O 141705Z JUL 08
FM AMEMBASSY THE HAGUE
TO SECSTATE WASHDC IMMEDIATE 1734
AMEMBASSY KHARTOUM IMMEDIATE 
USMISSION USUN NEW YORK IMMEDIATE 
CIA WASHDC IMMEDIATE

UNCLAS THE HAGUE 000595 
 
 
DEPARTMENT FOR S/WCI - WILLIAMSON/SHIN, L - BELLINGER, L/UNA - 
BUCHWALD, L/AN - SANFORD, INR/GGI - MARGULIES/MORIN 
 
E.O. 12958: N/A 
TAGS: KAWC PGOV PREL NL
SUBJECT:  ICC PROSECUTION FILES APPLICATION FOR BASHIR'S ARREST 
 
REF:  THE HAGUE 0593 
 
 
---  ICC PROSECUTION FILES APPLICATION FOR BASHIR'S ARREST --- 
 
¶1.  (U)  The Prosecutor's Office has filed an application for an 
arrest warrant against Sudanese President, Omar Hassan Ahmad AL 
BASHIR.  It is now up to the Pre-Trial Chamber (PTC) to decide 
whether there are reasonable grounds to believe that AL BASHIR 
committed one or more of the alleged crimes.  If the PTC does make 
this determination and issues the arrest warrant, then the PTC will 
most likely decide which countries will receive requests for 
cooperation in connection with his arrest and surrender.  If the PTC 
follows past practice, Sudan, States Parties, Security Council 
Members and most of the bordering States will receive such requests. 
 (See Reftel).  A PTC decision on whether to issue an arrest warrant 
is not expected until sometime after the end of the Summer Recess 
(Aug. 10), and in press statements, the Prosecutor has indicated 
that the PTC's decision could take in excess of two to three months. 
 
 
--- BASHIR CHARGED WITH GENOCIDE, CRIMES AGAINST HUMANITY AND WAR 
CRIMES --- 
 
¶2. (U)  In the Application filed today, the Prosecution has 
concluded that there are reasonable grounds to believe that AL 
BASHIR bears criminal responsibility for:  1) the crime of genocide 
for a) killing members of the Fur, Masalit and Zaghawa ethnic groups 
("target 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 (See para 6); 2) crimes against humanity for 
acts of (a) murder, (b) extermination, (c) forcible transfer of the 
population, (d) torture, and (e) rapes (See para 7); and 3) for war 
crimes for intentionally directing attacks against the civilian 
population as such, and pillaging a town or place (See para 8).  The 
Application covers crimes from March 2003 to the date of its 
filing. 
 
¶3. (U)  The Prosecution does not allege that AL BASHIR physically or 
directly carried out any of the crimes, but instead committed crimes 
through members of the state apparatus, the army and the 
Militia/Janjaweed (indirect perpetration or perpetration by means). 
In particular, AL BASHIR exercised both de jure and de facto 
sovereign authority, as President of the Republic, Head of the 
National Congress Party and Commander in Chief of the Armed Forces, 
and that he sits at the apex of, and personally directs, the state's 
hierarchical structure of authority and the integration of the 
Militia/Janjaweed within such structure. 
 
--- PROSECUTOR DESCRIBES DETAILS OF THE INVESTIGATION --- 
 
¶4. (U) The Prosecution also advises that in carry out its 
investigation it has collected statements and evidence during 105 
missions conducted in 18 countries and has relied primarily on: (1) 
witness statements taken from eyewitnesses and victims of attacks in 
Darfur; (2) recorded interviews of Government of Sudan (GOS) 
officials; (3) statements taken from individuals who possess 
knowledge of the activities of officials and representatives of the 
GOS and of the Militia/Janjaweed in the conflict in Darfur; (4) 
documents and other information provided by the GoS upon request of 
the Prosecution; (5) the Report of the UN Commission of Inquiry 
("UNCOI") and other materials provided by the UNCOI; (6) the Report 
of Sudanese National Commission of Inquiry ("NCOI") and other 
materials provided by the NCOI; and (7) documents and other 
materials obtained from open sources.   The Prosecution also alleges 
that they are aware of the incarceration of officers who refused to 
comply with AL BASHIR's orders to commit genocide. 
 
