Darfur: Appealing the Genocide Decision?
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.
Someone deserves a failing grade, but it’s not Moreno-Ocampo. Alex is wrong about the law and has apparently not bothered to read the Prosecution Application. Interested readers are invited to check out my post at Opinio Juris:
Dear Keven Heller,
If you are following Alex De Waalâ€™s pattern of argument on his persistence in maintaining that what is happening in Darfur does not amount into genocide, you will then notice the contradictions and inconsistencies in his argument. Since Prosecutor Ocampo filed for an application for arrest warrant against Omar al-Bashir, De Waal then persistently attacks Ocampoâ€™s evidence as weak. He cites it as one of the reasons he opposes the arrest warrant against al-Bashir.
However, in a recent rebuttal on De Waalâ€™s no-genocide in Darfur argument, Eric Reeve pointed out that in August of 2004, De Waal argued that the counterinsurgency actions in Darfur â€œwere the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit.â€ This revelation exposed the contradictions and inconsistencies in De Waalâ€™s recent argument where he consistently maintains that the killing in Darfur does not amount into genocide. The fact is that De Waal has one time believed that there was sufficient evidence of genocide committed in Darfur.
So, if you see De Waal trying to adjust the timeline on when genocide really occurred in Darfur to fit the period of 2003-2004, then you know what he is trying to do, cover up for his past arguments. Like many people, he believed that genocide is indeed committed in Darfur.
One may wonder why then De Waal changed his position on this issue of genocide? Well, weeks prior to Ocampoâ€™s filing the application for arrest warrant against al-Bashir, De Waal is reported to have been tipped off on Ocampoâ€™s move. In his part, De Waal alerted al-Bashir. It was perhaps here that one can speculate two of these might have happened, which obliged De Waal to maintain the argument of no-genocide committed in Darfur:
1) Given his confidence, De Waal might have promised al-Bashir that he is going to fight off the indictment, using all of his expertise.
2) Bashir might have requested De Waal to do the fighting for him.
The facts are: De Waal, like the people he criticizes, (Ocampo included), believed that genocide is committed in Darfur; the period covered in Ocampoâ€™s application for genocide charges against al-Bashir started from 2003â€”the period De Waal believes of genocide; and the judges majority ruling of a 2 to 1 shows that at least the case stands in court since one judge of the three ruled in favor of the case. This is certainly not fitting with De Waalâ€™s argument that this case is, â€œso shoddy any reasonable judge would throw it out.â€ At least, a reasonable judge ruled in favor of the case, and a little convincing by the prosecutor, perhaps through appeal will tip the scale the other way.
Dear Kevin and Steve,
At issue is not just the time period in which genocide may have been committed (a reasonable case can be made for 2003-04, not I think for anything after that) but also the evidence and argument presented by the Prosecution for Pres. Bashir’s responsibility, which simply does not add up. Those who quote my “genocide by force of habit” line should also note that I contrasted the Darfur atrocities with earlier episodes in the Sudanese civil wars in which a plan for wholesale population transfer, starvation or subjugation existed, and should also note that the article was entitled “counterinsurgency on the cheap.” The Prosecutor went out of his way to argue that the events in Darfur were not a counterinsurgency but the fulfilment of a genocidal plan, the latter being an opinion that is not supported by any of the evidence adduced in the public application.
Lastly I hesitate to even print the insinuation that I am in collusion with Bashir on the case: it’s a despicable allegation. I am ready to print some forthright criticism of my positions but this is stretching it. It was clear from June last year that the Prosecutor was intending to target President Bashir and I decided to alert the SPLM leadership, civil society leaders, the Umma Party leader (in that order), and finally some individuals within the NCP who had the position to influence the response of the Sudan Government in the direction of restraint. Having seen this government in its militant phases in the past, I have no illusions about its capacity for inflicting great harm with an angry response. A great deal of hard work went into making the response of the government last July as restrained as it was.
First of all, I do not find Alex’s post “nasty” or “remarkably patronizing”. For anyone who has read his lengthy critique of the Prosecutor’s application for an arrest warrant, and what he has written on Darfur more generally, his words make perfect sense, both in content and in tone.
