What is the ICC After?
Clearly the ICC arrest warrant bears heavily on the situation in the Sudan and the forthcoming elections. It is not only President Bashir who is concerned, many others are.
My question, is what can be done about the ICC arrest warrant?
Will the International Community, notably the Security Council, try to help the situation in the Sudan, in view of this elections and the changes that may result from it or stand by and watch this warrant pushing the Sudan into a worse crisis?
Just as the ICC did to the Peace Agreement between the LRA and the Ugandan Government, where Joseph Kony refused to commit to any agreement as long as the position of the ICC remains.
One can’t help but ask what is the ICC really after in Sudan?
I presume that the ICC is attempting to build relevance by taking a strictly procedural approach to the case of Sudan.
Some will ask, “Why here? Why now?” I think that is not only reasonable, but valid. The ICC might reply, “If not now, then when?”
The ICC can have impact only if it changes the way that the international community approaches crimes against humanity, including genocide. One aspect of such change would be bringing about the isolation or alienation of those suspected of, and charged with, such crimes. This can be achieved in part through public mobilization, and in part through building a legal case that may ultimately spur/permit action by an interested official willing to detain Bashir if ever he passes through their jurisdiction. That, of course, would establish some of the precedents which lies at the heart of what was envisioned for the ICC from the very outset.
For the record, I believe that the ICC’s actions have only complicated the already difficult process of peace-making in Sudan. While I feel that Bashir is guilty of genocide, I don’t see how the actions taken by the ICC serve the victims of his atrocities. There is, in fact, tangible evidence that they make things worse. Consequently, I argue that the ICC’s attempts to win procedural victories and establish international norms are simply not worth the human cost.
This episode at the ICC is somewhat bizarre. In March last year, the pre-trial chamber issued the arrest warrant that the Prosecutor had requested. This made Pres. Bashir into a fugitive from justice. The crimes for which he is charged are no less heinous than genocide. Any additional charges added subsequently make absolutely no difference to that reality. The Prosecutor’s decision to appeal against the exclusion of the genocide charges, while perfectly permissible in law, served only the purpose of satisfying the personal or political ambition of the Prosecutor. If the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence. Insisting on them at this stage is a political act.
The judges’ decision illuminates a structural weakness in the ICC. The level of evidence required for an arrest warrant, including on the charge of genocide, has been set extremely low. The evidence produced in the request for the arrest warrant may be enough to satisfy the minimum procedural requirement of an arrest warrant but it is far from enough to mount any credible prosecution, and may not be enough to satisfy the judges at the confirm of charges hearing, if such a hearing is ever held (which would occur if Pres. Bashir actually appears before the court). Around the world, governmental lawyers are likely to ask themselves, if this is the standard of proof required for an ICC arrest warrant against a sitting head of state on the charge of genocide, who is also at risk?
The fact that the decision comes just as the election campaign is about to be launched is likely to be inflammatory. It will confirm Pres. Bashir’s conclusion, reached in 2008, that the only secure place for him is in the Republican Palace.
I am always amazed at how so many individuals discount the findings by the investigation teams of the UN, the EU and the AU that there was no genocide in Darfur.
“Genocide” is a legal term, just as “murder” is a legal term. And while all homocide is not murder, not all crimes against humanity are genocide. The willingness to bend legal definitions to fit a political purpose sets a dangerous precedent. And it is particularly disturbing to me that so many Americans (who live in a country that refuses to be subject to the ICC) are so passionate about having Bashir brought before that tribunal.
To say that genocide has been committed in Darfur is to ignore the commonly understood definition of the term. And unless one is using a different definition from that used by the UN, or unless those that say that genocide was committed in Darfur know facts about what occurred in Darfur that the inspectors of the UN, the EU and the AU do not know, it makes no sense that the U.S. and those who blindly follow its lead in this matter assert that genocide took place in Darfur.
Finally, those who try to distort the definition of genocide in order to make it fit the circumstances of the crimes against humanity committed in Darfur risk their own credibility. Those who clamor for the “Rule of Law” should themselves abide by the “Rule of Law.”
I should add a note of clarification. The judges at the Court have not actually reinstated the charge of genocide. They have decided that the PTC used the wrong standard of evidentiary proof, and have referred the matter back to the PTC to re-examine the case.
