Debating the ICC Critique
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.
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?
It is precisely because the issues are so grave that I think it is essential that activists and prosecutors do their utmost to get their facts and analysis straight. The suffering of the people of Darfur””and the Sudanese as a whole””has been so bad for so long, that the least that we as foreigners owe them is to get our response right. What I find most painful is to see a chance for peace, a glimmer of hope for democracy, a small opening for justice, snuffed out because outside players find it easier to take a high moral position that is black and white. This undermines those in Sudan who are working for real solutions, such as moderately free and fair elections. Insisting on a ‘good versus evil’ confrontation and giving no option for a soft landing to the NCP will just end up reinforcing the hardliners.
I appreciate your comments. These are not easy issues, and we must discuss them frankly and with an open mind.
Alex de Waal
Again I want to go back to the issues of deferral and whether it will help in breaking the current deadlock by allow the democratisation process or not. Last night I was watching BBC news night programme, Jermy Paxman the news presenter interviewed Moreno â€“ Ocampo the ICC prosecutor about the first trial for the ICC of Thomas Lubanga from the DRC, and this is the first case in the 6 years since the establishment of the court.
He asked him question about Darfur investigation and the possibility of issuing an arrest warrant against president Al Bashair, and even if the Judges agreed to issues the arrest warrant the prosecutor have no way of apprehending any of the suspect , Ocompo answer was clear he said it is not his responsibility to arrest the suspect but the arrest warrant against Haron is there in 2 month , 2 years or 20 years he will be in the dock , I think this is the most important point if the threat of the ICC exit the NCP will resist giving any ground which might weaken them and make the threat of an arrest reality .
How can we address this even if the UNSC agreed to use article 16. And defer the proceeding to one year Can anyone give the suspect guarantee that they will not be prosecuted is that possible legal. And the NCP knows that why their strategy is to refused the jurisdiction of the ICC and refused to cooperate with it even they are using Al ansari group as proxy to challenge the prosecutor case through Jeffery Nice QC application.
Is there any way out other than article 16 which might us out of this mass and allow a peaceful transition in Sudan.
Thanks Alex for the detailed response.
Let me just correct something factual in what you said. It is not taking the judges six months to decide on the application. The PTC I judges did not start reviewing the case until early October. Between July 14th and October they were working on confirmation charges for Germain Katanga and Mathieu Ngudjolo Chui. Hearing on confirmation charges were held from 27 June 2008 until 16 July 2008 with last filing made 28 July 2008. The judges have 60 days after that to make a decision on confirmation of charges. They issued their decision on September 30th. Following that they met with the ICC prosecutor for oral discussion on the Bashir case. You also need to consider two month long judicial recesses between July and today in the court when calculating the timeframe.
You â€œsympathizeâ€ with the judges is somewhat a strange expression and a suggestion that they base decisions on its popularity rather than on facts before them. This amounts to severely undermining their credibility. I find nothing in the history of the ICC that supports this kind of assumption. The ICC judges have almost halted the first trial ever for the court (Lubanga) after intense wrangling with the prosecutor. The prosecutor has received many numerous adverse decisions to motions he filed in the other cases.
One of the PTC I judges for example Anita Usacka have dissented from her peers in the confirmation of charges for the two Congolese militia leader and refused to confirm some of the counts brought by the prosecutor.
You mention Eric Reeves as using non-credible methodology to calculate mortality rates. However according to â€œFrancesco Checchi, a London epidemiologist who has worked in Sudan for humanitarian groups, says that Reeves has an activist agenda but â€œhe knows Darfur wellâ€ What he’s done is â€œmathematically correctâ€ and â€œsufficiently legitimateâ€ to establish a high-end countâ€ [http://www.csmonitor.com/2006/0831/p20s01-woaf.html]
Leaving the ICC mechanisms aside I am glad that you have agreed with many of my points I made with regards to the decisions or attitude of Bashir. This is the big picture I was trying to put together. Bashir ultimately made the decisions which caused the massive human destruction in Darfur. To say the least he had the knowledge of the outcome of these decrees on the livelihood of those ethnicities most impacted by the Darfur conflict (Fur Masalit & Zaghawa). This is the reason I gave the Kalma camp example to show you Bashirâ€™s insensitivity to the plight of those ethnic groups at a time when he rushes to offer condolences on far less tragedies than this.
Saying that I am surprised you take Bashirâ€™s decision to block Haroun probe as a sign that he does not control everything. On the contrary it shows that nothing will go through without his consent.
Let me give you some examples to support Bashirâ€™s absolute authority. In April 2007 Ali Osman Taha was in Brussels where he made public statements suggesting that Sudan may accept peacekeepers in Darfur. Once he returned Bashir summoned him and literally yelled at him reprimanding him for saying that. Following that Taha became totally sidelined.
Following JEM attack on capital the army was extremely unhappy with Abdel-Rahim Hussein and wanted him removed. However Bashir made it clear that this is â€˜red lineâ€™ irrespective of his performance. It is interesting that after a corruption scandal involving Hussein that angered the public Bashir refused to accept his ministerâ€™s resignation and later promoted him. It outraged everyone in Sudan but Bashir did it anyways. The same thing applies to Salah Gosh and his performance with regard to JEM attack. Bashir refused to remove him despite pressure even from within his own party.