Secondly, I am not a legal scholar or anything of the kind. However, to my mind, it is odd (the more so when this is argued by professionals) that someone think that, although the genocide charge would not prevail in a trial, it should, nevertheless, pass the Pre-Trial Chamber. I wonder, did any of the people who make such arguments consider the likely consequences of the charge passing the Pre-Trial Chamber, but then president Bashir being acquitted in Court? Not the consequences for us, we are not the point here, but for the people of Darfur – supposedly, the beneficiaries of the justice that we keep advocating for (although, the likely consequences for the reputation of the Court and its standards of professionalism are not to be easily discarded either).
Thirdly, I think that, given the bloody history of the conflicts which have raged Sudan throughout the past twenty years, it is important that we consider our actions not just from a legal, but also from a policy point of view. It is easy to take the moral high-ground when one is not in the midst of the violence that might be unleashed. The legal tools that have been developed to address mass atrocity are incredibly important instruments for addressing conflict; no one can deny that. However, maximizing their utility requires both that they are perfectly handled from inside (something that the Prosecutor has failed to show), and that, from the outside, their limitations be recognized and criticized at face value (I owe this incisive remark to a former teacher, lawyer by profession).
Fourthly, in my opinion, irresponsibly taking the moral-high ground on Darfur’s back is exactly what the international community has been doing so far, by labeling the conflict “genocide” and appropriating it for its own purposes, which, more than once, worked contrary to bringing peace, justice or security for the Darfurians. We should not let the few, but precious legal instruments that we have be tainted by that.
The point of public debate lies not just in its content, but also in how debating takes place: a minimum of politeness and consideration is required; making sure that one does not make (personal) allegations that one cannot prove is part of that.
I have responded to Mr. Paterno’s obscene allegations at Opinio Juris.
This is just to express my surprise that you admitted alerting some members of Beshir’s ruling party (NCP) about the potential of the ICC issuing an arrest warrant. I do appreciate your honesty on this matter, however, I am really curious to know:
1) If as a result of your move you were able to see any restraint from the side of Beshir’s regime in dealing with the matter. My assumption is that, there are no big differences within the NCP, and most probably they used the alert to prepare themselves for counteractions. The timely expulsion of the 13 aid agencies could be one case to the point and apprently, Beshir seems now as winning some grounds in this confrontation based on an a preparedness that I hate to have some doubts it might be a hinted one, caused by your good intentions. I don’t have any reservation, on the other hand, regarding the alert to the other political forces and the civil society organizations.
2) I was also surprised to see Sir Geoffrey Nice QC and Rodney Dixon, making, on February 3, 2009, a supplement to their Application to the Pre Trial Chamber on Behalf of CitizensÊ¹ Organisations of The Sudan in relation to the ProsecutorÊ¹s Applications for Arrest Warrants of 14 July 2008 and 20 November 2008, and that in this supplement, they have added an Annex (7) named “Memorandum of Alex De Waal”, I was also more surprised to see that some of the issues and questions that I raised with you in this forum together with my name were also brought in that supplement. This was quite confusing despite the fact that the lawers referred to both of us as not supporters of the regime in Khartoum.
With respect, I think analogizing Moreno-Ocampo’s decision to appeal the genocide issue — a decision to which he is perfectly entitled as a matter of law — to a student who fails a test and then complains about is, in my opinion, both nasty and patronizing. I am no fan of Moreno-Ocampo, as even a cursory examination of my posts on Opinio Juris will indicate. But he is still the Chief Prosecutor of the International Criminal Court, and I think he deserves to be treated with a certain amount of respect — especially when the person doing the patronizing is simply wrong on the law.
That said, I can see why the issue about the standard of proof is confusing to a non-lawyer. What is important to recognize is that the Rome Statute’s escalating standards of proof — “reasonable grounds” for the arrest warrant; “substantial grounds” for confirming the charges; and “proof beyond a reasonable doubt” for conviction — are designed to protect the defendant, not the Prosecutor. Dividing the prosecution process into stages gives the defendant two pre-trial opportunities to avoid the time, expense, and anxiety of a a trial. Indeed, I imagine we can all agree that there should be limits on the Prosecutor’s ability to take a defendant to trial — and there would be no limits if there were no pre-trial procedures that required the Prosecutor to justify going forward. By the same token, however, it would be unfair to require the Prosecutor to prove the defendant’s guilt beyond a reasonable doubt long before the trial, without the benefit of all the documentary evidence, calling witnesses, etc. Indeed, if the Prosecutor could not arrest someone without proving their guilt beyond a reasonable doubt, the arrest-warrant stage would simply become the trial stage — the Prosecutor would have to present his entire case when seeking to arrest the defendant. And then the Prosecutor would be presenting his entire case in the absence of the defendant, even though international law essentially prohibits trials in absentia.
