identical - killing or causing the death of one or more persons.

text: The Chamber is thus of the view that, in its determination of whether

text: there are reasonable grounds to believe that the crime of genocide by

text: killing members of the targeted group has been committed, it may rely on

text: the findings made with respect to the material element of the crime against

text: humanity of murder, as long as there are reasonable grounds to believe

text: that these acts were committed against members of the targeted ethnic

text: With regard to the material element of the charges of the crimes

text: against humanity of murder and extermination the Chamber found in the

text: First Decision that there were reasonable grounds to believe that:

text: (i) "[t]housands of civilians belonging primarily to the Fur, Masalit and

text: Zaghawa groups were subject, throughout the Darfur region, to acts of

text: murder by GoS forces, between the start of the GoS counter-insurgency

text: campaign soon after the April 2003 attack on El Fasher airport and 14 July

text: 2008"32; a n d

text: 31 A similar approach to identical elements of different crimes has been taken by the International Criminal Tribunal for the former Yugoslavia. See ICTY The Prosecutor v. Brdanin, Case No. IT-99-36-T, Trial Judgment 1 September 2004, paras. 738-739; ICTY The Prosecutor v. Stakic, Case No. IT-97-24-T, Trial Judgment 31 July 2003, para. 631; ICTY The Prosecutor v. Kordic, Case No. IT-95-14/2-T, Trial Judgment 26 February 2001, para. 236 32 ICC-02/05-01/09-3, para. 94. This finding of the Chamber in the First Decision was supported by the following evidence: In relation to the first attack on Kodoom on or about 15 August 2003, see HRW Report, Targeting the Fur: Mass Killings in Darfur 21 January 2005 (Anx 22) DAR-OTP-00090-173 at 182; Witness Statement (Anx J70) DAR- OTP-00094-119 at 133-134, para. 66. In relation to the second attack on Kodoom on or about 31 August 2003, see and HRW Report, Targeting the Fur Mass Killings in Darfur, 21 January 2005 (Anx 22) DAR-OTP-00090-173 at 182; In relation to the attack on Bindisi on or about 15 August 2003, see Witness Statement (Anx 20)DAR-OTP-00088-187 at 192-194, paras. 23-27 and 32; Witness Statement (Anx 21) DAR-OTP-00088-219 at 227-228, paras. 47-49 and 32; Witness Statement (Anx J45) DAR-OTP-00088-060 at 065-066, paras. 20-23; Witness Statement (Anx 65) DAR-OTP-0119-0503 at 0521, 0522, paras. 81 and 85; and

text: No. ICC-02/05-01/09 15/30 12 July 2010

text: (ii) "[a]ets of extermination, such as the alleged killing of over a thousand

