Nightmarish Nephrectomies: An Overview of Organ Harvesting in North Africa

HRW traced the Organ Harvesting Route in the Middle East

While transnational organized crime is inherently filled with malicious vice, few crimes are as heinous as organ harvesting in North Africa. Approximately 2,000 irregular immigrants per month seek to escape oppressive regimes in Eritrea and Sudan – the source states, move with the assistance of smugglers through Eritrea, Sudan, and Egypt – the transit states, and seek to reach a more prosperous life with family in Egypt, or continue to cross the Sinai into Israel.[1] However, some smugglers take advantage of this movement, and turn the irregular immigration into human trafficking or organ harvesting in the Sinai Peninsula – the market region.[2] Thousands of irregular immigrants have perished from organ harvesting and torture from their captors.[3] This crime is transnational in its framework, and has a litany of legal remedies working to end this trade; however, the governments of North Africa are not doing enough to fight this crime and needs to change their strategy in the Sinai to mitigate the illicit sale of organs.

Legal Framework

Organ harvesting explicitly goes against three U.N. multilateral frameworks, a conglomerate declaration, and a law in Egypt. The first U.N. document that challenges organ harvesting is the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime,” which Egypt ratified in March 2004.[4] This document mentioned “the removal of organs” when defining “trafficking in persons” and “exploitation.”[5] Egypt, Eritrea, and Sudan signed another U.N. document, the “Optional protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.”[6] This protocol condemns the, “Transfer of organs of the child for profit.”[7] Egypt and Sudan also signed the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” in June 1986.[8] This convention defines torture as, “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person.”[9] Furthermore, Article 2 of this convention stresses state-signatory action in that “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”[10] The U.N. arranged a potent multilateral framework against organ harvesting and torture.

Additionally, the international private and public sectors spoke out against organ trafficking and transplant tourism with the Declaration of Istanbul. This summit had over “150 representatives of scientific and medical bodies from around the world, government officials, social scientists, and ethicists, was held in Istanbul from April 30 to May 2, 2008.”[11] The agenda, developed by the World Health Organization, the International Society of Nephrology, and Transplantation Society, recommended best practices on organ transplanting, lobbying governments against organ harvesting, and providing substantive definitions.[12] This declaration provided definitions of organ trafficking, transplant commercialism, and transplant tourism.[13] The Declaration of Istanbul also noted best practices for principles of organ transplanting, legal frameworks for combating organ trafficking, and care of living donors.[14] This summit was important for North Africa as government representatives included Omar Abboud from Sudan, Mohamed Abel Bakr from Egypt – who was also on the Steering Committee for the Declaration of Istanbul, and Ahmed Adel Hassan from Egypt.[15] Thus, the Declaration of Istanbul served as a nexus for the public and private sectors, and provided further guidance on combating organ harvesting.

The Egyptian government has unilaterally attempted to legislate on organ harvesting in February 2010 with the Law on Human Organ Transplantation in Egypt. This law “condemn[s] organ trafficking,” through law enforcement surveillance and interdiction of organ harvesting criminal networks.[16] Furthermore, this law legalized organ transplantation from deceased donors, which Egyptians had previously viewed as a social taboo.[17] While this law provides a legal basis in combating the Egyptian organ trade, it has struggled against competing priorities in the wake of Arab Spring, the lack of a process for the harvesting of deceased peoples’ organs, and the lack of a regional multilateral framework.[18] Furthermore, Sudan and Eritrea do not have explicit domestic legal provisions against organ harvesting. Legal measures provide a framework on prohibiting the organ harvesting trade.

The Crime of Organ Harvesting

There are several parties of perpetrators involved in the crime of organ harvesting because of the transnational movement of the irregular immigrants. The initial party for the irregular immigrants are the contacts for the smugglers. These contacts are often urban Eritreans who have connections with the military and the People’s Front for Democracy and Justice political party, or brokers within Sudanese refugee camps.[19] The refugees seek to leave the camps in Sudan, such as Shagarab, as quickly as possible, because they are precariously close to the Eritrean border and are known to be violent.[20] The contacts will then arrange for smugglers, most notably the Rashaida “nomad camel pastoralists” for the journey from Eritrea and Sudan through Egypt to Israel.[21] These herdsmen are economically marginalized, and are known to traffic in people, weapons, capital, and goods.[22] The Rashaida bribe border guards to facilitate the movement of the illicit goods and irregular immigrants.[23] Some of the Rashaida further extort the Sudanese and Eritrea refugees by demanding additional funding or the nomads would sell them to Bedouins.[24] If the refugees fail to pay the increased price, then sometimes the Rashaida hand the immigrants over to “rogue” members of the influential Sawarka Bedouin tribe in the Sinai.[25] The movement from Sudan and Eritrea brings culpability on the brokers for the smugglers, the Rashaida smugglers, and the Bedouin holders.

The Bedouins then facilitate the organ harvesting with Egyptian doctors as a last resort to make money off of the Sudanese and Eritrean refugees. The Bedouin captors use sadistic means to force the compliance of their prisoners, including, but not limited to:

[The] rape of women, including having plastic piping inserted into their anuses and vaginas; burning of women’s genitalia and breasts; stripping women naked and whipping their buttocks; rape of men with plastic piping; beating with a metal rod or sticks; whipping with rubber whips or plastic cables; dripping molten plastic or rubber onto skin; burning with cigarettes or cigarette lighters; hanging from ceilings to the point of deforming arms; giving electric shocks; beating the soles of feet; forced standing for long periods, sometimes days; threatening to kill them, remove their organs, or cut off fingers; burning with a hot iron rod or boiling water; sleep deprivation; and putting water on wounds and beating the wounds.[26]

While this torture is occurring, the Bedouins will have the victims call their family members, especially the wealthier ones among the diaspora, to fund their release.[27] The captors will ransom their prisoners from $20,000 to $60,000, and if the price is not met, the Bedouins sometimes will cut their losses and harvest the victims’ organs.[28] Doctors from Cairo contact the captors, and will buy organs, such as corneas, livers, and kidneys, from $1,000 to $20,000 dollars.[29] Hamdy Al-Azazy, leader of the New Generation Foundation, an Egyptian anti-organ trafficking NGO, noted the modus operandi of the doctors in mobile clinics as “They [the harvesting doctors] drug them [the immigrants] first and remove their organs, then leave them to die and dump them in a deep dry well along with hundreds of bodies.”[30] This vile trade has led some of the Bedouin traffickers to make profits up to $200,000 annually.[31] The organs are often then sold and surgically implanted into wealthy patrons from the Gulf States.[32] The harvesting of organs brings together networks of doctors from Cairo and Bedouins from the Sinai.

This crime negatively impacts the welfare of the victims – if they survive a single nephrectomy and torture – as well as the internal security of North African states. Victims often suffer “a deterioration of their health in addition to negative social, economic, and psychological consequences as a result of the experience.”[33] This deterioration becomes apparent as victims contend with reduced health, hunger, pain, continued unemployment, stigmatization, family disruption, and depression.[34] Furthermore this trade spurs other transnational crime, including money laundering using the hawala system, arms smuggling, marijuana smuggling, corruption of law enforcement, and forced labor of irregular immigrants by the trafficking Bedouins.[35] Thus, organ harvesting in North Africa, involves the moment of irregular immigrants from Sudan and Eritrea through Egypt in an attempt to arrive at Israel. Sometimes, this irregular immigration turns into human trafficking, and the various criminal parties extort money and organs from their victims. This trade weakens any survivors and destabilizes the rule of law in Egypt.

Fighting the Crime

The instability of the North African region is limiting the response of the state in combating the transnational crime of organ harvesting. Surprisingly, tribal leaders in the Sinai are leading the charge against organ harvesters in lieu of the state. Additionally, NGOs and IGOs are gathering and disseminating information on the vile trade. In a similar manner, U.S. and the European Union are extending moral support through publications. Israel, however, has sought to seal its border to limit the trade, which has worsened the plight of refugees. The current measures to fighting the crime are not effective as they could be because of the hesitance of the state to stamp out the trade while facing other contending priorities.