I should also point out that I disagree with my colleagues about the overall merits of the case. I have no problem concluding that the events in Darfur between March 2003 and the present legally constitute genocide — and that Moreno-Ocampo can prove Bashir’s responsibility for genocide beyond a reasonable doubt. I freely acknowledge — and have publicly said again and again — that reasonable disagreement about the merit of the genocide charges is possible. But just as it is unreasonable to be absolutely certain that Moreno-Ocampo can definitely prove genocide, it is also unreasonable to be absolutely certain that he cannot. That’s why we have trials in the first place.
As for your point about the “moral high ground,” I simply disagree. I have no great faith in the international community, but I unequivocally reject the idea that, if the ICC just leaves him alone, Bashir will ever seriously negotiate peace. Nothing he has ever done justifies such optimism.
It is of course impossible to know what might have happened if things had been done differently. But monitoring the response in Khartoum in June/July — extreme anger followed by discussion about what could be done to address the situation — suggests that allowing time for the Sudanese parties to discuss the issue internally and among themselves helped stave off an angry over-reaction. It bought time. That time wasn’t well used, either by the GoS or by the international community. In fact the restraint shown in July helped lull some into a false sense of security that nothing would then happen in when the arrest warrant was finally issued.
You will see my critique of the Application and other discussions on the public application published on this blog. There was nothing to stop Geoffrey Nice or anyone else making use of them in a submission to the ICC.
I will rejoin the ‘standard of proof’ debate shortly.
The importance of being right appears to be the dominant theme amongst some contributors to this particular blog. In contrast Alex de Waalâ€™s emphasis has, and continues to be, focused upon the adverse consequences that decades of conflict have heaped upon vulnerable communities in Darfur and Sudan as a whole. The recent legal initiatives instigated by the ICC threaten to compound this suffering as emergency relief is withdrawn and some form of workable peace solution appears more remote than ever. I would hazard a guess that de Waal would take great satisfaction in being wrong if his concerns surrounding the negative impact of the ICCâ€™s decision to prosecute Bashir were shown to be groundless, and similarly that talk of genocide in Darfur resulted in justice and restitution for its victims. However, the offensive and groundless allegations made by Steve Paterno in this forum, re-centers the debate away from the potentially profound consequences of legal initiatives taken within the region and into the realm of a playground squabble.
First of all, thank you for kindly replying to my post and for clarifying for me the “standard of proof” matter. I truly appreciate it. I really wish that I had more time (and knowledge) to engage in this debate more substantially but let me just make a few of notes:
1. I think that the Pre-Trial Chamber was correct when it maintained that genocidal intent would have to be the only reasonable inference from the evidence presented in order to meet the “reasonable proof” standard; especially since it had to also decide on crimes against humanity and war crimes. Also, I think that the Prosecutor himself took the same view in the main body of its Application. Furthermore, I think that in assessing the evidence the Majority suggested not only that there were other possible inferences, but that some of the evidence presented showed that genocidal intent was an unreasonable inference (for e.g. the fact that the handful of GoS documents presented “provide only indicia of a GoS persecutory intent (as opposed to genocidal intent)” – para. 204 (vi)).
I am aware that judge Usacka does not agree that the Prosecution maintains in its Application that genocidal intent would have to be the only inference, but I think that a footnote from the Application is not enough to sustain the position – at best, that shows that the Prosecution was not entirely certain on this aspect of its argument. Also, if, as Judge Usacka argues, when the Prosecutor did uphold “the only reasonable inference” view, he was alluding to the overall case, why would he do it at this stage? It is true that the Pre-Trial Chamber is not bound by the Prosecutor’s position, regardless of what that is; nevertheless, I think that taking a different position than the Majority did would be to lower the standards by which the various thresholds are judged.
To be sure, I find it very, very distasteful to argue something that might be in any form favorable to Bashir, but then, surely, if we are implacable about maintaining the standard of proof system we should be as rigorous in respecting the criteria against which the three thresholds are judged, and in maintaining the differences between genocide and crimes against humanity?