text: civilians in connection with the attack on the town of Kailek on or around

text: 9 March 2004, were committed by GoS forces against civilians primarily

text: from the Fur, Masalit and Zaghawa groups, in the Darfur region, during

text: the relevant period."33

text: Witness Statement (Anx J70) at DAR-OTP-00094-119 at 135, para. 72. In relation to the aerial attack on Mukjar between August and September 2003, see Witness Statement (Anx 21) DAR-OTP-00088-219 at 233-234, paras. 85-86. In relation to the attack on Arawala on or around 10 December 2003, see Witness Statement (Anx 19) DAR-OTP-0088-0129 at 0136, paras. 27-28; Commission of Inquiry into allegations surrounding human rights violations committed by armed groups in the States of Darfur, January 2005, Reviewed. Volume 2 (Anx 52) DAR-OTP- 0116-0568, at 0605. In relation to the attack on Shattaya town and its surrounding villages (including Kailek) in February/March 2004, see Report of the International Commission of Inquiry on Darfur (Anx 17) DAR-00018- 010 at 078, paras. 273-274; Witness Statement (Anx 66) DAR-OTP-0119-0711 at 0718, paras. 34-37. In relation to attacks in Buram locality between November 2005 and September 2006, see Third periodic report of the United Nations High Commissioner for Human Rights on the human rights situation in the Sudan, April 2006 (Anx J75) DAR-OTP-0108-0562 at 0570-0572, paras. 27, 32 and 35-37. In relation to the attack on Muhajeriya on or about 8 October 2007, see United Nation Human Rights Council, Report on Human Rights Situations that require the Council's attention (A/HRC/6/19) (Anx 78) DAR-OTP-0138-0116 at 0145-0146, para (xvii). In relation to the attacks on Saraf Jidad on 7, 12 and 24 January 2008, see Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369 at 0372-0373. In relation to attack on Silea on 8 February 2008, see HRW Report, They shot at us as we fled, 18 May 2008 (Anx 80) DAR-OTP-0143- 0273 at 0294-0295; and Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369 at 0374-0375. In relation to the attack on Sirba on 8 February 2008, see HRW Report, They shot at us as we fled, 18 May 2008 (Anx 80) DAR-OTP-0143-0273 at 0292-0293; and Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369 at 0374. In relation to the attack on Abu Suruj on 8 February 2008, see HRW Report, They shot at us as wefled,18 May 2008 (Anx 80) DAR-OTP-0143-0273 at 0290-0291; Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369 at 0373. In relation to the attack to Jebel Moon between 18 and 22 February 2008, see HRW Report, They shot at us as we fled, 18 May 2008 (Anx 80) DAR-OTP-0143-0273 at 0297-0299; Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP-0136-0369 at 0375. In relation to the attack on Shegeg Karo and al-Ain in May 2008, see Press Article, The Nation, Death in Darfur, 6 May 2008(Anx 4, line 168) DAR- OTP-0149-0383 and Press Article, Sudan Tribune, School Bombed in North Darfur, six children killed, 9 May 2008 (Anx 4, line 168) DAR-OTP-0149-0387. See also UN News Service, At five-year mark, Darfur crisis in only worsening - UN aid Chief, 22 April 2008(Anx J27) DAR-OTP-0147-1068. 33 ICC-02/05-01/09-3, para. 97. This finding of the Chamber in the First Decision was supported by the following evidence: Witness Statement, (Anx 66) DAR-OTP-0119-0711 at 0718-0719, paras. 34-37 (describing how the witness was given a list of 1700 persons

text: No. ICC-02/05-01/09 16/30 12 July 2010

text: The Chamber is therefore satisfied that there are reasonable grounds to

text: believe that killings were committed against members of the targeted

text: ethnic groups. Accordingly, the Chamber finds that there are reasonable

text: grounds to believe that the material element of the crime of genocide by

text: killing members of a targeted group, as provided for in article 6(a) of the

text: Statute, is fulfilled.

text: The Chamber is satisfied that it can be inferred from the factual

text: circumstances referred above that there are reasonable grounds to believe

text: that the subjective elements of the crime of genocide by killing of article

text: 6(a) are fulfilled.

text: Count 2: Genocide by causing serious bodily or mental harm

text: As regards the second count, the Prosecution's Application alleges

text: that:

text: "Count 2 Genocide by causing serious bodily or mental harm to members of each target group Art.6 (b) From March 2003 to the date of filing of this Application, AL BASHIR committed, through other persons, genocide against the Fur, Masalit and Zaghawa ethnic groups in Darfur, the Sudan, by using the state apparatus, the Armed Forces and Militia/Janjaweed to cause serious bodily or mental harm to members of these groups through acts of rape, other forms of sexual violence, torture and forcible displacement of