I am extremely glad you refer to your 2004 article â€œCounterinsurgency on the Cheapâ€. Personally as an average reader all I can infer that you are talking about nothing short of genocide here.
â€œThe atrocities carried out by the Janjawiid are aimed at speakers of Fur, Tunjur, Masalit and Zaghawa. They are systematic and sustained; the effect, if not the aim, is grossly disproportionate to the military threat of the rebellionâ€¦..rape and branding of victims speaks of the deliberate destruction of a community. In Darfur, cutting down fruit trees or destroying irrigation ditches is a way of eradicating farmersâ€™ claims to the land and ruining livelihoodsâ€.
What you described above in this paragraph are the characteristics of genocide. I honestly donâ€™t interpret it as anything but that. It is â€œsystematicâ€ and â€œsustainedâ€ as you said. Those are the two keywords.
I also want to quote Dr. Mukesh Kapila when speaking about what happened in Darfur during his time there.
â€œThere is debate about whether we had genocide in Darfur or not, but certainly in my mind, and the mind of many, many people, I think there is very little doubt that what went on in Darfur in 2003 and the early part of 2004 was certainly genocide. We can argue the words, but that would be no consolation to those people who are affectedâ€….”I was present in Rwanda at the time of the genocide, and I’ve seen many other situations around the world and I am totally shocked at what is going on in Darfur”
I think its also worth noting Bashirâ€™s denial of rape and his description of those women allegedly raped as being â€œrelatives of rebelsâ€; his insistence that 90% of Darfur is safe and stable. This is classic to those who perpetrate those heinous crimes, denial.
So my question to you Alex would be what is the case you think should be brought against Bashir? You said he has a case to answer but not the one Ocampo made. Who do you think bears criminal responsibility?
The Prosecutorâ€™s answer to Jeremy Paxman is revealing. The Court may have to wait two years or twenty years for President Bashir to be apprehended. If that is his expectation, why not wait until Sudan has navigated the current challenges of democratization and peace, before presenting his case?
There is no obvious way out of the mess. I put an unconditional Article 16 resolution on the table because I think the most important thing at this moment is to lower the political temperature so that the existing objectivesâ€”democratization, the southernersâ€™ exercise of their right of self-determination, stability and protection in Darfur, civil liberties, etc.â€”can all be pursued. If it is impossible for such a resolution to be passed, then the best thing is for the key western countries (especially the U.S., Britain and France) to make it clear that their priorities are to continue with their prior objectives, regardless.
Once again, thank you for your comments.
Your point about the judges of the PTC is well-taken. The reason I extend my sympathies to them is because they have to make a decision on a very difficult case, and either way they will be the subject of huge controversy and criticism, both in the public realm and also among their legal peers. Itâ€™s not a question of courting popularity, itâ€™s a question of assessing some a knot of multiple different legal and evidentiary issues, plus the question of exactly what standard to applyâ€”the â€˜case to answerâ€™ threshold or the â€˜trial readyâ€™ threshold. The judges have not hesitated to slap down the OTP when they believe it has made a mis-step (and did so in the Lubanga case). But the dilemmas in the Bashir case are much, much tougher to resolve.
On the maths of mortality figures, two points. One, the GAO was a thorough and peer-reviewed evaluation, not the opinion of a single epidemiologist. Second, it is only valid to cite a high end count, if you also cite a low end count, and point out that the true figure will lie somewhere in between. The ICCâ€™s own method for calculating figures for deaths (by violence) is conservative and I would suggest that the Prosecutor at least refer the figures generated by the ICC rather than only mentioning â€˜high endâ€™ figures projected by activists.
What happened in Darfur shocked the conscience of the world and rightly so. The lay understanding of the atrocities spurred an extraordinary international outrage, which had a passion which still bewilders Sudan’s leaders. They don’t understand where this intense moral clamour came from. Bashir has already been tried in the court of world opinion, and he made a pretty poor case in his defence.
But the Prosecutor’s job is not to ride this bandwaggon, but to translate this moral condemnation into something that is provable in a court of law.
One challenge is, as you indicate, to frame Bashir for the right charges. What might those be? How might I have done it? But, to return to my point in reply to Hafiz, the other challenge is, at what time and in what context? There is no justice without peace.
If I were the prosecutor, I would have delayed until the moment was more propitious and the wider risks were less. With this in mind, I will not forward my views on this issue for now.
Dear Alex, Khalid and Hafiz,
Thank you for the many points you have respectfully made and for, as ever, stimulating thought. I would like to ask you all for your comments on one potential impact, not of an idictment, but of a deferral using article 16:
Taking into consideration the historical ‘tactical manoeuvering’ strategy of the NCP to keep a hold of power in Sudan, and underling the basic moral bankruptcy of the regime and its culpability in the oppression and death of millions, wouldn’t a deferral give the NCP breathing space to maneouvre its way once more into keeping ahold of the reins of power in Sudan? Considering that there would only be a deferral and that an indictment would hang over their heads, the NCP may be even more compelled to, by all means, retain power?
under any circumstances, the NCP will manoeuvre tactically to remain in power. The ICC arrest warrant, whether issued now or deferred, creates another incentive for the NCP leaders to take no risks in holding on to power. An election under these circumstances is a “loser loses everything” election.