2. The arrest warrant has been criticized not just on its content and argument, but also on the timing and manner of its release. While, like you, and probably many other people around the world, I would very much like to see Bashir spend the rest of his life behind bars, I am not at all sure that this is a fair price to pay if it might lead to increased violence and cancel the prospects for peace (and in a situation like this, the modal “might” should be enough to make us more thoughtful on the consequences of our actions). This is essentially a trade-off that does not involve us, and so, yes, I do believe that the international community has taken the moral high-ground on Darfur’s back. This action deserved consideration more careful than it received.
3. Again, mine is not a legal mind, and if I am wrong by engaging in a debate which is beyond my competence I apologize beforehand.
Dear Heather Adams,
Thank you very much for your contribution and emphasis.
However, Whether the current feverish moves by Beshir, his spectacular popular mobilization, and calls for the armed movements to put down arms and that he is ready for peace and development and prepared to make a quick fix in Darfur, whether these efforts resulted in some peace agreement and stability, or whether the international community, on the other hand, manages to orchestrate some internal political changes in Sudan, which Alex seems to think likely and possible, it is arguably that the situation could become more worse in Darfur or that peace is becoming far reached as a result of the ICC’s arrest warrant.
For some of us, justice is an absolute human right and value, and therefore, the issue of the “right time” does not significantly count or represent strong argument for us to accept a compromise with Beshir. Mr. Omer Al-Beshir is responsible for atrocities in Darfur by virtue of being the president of Sudan and the commander in chief of the armed and the security forces and militia’s that everyone agrees that they are behind these crimes.
Although, I consider the expulsion of the (13) aid agencies as retaliation, unjustified action, and as big mistake from the side of the Sudanese government, nonetheless, I would like to stick to rationality and to avoid any illusion or exaggeration about the matter and its effects and consequences. I do not want to open another diverting argument into the origin, mission, and role of international aid agencies and whether or not they are tools for international foreign polices or macroeconomic realities and objectives within the Globalization framework, the same way I don’t want to enter into arguments to fit the matter into the bigger picture of the crisis of developmentalism and complex emergencies and the controversies of the “second-coming-of-stability-at-Darfur-level” or for that matter, to bring the government favored arguments of “oil and energy”, “ideology” or “geo-strategy” issues behind it all.
I, simply and as a Sudanese national, thinks that, with the current political determination of the political system in Sudan, Beshir is prepared to find adequate resources to fill the gab that was created by the expulsion of the (13) INGOs and to prove to the International community that are wrong. In a country with a population of 40 million, it is quite doubtful that this resourceful regime, assisted by over 100 remaining international aid agencies, the whole of the UN players, and hundreds of national NGOs, would fail to cater for the basic needs of a mere 1-2 million people in Darfur, not forgetting that the government looks at this matter not only as a determinant survival and life and death matter, but also as an opportunity to “prove” something to the international community. Simply, let us just rip the government of this card. Let us stop crying over the expulsion issue, and focus on the best ways to guard and bring peace to Sudan, preferably without Beshir in the picture for the better of all.
On my provocative comments on the genocide debate, I have seen everyone came in defense of Alex De Waal and faulting me. Well, I may accept where I am at fault, but I am also compelled to clarify my position further.
In this discussions, what I have seen are three major issues: (1) whether the atrocities in Darfur constitutes genocide, (2) if the case of genocide can be presentable in court, (3) and should someone be held accountable for the atrocities committed in Darfur, especially if that someone is Omar al-Bashir, the president in Khartoum.
Leading the discussions is Alex De Waal who dismisses any claim of genocide committed in Darfur, laughs off at any evidence of genocide charges that can be presented in court, and adamantly opposes Omar al-Bashir to be held accountable by court.
However, I can prove beyond reasonable doubt that De Waalâ€™s current position is a drastic shift from his previous position on the same questions. The question then is: why a sudden drastic shift of positions? Below are plenty of examples showing those shifts over the short period of the conflict in Darfur.
In July of 2004, in Addis Ababa, Alex De Waal wrote that after he barely left Sudan, (Darfur in particular) in the year â€œ1987, political processes were in motion that led ultimately to the outbreak of war in 2003 and its escalation into genocidal massacre and displacement.â€ If this is so, why are we arguing on the question of genocide? So, there is genocide in Darfur. It is that clear.