text: killed, or presumed dead, in an attack on Kailek); Witness Statement (Aux J8) DAR-OTP- 0150-0255 at 0263 (saying the dead, missing or captured during the Kailek attacks numbered 1350); Report of the International Commission of Inquiry on Darfur (Anx 17) DAR- OTP-0018-0010 at 0078, paras. 273 and 274 (the commission stated it confirmed 'mass killings of civilians' in Kailek). In addition to the attack in Kailek described and the attacks referred in footnote supra, in which hundreds of civilians were reportedly killed, the Prosecution have also provided evidence of attacks on Surra village in January 2004, with more than 250 persons reported killed, see Report of the International Commission of Inquiry on Darfur (Anx 17) DAR-OTP-0018-0010 at 0077 para. 272; and attack on Terbeba village on or about 15 February 2004, with 26 civilians reported killed, see HRW Report, Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan (Anx J9) DAR-OTP-0003-0099 at 0121-0122.

text: No. ICC-02/05-01/09 17/30 12 July 2010 members of these groups, with intent to destroy the groups as such, in part, in violation of Arts. 6(b) and 25(3)(a) of the

text: Rome Statute

text: According to the Elements of Crimes the specific material element of this count of genocide is that the perpetrator caused serious bodily or mental harm to one or more persons, which may include acts of torture, rape, sexual violence or inhuman or degrading treatment. The Prosecution listed the following acts within the present count of genocide: (i) acts of rape and other forms of sexual violence; (ii) torture; and (iii) forcible displacement of members of the targeted groups. 27. The underlying acts of genocide by inflicting bodily or mental harm, as it was the case of the previous count, are identical to the underlying acts of the crimes against humanity included in the Prosecution's Application as Counts 6, 7, and 8 (forcible transfer of population, torture civilians, and rape of civilians). The legal characterisation of such acts as crimes against humanity or genocide depends on the following factors: (i) their specific contextual elements; (ii) the requirement that the victims belonged to a targeted group (in the case of genocide); and (iii) the different mens rea that each of them require. 28. The Chamber is therefore of the view that, as in the previous count, in its determination of whether there are reasonable grounds to believe that the present underlying acts of genocide were committed, the Chamber may rely on its findings made with respect to the material elements of the crimes against humanity of forcible transfer of population, torture and rape of civilian persons, as long as there are reasonable grounds to believe that such acts were committed against members of the targeted group.

text: 34 ICC-02/05-157-AnxA, para. 62

text: No. ICC-02/05-01/09 18/30 12 July 2010

text: On the basis of the evidence submitted by the Prosecution, the

text: Chamber already held in the First Decision that there were reasonable

text: grounds to believe that, between the start of the GoS counter-insurgency

text: campaign soon after the April 2003 attack on El Fasher airport and at least

text: until the date of the Prosecution's Application, the following acts were

text: committed:

text: (i) "[t]housands of civilian women, belonging primarily to the Fur, Masalit

text: and Zaghawa groups were subject, throughout the Darfur region, to acts

text: of rape by GoS forces."35;

text: (ii) "[c]ivilians belonging primarily to the Fur, Masalit and Zaghawa

text: groups were subject to acts of torture by GoS forces"36; and

text: (iii) "[h]undreds of thousands of civilians belonging primarily to the Fur,

