The ICC’s botched decision--and why Obama should support it.

Click here to read Part 7: Diplomacy, Not Regime Change.

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From: Eric Reeves
To: Alex de Waal, Richard Just, Andrew Natsios, Elizabeth Rubin, Alan Wolfe

In response to Alan Wolfe’s query about whether I’m happy with the ICC’s decision to issue a warrant for crimes against humanity but not genocide, I think it’s important to recall just how serious the designation “crimes against humanity” is in international law. In issuing the warrant, the court in its accompanying press release noted: “[Bashir] is suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property.” As a description of what has occurred, and continues to occur, in Darfur, this hardly seems in any way an exoneration. The U.N. Commission of Inquiry Report (January 2005), generally very good except in its peculiarly feeble account of “genocidal intent,” made clear that crimes against humanity could be just as destructive and morally abhorrent as genocide.

It’s important to note as well that the ICC prosecutor, Luis Moreno Ocampo, made a serious strategic error in charging Bashir individually, rather than as part of a “Joint Criminal Enterprise” (a legal concept that emerged into international law during the Balkan conflicts and prosecutions). Alex de Waal has tellingly made the same point at length and with a fuller account of modes of liability that Ocampo might have used in his case. Certainly genocide in Darfur has been a collaborative matter, which makes the indictment of only Bashir seem a distortion. The best account of the more comprehensive guilt on the part of the National Islamic Front/National Congress Party (NIF/NCP) regime was offered by Human Rights Watch (HRW) in its lengthy December 2005 report, “Entrenching Impunity: Government Responsibility for International Crimes in Darfur.” The report’s account of the hierarchical nature of Sudanese military and political power is highly authoritative, particularly the section entitled “The Sudanese Military: Implementing the Policy of Attacks on Civilians.” Equally authoritative is the HRW account of the hand-in-glove military cooperation between the Khartoum regime’s regular troops and its notorious Arab militia allies, the Janjaweed.

But the judges of the ICC Pre-Trial Chamber can consider the prosecutor’s application for an arrest warrant only as it is presented, a point stressed in the majority (two to one) opinion. The fact of a dissent in the assessment of the prosecutor’s application is notable, not only because of the small size of the Pre-Trial Chamber, but because the dissenting opinion of Judge Anita Usacka offers a powerfully persuasive critique of the majority decision on the question of genocide, in part by highlighting a number of texts speaking to the question of genocidal intent that were unaccountably omitted by the majority in its opinion. Perversely, Judges Akua Kuenyehia and Sylvia Steiner selected the least suggestive of the prosecutor’s witness statements.

In one telling example offered by Judge Usacka, a witness declares: “In April 2003, the President, Al-Bashir, went to AL FASHER and publicly gave orders to the military to eliminate the opposition and leave no survivors. . . . Having received orders from their chief, the military then went to African villages and left nothing behind. Together with the Janjaweed, they burned houses, killed small children and raped girls. They did not attack the opposition or rebels even though they knew where they were. These rebel bases were well-known to people in the area and the Government. They only attacked civilian villages which could not inflict damage to the military.”

A secret memorandum from within the regime, also noted by Usacka and corroborated in a book cited by the prosecutor as evidence, declares: “The [Ingaz] Revolution [of the National Islamic Front] has decided to bypass this [Fur, the largest non-Arab ethnic group in Darfur] tribe, [even though] it occupies a strategic place in dissemination the concepts of the Islamic Movement [the Ingaz Revolution of the National Islamic Front] to Western and Central Africa. It also occupies an area considered to be the Movement’s last line of defence in the event of its being cornered. . . . The Movement will not feel safe until this tribe [the Fur] is contained or exterminated and the Western front made secure. . . .”

There are numerous other examples cited by Judge Usacka, and yet others we may certainly consider. Alex de Waal and Julie Flint, in their book Darfur: A Short History of a Long War, relate one particularly telling example of the effect of the “Arab Gathering” on the thinking of Arab militia leader Musa Hilal, the most notorious of the Janjaweed. As leader of this supremacist organization, and a key member of the regime’s counter-insurgency effort (de Waal and Flint note that Hilal took “pride in being the government’s man”), his genocidal ambitions were unambiguous: “In August 2004. . .Hilal spelled out his objective in a directive from his headquarters in Misteriha, twenty-five miles south west of the garrison town of Kebkabiya: ‘Change the demography of Darfur and empty it of African tribes.’ The directive was addressed to no fewer than three intelligence services: the Intelligence and Security Department, Military Intelligence and National Security, and the ultra-secret ‘Constructive Security’ or Amn al Ijabi.” In the harsh land of Darfur, emptying places of human beings and destroying human beings are often synonymous, a fact that Usacka emphasizes.

In the course of her dissent, Usacka points out a number of weaknesses in argument by the majority, mischaracterizations of the prosecutor’s submission, and errors of jurisprudential fact. She is also much more inclined to cite the most telling evidence provided by the prosecutor, and actually writes a readable prose (the majority opinion too often reads like the product of an automatic translation machine, clauses and phrases repeatedly piled on top of one another). But what is decisive is Usacka’s critique of the evidentiary standard invoked in the majority decision. That decision effectively demands that a genocide application meet the threshold for an ICC trial conviction, i.e., evidence demonstrating guilt “beyond a reasonable doubt.” (This is done by way of demanding that every bit of evidence submitted by the prosecutor be, at the present stage in the proceedings, subject to the question: Is there any reasonable explanation other than genocide for this act? An affirmative answer, in the majority’s view, negates the value of the evidence for a genocide warrant.)

But there are three stages in the movement toward conviction in the ICC, and at this first level the task of the Pre-Trial Chamber is to determine whether, in Usacka’s words, “there is sufficient evidence to support a reasonable inference that genocidal intent exists.” If such evidence exists, then “the Chamber need only examine whether there is also evidence that would conclusively disprove the existence of genocidal intent. In my view, no evidence presented by the Prosecution conclusively precludes the reasonable inference that Omar Al Bashir possessed genocidal intent.” In short, determining whether Bashir, “beyond a reasonable doubt,” committed genocide “is not the task of the Pre Trial Chamber at the arrest warrant stage.”

Despite this present astringency, Usacka does a great deal to point the way to an eventual conviction of Bashir. In her legal reasoning, her biting critique of the majority, and her command of the evidence (as well as knowledge of what Darfur is like as a region), she thoroughly distinguishes herself.

I must consider myself--to return to Alan Wolfe’s original question--dismayed by the poor quality of jurisprudence on the part of the majority in addressing the question of genocide. But this does not mean that a charge of crimes against humanity is somehow a consolation prize, or in any way a political victory for Bashir: Again, as violations of international law, crimes against humanity can represent actions as heinous and massively destructive as those associated with genocide. The arrest warrant issued goes far toward clarifying the legal implications of what has occurred in Darfur, and will corrode the legitimacy of the Bashir regime indefinitely. Without such corrosive effects, there is no way presently apparent to change the minds of what I will insist are Khartoum’s genocidaires.

The Obama administration should support the court and its decision, despite intense political pressures to do otherwise. If the work of the court is constrained or defined by political considerations, its independence will be hopelessly compromised, and the prospects of international justice will dim dramatically. The U.N. Security Council referred atrocity crimes in Darfur to the ICC in March 2005; it is long past time that the pursuit of justice began in earnest, and the U.S. must unambiguously lead the way. Tepid comments from the Obama administration are not encouraging.

Click here for links to each part of the conversation.

Eric Reeves, a professor of English language and literature at Smith College, has written extensively on Sudan.

By Eric Reeves