The states of Egypt, Sudan, and Eritrea are rife with conflict and competing priorities to combating the illicit organ trade. Arab Spring in Egypt led to the removal of President Hosni Mubarak and Present Mohammed Morsi.[36] Furthermore, Egypt and Israel have a history of sparring over control of the Sinai, leading to mutual distrust.[37] Additionally, the Egyptian government has treated the Bedouin minority “disproportionately harshly,” as limited infrastructure and opportunity has lead the herdsmen to turn to crime for profit.[38] The Coalition for Organ-Failure Solutions, an activist NGO, noted, “the period of instability in Egypt and through the region will allow all forms of human trafficking of all forms to flourish.”[39] Eritrea, in its border skirmishes with Ethiopia, is using armed non-state actors to destabilize the region.[40] Furthermore, Eritrean President Isaias Afworki is turning Eritrea into a police state by utilizing conscription with indefinite service terms and stringent border controls.[41] Furthermore, Eritrea has only one political party, the People’s Front for Democracy and Justice, which suppresses the dissent of the Eritrean population.[42] Sudan is struggling with two civil wars; the first against the residents of South Sudan and the second against the residents of Darfur.[43] These conflicts are further compounded with the genocidal policies of Arabization, leading to segments of the population to flee to the prospects of work and safety in Israel.[44] The states of North Africa have competing priorities that take precedence over the organ trade.

Expectedly, the North African states’ response to organ harvesting has been poor and negligent. Corrupt law enforcement officers continue to collaborate with the smugglers.[45] The judicial systems in Egypt and Sudan have rendered few prosecutions. Egypt has not yet tried any law enforcement officers for collaborating with the smugglers, and only one trafficker has been prosecuted.[46] Sudan has prosecuted four corrupt police officers and 14 smugglers.[47] Law enforcement in the Sinai continues to be a problem, as the few official that acknowledge the organ trade is occurring lack the information on the perpetrators for large scale action.[48] Human Rights Watch framed this inaction well: “Senior officials in Sinai and Cairo either deny the abuses happen, or say Egypt’s public prosecutor is powerless to investigate such crimes without receiving names and locations of the traffickers.”[49] Reports of organ harvesting slowed following Egyptian military intervention against jihadists in the Sinai in October 2013.[50] The response of law enforcement and courts have been poor; the military option yielded some gains in the fight against organ harvesting.

The most effective apparatus against the organ harvesters have been Bedouin tribal leaders. Sawarka Bedouin Sheikh Mohammad Abu Bilal has worked with other local community leaders in setting up sanctions against the traffickers, such as denying them the right to purchase goods at Bedouin stores and marriage rights, as they have publically deemed the organ harvesting trade to be un-Islamic.[51] In addition to this effort Shiekh Abu Bilal has opened recovery homes to facilitate the well-being of irregular immigrant escapees.[52] Another Bedouin Sheikh, Ibrahim al Manai, has publically deemed the trade to be against Bedouin values, and has contributed 200 men to fight the organ trade.[53] These grassroots sheikhs have mobilized the local populace against the organ harvests.

NGOs and IGOs have been instrumental in fact-finding on this malignant trade, giving policy makers concrete information. The Coalition for Organ-Failure Solutions (COFS) has provided surveys for victims of organ harvesting, given medical services to commercial living donors, organized support groups, facilitated legal advice, and collaborated with other NGOs to arrange jobs for the victims.[54] CNN released two news documentaries on organ trafficking in the Sinai, “Death in the Desert” and “Stand in the Sinai.”[55] Following the filing of “Death in the Desert,” Egyptian intelligence pressured the Bedouin smuggles to end the trade; for a brief time the price of ransom shrank and more irregular immigrants were released.[56] Egyptian NGOs such as the Egyptian Initiative for Personal Rights (EIPR) and the New Generation Foundation have gathered evidence on the atrocities of organ harvesting and have prescribed legal recommendations to the Egyptian government. Physicians for Human Rights, an Israeli NGO, and the U.N. High Commissioner for Refugees (UNHCR) have conducted systematic interviews of African refugees in Israel to gather information on their journey.[57] Yet the Egyptian government blunted the efforts of the UNHCR by denying the group access to the Sinai.[58] Additionally, when Egyptian law enforcement officers arrested North African irregular immigrants in the Sinai, they were “without access to the Office of the United Nations High Commissioner for Refugees, thereby denying them the right to make an asylum claim.”[59] The most current NGO report is Human Rights Watch’s “I Wanted to Lie Down and Die,” which contains a map of the irregular immigration routs (featured on the cover), testimony from irregular immigrants, photos of the mutilations Bedouin captors did to the irregular immigrants (some featured in the annex), the compilation of work by NGOs and IGOs, and striking statistics on the movement of people in the North African region.[60] NGOs and IGOs have gathered the information on organ harvesting, and have presented this information along with prescriptions to the general public and to the governments of North Africa.

The U.S. and the EU have served as a moral force behind ending the organ trade in the region. The European Parliament has stressed the values espoused in the 1948 Universal Declaration of Human Rights, the Charter of Fundamental Rights, and the Conference of the Euro-Mediterranean Human Rights Network to the North African states.[61] The European Parliament condemned the human trafficking in the Sinai, where people were held hostage, tortured, raped, had their organs harvested, and coerced into forced labor.[62] Furthermore, the EU called for a greater pro-active stance by Egyptian law enforcement to end the human trafficking and protect the vulnerable refuges.[63] Within the member states, German MP Annette Growth has called for putting organ harvesting in the Sinai on the German Parliament’s agenda.[64] Across the Atlantic, the U.S. Department of State listed Egypt as a Tier 2 country, while marking Eritrea and Sudan as Tier 3 countries in its annual “Trafficking in Persons” report.[65] This second tier ranking means that Egypt has strived to working towards compliance with the Trafficking Victims Protection Act (TVPA).[66] The third tier ranking of Eritrea and Sudan means they have not complied with the TVPA, and face American sanctions on non-humanitarian aid.[67] The EU and the U.S. have sought to mitigate organ harvesting through publications and the threat of American sanctions against non-compliant countries.

Israel has responded defensively to the irregular immigration. The irregular immigrants from North Africa tend to go to Israel because there are job prospects.[68] However, Israel has recently become more xenophobic, passing an amendment to the 1954 Prevention of Infiltration Law in January 2012, labeling irregular immigrants as “infiltrators.”[69] This designation makes no distinction between asylum seekers, refugees, or smugglers, and any “infiltrator” can be detained up to 3 years before being deported from Israel.[70] The Israeli government, seeking to emulate the U.S. government’s policies on its Mexican border, have erected a fence along the Israeli-Sinai border and established a new jail in the Negev, which can hold up to 10,000 prisoners.[71] Furthermore, Egyptian border guards have “a shoot-to-kill policy in place” to defend their territory from smuggler, escalating strained tensions.[72] These escalated measures have led smugglers along with their human cargo to attempt going west through Libya and via a precarious boat journey into the Europe.[73] Israel has turned to defensive policies to stem the tide of North African irregular immigration.

What Now Can Be Done to Mitigate Organ Harvesting?

The current efforts to mitigate organ smuggling are ineffective at the state level and only mildly effective at the grassroots and NGO/IGO level. The efficiency of the efforts have become stagnated due to other pressing security concerns and the turmoil of regime change. The appropriateness of the response seems to be poor. NGOs have offered strong prescriptions to further mitigate the trade; perhaps combined with structural reforms and a counterinsurgency campaign, these prescriptions could further mitigate the organ harvesting trade.