text: Masalit and Zaghawa groups were subject, throughout the Darfur region,

text: to acts of forcible transfer by GoS forces."37

text: 35 ICC-02/05-01/09-3, para. 108. This finding of the Chamber in the First Decision was supported by the following evidence: UN General Assembly, Human Rights Council, Human Rights Situations that Require the Council's Attention (A/HRC/7/22), 3 March 2008 (Anx J28) at DAR-OTP-0148-0259 at 0270, para. 47; Witness Statement, (Anx 20) DAR- OTP-0088- 0187 at 0196, para. 41; Witness Statement, (Anx 21) DAR-OTP-0088-0219 at 0230, para. 67; Witness Statement (Anx J15), DAR-OTP-0088-0306 at 0325, para. 146; Witness Statement, (Anx 66) DAR-OTP-0119-0711 at 0718, para. 36; see Ninth periodic report of the UN High Commissioner for Human Rights, Sudan (Anx J76) DAR-OTP- 0136-0369 at 0374-0375; HRW Report, They Shot at Us as We Fled. 18 May 2008, (Anx 80) DAR-OTP-0143-0273 at 0296; Third periodic report of the United Nations High Commissioner for Human Rights on the human rights situation in the Sudan, April 2006 (Anx J75) DAR-OTP-0108-0562 at 0570-0572 para. 44. 36 ICC-02/05-01/09-3, para. 104. This finding of the Chamber in the First Decision was supported by the following evidence: HRW Report, They Shot at Us as We Fled, 18 May 2008 (Anx 80) DAR-OTP-0143-0273 at 0290-0300; Witness Statement (Anx 24) DAR-OTP- 0094-0423 at 0434, para. 46; Witness Statement (Anx J62) DAR-OTP-0012-0105 at 0105, para. 10; Second Periodic Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Sudan, 27 January 2006 (Anx J35) DAR-OTP- 0136-0263 at 0282 and 0283; Witness Statement (Anx 66) DAR-OTP-0119-0711 at 0718, para. 36; UN General Assembly. Human Rights Council, Human Rights Situations that Require the Council's Attention (A/HRC/7/22). 3 March 2008 (Anx J28) DAR-OTP-0148- 0259 at 0269-0270, paras. 45 and 46.

text: No. ICC-02/05-01/09 19/30 12 July 2010

text: believe that acts of rape, torture and forcible displacement were

text: committed against members of the targeted ethnic groups. Accordingly,

text: the Chamber finds that there are reasonable grounds to believe that the

text: material element of the crime of genocide by causing serious bodily or

text: mental harm, as provided for in

text: article 6

text: (b) of

text: the Statute

text: , is fulfilled.

text: that the subjective elements of the crime of genocide by causing serious

text: bodily and mental harm of article 6(b) are fulfilled.

text: Count 3: Genocide by deliberately inflicting conditions of life calculated

text: to bring about physical destruction

text: As regards the third count, the Prosecution's Application alleges that:

text: "Count 3 Genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction Art. 6(c) From March 2003 to the date of filing of this Application, AL BASHIR committed, through other persons, genocide against the Fur, Masalit and

text: 37 ICC-02/05-01/09-3, para. 100. This finding of the Chamber in the First Decision was supported by the following evidence: UN Security Council Press release, 22 April 2008 (Anx J38) DAR-OTP-0147-0859 at 0860; UN Security Council 5872 meeting, 22 April 2008 (Anx J52) DAR-OTP-0147-1057 at 1061; UNCOI Material, (Anx J72) DAR-OTP-0038-0060 at 0065; Commission of Inquiry into allegations surrounding human rights violations committed by armed groups in the States of Darfur, January 2005, Reviewed, Volume 2 (Anx 52) DAR-OTP-0116-0568 at 0604; United Nations Inter-agency Report, 25 April 2004 (Anx J63) DAR-OTP-0030-0066 at 0067; Third periodic report of the United Nations High Commissioner for Human Rights on the human rights situation in the Sudan, April 2006 (Anx J75) DAR-OTP-0108-0562 at 0570-0572, paras. 27, 35, 39, 44; United Nation Human Rights Council, Report on Human Rights Situations that require the Council's attention (A/HRC/6/19) (Anx 78) at D AR-OTP-013 8-0116 at 0145-0146; HRW Report, They Shot at Us as We Fled, 18 May 2008, (Anx 80) DAR-OTP-0143-0273 at 0300, 0291-0296; Ninth periodic report of the United Nations High Commissioner for H u m a n Rights. Sudan (Anx J76) DAR-OTP-0136-0369 at 0372-0374.

