Abstract
The Pre-Trial Chamber in Prosecutor v Omar Hassan Ahmad Al Bashir found that between March, 2003 to at least 14 July 2008, there was a non-international armed conflict occurring in Darfur between the Government of Sudan (GoS) and several rebel groups including but limited to the Sudanese Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM). The Pre-Trial Chamber found there was evidence to substantiate that Al Bashir along with other top ranking Sudanese government officials and commanders entered into a common plan to attack the civilian population of Fur, Masalit and Zaghawa ethnicity perceived as supporters of the rebels.
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Notes
- 1.
ICC Charges (Counts) against Omar Hassan Ahmad Al Bashir (International Criminal Bureau, 15 July, 2010).
- 2.
Statement of the Spokesperson of the ICC, Laurence Blairon (4 March, 2009, p. 2).
- 3.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 7, para 5).
- 4.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 7, para 5).
- 5.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 7, para 6).
- 6.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 7, para 8).
- 7.
Rome Statute (2002).
- 8.
Rome Statute (2002).
- 9.
Rome Statute (2002).
- 10.
Rome Statute (2002).
- 11.
Rome Statute (2002).
- 12.
On the view here, children used as sex slaves, domestics, cooks or in any other capacity by armed groups or forces perpetrating systematic mass atrocities and/or genocide are included as victims of the genocidal transfer of children to these perpetrator groups or forces.
- 13.
Optional Protocol to the Convention on the Rights of the Child on children involved in armed conflict (OP-CRC-AC) (2002).
- 14.
Rome Statute (2002).
- 15.
Article I of the OP-CRC-AC (2002) requires States to “take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities”. Article 2 requires States not to conscript under 18s. Article 4 (1) states that “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years” and Article 4(2) requires States to “take all feasible measures to prevent such recruitment and use.”
- 16.
Rome Statute (2002).
- 17.
Grover (2012).
- 18.
Rome Statute (2002).
- 19.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, pp. 7–8, para 9).
- 20.
Coalition to Stop the Use of Child Soldiers (Child Soldiers Global Report (2008)): “Military officials acknowledged that children from armed forces were transferred into their forces… in May 2006, child soldiers were seen in a newly integrated SAF unit.” (p. 316).
- 21.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 8, para 10).
- 22.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANEX, p. 8, para 10, emphasis added).
- 23.
Prosecutor v Omar Hassan Ahmad Al Bashir, 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” (2009, p. 4 para 6).
- 24.
Coalition to Stop the Use of Child Soldiers (Child Soldiers Global Report, 2008, p. 316).
- 25.
Coalition to Stop the Use of Child Soldiers (Child Soldiers Global Report, 2008, p. 316).
- 26.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 54, para 186).
- 27.
Alfredson (2002, emphasis added).
- 28.
Whether or not child recruits (aged 15 and over) to armed forces or groups that abide by international humanitarian law are displaced is a matter beyond the scope of this book though note that Alfredson (2002) considers that all child soldiers are ‘displaced’ even if members of armed forces or groups that abide by international law.
- 29.
The term ‘child soldiers’ as used here includes all children serving in armed groups or forces perpetrating mass atrocity and/or genocide including domestics, cooks, sex slaves etc. in that they have all been alienated from their communities and families as a result of their genocidal forcible transfer to these armed groups or forces and most often perform multiple combat and non-combat functions.
- 30.
Rome Statute (2002).
- 31.
Rome Statute (2002).
- 32.
Rome Statute (2002)
- 33.
Coalition to Stop the Use of Child Soldiers (Child Soldier Global Report 2008, emphasis added).
- 34.
The Sudanese People’s Liberation Army (SPLA) acknowledged that it had child soldiers in its ranks and in 2007 the UN confirmed the presence of children in the SPLA forces in Southern Sudan. The SLA (Sudanese Liberation Army) in cooperation with the Chadian government recruited 4700 Sudanese refugees including many hundreds of children in March 2006. (See Coalition to Stop the Use of Child Soldiers, 2008, p. 316 and p. 319).
- 35.
The UN reported that IDP camps in Darfur were sites of great sexual violence and in 2006–2007, for instance, there were many reports of sexual violence perpetrated by Sudanese Armed Forces, the central reserve police and the Janjaweed against women and girls in the Darfur IDP camps (Coalition to Stop the Use of Child Soldiers (2008, p. 317)).
- 36.
Office of the Prosecutor. Situation in Darfur: Summary of the Case (Prosecution application for warrant of arrest under Article 58 against Omar Hassan Ahmad Al Bashir) (p. 5, emphasis added).
- 37.
Office of the Prosecutor. Situation in Darfur: Summary of the Case (Prosecution application for warrant of arrest under Article 58 against Omar Hassan Ahmad Al Bashir) (p. 5, emphasis added).
- 38.
UN Office for the Coordination of Humanitarian Affairs (IRIN) Sudan: Children still victims of war (23 August, 2006). Many women and girls raped were unable to stay with their families if the families moved to a safer location as they were ostracized.
- 39.
UN Office for the Coordination of Humanitarian Affairs (IRIN) Sudan: Children still victims of war (23 August, 2006, emphasis added).