As mentioned previously, the state level has struggled to make an impact on this transnational organized crime. Few prosecutions, corrupt border officials, and the sidelining of the 2010 Law on Human Organ Transplantation in Egypt, have stalled judicial and law enforcement efforts in the Sinai. Furthermore, denials of the trade by senior law enforcement officials delegitimize any effort against the vile exchange. Yet the Egyptian military has proven to be effective as an institution and as a fighting force in the Sinai. When the army manifested to fight jihadists in the Sinai in late 2013, the reports of organ harvesting dropped. Thus, the problems from a law enforcement or judicial perspective seem not to be in control; however, the deployment of the army seems to be a viable option to restore control.

The grassroots level has sought to use identity unity, sanctions, and pursuit of the harvesters to mitigate the trade, mitigating the trade. Sheikh Mohammad Abu Bilal and Sheikh Ibrahim al Manai have made a difference in rallying the local population against the trade and in rehabilitating the survivors of torture in the Sinai. While these actions serve as a short term solution to mitigating the trade, only long term solutions with the government in Cairo can truly cripple the trade. While these two sheikhs have spoken against the trade, other Bedouins still try to cover up the grave business. Perhaps an exchange program of information on the traffickers for aid and development could be reached between the government of Egypt and the Bedouins. While the steps of the sheikhs are a good first step, long term solutions for socio-economic distress and for counterinsurgency intelligence between the Bedouins and the Egyptian government still need to be discussed and executed.

NGOs and IGOs have done a fair job on reporting the information on the organ harvesting trade. Some of the numbers regarding this heinous business have fluctuated because of its clandestine nature. Furthermore, the Sinai has become a denied area for some NGOs and IGOs, such as the UNHCR. Additionally, the NGOs and IGOs have failed to push the issue of organ harvesting on the legislative agenda of states, despite successes on the international level through the U.N. and summits. NGOs and IGOs have performed as well as they can, barring the restrains placed on them by Egypt.

Resources could be more efficiently and more appropriately by enacting the legislative reforms on organ transplantation, aiding the Bedouin grass root movements against the traffickers, and the employment of the military option to establish security, rather than striving for a solution using corrupt or ignorant law enforcement officials and a hesitant judiciary. The Law on Human Organ Transplantation in Egypt is inefficient because it lacks a regional framework and it lacks a process for the harvesting of organs of the deceased. This inefficiency could be corrected by having the Egyptian parliament call for a conference between the North African states or through the Arab League on this issue and setting a legal framework base line on this issue. Furthermore, Egypt could establish a donation framework like the American organ donation program with driver’s licenses, allowing for a continuous stream of organs to be used for the needy. This donation framework would increase the supply of organs for transplant, and lessen the need to use coercively gained or illicitly obtained organs through transnational organized crime. Furthermore, the Egyptian government could go further in working with the Bedouin tribes in combating organ harvesting by creating a deeper dialogue. This dialogue could take place by increasing the buy in of the Bedouins in the Egyptian state through aid and development projects or creating a Council of Regions within the Egyptian parliament. These democratic inspired solutions could yield improved efficiency and appropriateness. Another program that could yield great success would be a chieu hoi like program, where smugglers that surrendered could start to work for the Egyptian government by providing intelligence in exchange for monetary inducements. While this option would be effective, it would essential be spying and bribery to ending the organ smuggling trade. If this dialogue facilitated usable intelligence against the traffickers and if the Bedouins did not compel the traffickers to change their ways, the Egyptian military could launch a counterinsurgency campaign against the criminal networks, perhaps with the tactic approval of Israel. Much can be done to further expand on the appropriateness and efficiency of the current efforts on fighting organ harvesting in North Africa.

NGOs have prescribed several actions that would work in concert with legal reform and a counterinsurgency campaign. COFS used an economic model of organ harvesting arguing that, “With transplants as the preferred therapy for renal failure, demand for kidneys will continue to outpace supplies. Until nations can build transparent, reliable systems of organ donation through altruistic donations from healthy individuals and deceased donors, poor and vulnerable individuals are at risk for being targeted to supply organs to privileged patients.”[74] Thus, COFS suggested strengthening the Law on Human Organ Transplantation in Egypt and the development of laws against organ harvesting elsewhere. EIPR reiterated stricter legislation against organ harvesting and stressed Egyptians adopt “a culture of donation” of organs.[75] Human Rights Watch provided a comprehensive list of prescriptions to mitigate organ harvesting and torture in North Africa. Like the other NGOs, they stressed increasing the power and enacting the provisions of the legal framework against this transnational crime.[76] The NGO also stressed changing the approach to irregular immigrants from criminal based investigations to victim care approaches.[77] Human Rights Watch also advised the Egyptian and Sudanese bureaucracy to investigate claims of corruption and torture by law enforcement officials.[78] A key institution for this expanded fight against the harvesters would be Egypt’s National Coordinating Committee on Combating and Preventing Human Trafficking through increased clout and situational updates from the Sinai.[79] Thus, NGOs have recommended the enforcement of the 2010 Egyptian law through reformed police agencies.

Ultimately, the nightmarish nephrectomies in the Sinai will persist. Immigrants fleeing repressive regimes in Sudan and Eritrea will continue to be preyed upon by smugglers in Egypt on their journey to Israel. Yet, current actions emplace by Bedouins, NGOs, and IGOs have mitigated this trade. For the suppression of organ harvesting, the states of North Africa need to work together as a region and collaborate with local and non-governmental resources to end the socioeconomic roots of this vile trade. This end state could be accomplished through aid and development in the Sinai in combination with a counterinsurgency campaign along with following the prescriptions of NGOs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Warning: Images Are Graphic – Viewer Discretion Is Advised

Annex A:

Eritrean Victim of Torture in the Sinai, Photographed by Tome Dale of HRW

 

Annex B:

Body Recovered in the Sinai with Organs Missing, Recorded in CNN’s “Death in the Desert.”

 

 

 

 

 

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[1] European Parliament, “Human trafficking in Sinai, in particular the case of Solomon W.” P7_TA(2012)0092. March 15, 2012. Accessed January 20, 2014; Rachel Humphris, “Refugees and the Rashaida: Human Smuggling and Trafficking from Eritrea to Sudan and Egypt,” Research Paper No. 254. March 2013. UNHCR, 4.

[2] Debra Budiani-Saberi, “Human Trafficking for Organ Removal: Evidence from Egypt,” Rights Work. March 5, 2012. Accessed January 20, 2014.

[3] Ibid.

[4] United Nations, “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.” November 15, 2000. Accessed March 31, 2014.

[5] United Nations Office on Drugs and Crime, “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.” New York, 2004. Accessed April 24, 2014.

[6] United Nations, “Optional protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.” March 16, 2001. Accessed March 31, 2014.

[7] United Nations, “Optional protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.” March 16, 2001. Accessed April 24, 2014.

[8] United Nations, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” December 10, 1984. Accessed April 24, 2014.

[9] United Nations Human Rights, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” December 10, 1984. Accessed April 24, 2014.

[10] Ibid.

[11] International Summit on Transplant Tourism and Organ Trafficking, “The Declaration of Istanbul on Organ Trafficking and Transplant Tourism.” May 2, 2008. Accessed March 31, 2014, Preamble.

[12] Debra Budiani-Saberi and Amr Mostada, “Care for commercial living donors: the experience of an NGO’s outreach in Egypt,” Transplant International. February 28, 2011.

[13] International Summit on Transplant Tourism and Organ Trafficking, “The Declaration of Istanbul on Organ Trafficking and Transplant Tourism,” Definitions.

[14] Ibid., Principles and Proposals.

[15] Ibid., Participants of Istanbul Summit.

[16] Coalition for Organ Failure Solutions, “Sudanese Victims of Organ Trafficking in Egypt.” December 2011.

[17] Ibid.

[18] Coalition for Organ Failure Solutions, “Sudanese Victims of Organ Trafficking in Egypt.” December 2011.