Until last July, there were many intermediate options between the NCP remaining in charge and a “hard landing” of it being thrown out of government. Those “soft landing” options included a power-sharing deal in which the NCP lost its majority, a change in the NCP leadership, and constitutional provisions that delegated a lot of power to the South and other regions. Each of these could have led, over the course of a couple of electoral cycles, to the NCP being eased out of power. Now the soft landing options are sorely squeezed. It’s no longer tactical manoeuvre for political advantage, its tactical manoeuvre for personal survival.
Article 16 is not a good option but it’s the least bad option available.
I think that at this point it is too late to ask for a deferral. For those supporting an Article 16 resolution they can only hope the international community ignore a Bashir arrest warrant similar to the manner they dealt with those for Haroun and Kushayb.
Assuming that UNSC does invoke a suspension the NCP is likely to view it as a victory and will capitalize on it in dealing with other political parties as well as Darfur rebels. It will probably make it even harder to get any meaningful concessions out of them.
During their years in power the NCP has very well played on time to maneuover and once a deferral is in place they will use that to pretend to be working on securing agreements that drag on for god knows how long. I have seen it way too much. A deferral will not make the NCP do anything differently. In fact may make things worst.
Unlike what most people think once a deferral is invoked it will more than likely be extended indefinitely due to the complex politics within the UNSC. It is not a simple two years then lift it.
Once the UNSC took the decision to refer the Darfur case to ICC it was to be expected that things will take that turn of indicting a senior official. People must accept the reality of the ICC and let it proceed as is. The ‘grand collapse’ following an arrest warrant is certainly not a secenario I see anytime soon. The NCP will learn to cope with it without doing anything that angers the international community.
I do agree with that one year deferral will not make any different regarding the NCP position, they will not move an inch, in fulfilling their commitments according to the CPA and the democratization process. Even before the facing the recent threat of the ICC, their strategy is to sign agreements just to buy time. If we look at their track record in the last 10 years, they have signed the following agreements:
1997 â€“ Khartoum Agreement with SPLM splinter groups
2000- Sudan Call agreement with Al Sadig Al Mahdi
2005- Cairo Agreement with NDA
2006 â€“ The DPA with Mini Minawi
2007 â€“ The East Agreement
2008- Taradi agreement with Al Sadig Al Mahdi
Not 50 % of those agreements been honoured and some of them totally collapse. The only reason why the CPA is making some process is because SPLM managed to keep their army and they have total control of the south just like an independent state.
Look at what happen to the Umma party they brought them in 2000, they didnâ€™t implement 10% of the agreement and at end they dismantled itâ€™s party into more them 5 factions. They believe they can buy their way and as of the regime leader said everyone has a price and we are ready to pay.
Some of the regime elites have made it clear in many occasions that their intention is to stay in power and only hand it over to the Messiah. Any agreement gives them breath of time and they do their best to kill it from inside, but I think with the threat of ICC and war in Darfur they run out of options that why they are panicking now.
The current regime in Sudan only give ground when they are under intense pressure, as soon as the pressure ease they go back to the same tactics.
I donâ€™t believe a deferral for one year or even 10 years will change anything.
The right approach to resolve not only Darfur crisis but to get Sudan out of this mess is by engaging all Sudanese and the international community at the same time and to come with comprehensive approach which will allow genuine transition to democracy , restructuring of the Sudanese state and give safe exit to the regime elites , that include the following :
1- a national government to lead the transition by addressing all the issues facing the country in a comprehensive way not by pieces meals approach.
2- Truth and reconciliation process such as South Africa one to be chair by international figures
3- dismantling of the regime security apparatus and all itâ€™s paramilitary organisations
4- Full compensation packages for the victims of the regime crimes
5- An Amnesty to the perpetrators of the crimes at the end of this process.
I think this approach will open a way to new chapter of Sudanese history and hail some of the wounds of past.
I am currently writing a paper which will explain in detail this idea, I know such approach will face opposition for both side of the argument, but I think will ignite a debate which might safe Sudan from disintegrating.
What seems certain is that the ICC is committing suicide. It cant win by arresting president Bashir or derailing the CPA (which is one of the undeclared aims). The momentum of the home front is overwhelming in support of the president and the peace processes in which he has been an honest partner for the western mediation.
Those of us who believe that there is no contradiction brtween Western democratic values and our ( in my case) Arab -Islamic culture feel let down and disappointed when spin and political improvistion replace considered opinions and researched policies.
The USA was right when it “unsigned” the Rome Statute because of the fear of politicisation of the ICC . But the USA has now taken part in the politicisation
of the court agains Sudan and its president. This is not only proof of double sandards ; it is a farce.
The ICC will be discredited and will collapse unles it changes course and apologises to Sudan.