De Waal went on to recommend that Darfur should not only be a place for â€œa textbook study of famine, but of genocide as well.â€ Well, no one will be more disappointed than the students of Sudanese affairs after learning that the foremost scholar of Sudan recommended an exciting field of studies (genocide) and abruptly abandoned the pursuit of that study, only to turn around and criticize those who took his initial recommendation as those with â€œlittle knowledge of Sudan.â€ It is here that De Waal lost all his students and perhaps more than that.
According to De Waal, about four years ago, what was happening in Darfur did â€œfit the definition contained in the Genocide Convention, which is much broader and encompasses systematic campaigns against ethnic groups with the intention of eliminating them in part or whole.â€ In other words, De Waal Wrote, â€œgenocidal intent can be shownâ€ in the conflict of Darfur. Hearing this coming from an expert, a judge may declare the case close in favor of genocide charges. One is tempted to ask, where is the ICC?
To find the motivation, which is the driving force for this genocidal campaign in Darfur, De Waal argued, â€œâ€™ideologyâ€™ of â€˜Sudanizationâ€™, namely the spread of specific social and cultural values, economic and political relations, associated with the riverain core of the Sudanese state, is at work, in tandem with the Arab supremacism of the Janjawiid leadership.â€ In this reference, De Waal identifies the culprits, their intent, and ideologies behind the genocidal campaignâ€”the things that De Waal today claims are difficult to identify, especially by an Argentinean Prosecutor with a funny name Ocampo. Perhaps, Ocampo should consult De Waal to do the work for him.
As to the solution to this ongoing genocide, De Waal could only make comparisons that since â€œthe people of Darfur have shown comparable resilience in surviving famine: let us hope they have the same skills when faced with genocidal massacre.â€ By equal measures, one can argue that since Khartoum kicked out the relief agencies which provide food for Darfuris, letâ€™s hope the Darfuris â€œresilience in surviving famineâ€ will keep them alive way after al-Bashir imprisonment. Hence, ICC backlash should not be an excuse to defer justice against the perpetrators of genocide, given the â€œresilienceâ€ of the Darfur people that they will survive without the relief agencies.
Writing for Index on Censorship in 2005, De Waal agreed with the then US Secretary of State, Colin Powell as being â€œcorrect in lawâ€ for describing the war in Darfur as â€˜genocide.â€™ One can assume that it is this very â€œcorrect lawâ€ that Ocampo is using to prosecute crimes in Darfur. Why attack Ocampo then if the law is correct on this? We would have blamed Ocampo had he used anthropology for his prosecution, but for using the correct law, one wonders the motive of attacking him.
De Waal wrote, â€œaccording to the facts as known and the law as laid down in the 1948 Genocide Convention, the killings, displacement and rape in Darfur are rightly characterized as ‘genocide’.â€ The â€œfactsâ€ here would imply the evidence on the ground for the killing, displacement and rape, therefore, Ocampo should borrow this line to strengthen his weak presentation to the judges. On the flip side, if al-Bashir reads this line, it will not take him look before he comes on television to declare De Waal supporter of ICC, meaning an enemy in Khartoumâ€™s language.
De Waal went on to write that in order to prosecute the perpetrators of genocide, â€œthe bar is lower.â€ Compare this to De Waalâ€™s attacks on Ocampo for his â€˜student failing gradeâ€™ analogy,â€™ one will really be surprise on what really changed with De Waal all of sudden. So, if the â€œbar is lower,â€ then where did Ocampo go wrong, especially in analogy of â€˜student failing grade,â€™ which is advance by De Waal to discredit Ocampo.
To supplement his argument of bar being lower for the prosecutions of genocide, De Waal wrote, â€œthis can be inferred from the successful ICTR prosecution of a Rwandese genocidaire, Jean-Paul Akayesu, in which it was found that intent could be inferred from a number of presumptions of fact, including the general context in which deliberate harm was systematically being inflicted on the target group.â€ So, â€œpresumptionsâ€ is the standard, then one see a real reason for Ocampo to appeal the case of genocide charges against al-Bashir or as De Waal nicely argued that as for Darfur case, â€œthe fact that the state did not plan genocide is immaterial. It planned a counterinsurgency and gave its officers complete impunity to commit atrocities, which they have routinely done on a gross scale and an ethnic basis. This was ethics-free counterinsurgency, escalated to a genocidal extreme.â€ Call it â€˜counterinsurgency on a cheapâ€™ or what have you, but the escalation of the war in Darfur led into genocide, therefore, genocide is committed in Darfur just as the escalation of a downed plane led into genocide in Rwanda, leading into genocide being committed in Rwanda.