text: No. ICC-02/05-01/09 20/30 12 July 2010

text: Zaghawa ethnie groups in Darfur, the Sudan, by using the state apparatus, the Armed Forces and Militia/Janjaweed to deliberately inflict on these groups conditions of life calculated to bring about the physical destruction of the groups as such, in part, in violation of Arts. 6(c) and 25(3)(a) of the

text: Rome Statute

text: Unlike for the previous counts of genocide—and similar to what is required for some of the acts underlying the crime against humanity of extermination—the Elements of Crimes include an additional element for this particular offense and require that the infliction of certain conditions of life upon one or more persons should be "calculated to bring about the physical destruction of that group, in whole or in part." Therefore, for the Chamber to find reasonable grounds to believe that the underlying acts included in this count amount to the crime of genocide, it will need to be demonstrated, on the one hand, that the relevant acts were committed and, on the other, that they were calculated to bring about the physical destruction of the targeted group, in whole or in part. 34. The Prosecution alleges that methods of destruction other than direct killings and the causing of serious bodily and mental harm were an integral and prominent part of Al Bashir's genocidal plan. These methods of destruction included: (i) subjecting the group to destruction of their means of survival in their homeland; (ii) systematic displacement from their homes into inhospitable terrain where some died as a result of thirst, starvation and disease; (iii) usurpation of the land; and (iv) denial and hindrance of medical and other humanitarian assistance needed to sustain life in IDP camps.39 35. The Chamber notes that acts similar to those referred to in the paragraph above are listed in the Prosecution's Application under Count 5

text: 38 ICC-02/05-157-AnxA, para. 62 39 ICC-02/05-157-AnxA, para. 17! L. 172.

text: No. ICC-02/05-01/09 21/30 12 July 2010

text: (crime against humanity of extermination). In particular, the Prosecution alleges that the crime of extermination was committed by, inter alia, "destruction of the means of livelihood, forcible transfer into harsh desert conditions and/or IDP camps, obstruction of humanitarian aid, and the affirmative fostering of insecurity among those forcibly displaced" .40 The Prosecution alleges that the crime of extermination was also committed by other means, including "mass killing" .41 As indicated in the First Decision, the Chamber examined whether "the specific elements of at least one crime against humanity" were met,42 and concluded, on the basis of its satisfactory review of the evidence of killings, that there were reasonable grounds to believe that the crime against humanity of extermination was committed.43 36. The Chamber also found in the First Decision that: (i) there are reasonable grounds to believe that GoS forces, at times, contamined the wells and water pumps of the towns and villages primarily inhabited by members of the Fur, Masalit and Zaghawa groups that they attacked, albeit not as a core feature of the GoS forces' attack;44 (ii) "there are reasonable grounds to believe that hundreds of thousands of civilians belonging primarily to the Fur, Masalit and Zaghawa groups were subject, throughout the Darfur region to acts of forcible transfer by GoS forces between the start of the GoS counter-

text: 40 ICC-02/05-157-AnxA, para. 235. 41 ICC-02/05-157-AnxA, para. 62. 42ICC-02/05-/01/09-3, heading (b) on page 32. 43 ICC-02/05-01/09-3, para. 97. 44 ICC-02/05-01/09-3, para. 93. This finding of the Chamber in the First Decision was supported by the following evidence: Physicians for Human Rights, Report, Darfur Assault on Survival, A call for Security, justice, and Restitution (Anx J44) DAR-OTP-0119- 0635 at 0679 which mentions three incidents of destruction of water sources.

