Sudan has condemned a ruling by the International Criminal Court (ICC) that judges must reconsider whether to charge Sudan’s President Omar Hassan al-Bashir with genocide.

Appeals Court judges in The Hague on Wednesday overruled an earlier decision that the prosecutors’ charges did not meet the threshold for the most serious crime. ‘Genocide’ requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and includes the forcible transfer of children or inflicting serious bodily or mental harm.
 

Al Bashir was indicted March last year on seven counts of war crimes and crimes against humanity.
 

ICC's Chief Prosecutor Luis Moreno-Ocampo appealed the earlier decision and accused Bashir of subjecting thousands of civilians from the Fur, Masalit and Zaghawa groups to acts of murder and extermination.
 

According to Mr Dismas Nkunda, Chair of Darfur Consortium and Co-director of International Refugee Rights Initiative in Uganda, the argument made by the ICC Appeals Chamber was based on a “legal decision…[basically] there was a standard of proof that was not followed by the prosecution that made the initial decision.”
 

The Sudanese government refuses to cooperate and has called the ruling a political move with destructive intentions. “Sudan has already rejected any decisions by the ICC, so it’s not surprising at all”, Nkunda stated.
 

Negotiators for the Justice and Equality Movement in Sudan have welcomed the ruling, saying it is a victory for the people of the war-torn region: "We believe that what we have seen on the ground in Darfur amounts to a crime of genocide." They have also said that it is an ethical dilemma to negotiate with a government accused of committing genocidal crimes against the people of Sudan.
 

What can happen once the case goes back to the judges is that “genocide charges will be included”, says Nkunda. “The decision is not yet final”.

Immunity
What would then be an alternative under Sudan’s own judicial system? According to the Constitution of Sudan, the Head of State certainly has a lot of immunities that prevent him from being tried within the country. In that regard, “the International Criminal Court is [indeed] the best place to try al Bashir”, says Nkunda.
 

After the UN referred the case to Ocampo in 2005, The Special Criminal Courts on the Events in Darfur (SCCED) was established. Rights organisations have, however, reported that it has failed to bring justice to the region's victims of war crimes. "The cases before the court so far involve ordinary crimes, like theft and receiving stolen goods - which don't begin to reflect the massive scale of destruction in Darfur," Human Rights Watch (HRW) said.

Presidency challenged?
In view of the upcoming presidential elections in Sudan, it is uncertain whether al Bashir’s candidacy will be affected by the indictment and arrest warrant issued. In fact, his credibility to stand for president has already been critiqued.
 

“A person who has been indicted by the International Criminal Court has no moral authority of standing for presidency, [he] doesn’t have the right qualifications”, says Nkunda, but the decision “rightly lies with the voters of Sudan…they are the ones who make the decision whether a person who has an arrest warrant [hanging] over his head can really be a functional head of state”.
 

Conversely, Elise Keppler – of the International Justice Program at HRW - claims there are in fact “precedents for candidates in election being caught in a criminal process of a serious crime at the same time that they are running for elections.”