[19] Rachel Humphris, “Refugees and the Rashaida,” 11-13.

[20] Ibid., 8

[21] Ibid., 9.

[22] Ibid.

[23] Yohannes Woldemariam, “Egypt: Human Trafficking in Sinai,” Think Africa Press. April 17, 2013. Accessed January 20, 2014.

[24] Rachel Humphris, “Refugees and the Rashaida,” 11-15.

[25] Fred Pleitgen and Mohamed Fadel Fahmy, “Refugees Face Organ Theft in the Sinai,” CNN Freedom Project. November 3, 2011. Accessed January 20, 2014.

[26] Human Rights Watch, “I Wanted to Lie Down and Die.” February 11, 2014. Accessed April 24, 2014, 28-29.

[27] CNN, “Death in the Desert,” The CNN Freedom Project. November 8, 2011. Accessed January 20, 2014.

[28] Jill Reilly, “Child torturers of the desert: Horrific footage reveals human traffickers are even targeting BABIES to get families to pay ransoms,” Daily Mail. September 20, 2012. Accessed January 20, 2014.

[29] Fred Pleitgen and Mohamed Fadel Fahmy, “Refugees Face Organ Theft in the Sinai.”

[30] Fred Pleitgen and Mohamed Fadel Fahmy, “Refugees Face Organ Theft in the Sinai.”

[31] Harriet Sherwood, “Hundreds of Eritreans Enslaved in Torture Camps in Sudan and Egypt,” The Guardian. February 11, 2014. Accessed April 24, 2014.

[32] Coalition for Organ Failure Solutions, “Sudanese Victims of Organ Trafficking in Egypt.”

[33] Debra Budiani-Saberi, “Human Trafficking for Organ Removal: Evidence from Egypt.”

[34] Coalition for Organ Failure Solutions, “Sudanese Victims of Organ Trafficking in Egypt.”

[35] CNN, “Death in the Desert.”; Human Rights Watch, “I Wanted to Lie Down and Die,” 25, 31.

[36] CIA World Factbook, “Egypt,” CIA. Accessed March 31, 2014.

[37] Ibid.

[38] Yohannes Woldemariam, “Egypt: Human Trafficking in Sinai.”

[39] Coalition for Organ Failure Solutions, “Sudanese Victims of Organ Trafficking in Egypt.”

[40] CIA World Factbook, “Eritrea,” CIA. Accessed January 20, 2014.

[41] Ibid.

[42] Ibid.

[43] CIA World Factbook, “Sudan,” CIA. Accessed March 31, 2014.

[44] Ibid.

[45] Harriet Sherwood, “Hundreds of Eritreans Enslaved in Torture Camps in Sudan and Egypt.”

[46] Ibid.

[47] Ibid.

[48] CNN, “Death in the Desert.”

[49] Human Rights Watch, “I Wanted to Lie Down and Die,” 10.

[50] Ibid.

[51] CNN, “Stand in the Sinai,” The CNN Freedom Project. September 26, 2012. Accessed January 20, 2014; Jill Reilly, “Child torturers of the desert: Horrific footage reveals human traffickers are even targeting BABIES to get families to pay ransoms.”

[52] Ibid.

[53] CNN, “Stand in the Sinai.”

[54] Debra Budiani-Saberi and Amr Mostada, “Care for commercial living donors: the experience of an NGO’s outreach in Egypt.”

[55] CNN, “Death in the Desert.”; CNN, “Stand in the Sinai.”

[56] CNN, “Stand in the Sinai.”

[57] Human Rights Watch, “I Wanted to Lie Down and Die,” 33-34.

[58] Ibid., 34.

[59] Human Rights Watch, World Report 2012: Egypt.” 2012. Accessed January 2014.

[60] Human Rights Watch, “I Wanted to Lie Down and Die,” Summary.

[61] European Parliament. “Human trafficking in Sinai, in particular the case of Solomon W.”

[62] Ibid.

[63] European Parliament. “Human trafficking in Sinai, in particular the case of Solomon W.”

[64] CNN, “Stand in the Sinai.”

[65] United States Department of State, “Trafficking in Persons Report.” June 2013. Accessed March 31, 2014, 56.

[66] Ibid., 44, 55.

[67] Ibid., 46-47, 55.

[68] Rachel Humphris, “Refugees and the Rashaida,” 4.

[69] Ibid.

[70] Ibid.

[71] Ibid., 4-5.

[72] Yohannes Woldemariam, “Egypt: Human Trafficking in Sinai.”

[73] Human Rights Watch, “I Wanted to Lie Down and Die,” 12.

[74] Debra Budiani-Saberi, “Human Trafficking for Organ Removal: Evidence from Egypt.”

[75] Egyptian Initiative for Personal Rights, “Organ Transplant Legislation: From Trade to Donation.” March 31, 2014. Accessed April 24, 2014.

[76] Human Rights Watch, “I Wanted to Lie Down and Die,” 14.

[77] Ibid.

[78] Ibid.

[79] Ibid., 17.

Catch Me if You Can: The Failing Efforts of the International Criminal Court to Bring Omar Al-Bashir to Justice

Catch Me if You Can: The Failing Efforts of the International Criminal Court to Bring Omar Al-Bashir to Justice

 

 

“After three years I have strong evidence that al-Bashir is committing a genocide. I cannot be blackmailed; I cannot yield. Silence never helped the victims. Silence helped the perpetrators. The prosecutor should not be silent.”[1]

– International Criminal Court Prosecutor Luis Moreno-Ocampo to CNN, July 14, 2008

 

            These moving words of International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo are a testament to his determination to bring justice for the victims of the Darfur genocide. Yet the key perpetrator, Sudanese President Omar Hassan Ahmad Al Bashir, has eluded this international body for several years. This research paper seeks to investigate the significance of the internal dynamics of Sudan, the empowerment of the ICC, the proceedings against Bashir for genocide, war crimes, and crimes against humanity in Darfur, and the reaction of various actors in the international community. While the International Criminal Court holds a moral impetus for prosecuting these heinous crimes, it lacks the direct action force – which some states, like the United States, would view as a breach of their sovereignty – necessary to bring Al Bashir to justice for his crimes.

The Sorrows of Sudan: The Rise of Bashir, Socioeconomic Woes, and Two Flashpoints

            In the epoch of President Bashir, Sudan has struggled to cope with rampant economic problems and two flashpoints of conflict – South Sudan and Darfur. Bashir’s life “has been defined by war.”[2] He was born in a rural area north of Khartoum, the capital of Sudan, in 1944.[3] Bashir became a career soldier, studying at military academies in Cairo and Khartoum and fighting as a paratrooper in the Yom Kippur War.[4] Bashir and the National Congress Party seized power in a military coup against the al-Mahdi regime in 1989.[5] Following the coup, Bashir became the de facto chairman of the Revolutionary Command Council for National Salvation (RCC), giving him the powers of head of state, head of government, and secretary of defense.[6] The RCC named Bashir as the de jure president in 1993.[7] Furthermore, Bashir gained legitimacy for his post through a presidential election in 1996, which he easily won.[8] During his administration, he stressed policies of Arabization, suspended rival trade unions and political parties, and instituted Sharia law.[9] The United States strained its relationship with Sudan when American missiles destroyed a pharmaceutical plant mistaken as a chemical weapons facility in 1998.[10] Thus, conflict marked Bashir’s rise to power in Sudan.

            Bashir’s Sudan has struggled with economic and security problems, despite having precious raw materials. Despite an abundance of gold and oil exports, gross domestic product levels and industrial production dropped 4.4% and 28.9% respectively because of armed conflict and a lack of economic development according to 2012 estimate.[11] Also, 46.5% of the population remained below the poverty line with a purchasing power of $2,600.[12] “Porous” borders make Sudan a hub of smuggling and human trafficking of displaced persons in Africa.[13] Poverty and physical insecurity has exacerbated conflict in Sudan.