text: No. ICC-02/05-01/09 22/30 12 July 2010 insurgency campaign soon after the April 2003 attack on El Fasher airport

text: (iii) "there are reasonable grounds to believe that, at times, GoS forces

text: encouraged members of other tribes, which were allied with the GoS, to

text: resettle in the villages and lands previously mainly inhabited by members

text: of the Fur, Masalit and Zaghawa groups."46

text: The Chamber is of the view that the acts of contamination of the wells

text: and water pumps and the forcible transfer of hundreds of thousands of

text: civilians belonging primarily to the Fur, Masalit and Zaghawa groups

text: coupled with the resettlement in those villages and lands they had left by

text: members of other tribes allied with the GoS shall be analysed against the

text: backdrop of the Chamber's previous findings that (i) thousands of

text: were subjected, throughout Darfur region, to acts of murder by GoS

text: forces, and over a thousand civilians belonging primarlily to the Fur,

text: Masalit and Zaghawa groups were killed in connection with the attack on

text: the town of Kailek on or around 9 March 2004 by GoS forces,47 and (ii)

text: 45 ICC-02/05-01/09-3, para. 100. This finding of the Chamber in the First Decision was supported by the following evidence: UN Security Council Press release, 22 April 2008 (Anx J38) DAR-OTP-0147-0859 at 0860; UN Security Council 5872 meeting, 22 April 2008 (Anx J52) DAR-OTP-0147-1057 at 1061; UNCOI Material, (Anx J72) DAR-OTP-0038-0060 at 0065; Commission of Inquiry into allegations surrounding human rights violations committed by armed groups in the States of Darfur, January 2005, Reviewed, Volume 2 (Anx 52) DAR-OTP-0116-0568 at 0604; United Nations Inter-agency Report, 25 April 2004 (Anx J63) DAR-OTP-0030-0066 at 0067; Third periodic report of the United Nations High Commissioner for Human Rights on the human rights situation in the Sudan, April 2006 (Anx J75) DAR-OTP-0108-0562 at 0570-0572, paras. 27, 35, 39, 44; United Nation Human Rights Council, Report on Human Rights Situations that require the Council's attention (A/HRC/6/19) (Anx 78) at D AR-OTP-013 8-0116 at 0145-0146; HRW Report, They Shot at Us as We Fled, 18 May 2008, (Anx 80) DAR-OTP-0143-0273 at 0300, 0291-0296; Ninth periodic report of the United Nations High Commissioner for H u m a n Rights. Sudan (Anx J76) DAR-OTP-0136-0369 at 0372-0374. 46 ICC-02/05-01/09-3, para. 101. This finding of the Chamber in the First Decision was supported by a witness statement (AnxJ47) DAR-OTP-0125-0665 at 0716, para.255. 47 See supra. Count 1.

text: No. ICC-02/05-01/09 23/30 12 July 2010 civilians belonging to the aforementioned groups were subjected to acts of torture by the GoS forces.48 38. For these reasons, even though the assessment of the Majority in the First Decision in relation to the conditions within the IDP Camps in Darfur differs in part from what was described by the Prosecution and alleged under count 3,49 th^ Chamber considers that one of the reasonable conclusions that can be drawn is that the acts of contamination of water pumps and forcible transfer coupled by resettlement by member of other tribes, were committed in furtherance of the genocidal policy, and that the conditions of life inflicted on the Fur, Masalit and Zaghawa groups were calculated to bring about the physical destruction of a part of those ethnic groups. 39. In view of the foregoing, the Chamber finds that there are reasonable grounds to believe that the the elements of the crime of genocide by deliberately inflicting on members of the target group conditions of life calculated to bring about the group's physical destruction, as provided for in

text: article 6

text: (c) of

text: the Statute

text: , are fulfilled. 40. The Chamber is satisfied that it can be inferred from the factual circumstances referred above that there are reasonable grounds to believe that the subjective elements of the crime of genocide by deliberately inflicting on members of the target group conditions of life calculated to bring about the group's physical destruction of article 6(c) are fulfilled.

text: 48 See supra. Count 2. 49 ICC-02/05-01/09-3, paras 179,180 and 189.

