A Critique of the ICC Prosecutor’s Case against President Bashir
With all the attention to the ICC Prosecutor’s application for an arrest warrant against President Omar al Bashir, it is remarkable how little scrutiny has been given to the contents of the Public Application itself. Frankly, it’s a mess. A few years ago I asked the undergraduate students in my class to prepare the arguments for a debate on the question of whether what was going on in Darfur was genocide or war crimes and crimes against humanity. If one of my students had presented the 14 July Public Application against Bashir, I would have sent it back for revision before I would give it a pass grade. Perhaps that is what the Pre-Trial Chamber is considering now. I hope so.
It is astonishing that, confronted with a government which during its nineteen years in power has presided over a wide range of unspeakable violations including some of the most heinous crimes under international law, the Prosecutor of the ICC should set out a prosecution case which is so riddled with flaws. If the Public Application represents the approach that the Prosecutor would take in a future trial, we face the prospect that Pres. Bashir might well be acquitted of genocide and also quite possibly the other charges too. I am not alone among Sudan’s most seasoned human rights activists and its best-informed political analysts in my astonishment at this shortcoming.
Read my critique of the Public Application on this link:bashir-public-application-critique-d6-250109
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It is wise enough to consider the political turmoil that will occur following the issuance of arrest warrant by ICC. The gripping regime will not surrender to the international pressures except with a huge price at expense to prepare a safe gate. A new challenge faces the both the justice and peace maintaining conceptions, the emerging achievements which were sponsored by the West such as Peace Agreement that ended the longest civil war in the world will be tested if the ICC arrest will be de facto request. I think it is well known that the non-elected governments will not leave power at any cost.
A well written paper Alex! There is no doubt that the Government of Sudan should be held accountable for the role they played in Darfur. But we would like to see this done properly! It is a pity that we don’t see people like you and Julie Flint in Western media, instead I’m being “forced” to put up with celebrities trying to “educate” me about a part of the world I happen to come from!
Firstly am delighted that Mr. Alex is committed to humanitarian activities in Sudan. But I’m simple Sudanese lives in Khartoum. How the world leaves ICC Prosecutor demolish the ICC reputation by presenting very weak application.
For me, I don’t agree with ICC movement to issue a warrant to arrest President Al Bashir. After reading Ocampo’s public application to issue arrest warrant here why I don’t agree:
1- its weak since no evidence have been shown
2- the crimes mentioned had no justifications
3- In the application it mentioned he “THINKS†Al Bashir is the mastermind of this genocide any proof had been presented?
4- If there are 200,000 people died since 2003 where are the bodies? Darfur area is 493,180 square kilometers (1), hypothetically in each 2.5 km there is a dead body. But did Ocampo showed or examined any discovered dead body?
5- Rape cases can be easily examined, as what happened in Bosnia. But did Ocampo showed doctors reports on the cases?
Finally the application has no facts and figures. If we took Gaza as an example everything had been shown. As well as in Darfur there are channels which figures can be obtained such as united nation humanitarian organizations. Can Mr. Alex help me understand??
(1) http://en.wikipedia.org/wiki/Darfur
Dear Ali,
Thank you for your comment. While I think the Prosecutor has made a poor job of presenting the case against President Bashir, I don’t think the evidence is quite as weak as you might imply.
On the question of “justifications”. Clearly, the Sudan Government had good reason for responding to the military threat posed by the SLA/JEM rebellion. But international humanitarian law clearly specifies what cannot be justified in responding to such a rebellion, and that includes direct attacks on civilians, the use of disproportionate force, blanket prohibition on humanitarian assistance, killing prisoners, etc.
In terms of the numbers who have died, there is often confusion over this. The ICC figure is 35,000 dead from violence, plus a much larger number from hunger and disease. But I the important point here is that I do not think it is useful to demand physical proof of the dead now. Until investigators have free access to Darfur, the bodies of those who were violently killed will not be examined. Those who died in IDP camps and villages are buried in graveyards and the numbers can be more readily assessed.
I hope that the Sudan Government allows a thorough and comprehensive assessment of what has happened. Given the level of distrust between Khartoum and western nations, it is unlikely that it will allow that to be done by an organization based in Europe or America. The African Union has proposed a High Level Panel to investigate mechanisms for accountability. Perhaps this should be the next step.
Darfur – Back to Reality
Please refer to this link for my point of view on Ocampo’s farce and other Darfur issues:
Sorry, the correct links for my views on Ocampo’s farce and other Darfur issues are:
http://www.currentconcerns.ch/index.php?id=689 (English version)
http://www.horizons-et-debats.ch/index.php?id=1203 (French version)
http://www.zeit-fragen.ch/ausgaben/2008/nr41-vom-6102008/darfur-zurueck-in-die-wirklichkeit/ (German version)
http://www.uni-koeln.de/sfb389/sonstiges/kroepelin/229b%20200809%20International%203-2008%20Kroepelin%20Sudan%20Darfur%20web.pdf (original German article)
Mr. de Waal, your critique of the ICC’s Public Application is to the point.
It’s not the question whether or not awful crimes have been committed in Darfur since 2003. Those responsible, from soldiers to president Bashir, need to be held responsible.
But doing it in a way that looks like a PR excercise for the ICC prosecutor and Western activists instead of preparing a serious case aimed at promoting justice and peace will only radicalize the Sudanese regime, inflict more suffering to Darfurians, and destroy any hope for lasting peace in Darfur and Sudan.
As days pass by I realized International justice is officially dead, as 2 weeks back government of Sudan had taken the initiatives to conduct a peace forum with Darfur rebel groups in Qatar. But here comes the surprise when rumors had been spread that the warrant to President AlBashir is about to be issued at that time which led to some rebel groups to withdrew from the peace forum, That’s not the sad part of the story, the sad part is the ICC didn’t refute the rumors till the forum ended with only one group as consequences the outcome of the forum is below expectation and put huge pressure on the government to make progress which made it uneven negotiation. This episode of Darfur series shows that the international community has political benefits from the mess going on in Darfur. As Dr Stefan Kröpelin mentioned in his post* western intervention is not going to solve the problem.
I’m not sure if the international community aware that one day before the announcement of judge decision on 4th of March, President AlBashir will officially open the LARGEST water Dam in Africa which produce power more than power of Eritrea, Ethiopia, and Djibouti combine. The dam that affect the “Arab” tribes in the north to benefit the as you call “African” tribe in the south and western Sudan.
If you really want Make Sense of Darfur just tell “UN, Israelis, and ICC” to leave us alone and we know how to develop our country and solve our problems
* No personal offense intended
* http://www.currentconcerns.ch/index.php?id=689
*some photos of the Dam
http://www.skyscrapercity.com/showthread.php?t=803538