            Bashir’s militant leadership and socioeconomic problems have fomented two armed uprisings in Darfur. The first uprising was between the Muslim Arab north and the Christian black south. Following independence from British administration in 1956, skirmishing broke out in Sudan between the two groups.[14] Sudanese President Jaafar Numeiri offered limited autonomy to the South Sudanese in 1972, which limited the fighting until conflict reignited in 1983.[15] During the Bashir administration, the 2005 Comprehensive Peace Agreement officially ended the conflict, giving the Southern Sudanese more autonomy and a plebiscite for independence in 2011.[16] During this plebiscite, 99% of the southern Sudanese voted for independence, leading to the creation of the sovereign state of South Sudan.[17] Despite the 2005 peace agreement and the independence of South Sudan, armed fighting has persisted over border lines and disputes over oil revenue.[18] This flashpoint of conflict led to the death of over 1.5 million people.[19] Sudan faced a flashpoint of conflict over identity division between the Muslim north and the Christian south, resulting in the state of South Sudan and 1.5 million fatalities.

            The second uprising occurred between the black Dafuri tribes and the Arab Sudanese. In 2003, the black Justice and Equality Movement (JEM) and the Sudanese Liberation Army/Movement (SLA/M) protested the “historical, political, and socio-economic marginalization of the Darfur region.”[20] President Bashir responded with disproportional and indiscriminate armed force in Darfur against the black Fur, Masalit, and Zaghawa tribes.[21] Bashir has framed the conflict in Darfur as, “just traditional conflict over resources, which has been coated with claims of marginalization.”[22] Yet this “traditional conflict” has led to the death of at least 300,000 Dafuris and the displacement of 2.5 million more black Sudanese.[23] Bashir’s disproportionate militant response in Darfur set the stage for his ICC prosecution.

Beacon of Justice: The Rome Statue and the International Criminal Court

            The Rome Statute provided the ICC with a comprehensive framework, organizational structure, provided substantive definitions of heinous crimes, and described its operational mechanisms. The articles in the Rome Statute empowered the ICC to investigate eight open cases in Africa and bring individual perpetrators of vile atrocities to justice. On the other hand, the hesitance of the United States to support the ICC has weakened its clout of power.

            The Rome Statute was a multilateral legal effort which states started in 1998 and ratified on July 1, 2002 to create a standing judicial body to prosecute individuals for committing grave crimes. Article 1 described the ICC as being a “permanent institution,” rather than an ad hoc tribunal, like the International Criminal Tribunal for Yugoslavia.[24] Furthermore, the ICC had the power to “exercise its jurisdiction over persons for the most serious crimes of international concern.”[25] The ICC was “complementary to national criminal jurisdictions,” meaning that the ICC was a court of last resort, and the prosecution would only investigate cases if the party state referred a case to the ICC or if the party state was incapable to investigate the case.[26] Article 2 stated that the ICC would work in a “relationship” with the U.N.[27] Article 3 declared that the ICC would sit at The Hague.[28] Article 4 on the legal status and powers of the court noted that “The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.”[29] This article is a clear break from customary international law, in that states which were not party to the Rome Statute could have ICC functions and powers used against their nationals. This unique situation could occur when the prosecutor acted using proprio motu – on his own initiative, or the U.N. Security Council requested an investigation on grave crimes committed by individual nationals of the non-party state.[30] Thus, the Rome Statute created an international court that had unprecedented sweeping jurisdiction and standing.

            Following the description of the basic nature of the International Criminal Court, the Rome Statute provides the substantive definitions and specific acts of heinous crimes. The ICC maintains jurisdiction over the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression in Article 5.[31] In Article 6, The Rome Statute defines genocide as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; 4 (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.[32]

The key issue with this definition of genocide is proving the “intent to destroy,” which can be difficult in a criminal prosecution because of varying standards of proof. The Rome Statute then clarifies crimes against humanity in Article 7 as:

Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[33]

To further clarify these crimes, Article 7 (2) a-i defines the individual crimes.[34] Article 8 defines war crimes as, “Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention” and “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.”[35] The crime of aggression is yet to be defined.[36] According to Article 11, the ICC had the jurisdiction on these crimes after the statute went into effect on July 1, 2002.[37] The Rome Statute provided substantive definitions to enable prosecution of individuals for the gravest crimes.

The ICC has numerous organs to ensure its mission of justice is fulfilled. Article 34 lists the organs of the court including “the presidency, an appeals division, a trial division, a pre-trial division, the office of the prosecutor, and the registry.”[38] The presidency is responsible for “The proper administration of the Court.”[39] The Rome Statute set the number of judges at a total of 18.[40] The prosecutor was responsible for “receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.”[41] The registry has the responsibility for “non-judicial aspects of the administration and servicing of the Court.”[42] The various organs of the ICC support its permanent standing and its independent authority.

The ICC has several articles in the Rome Statute which give the institution flexibility in its international jurisprudence. Article 16 permits the court to defer an investigation or prosecution for a year following a U.N. Security Council Resolution.[43] The ICC has the competence to authorize a warrant of arrest in Article 58 of the Rome Statute, pending that:

There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial, (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.[44]

Despite this broad authority to create arrest warrants, the ICC lacks its own gendarmerie to deliver suspects to The Hague.[45] According to Article 89 of the Rome Statute, “States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.”[46] While state parties should support the ICC, other real geopolitical interests can obstruct this compliance. Altogether, 122 countries have ratified the Rome statute, with 34 from Africa, 27 from Latin America, 25 from Western Europe, 18 from Eastern Europe, and 18 from the Asia-Pacific region.[47] Thus, the ICC has the flexibility to work with its party states in bringing fugitives to justice.

            The ICC has opened cases in seven countries around the world in addition to Sudan. In April 2004, President Joseph Kabila of the Democratic Republic of the Congo invited the ICC prosecutor to investigate allegations of grave crimes since July 2002.[48] The ICC Prosecutor Luis Moreno-Ocampo started his investigation in June 2004, and ICC judges approved four of his arrest warrant applications against warlords.[49] In December 2003, President Yoweri Museveni of Uganda asked the ICC prosecutor to investigate atrocities committed by Joseph Kony of the Lord’s Resistance Army (LRA).[50] The ICC prosecutor started his investigation in July 2004, leading to numerous arrest warrants; however, this action hardened the resolve of LRA to not accept a cease fire with the government of Uganda.[51] In July 2005, the government of the Central African Republic requested the ICC prosecutor to investigate crimes committed in its territory.[52] The ICC prosecutor’s investigation led to the warrant and arrest of Jean-Pierre Bemba, a notorious warlord.[53] The ICC prosecutor has also investigated violence in Kenya and in the Ivory Cost proprio motu, or on his own initiative, in 2010.[54] The ICC has also investigated graves crimes in the wake of the Arab Spring revolutions in Libya and Mali.[55] The ICC is an active investigative and prosecuting force in international legal affairs.