text: No. ICC-02/05-01/09 24/30 12 July 2010 m . Whether there are reasonable grounds to believe that Omar Al Bashir is criminally responsible for the crimes mentioned above

text: The Prosecution alleges that Omar Al Bashir is criminally responsible under

text: article 25

text: (3)(a) of

text: the Statute

text: for committing acts of genocide against part of the Fur, Masalit and Zaghawa ethnic groups through the "apparatus" of the State of Sudan, including the Sudanese Armed Forces and their allied Janjaweed Militia, from March 2003 to 14 July 2008.50 42. On the basis of the information and evidence provided by the Prosecution, the Chamber held in the First Decision that there were reasonable grounds to believe that: (i) "[s]oon after the April 2003 attack on the El Fasher airport, a common plan to carry out a counterinsurgency campaign against the SLM/A, the JEM and other armed groups opposing the GoS in Darfur, was agreed upon at the highest level of the GoS, by Omar Al Bashir and other highranking Sudanese political and military leaders (...)/'^^ (ii) "[a] core component of such common plan was the unlawful attack on that part of the civilian population of Darfur - belonging largely to the Fur, Masalit and Zaghawa groups - perceived by the GoS as being close to the SLM/A and the JEM and other armed groups opposing the GoS in the ongoing armed conflict in Darfur (...) according to the common plan, the said civilian population was to be subject to unlawful attacks, forcible transfers and acts of murder, extermination, rape, torture, and pillage by GoS forces (...);"52

text: 50 ICC-02/05-157-AnxA, paras. 42, 62 and 244. 51 ICC-02/05-01/09-3, para. 214. 52 ICC-02/05-01/09-3, para. 215.

text: No. ICC-02/05-01/09 25/30 12 July 2010

text: (iii) "[0]mar Al Bashir and other high-ranking Sudanese political and military leaders directed the branches of the "apparatus" of the State of Sudan that they led, in a coordinated manner, in order to jointly implement the common plan;"53 (iv) "[0]mar Al Bashir, as de jure and de facto President of the State of Sudan and Commander-in-Chief of the Sudanese Armed Forces at all times relevant to the Prosecution Application, played an essential role in coordinating and design and implementation of the common plan;"54 and (v) "[0]mar Al Bashir (i) played a role that went beyond coordinating the implementation of the common plan; (ii) was in full control of all branches of the "apparatus" of the State of Sudan, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Forces, the NISS and the HAC, and (iii) used such control to secure the implementation of the common plan."55 43. The Chamber re-affirms these findings. As a result, the Chamber finds that there is sufficient evidence to establish reasonable grounds to believe that Omar Al Bashir is criminally responsible under

text: article 25

text: (3)(a) of

text: the Statute

text: as an indirect perpetrator, or as an indirect co-perpetrator, for those charges of genocide under

text: article 6

text: (a), 6(b) and 6(c) of

text: the Statute

text: , which were found in this decision, according to the reasonable grounds standard applicable under

text: article 58

text: of

text: the Statute

text: , to have been committed by the GoS forces as part of the GoS counter-insurgency campaign.

text: 53 ICC-02/05-01/09-3, para. 216. 54 ICC-02/05-01/09-3, para. 221. 55 ICC-02/05-01/09-3, para. 222.

text: No. ICC-02/05-01/09 26/30 12 July 2010

text: IV. Other relevant issues

text: The Chamber recalls other findings made in the First Decision, which are not affected by the decision of the Appeals Chamber and are relevant to the issuance of a warrant of arrest. In particular, the Chamber held that the case against Omar Al Bashir fell within the jurisdiction of the Court and that there was no ostensible cause or self-evident factor impelling the Chamber to exercise its discretion to determine the admissibility of the case against Omar Al Bashir.56 The Chamber further held that it was satisfied that the arrest of Omar Al Bashir appeared to be necessary to: (i) ensure his appearance at trial in accordance with

text: article 58

text: (l)(b)(i) of

text: the Statute

text: ; (ii) ensure that he would not obstruct or endanger the proceedings; and (iii) prevent Omar Al Bashir from continuing to commit the above-mentioned crimes. ^'^ The Chamber re-affirms these findings.