- 40.
Office of the Prosecutor. Situation in Darfur: Summary of the Case (Prosecution application for warrant of arrest under Article 58 against Omar Hassan Ahmad Al Bashir) (p. 9).
- 41.
Office of the Prosecutor. Situation in Darfur: Summary of the Case (Prosecution application for warrant of arrest under Article 58 against Omar Hassan Ahmad Al Bashir): “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.” (p. 3–4).
- 42.
Coalition to Stop the Use of Child Soldiers (Child Soldier Global Report 2008). This report noted the use of child soldiers by the SAF among other armed parties to the conflict in Darfur during the relevant period.
- 43.
Note that some girls in Eastern Chad which area had been dragged into the conflict in Sudan in fact joined the ‘United Front for the Democratic Change’ in the hopes of being protected from Sudanese Zaghawa (rebel) militias. (In 2010, Chad and Sudan ended their conflict that had been carried out by proxy rebel armed groups).
- 44.
Charbonneau (2009).
- 45.
Charbonneau (2009).
- 46.
The Director of ICC Watch in fact in a 2009 letter to the ICC Prosecutor (Mr. Moreno-Ocampo) stated: “It is extraordinary that you have failed to launch and investigation into the horrific activities of JEM (the Justice and Equality Movement; a Sudanese rebel group) in using child soldiers and other forces operating in Darfur in using child soldiers given the current prosecution of Thomas Lubanga for precisely this crime” http://www.iccwatch.org/pressrelease_25feb09.html.
- 47.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 8, para 11).
- 48.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 12, para 26, emphasis added).
- 49.
Parmar et al. (2010).
- 50.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 12, para 28, Citation from ICTR Akayesu case).
- 51.
De La Sablière, Jean-Marc. Letter dated 1 December 2006 to the President of the UN Security Council.
- 52.
De La Sablière, Jean-Marc. Letter dated 1 December 2006 to the President of the UN Security Council, emphasis added.
- 53.
De La Sablière, Jean-Marc. Letter dated 1 December 2006 to the President of the UN Security Council, emphasis added.
- 54.
UN Secretary-General’s report on children and armed conflict in Sudan (5 July, 2011).
- 55.
UN Secretary-General’s report on children and armed conflict in Sudan (Executive Summary) (5 July, 2011) (emphasis added).
- 56.
UN Secretary-General’s report on children and armed conflict in Sudan (5 July, 2011, p. 9 para 36).
- 57.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX, p. 10, para 16).
- 58.
Note that Omar Al-Bashir was elected President of the Republic in 2010 national elections, and Salva Kiir Mayardit was elected President of the Government of Southern Sudan which became an independent State 9 July, 2011.
- 59.
UN Secretary-General’s report on children and armed conflict in Sudan (Executive Summary) (5 July, 2011).
- 60.
Developments in Sudan (Information based on the UN Secretary-General’s report on children and armed conflict in Sudan (5 July, 2011)).
- 61.
UN Secretary-General’s report on children and armed conflict in Sudan (Executive Summary) (5 July, 2011, p. 14, para 61, emphasis added).
- 62.
Child Soldiers Global Report 2008, p. 4.
- 63.
Child Soldiers Global Report 2008, p. 2.
- 64.
Child Soldiers Global Report 2008, p. 4.
- 65.
UN Secretary-General’s report on children and armed conflict in Sudan (5 July, 2011, pp. 17–18, para 83).
- 66.
UN Security Council Resolution 1612 (S/RES/1612) (2005).
- 67.
Relief Web (2009).
- 68.
Relief Web (2009).
- 69.
Relief Web (2009).
- 70.
Moreno-Ocampo, L. (ICC Prosecutor). Fourteenth Report of the ICC Prosecutor to the UN Security Council Pursuant to Resolution 1593 (15 December, 2011, emphasis added).
- 71.
Amnesty International (2011). ‘A Compromised Future: Children recruited by armed forces and groups in Eastern Chad.’
- 72.
Robert F. Kennedy Centre for Justice and Human Rights (2012). ‘Child soldiers JEM Rebels.’
- 73.
SOS Villages (2012).
- 74.
UN Commission of Inquiry on Darfur (2005, pp. 106–107, para 415–416, emphasis added).
- 75.
Recall that in 2005 the UN Commission of Inquiry on Darfur reported that: “There are also allegations of the use of child soldiers by the rebels. However, it should be noted that the number of reported violations allegedly committed by the Government forces and the Janjaweed by far exceeds the number of cases reported on rebels.” (p. 55, para 190).
- 76.
Moreno-Ocampo, L. (ICC Prosecutor). Fourteenth Report of the ICC Prosecutor to the UN Security Council Pursuant to Resolution 1593 (15 December, 2011).
- 77.
Flint and de Waal (2009).
- 78.
Amnesty International (2005, p. 5).
- 79.
Prosecutor v Omar Hassan Ahmad Al Bashir, 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”, (2009, p. 4, para 13).
- 80.
Prosecutor v Omar Hassan Ahmad Al Bashir, 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” (2009, p. 5, para 15, emphasis added).