--- BACKGROUND ON THE ALLEGED CHARGES --- 
 
¶5. (U)  The Application alleges, by way of the context to the 
crimes, that AL BASHIR,  set out to quell target group movements 
through armed force and, over the years, also employed a policy of 
exploiting real or perceived grievances between the different tribes 
struggling to prosper in the difficult Darfur environment. According 
to the Application, he promoted the idea of a polarization between 
tribes aligned with the Government, whom he labeled "Arabs", and the 
three groups he perceived as the main threats, whom he labeled 
"Zurgas" or "Africans", and, in March 2003, after negotiations and 
armed action both failed to end the rebellion, AL BASHIR decided and 
set out to destroy in part the target groups, on account of their 
ethnicity. 
 
¶6. (U)  Thus, in connection with respect to the genocide claim, the 
Application alleges that AL BASHIR made "carte blanche" orders to 
his subordinates to quell the rebellion and take no prisoners that 
triggered a series of brutal attacks against the target groups, 
where the Armed Forces, often acting together with 
Militia/Janjaweed, singled out for attack those villages and small 
towns inhabited mainly by members of the target groups, carrying out 
such attacks jointly and in a similar pattern throughout the entire 
period, up to the date of filing.  According to the Application:  1) 
35,000 people have been killed outright in such attacks; an 
overwhelming majority of them are from the three target groups; 2) 
almost the entire population of the target groups has been forcibly 
displaced following the attacks, 3) the target groups, far from 
being assisted in the IDP camps, were also attacked in the camps, 4) 
thousands of women and girls belonging to the target groups were and 
continue to be raped in all three States of Darfur by members of the 
Militia/Janjaweed and Armed Forces since 2003, 5) at least 2.7 
million civilians - principally members of the target groups - were 
violently uprooted from lands on which they and their ancestors had 
been living for centuries, 6) food, wells and water pumping 
machines, shelter, crops and livestock, as well as any physical 
structures capable of sustaining life or commerce, were destroyed 
with the goal being to ensure that those inhabitants not killed 
outright would not be able to survive without assistance; and 7) 
meaningful aid was systematically refused and other efforts to bring 
humanitarian aid to the 2,450,000 civilians displaced were 
hindered. 
 
¶7. (U)  With respect to the charges of crimes against humanity, the 
Application alleges that the acts of murder, rape, forcible 
displacement and extermination were committed against members of the 
target groups and other, smaller ethnic groups, such as the Tunjur, 
Erenga, Birgid, Misseriya Jebel, Meidob, Dajo and Birgo.  While the 
attacks against these groups were carried out on discriminatory 
grounds, there apparently is insufficient evidence at this time to 
substantiate a charge of genocide in respect of these groups. 
 
¶8. (U)  With respect to the war crimes charges, the Application 
alleges that at all times relevant to the charges, the GOS has been 
engaged in a military campaign conducted in Darfur against rebel 
armed forces including the SLM/A and the JEM.  The Application also 
states that both rebel groups mainly recruit from the target group, 
and that the GOS has relied on Militia/Janjaweed. Finally, according 
to the Application, AL BASHIR also committed, through other persons, 
the war crime of pillaging towns and villages in Darfur, including 
but not limited to Kodoom, Bindisi, Mukjar, Arawala, Shataya, 
Kailek, Buram, Muhajeriya, Siraf Jidad, Silea, Sirba, Abu Suruj and 
villages in the area of Jebel Mun. 
 
--- REQUEST FOR WARRANT, BUT NOTES POSSIBILITY OF SUMMONS --- 
 
¶9. (U) The Prosecutor has requested issuance of an arrest warrant 
but also explicitly acknowledged that a summons to appear could also 
be issued, noting the possibility that circumstances could lead 
prosecution to modify its assessment. 
 
 
GALLAGHER