text: 56 ICC-02/05-01/09-3, paras. 37-45. 57 ICC-02/05-01/09-3, paras. 227-239.

text: No. ICC-02/05-01/09 27/30 12 July 2010

text: FOR THESE REASONS

text: DECIDES to issue a warrant of arrest against Omar Hassan Ahmad Al Bashir for his alleged criminal responsibility under

text: article 25

text: (3)(a) of

text: the Statute

text: for: i. genocide by killing, within the meaning of

text: article 6

text: (a) of

text: the Statute

text: ; ii. genocide by causing serious bodily or mental harm, within the meaning of

text: article 6

text: (b) of

text: the Statute

text: ; iii. genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction, within the meaning of

text: article 6

text: (c) of

text: the Statute

text: DECIDES that the warrant of arrest for Omar Al Bashir shall be included in a separate self-executing document containing the information required by

text: article 58

text: (3) of

text: the Statute

text: , which will not replace or revoke in any respect the previous warrant of arrest issued on 4 March 2009, which shall thus remain in effect;

text: DECIDES that, as soon as practicable, the Registry shall (i) prepare a supplementary request for cooperation seeking the arrest and surrender of Omar Al Bashir for the counts contained in both the first and the second warrant of arrest, and containing the information and documents required by

text: articles 89

text: (1) and

text: of

text: the Statute

text: , and by rule 187 of the Rules; and (ii) transmit such request to competent Sudanese authorities in accordance with rule 176(2) of the Rules, to all States Parties to

text: the Statute

text: and all the United Nations Security Council members that are not States Parties to

text: the Statute

text: No. ICC-02/05-01/09 28/30 12 July 2010

text: DECIDES that, as soon as practicable, the Registry shall prepare a request for cooperation seeking the arrest and surrender of Omar Al Bashir for the counts contained in both the first and the second warrant of arrest, and containing the information and documents required by

text: articles 89

text: (1) and

text: of

text: the Statute

text: , and by rule 187 of the Rules and transmit it, in accordance with rule 176(2) of the Rules, to all the States Parties to

text: the Statute

text: that have ratified it after 4 of March 2009 and to all United Nations Security Council members that are not States Parties to

text: the Statute

text: and that were not members of the Security Council on 4 March 2009;

text: DIRECTS the Registrar, as appropriate, to prepare and transmit to any other State any additional request for arrest and surrender which may be necessary for the arrest and surrender of Omar Al Bashir to the Court pursuant to

text: articles 89

text: and

text: of

text: the Statute

text: , and if the circumstances so require, to prepare and transmit a request for provisional arrest in accordance with

text: article 92

text: of

text: the Statute

text: FURTHER DIRECTS the Registrar, pursuant to

text: article 89

text: (3) of

text: the Statute

text: , to prepare and transmit to any State any request for transit which may be necessary for the surrender of Omar Al Bashir to the Court.

text: REJECTS the Prosecution's Request for an ex parte hearing, the Applications of Victims a/0011/06, a/0012/06, a/0013/06 and a/0015/06 and Victims a/0443/09, a/0444/09, a/0445/09, a/0446/09, a/0447/09, a/0448/09, a/0449/09 and a/0450/09 to participate in the current proceedings, the Application of the Sudan Workers Trade Unions Federation and the Sudan International Defence Group to submit observations as amid curiae

text: No. ICC-02/05-01/09 29/30 12 July 2010 and the Application of the Ad-Hoc Counsel for the Defense to file a response. Done in both English and French, the English version being authoritative.

text: \A

text: î^lvia Steiner Presiding/Judge

text: Judge Sanji Mmasenono Judge Cuno Tarfusser Monageng Dated this Monday 12 July 2010 At The Hague, The Netherlands

text: No. ICC-02/05-01/09 12 July 2010

title: The Prosecutor v. Omar Hassan Ahmad Al Bashir