Dear Alex,

I have a number of questions regarding your critique.

1. First in August 2004 you were quoted as describing the Darfur Counter-insurgency as “genocide by force of habit”. Are you reversing positions now?

This is a very good question. My argument was that the methods used by the Sudan government (not just this one but its predecessor too) routinely involved violence against communities of such a scale and nature that it was likely that acts of genocide had been committed in the course of counterinsurgency. (The title of the article was “Counterinsurgency on the Cheap.”) If the Prosecutor had argued that President Bashir’s aim was the repression of the insurgency and that he employed military tactics that almost certainly would entail these kinds of atrocities, and therefore he had a measure of command responsibility for any acts of genocide that were committed by his forces, I would have argued that his case was stronger. Back in 2004, my understanding of the law of genocide was that such acts would indeed have counted as genocide. Now, I’m not sure at all, for reasons I spell out in the critique. While it may be possible (pace the Cassese report) to prosecute individual commanders for acts of genocide, it would be exceptionally hard to argue that the President had command responsibility that involved intending these acts.

2. You fail to mention that early on Bashir has incorporated the Janjaweed militias in the border patrol thus giving them legal cover.

There is no question that the Sudan Government has worked hand-in-glove with the militias and formally incorporated them into its armed forces. But that hasn’t stopped the militia rebelling against the government on occasions too.

3. It is not simply the fact that Haroun was not removed. Bashir has prevented the attorney general Salah Abu Zaid from even investigating with him in March 2007 despite his intention to do so per his public statements.

This is correct. And I would argue that the fact that senior individuals within the government have made serious efforts to investigate Haroun is evidence for Bashir’s incomplete control over the institutions of state. Impunity has prevailed, but not always automatically.

4. Bashir was made personally aware by Darfuri figures including those in his own National Assembly of the abuses occurring but he did nothing to stop them.

It is on exactly this basis that a charge of superior responsibility could be brought against President Bashir. (See the July 10 posting by Jens Meierhenrich on the legal difficulties of this approach.)

5. In 2004 Bashir signed into law the Armed Forces Act which provided immunity from prosecution to soldiers and officers who commit crimes in the course of their duties.

This is an appalling piece of legislation and attests to a willingness to tolerate criminal acts.

6. Why did Bashir strongly resist allowing humanitarian groups from full-blown access despite the massive scale of displacements? I mean they were millions of people and took him almost a year to let them in. I think you will agree with me that this is slow death.

Again, the obstructions on humanitarian relief during the year up to April 2004 were quite appalling and unjustifiable. I developed the concept of “famine crimes” almost twenty years ago to describe similar actions by the Ethiopian and Sudanese governments of that time. Not too much has changed, sadly.

7. In 2007 Bashir appointed Musa Hilal to the cabinet despite the controversy surrounding him.

Among the reasons for appointing Musa Hilal was the fear that he and his militia might mutiny. During 2006/07 one of the main government concerns was to keep the Arabs loyal. They had huge difficulties with Mohamed Hamdan Hemeti and also with Musa Hilal. But it was also a slap in the face to the victims of atrocities and a show of indifference to the conscience of the world.

8. It almost seems that you are implying that Bashir was at the top not being aware of the brutalities going on. I remember speaking to a very pro-government political analyst in 2007 who expressed surprise that Ocampo has not charged Bashir. He quoted the “no prisoners no wounded” statement.

Please re-read paragraph 36:

“Bashir’s propensity to fiery and aggressive rhetoric, manifest many times over the years. The declaration attributed to him that he “˜didn’t want any villages or prisoners, only scorched earth,’ is a clear incitement to his forces to commit violations of the laws of war. This is wholly consistent with standing practices going back to the mid-1980s, that war zones are “˜ethics free zones’ in which any conduct is tolerated, need not be reported upon, and will not be called to account.”

9. In August 2008 Bashir expressed support to the Kalma camp operation despite the death among women and children toll and extended no condolences or anything of that nature.

The lack of remorse over the casualties that were inflicted during this operation is shocking. I do not see the operation as evidence of genocidal intent. The security services repeatedly said that they intended to go into Kalma to collect weapons, and have expressed worries about the presence of this huge hostile population, increasingly well-armed, next to Nyala town and the airport. When they went in to the camp, the operation was conducted in the usual hamfisted manner, with overreaction and indiscriminate and disproportionate violence. That is characteristic. What is equally characteristic is the lack of any compassion for the victims and the casual dismissal of their complaints. Genocide? No. Ethics-free zone? Yes.

10. The North Darfur governor Ibrahim Suleiman has said both publicly and privately the horrors of what was going on in Darfur of which I attended one in which he broke down crying.

The horrors verge on the unspeakable. It is for this reason that it is so important that justice is done. But not every unspeakable horror is genocide, and not every atrocity is committed at the behest of the commander in chief.

11. You have said in other press statements that you think the judges will drop the genocide charges but keep the others. But in your critique you suggest that given a degree of scrutiny they may scrap everything.

My assessment initially was that the charges of war crimes and crimes against humanity would pass the Pre-Trial Chamber with little difficulty but that there was a question mark over the genocide charges. Six months on and no word yet from the PTC, I am beginning to wonder if they might not send the whole file back. What makes me think this is a possibility is the Prosecutor’s attempt to use ‘indirect perpetration’ as a mode of liability.

12. Do you have faith that the Judges are competent enough to make the right decision with regards to the application? Hypothetically if they approve it would you question their legal knowledge?

The judges of the PTC only need to ascertain that there is a case to answer. In my mind, there is a case to answer. The raw evidence””much of it presented in the Harun/Kushayb application””shows this. But the Prosecutor has done a terribly poor job of making the case against Bashir. I think he has shown that he is not “˜trial ready’ and that if the case were to come to court, he might not prevail. This is probably giving the judges pause for thought. But on the other hand, to dismiss the case would be a huge embarrassment. The judges have an extraordinarily tough task, and I sympathize with them. Whatever decision they make will be criticized.

13. I hope you don’t take offense to this question but why are you bringing this up now coupled with your request for a deferral? The fact that you are devoting so much time and effort attacking the ICC prosecutor and some Darfur celebrity activists in the past makes me wonder sometimes.

Khalid Omer

Please do not get me wrong: I am not arguing that Bashir and his government are not responsible for the deaths of scores of thousands of Darfurians. But if there is to be accountability for these crimes, then there’s a responsibility on the prosecutor to get the facts and the law right. If he doesn’t do that, he is not serving the interests of justice or the interests of victims. Imagine if Bashir were to be tried and acquitted””what would that imply?

Alex de Waal