Arguing anthropologically on how difficult it is to identify the perpetrators and the targets in the case of Darfur, De Waal drew a parallel with Rwanda where the ICTR overcame the issue by putting emphasis on â€œwhat was subjectively believed in the minds of those perpetrating the acts in question.â€ If the Arab Janjaweed are as dark as their victims or if they are Africans themselves, but yet in their empty minds they believe they are Arabs and go to commit genocidal acts on the ideology of Arab supremacism, that is all it requires to convict al-Bashir on genocide charges. One will conclude that Ocampo has his work cut out for him here by citing anthropological evidence to strengthen his weak case of genocide.
In 2007, in Prospect Magazine on the question of whether the atrocities in Darfur constitutes genocide, De Waal explained, â€œcertainly, the crimes of the Janjaweed and their backers seem to fit the genocide convention definition of acts intended to destroy, in whole or in part, an ethnic, racial or religious group.â€ Again, an acknowledgement of genocide committed in Darfur by both Janjaweed and their masters in Khartoum, al-Bashir included.
De Waal shifting of positions on this subject is drastic, and it is the reason that lead many people to speculate on his contacts with al-Bashir just weeks prior to Ocampoâ€™s filing the application of arrest warrant against al-Bashir where De Waal decided to alert al-Bashir. Of course, it is not that the allegation of De Waal alerting al-Bashir is false as those who came into his defense are arguing. De Waal courageously and honestly admitted this. So, what should be known is that De Waal decision to alert al-Bashir can leave many people to speculate on what is really that they discussed with al-Bashir. The burden is up for De Waal to explain the nature of his action with respect to alerting al-Bashir and to also justify why he made a sudden drastic shift of his positions. Base on the above examples, the positions are complete opposites of his positions of today.
You raise some important issues. Let me stress, however, that it is important to see the context in which I have used the word “genocide” and why I used it in 2003/04 and rarely since. The change is not only because the circumstances on the ground changed in early 2005, but because of some important arguments about genocidal intent.
During the period of intense hostilities, in 2004, I wrote several articles relevant to the genocide issue. The most important was the article in the London Review of Books entitled â€œCounterinsurgency on the Cheap.â€ As the title suggests, I argued that the primary objective of the Sudan Governmentâ€™s military actions in Darfur was counterinsurgency, but that it had adopted a military strategy that involved using proxy militia, paid in loot, which had as a foreseeable consequence massacre and forced displacement. I contrasted this with earlier episodes in the Sudanese civil war in which there had been a blueprint for systematic ethnic cleansing. I.e. I argued that acts of genocide were a byproduct of a military mobilization method that Sudanâ€™s rulers routinely adopted without regard to the human consequences. I called it â€œgenocide by force of habit.â€ This is the argument that Luis Moreno Ocampo is at pains to try to rebut in his application for the arrest warrant. He argues that President Bashir had a pre-existing plan for genocide in Darfur and that the insurgency was a pretext for carrying out. I believe he got it the wrong way round.
Legal experts have since persuaded me that one cannot commit genocide â€œby force of habitâ€ without specific genocidal intent, and that I was stretching the term to a place where it should not be applied. Therefore I think Cassese got it right: crimes against humanity were committed in the course of a counter-insurgency, and some individual acts of genocide may have been committed, but there was no genocidal plan at the level of the state.
My critique of the Public Application is not, first and foremost, an argument that there was no genocide. It is an argument that the Prosecutor did a lousy job of trying to prove that President Bashir was responsible for genocide. The Prosecutor made his case on the basis of a socio-political theory (that he had a genocidal plan from the outset) that I have always resisted.