- 81.
Prosecutor v Omar Hassan Ahmad Al Bashir, 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” (2009, p. 7, para 18).
- 82.
This point is not intended in any way to downplay or disregard the unspeakable mental and physical suffering of the civilian victims these so-called child soldiers were commanded to target belonging to particular ethnic groups.
- 83.
The GoS forces and allied militia have the same ethnicity as the child soldiers of the GoS and Janjaweed but are regarded as tainted and a potential threat to the security of their own communities and in that sense too are ‘children of the enemy’.
- 84.
Genocide Convention (1951).
- 85.
Smith and Walker (2004).
- 86.
UN Commission of Inquiry on Darfur (2005, p. 87, para 333).
- 87.
UN Commission of Inquiry on Darfur (2005, p. 87, para 334, emphasis added).
- 88.
UN Commission of Inquiry on Darfur (2005, p. 89, para 341–342).
- 89.
UN Commission of Inquiry on Darfur (2005, p. 90, para 343, emphasis added).
- 90.
UN Commission of Inquiry on Darfur (2005, p. 92, para 348).
- 91.
UN Commission of Inquiry on Darfur (2005, p. 95, para 360, emphasis added).
- 92.
Prosecutor v Al Bashir Second warrant of arrest for Al Bashir (Pre-Trial Chamber I) (12 July, 2010).
- 93.
Currently, UNICEF estimates there are 2000 child soldiers in South Sudan associated with militias that are being integrated into the national army of South Sudan (SPLA) (InterPress Service 15 April, 2012).
- 94.
U.N. Secretary-General’s annual report on children and armed conflict (26 April, 2012, Annex I, p. 50).
- 95.
U.N. Secretary-General’s annual report on children and armed conflict (26 April, 2012, p. 21, para 111).
- 96.
Prosecutor v Omar Hassan Ahmad Al Bashir, 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” (2009, p. 13, para 35).
- 97.
That genocide occurred in Darfur is the view of the current author and, for instance, the ICC Prosecutor and the Pre-Trial Chamber in the Al Bashir case though there are no doubt some who would still argue the matter.
- 98.
Mamdanai (2009, p. 86, emphasis added).
- 99.
Cayley (2008, p. 830, emphasis added).
- 100.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX p. 26, para 77).
- 101.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX p. 27, para 83).
- 102.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX p. 27, para 84).
- 103.
Prosecutor v Omar Hassan Ahmad Al Bashir, Public Redacted Version of the Prosecutions’ application under Article 58 (2008, ANNEX p. 27, para 81).
- 104.
Cayley (2008, p. 832).
- 105.
Genocide Convention (1951).
- 106.
Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber Judgment, 21 May 1999, para 98, emphasis added.
- 107.
Rome Statute (2002).
- 108.
Genocide Convention (1951).
- 109.
Genocide Convention (1951).
- 110.
Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber Judgment, 21 May 1999, para 88.
- 111.
Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber Judgment, 21 May 1999, para 88.
- 112.
Genocide Convention (1951).
- 113.
Genocide Convention (1951).
- 114.
Cayley (2008, p. 831, emphasis added).
- 115.
Genocide Convention (1951).
- 116.
Genocide Convention (1951).
- 117.
Genocide Convention (1951).
- 118.
Genocide Convention (1951).
- 119.
Genocide Convention (1951).
- 120.
Genocide Convention (1951).
- 121.
Cayley (2008, p. 831).
- 122.
International Commission of Inquiry on Darfur to the UN Secretary-General (25 January, 2005).
- 123.
International Commission of Inquiry on Darfur (2005, p. 4).
- 124.
International Commission of Inquiry on Darfur (2005, p. 65, para 245).
- 125.
The International Commission of Inquiry on Darfur (2005) reported witness accounts of the attack on, for instance, the Fur village of Adwa by pro-government forces on 23 November, 2004. Witnesses alleged that: “Young girls were taken by the attackers to another location and many were raped in the presence of other women.”(p. 69, para 253).
- 126.
Recall that such genocidal forcible transfer of ‘child soldier ‘recruits has also occurred in respect of children transferred to anti Al Bashir rebel groups to be used to help perpetrate mass atrocities.
- 127.
Rome Statute (2002).
- 128.
International Commission of Inquiry on Darfur (2005, p. 3).
- 129.
International Commission of Inquiry on Darfur (2005, p. 4).
- 130.
International Commission of Inquiry on Darfur (2005, p. 4).
- 131.
International Commission of Inquiry on Darfur (2005, pp. 55–56, para 192).
- 132.
Additional Protocol II to the Geneva Conventions (1977, emphasis added).
- 133.
International Commission of Inquiry on Darfur (2005, p. 55, para 187, emphasis added).
- 134.
International Commission of Inquiry on Darfur (2005, p. 78, para 291).
- 135.
UN Commission of Inquiry on Darfur (2005, p. 3, emphasis added).
Literature, Materials and Cases
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Grover, S.C. (2013). Case 3: Prosecutor v Omar Hassan Ahmad Al Bashir. In: Humanity’s Children. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32501-4_5
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