Appeals judges at the International Criminal Court (ICC) on Wednesday reversed a decision that prosecutors had not provided sufficient evidence to charge Sudanese President Omar al Bashir with genocide.

"The pre-trial chamber is directed to decide anew," presiding judge Erkki Kourula said, upholding an appeal by ICC Chief Prosecutor Luis Moreno Ocampo.

The Hague-based court's pre-trial chamber will now have to rule on whether to add genocide to Bashir's charge sheet, which already includes seven counts of crimes against humanity and war crimes, including murder, extermination, torture and rape.

Ocampo says the Sudanese leader is responsible for the deaths of 35,000 people, and appealed against the court's decision to withhold three counts of genocide he had asked for.

Darfur
A violent conflict has been raging in Darfur since 2003 and, according to the United Nations, has resulted in over 300,000 deaths. Ocampo says he has "proof" that genocide had taken place in Darfur and that Bashir was responsible for these mass-killings.

"Al-Bashir's motives were political, but his aim was genocide. The decision to start the genocide was taken by Bashir personally. In March 2003, Bashir set out to destroy in part the Fur, Masalit and Zaghawa [ethnic groups]. Bashir publicly instructed the army to quell the rebellion and not to bring back any prisoners or wounded."

Ocampo welcomed the decision and warned Bashir he needed to "get a lawyer", adding he would present fresh evidence to the court in a second bid to have Bashir charged with genocide. "Expelling humanitarian assistance is a great element of his genocidal intentions," he said. "When he expelled these people who were providing the water and the food he confirmed his intention to destroy his people. So I would like to present this new aspect of the case."

Genocide?
In 2004, the United Nations carried out its own investigation into the events in Darfur and concluded that there had been serious human rights violations but that these did not constitute genocide. In view of the report's conclusions, the UN handed over its research material to the ICC in 2005.

Ocampo accepts that there was no indication of a tightly-organised military campaign of annihilation in the first few years. But, when there are camps full of refugees, he has argued, there are other ways of committing genocide.

"Three weapons: rape, starvation and fear. These are the most efficient methods these days of committing genocide in plain view of the whole world and under international supervision. Bashir is carrying out this genocide without bullets or machetes."

Human Rights Watch welcomed Wednesday's decision. “Today’s decision is a strong reminder that President al-Bashir is wanted for heinous crimes committed in Darfur,” says Elise Keppler, International Justice Program senior counsel at HRW. “President al Bashir is a fugitive from justice who needs to appear in The Hague to answer to the allegations against him.”

African resistance
Ocampo issued the first two charges of war crimes against Sudanese nationals in 2007. The former minister of humanitarian affairs in Darfur, Ahmad Haroun, was accused of arming the militia in the knowledge that they would commit serious crimes. However, Sudan refused to extradite him or his fellow-accused, Ali Kushayb, the so-called "colonel of colonels" and leader of the Janjaweed militia.

Sudan's opposition to the ICC has been echoed throughout Africa since Bashir was indicted. Although Africans were once the most passionate supporters of the court, now most of the 30 African countries who have ratified the Rome Statuteare having second thoughts, saying the ICC is unfairly targeting Africans while ignoring human rights abuses elsewhere.

The African Union - until last week led by Muammar Gaddafi - has been lobbying its members to withdraw from the ICC, with Gaddafi labelling the court a “terrorist organisation.”

Bashir
Omar Hassan al-Bashir (1944) was unheard of in Sudan until the morning of 30 June 1989. He then appeared on television to report that he had staged a coup to restore order and appointed himself chairman of Sudan's Revolutionary Command Council.

In 1993 he held presidential elections, which he won with ease due to the absence of any serious opposition candidates. Since then, Bashir has been president, supreme commander of the Sudanese army and minister of defence all at the same time.

Watch the judgment

Also see The Hague Justice Portal Research Files on Bashir