Another paper I wrote on this subject was for a seminar at the US Holocaust Memorial Museum in January 2004, on the question of how genocides end, in which I argued that we should abandon a narrative in which the ending of genocide was solely by external intervention. Instead we should examine other possible endings including peace agreementsâ€”which, I argued, were appropriate for Sudan. A version of this piece is published on the SSRC Webforum â€œHow Genocides End.â€
One policy implication of this paper is that as well as needing a means of determining when genocide or crimes against humanity are occurring, we also need a means of determining when they have stopped. All the evidence points to a precipitous drop in violent deaths in Darfur in two stages: April 2004 and January 2005. Since then, with the exception of about three brief peaks in violence (March and August 2006 and February 2009) the main issue in Darfur has not been killing or dying. There are many other forms of suffering and many unrighted wrongs, but not ongoing mass killing. The data that we have show that today, Darfur is a war of all against all. Yet some commentators and policymakers remain stuck in the groove of â€œongoing genocide.â€
Because some of the positions taken on Sudan are so extreme — Nazifying Sudan, as one contributor to this blog put it — that the longstanding critics of the Sudan government, such as myself and many Sudanese rights activists, find ourselves saying, “hold on– that view is not supported by the facts and will become an embarrassment when we look frankly at the facts.” For this we are absurdly dubbed as supporters of Bashir. Are the majority of the judges of the Pre-Trial Chamber apologists for Bashir because they rejected the Prosecutor’s case? I am not going to waste time on such nonsensical allegations.
So, I readily acknowledge that I used the term â€œgenocide.â€ But I vigorously dispute the idea that I subscribed to the conventional genocide narrative derived from the paradigmatic cases of the Holocaust and Rwanda and mistakenly applied to Darfur. In fact I went out of my way to develop an alternative genocide narrativeâ€”one that is defined by the realities in Sudan and not by abstract suppositions about what â€œgenocideâ€ ought to be. Unfortunately that didnâ€™t get any traction politically or with the advocacy community.
Similar to Irina, mine is not a legal mind, but I do believe that the genocide decision should be appealed for several reasons:
First, Al Bashir’s method for solving civil problems has always been pay certain militias to wipe out, not only the rebels, but the tribe. This is the reason why women and children within the rebelling tribes are always targeted. They are the source which produce the rebels.
Second, Bashir has always covered the truth. In interviews, Bashir will dismiss all allegations as fabrications or conspiracy by the Western world. If there were no peace keepers on the ground to prove otherwise, the world would still be confused as to whether or not the government is involved in the conflict. Bashir would have dismissed the case as a clash between opposing tribes. This was his argument before the peace keepers were allowed to enter Darfur. People should not be blinded by interests or Bashir’s false confessions which are aimed bolstering support for his ruthless campaign.
I agree with Alex that the genocide perhaps was not the original plan. But over the years, faced growing rebel numbers, the government formulated the decision to wipe out the tribes associated with the rebels in any way possible.
People must realize the truth that a genocide is taking place in Darfur. The truth can be revealed if international news agencies, and free press were allowed to enter Darfur, but Khartoum will never allow such a thing because it would reveal more than it wants the world to see.
Secondly, the world should not be confused that the apprehension of Bashir will lead to a state of chaos in Sudan.
The death of Bashir is not the death of NCP or any of the twelve responsible political parties in Sudan. For example, the death of Garang did not equate to the death of the CPA. Agreements are between parties, not between people.
Second, the NCP leadership will be more conscious of the ICC and will make better decisions in dealing with internal, civil problems after Bashir is apprehended. This is classical condition, learning by association.
“My view is that if we treat what has been happening in Darfur over the last four years as â€˜ongoing genocide,â€™ 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.”
The label of genocide is beeing used as a political tool for the first time in Darfur in the same way that the US in the past has used democracy and human rights to pressure uncooperative governments.There is nothing to stop ethiopias conflict in ogaden beeing labeled as a genocide or the congolese governments conflict against rebels beeing labeled the same apart from the US discretion,giving the US even more leverage over african governments then it had before simply step out of line and you also will be vilanised over your conflicts.
The appellate panel of the ICC proved Prof. De Waal wrong and reversed the dismissal of the genocide charges. The Genocide Convention has never required the complete destruction of every member of the group, as Prof. De Waal claims in his many writings in defences of the al-Bashir massacres.
The Krstic decision of the Yugoslavia tribunal of the UN proves that local massacres can be genocide. So did the Akayesu decision of the Rwanda tribunal of the UN.
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