            Despite the ICC’s activism in international legal affairs, the United States is hesitant to work with the institution out of fear that the court would encroach on American sovereignty. The arguments for the U.S. to avoid signing the Rome Statute are best articulated by the Heritage Foundation, an American conservative research group, who claim that,

The Rome Statute created a seriously flawed institution that lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of nonparty states in some circumstances.[56]

While President Bill Clinton signed the Rome Statute, the American Congress refused to ratify the multilateral accord, fearing that U.S. soldiers could be targeted by “politically motivated or frivolous prosecutions.”[57] This point of tension led to President Bush’s “un-signing” of the Rome Treaty, declaring that the U.S. had no intention to become a party state to the ICC.[58] Furthermore, American hesitance to work with the ICC manifested the American Service-Members’ Protection Act of 2002 (ASPA) which limits U.S. involvement with the ICC by: “prohibiting cooperation with the ICC by any official U.S. entity,” “prohibiting participation by U.S. military or officials in U.N. peacekeeping operations unless they are shielded from the ICC’s jurisdiction,” and “authorizing the President to use ‘all means necessary and appropriate’ to free U.S. military personnel or officials detained by the ICC.”[59] Another piece of American legislation, the Nethercutt Amendment, supplemented ASPA by limiting aid to ICC party states unless they signed a bilateral agreement not to extradite American nationals to the ICC.[60] Surprisingly, both ASPA and the Nethercutt Amendment have provisions which allow the President to disregard them if they are in the interests of the United States, allowing for pragmatic cooperation with the ICC.[61] For example, the American Ambassador to the U.N. Security Council abstained on referring the situation in Sudan to the ICC.[62] In addition to the U.S. not being a party to the International Criminal Court, other important countries such as Russia, Israel, Iran, Egypt, China, Pakistan, India, Indonesia, and Turkey also avoiding signing the Rome Statue.[63] The Heritage Foundation noted:

The Court is gravely flawed. Its broad autonomy and jurisdiction invite politically motivated indictments. Its inflexibility can impede political resolution of problems, and its insulation from political considerations can complicate diplomatic efforts. Efforts to use the court to apply pressure to inherently political issues and supersede the foreign policy prerogatives of sovereign nations undermine the court’s credibility and threaten its future.[64]

The risks to American sovereignty, military personnel, and diplomatic stratagems do not outweigh the benefits of becoming a party state of the ICC, leading to the institution losing support.

The Prosecutor v. Omar Hassan Ahmad Al Bashir: A New International Precedent

            The legal process to investigate atrocities in Darfur started in 2004 and continues to the present day. This case demonstrates the lengthy and judicious procedure of the ICC in its pursuit of justice. Three factors stand out as a new international criminal precedent in this case: the first time the ICC issued an arrest warrant for a head of state,[65] the first time the ICC issued an arrest warrant citing the crime of genocide,[66] and Bashir’s extensive evasion of being brought before the ICC.

            The long road to The Hague started on September 18, 2004 with the U.N. Security Council establishing the Commission of Inquiry. U.N. Security Council Resolution 1564 (2004) requested that,

The Secretary-General rapidly establish an international Commission of Inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable, calls on all parties to cooperate fully with such a commission, and further requests the Secretary-General, in conjunction with the Office of the High Commissioner for Human Rights, to take appropriate steps to increase the number of human rights monitors deployed to Darfur.[67]

This Commission of Inquiry would serve as the eyes and ears of the U.N. Security Council on a fact-finding mission in Darfur.

            The next major event occurred with Secretary General Kofi Annan’s report on the composition and findings of the Commission of Inquiry to the U.N. Security Council on January 31, 2005. Secretary General Annan staffed the Commission of Inquiry with Antonio Cassese as the chairperson, with Mohamed Fayek, Hina Jilani, Dumisa Ntsebeza, and Therese Striggner-Scott serving as members.[68] Secretary General Annan gave them of the objectives of:

(1) to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties; (2) to determine whether or not acts of genocide have occurred; (3) to identify the perpetrators of violations of international humanitarian law and human rights law in Darfur; and (4) to suggest means of ensuring that those responsible for such violations are held accountable.[69]

The commission became operational on October 25, 2004, and Kofi Annan demanded a status report in three months.[70] After traveling to Darfur to investigate, the Commission of Inquiry found that “Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law.”[71] Furthermore the commission discovered that, “most attacks were deliberately and indiscriminately directed against civilians.”[72] Despite the appearance of war crimes and crimes against humanity, the commission deemed, “the Government of the Sudan has not pursued a policy of genocide,” because “the crucial element of genocidal intent appears to be missing.”[73] To fulfill the fourth objective of suggesting means to hold those accountable for violations, the Commission of Inquiry “strongly recommend[ed] that the Security Council immediately refer the situation of Darfur to the International Criminal Court.”[74] The fact finding Commission of Inquiry noted that gross atrocities were occurring in Sudan, and recommended that the Security Council turn to the ICC to hold the perpetrators accountable.

            The U.N. Security Council heeded the advice of the Commission of Inquiry, and referred the situation in Darfur to the ICC with Resolution 1593 (2005). On March 31, 2005, the U.N. Security Council decided to, “immediately refer the situation of Darfur to the International Criminal Court.”[75] Yet Sudan was not a party to the Rome Statute. The Security Council sought to remedy this incongruence by stressing cooperation with the prosecutor. The U.N. body wrote,

The Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.[76]

 

The U.N. Security Council was forcing the jurisdiction of the ICC on Sudan, a non-party state to the Rome Statute.

            The first arrest warrants for perpetrators in Darfur atrocities came in 2007; the prosecution shortly thereafter applied for a warrant of arrest for President Omar Al-Bashir. In February 2007, the prosecution applied for arrest warrants for Sudanese Interior Minister Muhammad Harun and Janjaweed Militia Leader Ali Muhammad Ali Abd-Al Rahman “Ali Kushayb.”[77] The ICC Pre-Trial judges granted this request in April 2007.[78] The prosecution then took the unprecedented step of applying for a warrant of arrest for sitting head of government Bashir on July 14, 2008, creating the case of The Prosecutor v. Omar Hassan Ahmad Al Bashir. The prosecution wrote,

There are reasonable grounds to believe that Omar Hassan Ahmad AL BASHIR bears criminal responsibility under the Rome Statute for the crime of genocide under Art. 6(a) killing members of the Fur, Masalit and Zaghawa ethnic groups; (b) causing serious bodily or mental harm to members of those groups; and (c) deliberately inflicting on those groups conditions of life calculated to bring about their physical destruction in part; for crimes against humanity under Art. 7(1) of the Rome Statute committing as part of a widespread and systematic attack directed against the civilian population of Darfur with knowledge of the attack, the acts of (a) murder; (b) extermination; (d) forcible transfer of the population; (f) torture and (g) rapes, and for war crimes under Art. 8 (2)(e)(i) of the Statute, for intentionally directing attacks against the civilian population as such, and (v) pillaging a town or place.[79]

 

Thus, the prosecution applied for a warrant of arrest for President Bashir with three counts of genocide, two counts of war crimes, and five counts of crimes against humanity. The prosecutor then described Bashir’s personal responsibility for the upheaval in Darfur. Luis Moreno-Ocampo described how Bashir divided Sudanese society, as he “developed a policy of exploiting real or perceived grievances between the different tribes struggling to prosper in the difficult environment.”[80] Bashir then played the tribes off against each other by “promot[ing] the idea of a polarization between tribes aligned with him, whom he labelled ‘Arabs’ and the three ethnic groups he perceived as the main threats, the Fur, Masalit, and Zaghawa.”[81] The prosecution illustrated Bashir’s plan, as, “His pretext was a ‘counterinsurgency’. His intent was genocide.”[82] Drawing on the sheer number of war crimes and crimes against humanity, the prosecutor wrote that, “the facts of this case from which the existence of the intent required for genocide is the only reasonable inference.”[83] Thus, the prosecutor took the unprecedented step of charging a sitting head of government, President Bashir, with the highest crime – genocide.

            The Pre-Trial Chamber issued a warrant of arrest for Bashir on March 4, 2009; however, they did not include the charge of genocide. Justices Akua Kuenyehia, Anita Usacka, and Sylvvia Steiner of the ICC authorized a warrant for the arrest of Omar Al-Bashir on the war crimes of attacking civilians and pillaging, and the crimes against humanity of murder, extermination, forcible transfer, torture, and rape.[84] The justices denied the claims of genocide because,

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 article 58 of the Statute would not have been met (my emphasis).[85]

The judges of the Pre-Trial Chamber issued a warrant of arrest for President Bashir for war crimes and crimes against humanity after dismissing the charges of genocide.

