Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
killings, bombings, arbitrary arrests and detentions,
torture, and looting continued. On 2 September 2011,
President Al’Bashir declared a state of emergency in
Blue Nile, suspended the Interim Constitution and
replaced the Governor with a military commander. On
12 September 2011, the National Assembly of Sudan
endorsed the extension of the state of emergency
in Blue Nile, supporting the continuance of the
Government’s military campaign against SPLM-N. 711
In its 23 - 29 September 2011 weekly bulletin report
the United Nations Office for the Coordination of
Humanitarian Affairs (OCHA) reported that the
ongoing insecurity in the region as well as the
movement restrictions imposed upon humanitarian
organisations continue to affect humanitarian
operations in South Kordofan; humanitarian
organisations are not permitted to enter areas of
conflict. 712
The Prosecutor v.
Omar Hassan Ahmad Al’Bashir
There are two outstanding Arrest Warrants for the
President of Sudan, President Al’Bashir. The first was
issued on 4 March 2009 by Pre-Trial Chamber I, 713 in
response to the Prosecutor’s application of 14 July
2008. 714 In its decision issuing the Arrest Warrant,
the Pre-Trial Chamber found, as required by Rome
Statute Article 58, that there were ‘reasonable grounds
to believe’ that President Al’Bashir has committed
crimes within the jurisdiction of the Court, namely five
counts of crimes against humanity, including rape,
and two counts of war crimes. However, the two-judge
majority declined to include the crime of genocide in
the Arrest Warrant, despite the Prosecution’s assertion
that there were reasonable grounds to believe that
President Al’Bashir bears criminal responsibility for
three counts of genocide. The genocide charges sought
by the Prosecutor included charges of gender-based
crimes, namely causing serious bodily or mental harm
711 Continuing Violations of Human Rights in South
Kordofan and Blue Nile States: 24 August – 8 September
2011’, African Centre for Justice and Peace Studies, p
7, available at , last visited on 26 October 2011.
712 ‘Sudan: Blue Nile and South Kordofan Situation <strong>Report</strong>
No. 21’, UNOCHA, 3 October 2011, p 2, available at
, last visited on 31 October 2011.
713 ICC-02/05-01/09-3. See also <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p
59-61, and the March 2009 and May 2009 Issues of Legal
Eye on the ICC e-letter.
714 ICC-02/05-152.
to members of the Fur, Masalit, and Zaghawa ethnic
groups, including through displacement, torture,
rape and other forms of sexual violence. Judge Ušacka
dissented from this decision, finding that there were
reasonable grounds to believe that President Al’Bashir
possessed genocidal intent and was criminally
responsible for genocide.
On 6 July 2009, the Prosecution filed an appeal against
the decision. 715 On 3 February 2010, the Appeals
Chamber handed down a unanimous decision
reversing Pre-Trial Chamber I’s finding that it had been
provided with insufficient evidence to issue a Warrant
of Arrest for the crime of genocide. 716 The Appeals
Chamber agreed with the Prosecution that the Pre-
Trial Chamber had applied an erroneous standard of
proof. The Appeals Chamber remanded the matter
to the Pre-Trial Chamber for a new decision on the
genocide charge, using the correct standard of proof.
On 12 July 2010, Pre-Trial Chamber I issued both a
second decision on the Prosecution’s application for an
Arrest Warrant for President Al’Bashir, 717 and a second
Warrant of Arrest for President Al’Bashir, including
the crime of genocide. 718 For a detailed analysis of
the Warrants of Arrest for President Al’Bashir, see the
<strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009 and 2010.
The Prosecutor v. Bahar Idriss Abu Garda
Bahar Idriss Abu Garda (Abu Garda) was one of three
suspects charged with war crimes in connection to
an attack against AU peacekeepers in 2007. On 7
May 2009, Pre-Trial Chamber I issued a Summons to
Appear for Abu Garda, 719 and he made his voluntary
initial appearance before the Court on 18 May of that
year. Following the confirmation of charges hearing
against Abu Garda from 19-29 October 2009, the Pre-
Trial Chamber issued its decision on the confirmation
of charges in February 2010. 720 The Pre-Trial Chamber
declined to confirm any of the charges against Abu
Garda, on the basis that the Prosecution had not
submitted sufficient evidence to establish substantial
grounds to believe that he was individually criminally
responsible as a direct or indirect co-perpetrator for
the attack on the Haskanita Military Group Site (MGS
Haskanita). 721 This marked the first time in the Court’s
history that a Pre-Trial Chamber had declined to
confirm any charges against an accused. The decision
is analysed in detail in the <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010. 722
715 ICC-02/05-01/09-25.
716 ICC-02/05-01/09-73.
717 ICC-02/05-01/09-94.
718 ICC-02/05-01/09-95.
719 ICC-02/05-02/09-2.
720 ICC-02/05-02/09-243-Red.
721 ICC-02/05-02/09-243-Red, paras 228-231.
722 See <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 109-111.
163