I was surprised to learn that the Prosecutor of the ICC is seeking leave to appeal against the Pre-Trial Chamber’s decision to not to charge President Omar al Bashir with genocide. The Prosecutor’s complaint seems to resemble that of a student who has been given a fail grade, arguing that the examination board should have set the mark needed for a pass at 25% and not 50%. Much better for the Prosecutor to rest content that he managed to get an arrest warrant and quietly forget about his ‘ongoing genocide’ claims.

The judges of the Pre-Trial Chamber wrote in Paragraph 111 of their Decision:

[T]he Prosecution acknowledges that (i) it does not have any direct evidence in relation to Omar Al Bashir’s alleged responsibility for the crime of genocide, and that therefore (ii) its allegations concerning genocide are solely based on certain inferences that, according from the Prosecution, can be drawn from the facts of the case.

They went on to show that genocidal intent was not the only reasonable inference from the evidence presented, contrary to the Prosecutor’s claims. This was surely the correct decision. The evidence presented in the application is thin and the logic is replete with errors. If new evidence comes to light then the judges may revise the charges (as they have done, for example, with the Bemba case). That is of course standard.

Bill Schabas, who recently decried the way in which genocide was being treated as a subcategory of crimes against humanity, supports this decision and has questioned the legal basis for the appeal. Others argue in the other direction (e.g. Eric Reeves on this blog).

Anyone who has seen at first hand a war, famine or genocide has little difficulty mistaking these things, and what we have in Darfur today is a low-intensity conflict.

My view is that if we treat what has been happening in Darfur over the last four years as “˜ongoing genocide,’ then genocide will become no more than a subcategory of war crimes, and just about every counterinsurgency or ethnic conflict in Africa and beyond will count as genocide.

Stronger arguments in support of a genocide charge could certainly have been made, based on the period of intense hostilities in 2003 and 2004. John Hagan and Winona Rymond-Richmond for example make a superior case in their book, Darfur and the Crime of Genocide. The Prosecutor chose not to base his case on that period and on similar arguments and we should not be surprised that the judges rejected his case, by a majority of two-to-one.