            The prosecution then appealed the dismissal of the three counts of genocide to the Appeals Chamber of the ICC. Luis Moreno-Ocampo argued that, “the Majority applied the wrong legal test to draw inferences for determining ‘reasonable grounds’ under Article 58 of the Statute.”[86] This use of the wrong legal test which, “imposed on the Prosecution an evidentiary burden that is inappropriate for this procedural stage,” that resulted in the charges of genocide being dismissed.[87] Instead of using the standard of “reasonable grounds” for an arrest warrant under Article 58, the justices used the standard of “proof beyond a reasonable doubt,” which is the standard for the trial phase.[88] The prosecution requested that “the [Appeals] Chamber, after reversing the Decision and determining the correct standard, remand the matter to the Pre- Trial Chamber for a new determination under Article 58.”[89] The prosecution believed that there were reasonable grounds under Article 58 to authorize the charges of genocide in the arrest warrant of Bashir.

            Appeals Chamber agreed with the prosecution’s appeal and allowed for genocide to be considered in another warrant of arrest for President Bashir on February 3, 2010. This Appeals Chamber of the ICC, consisting of Justices Erkki Kourula, Sang-Hyun Song, Ekaterina Trendafilova, Daniel David Ntanda Nsereko, and Joyce Aluoch, determined that the Pre-Trial Chamber used “erroneous standard of proof” in denying the Prosecutor’s claim of genocide for the arrest warrant of Bashir.[90] The Appeals Chamber then demanded that “It is therefore appropriate to reverse the Impugned Decision to that extent,” and the question of whether genocide fit the standard of proof for an arrest warrant was “remanded” to the Pre-Trial Chamber.[91] Thus, the Appeals Chamber sided with the prosecution’s notion that the Pre-Trial Chamber used an erroneous standard of proof when dismissing the genocide charges, and the Pre-Trial Chamber would now have to reevaluate the evidence in light of Article 58 of the Rome Statute.

            The Pre-Trial Chamber decided that Bashir had committed three counts of genocide in his second arrest warrant on July 12, 2010, yet he still has not been brought before the ICC. Justices Sylvia Steiner, Sanji Mmasenono Monageng, and Cuno Tarfusser, found Bashir to be an “indirect perpetrator” of three counts of genocide including “by killing,” “by causing serious bodily or mental harm,” and “by deliberately inflicting conditions of life calculated to bring about physical destruction,” using the standard of proof prescribed by Article 58 of the Rome Statute.[92] The ICC had found a sitting head of state guilty of the most heinous crime – genocide. Despite these charges in addition to the grievances in his first warrant, President Bashir has not appeared before the ICC to face justice for his actions in Darfur.[93] While the ICC created a new international legal precedents with The Prosecutor v. Omar Hassan Ahmad Al Bashir, the Sudanese President has eluded trial.

 

 

The International Reaction: From Disgust to Joy

            The international reaction to The Prosecutor v. Omar Hassan Ahmad Al Bashir has been greatly varied. The Sudanese government has reacted extremely negatively to the two arrest warrants of their sitting head of government. Human rights Non-Governmental Organizations (NGOs) have applauded the actions of the ICC, and demand that Bashir be brought to trial for his crimes, while conservative NGOs fear the actions of the ICC lead Bashir to further radicalize his policies. The African Union (AU), an Intergovernmental Organization (IGO) of African states, decisively denounced the ruling of the ICC. Thus, the reaction to the warrants of arrest to President Bashir has stretched from disgust to joy.

            President Bashir and the Sudanese government, which is not a state party to the Rome Statute, has continued to denounce the rulings of the ICC. Bashir told the AP that, “we [the Sudanese government] are telling them [the ICC judges] to immerse it [their judgment] in water and drink it,” a traditional Arabian insult.[94] He also denied the allegations of crimes against humanity to NBC News stating, “People have been killed because there is war. It is not in the Sudanese culture or people of Darfur to rape. It doesn’t exist. We don’t have it.”[95] Time quoted the Sudanese ambassador to the U.N. as concisely saying, “For us [the Sudanese government], the ICC doesn’t exist.”[96] Despite the two arrest warrants against Bashir, “There are no signs of criminal pursuit of Bashir, though the international community knows exactly where he is, where he has traveled, and often where he is going.”[97] He has successfully visited Chad – an ICC state party with an obligation to arrest and to extradite him, China, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Kuwait, Libya, Qatar, Saudi Arabia, and South Sudan.[98] States such as Botswana, the Central African Republic, France, Kenya, Malawi, Malaysia, Nigeria, South Africa, Turkey, Uganda, and Zambia have politely refused entry to President Bashir or have rescheduled international summits to non-Rome Statute state parties.[99] The Sudanese government has denounced the ICC rulings, and President Bashir continues to travel with relative impunity.

            Human rights NGOs have praised the ICC for taking the unprecedented legal step in charging a sitting head of government with the crime of genocide, but conservative NGOs fear that the indictments will cause Bashir to become more desperate. Amnesty International Representative Tawanda Hondora, Deputy Director of Law and Policy, said that “Members of the General Assembly must stand up on behalf of Darfuri victims to condemn this impunity and to call on the UN Security Council to require all states to cooperate fully with the ICC.”[100] Human Rights Watch Senior Counsel Elise Keppler spoke that “Security Council members and other concerned governments should actively press Sudan to stop its blatant obstruction of the ICC and to see to it that al-Bashir appears at the court.”[101] While Human Rights Watch had previously declared the situation in Sudan to include war crimes, crimes against humanity, and ethnic cleansing, the NGO did not claim the situation was genocidal “due to insufficient information in its research.”[102] On the other side of the ideological spectrum, The Heritage Foundation feared that the ICC warrants against Bashir would further radicalized his policies, as “he has nothing to lose.”[103] Furthermore, The Heritage Foundation noted that the warrant directly led Bashir to expel humanitarian NGOs from Sudan, and the charges may lead him to encourage attacks against peacekeepers or to violate the 2005 Comprehensive Peace Agreement with South Sudan.[104] Amnesty International and Human Rights Watch have applauded the decisions of the ICC, while The Heritage Foundation remains skeptical out of fears of blowback.

            The AU has become hesitant to work with the ICC in The Prosecutor v. Omar Hassan Ahmad Al Bashir. Officials in the AU have claimed the court is “anti-Africa” because all open ICC investigations are taking place in Africa and potential investigations on grave crimes in other locations have not occurred.[105] At the start of the case against Bashir, the AU argued for a deferral of The Prosecutor v. Omar Hassan Ahmad Al Bashir under Article 16 of the Rome Statute; however, the United Nations Security Council declined to reply.[106] This silence led the AU to advise its member states at the July 2009 Sirte Summit to halt any efforts on extraditing Al Bashir to the ICC.[107] The AU feels that the ICC is prejudiced against African States, leading the IGO to advise its member states to defy the authority of the court.

            The Prosecutor v. Omar Hassan Ahmad Al Bashir is an unprecedented legal case between the International Criminal Court and the sitting Sudanese President Omar Al Bashir. President Bashir rose to power through an environment of conflict, and he perpetuated the strife to centralize authority in Khartoum. Concurrently, 122 countries ratified the Rome Statute, which created the International Criminal Court, a standing court with the jurisdiction to investigate the gravest crimes, sometimes even in non-party states – a fundamental break with customary international law. This break became a legal precedent under the lengthy process of The Prosecutor v. Omar Hassan Ahmad Al Bashir, as the prosecution argued for three charges of genocide to be levied against the sitting head of government of a non-party state to the Rome Statute. Ultimately, the justices of the ICC sided with Luis Moreno-Ocampo, and produced two warrants of arrest for President Bashir, citing three charges of genocide, two of war crimes, and five of crimes against humanity. The international reaction has greatly varied on the ICC rulings, as it has been supported by watchdog NGOs, but has been criticized by the Sudanese Government, conservative NGOs, and the AU. Furthermore, because the ICC does not have a gendarmerie, it is dependent on the party states to enforce arrest warrants; thus far, President Bashir has avoided extradition. Ultimately, while the arrest warrants precipitating from The Prosecutor v. Omar Hassan Ahmad Al Bashir set new international criminal law precedents, the entirety of the Bashir situation remains a “catch me if you can.”

 

 

 

 

 

 

 

 

 

Timeline of The Prosecutor v. Omar Hassan Ahmad Al Bashir

18 September 2004 – U.N. Security Council established the Commission of Inquiry.

31 January 2005 – Kofi Annan’s letter sent to the U.N. Security Council.

31 March 2005 – UN Security Council referred Darfur to Prosecutor of the ICC in Resolution 1593.

April 2007 – The ICC judges issued warrants for Minister Haryn and Militia Leader Kushayb

14 July 2008 – Prosecution filled out an application for an arrest warrant for Bashir

4 March 2009 – The ICC judges issued the first arrest warrant for Bashir under two war crimes and five crimes against humanity, but not genocide.

6 July 2009 – Prosecution appealed the charge of genocide in the warrant, contesting the standard of proof.

3 February 2010 – Appeals Chamber allowed for genocide to be included in the warrant.

12 July 2010 – The ICC judges issued the second warrant of arrest for Bashir, including three charges of genocide.

 

 

 

 

 

 

 

 

 

 

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[1] Randy James, “Sudanese President Omar Hassan al-Bashir,” Time. March 5, 2009. Accessed February 7, 2014.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Central Intelligence Agency, “Sudan,” World Factbook. April 16, 2014. Accessed April 28.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Randy James, “Sudanese President Omar Hassan al-Bashir,” Time. March 5, 2009. Accessed February 7, 2014.

[10] Ibid.

[11] Central Intelligence Agency, “Sudan,” World Factbook. April 16, 2014. Accessed April 28.

[12] Ibid.

[13] Ibid.

[14] BBC, “Sudan Profile.” October 26, 2013. Accessed February 7, 2014.

[15] Ibid.

[16] Ibid.

[17] BBC, “Profile: Sudan’s Omar al-Bashir.” December 5, 2011. Accessed February 7, 2014.

[18] BBC, “Sudan Profile.” October 26, 2013. Accessed February 7, 2014.

[19] Ibid.

[20] Felicity Conrad, “The Alleged Crimes in Farfur of Omar Al Bashir, President of Sudan,” American Non-Governmental Organizations Coalition for the International Criminal Court. August 18, 2010. Accessed February 7, 2014.

[21] Ibid.

[22] BBC, “Profile: Sudan’s Omar al-Bashir.” December 5, 2011. Accessed February 7, 2014.

[23] Felicity Conrad, “The Alleged Crimes in Farfur of Omar Al Bashir, President of Sudan,” American Non-Governmental Organizations Coalition for the International Criminal Court. August 18, 2010. Accessed February 7, 2014.

[24] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 3.

[25] Ibid.

[26] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014; ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 3.

[27] Ibid., 4.

[28] Ibid.

[29] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 4.

[30] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.

[31] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 4.

[32] Ibid., 4-5.

[33] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 5.

[34] Ibid., 5-6.

[35] Ibid., 6.

[36] Ibid., 4.

[37] Ibid., 10.

[38] Ibid., 19.

[39] Ibid.

[40] Ibid.

[41] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 24.

[42] Ibid., 24.

[43] Ibid., 11.

[44] Ibid., 31.

[45] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.

[46] ICC, “Rome Statute.” July 1, 2002. Accessed February 7, 2014, 48.

[47] ICC, “The States Parties to the Rome Statute.” Accessed March 23, 2014.

[48] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 4-5.

[49] Ibid., 5.

[50] Ibid.

[51] Ibid.

[52] Ibid.

[53] Ibid., 6.

[54] ICC, “Situations and Cases.” May 2, 2014.

[55] Ibid.

[56] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 1.

[57] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.

[58] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 9.

[59] Ibid., 8-9.

[60] Ibid., 9.

[61] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 9.

[62] Ibid., 11.

[63] BBC, “Q&A: International Criminal Court.” March 11, 2014. Accessed April 22, 2014.

[64] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, Backgrounder.

[65] Lucia DiCicco and Ana Gómez Rojo, “Analysis of the ICC Arrest Warrant for Omar Al Bashir, President of Sudan,” American Non-Governmental Organizations Coalition for the International Criminal Court. July 1, 2009. Accessed February 7, 2014.

[66] Human Rights Watch. “Sudan: ICC Warrant for Al-Bashir on Genocide.” July 13, 2010. Accessed February 7, 2014.

[67] United Nations Security Council, “Resolution 1564 (2004).” September 18, 2004.

[68] United Nations Security Council, “Letter dated 31 January 2005 from the Secretary-General addressed to the President of the Security Council.” February 1, 2005, 2.

[69] United Nations Security Council, “Letter dated 31 January 2005 from the Secretary-General addressed to the President of the Security Council.” February 1, 2005, 3.

[70] Ibid., 10.

[71] Ibid., 3.

[72] Ibid.

[73] Ibid., 4.

[74] Ibid., 5.

[75] United Nations Security Council, “Resolution 1593 (2005).” March 31, 2005.

[76] United Nations Security Council, “Resolution 1593 (2005).” March 31, 2005.

[77] ICC, “The Situation in Darfur.” Accessed February 7, 2014.

[78] Ibid.

[79] ICC, “Public Redacted Version of the Prosecutor’s Application under Article 58.” July 14, 2008, 6.

[80] ICC, “Public Redacted Version of the Prosecutor’s Application under Article 58.” July 14, 2008, 7.

[81] Ibid.

[82] Ibid.

[83] Ibid., 16.

[84] ICC, “Warrant for the Arrest of Omar Hassan Ahmad Al Bashir.” ICC-02/05-01/09-1. March 4, 2009. Accessed February 7, 2014, 7-8.

[85] ICC, ““Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir.” March 4, 2009. Accessed February 7, 2014, 56.

[86] ICC, “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’.” July 6, 2009, 3.

[87] Ibid.

[88] Ibid., 3, 10.

[89] Ibid., 25.

[90] ICC, “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’.”   ICC-02/05-01/09. February 3, 2010. Accessed February 7, 2014, 3.

[91] Ibid., 18.

[92] “Second Warrant for the Arrest of Omar Hassan Ahmad Al Bashir.” ICC-02/05-01/09-95. July 12, 2010. Accessed February 7, 2014, 3, 8.

[93] ICC, “Case Information Sheet: The Prosecutor v. Omar Hassan Ahmad Al Bashir.” March 28, 2012.

[94] Randy James, “Sudanese President Omar Hassan al-Bashir,” Time. March 5, 2009. Accessed February 7, 2014.

[95] Ibid.

[96] Ibid.

[97] Bashir Watch. “Stop Bashir: End Genocide.” Accessed February 7, 2014.

[98] Bashir Watch. “Stop Bashir: End Genocide.” Accessed February 7, 2014.

[99] Ibid.

[100] Amnesty International. “UN: Demand al-Bashir’s surrender to the International Criminal Court.” September 10, 2013. Accessed February 7, 2014.

[101] Human Rights Watch. “Sudan: ICC Warrant for Al-Bashir on Genocide.” July 13, 2010. Accessed February 7, 2014.

[102] Ibid.

[103] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 17.

[104] Steven Groves and Brett D. Schaefer, “The U.S. Should not Join the International Criminal Court,” The Heritage Foundation. August 18, 2009. Accessed April 22, 2014, 17.

[105] Wendy Bremang, “Response to Criticism That the International Criminal Court is ‘Anti-African,’” American Non-Governmental Organizations Coalition for the International Criminal Court. August 24, 2009. Accessed February 7, 2014.

[106] Ibid.

[107] Ibid.