Since the first announcement of the ICC on July 2008, many things in Sudan have changed. The tight fist of the government eased a little bit. People are able to live more freely as the dictator tasted the consequences of his past behavior . The ICC led Al-Bashir to concentrate on his grip over power and forgot about us for a while. Thanks ICC… thanks Ocampo.
The answer to Matthew Sinn’s question “why now?†is surely that Moreno Ocampo’s appeal has run its legal course. The timing is wretchedly unfortunate, a month before elections. But once the prosecutor had decided to appeal against the rejection of his genocide charges (a decision that as I remember took only a few days) the timing was surely a question of process. No?
Alex says ‘insisting on (the genocide charges) at this stage is a political act’. Wasn’t it rather, as he also says, a personal act more than anything? Moreno Ocampo set on proving he was right—not just about the ‘evidenciary burden’ required at this early stage, but over the whole genocide debate? The repercussions of course are political. There is no doubt that many Sudanese see the Appeals Chamber’s decision as a political act. ‘The message is that Bashir will be changed unless he finds a solution,’ one told me yesterday, making a direct link between the ICC’s decision and the elections. ‘The ICC is giving Bashir a chance.’ So you think the Chamber’s motivation was political, I said. ‘Yes,’ he replied. ‘Of course.’
Such confusion. Look at the reporting of yesterday’s decision, including the BBC’s initial online claim, to cite just one example, that ‘International Criminal Court judges have reversed a ruling that there is insufficient proof to charge Sudan’s president with genocide in Darfur’. Surely most people would read into this that the judges had decided there is sufficient proof? All the Appeals Chamber did of course was give Moreno Ocampo another shot at proving his claim by reversing the Pre-Trial Chamber’s decision—not on the substance of the claim, but finding that it used the wrong standard of proof and must now decide the issue again using the correct standard. We are back to where we were in March last year. Almost 11 months of time, resources and energy spent on insisting on a hard-to-prove charge that will make no difference to Bashir’s fate, if he is ever arrested. War crimes and crimes against humanity would do the job just as well.
I know Darfurians want to see Bashir in the dock for genocide. Everything they have read on the internet and heard on the airwaves has led them to believe that only a conviction for genocide will make any sense of their suffering and go any way to compensating for it. But the real hurdle will come if ever Moreno Ocampo has to prove, in court, that Bashir personally masterminded genocide in Darfur. By then, of course, the problem will be someone else’s. Moreno Ocampo’s term of office expires in 2012.
The really sad thing, for me, is the crushing of the expectations of the ‘ordinary’ people of Darfur, who know nothing about the Court, its workings or the difficulties of proving genocide. The experience of the Former Yugoslavia trials, and even the Rwanda tribunal, are that obtaining a conviction for genocide is complex and time consuming, and success hinges on legal details that are obscure to the ordinary person. On my last visit, the question that arose in every discussion about the ICC was: ‘Why hasn’t he (Moreno Ocampo) arrested Bashir yet?’ Moreno Ocampo’s greatest supporters risk becoming his greatest critics.
(This is a purely fictional reflection on the issue of the ICC. Please do not take seriously!)
I have no illusions about the ICC acts and timing. The ICC is a highly selective and pure political tool that is directed entirely to serve the interests of those backseat drivers who are pulling its strings. Its technical jargon, arguments and actions do not seem to have any practical significance to me as a Sudanese.
El-Beshir as president and commander in chief of the army is no doubt responsible in full or in part of the atrocities committed in Darfur. The question of whether or not the ICC will bring justice to Sudan and to Darfur people is quite a valid one, and personally I feel we should just leave the ICC to challenge its own claims and to do what it is geared to do, and should not bother ourselves by trying to find answers to its symptomatic behaviours.
The other aspect of the ICC coin is that El-Beshir political positions did result in isolating U.S groups and others from their interests in Sudan and in the region. To a great extend, we cannot separate the feverish media campaign that rightfully or wrongfully tries to fit the genocide claim/shirt on the hardly matching case/body of Darfur, and it is the same media which is also directing its wrath against El-Beshir and originating, as Oscar rightfully concluded: from so many Americans (who live in a country that refuses to be subject to the ICC) – and who – are so passionate about having Bashir brought before that tribunal. No one can convince me that the media is innocent and neutral and the campaigns are all genuine and politics-agenda-free. One can easily find a link between political interests, Beshir, ICC, and Darfur campaigns and campaign orchestrators.
I do strongly believe that a political deal could be struck at any time between Beshir and those who are behind the ICC, busy pulling the strings. And no doubt a deal with El-Beshir could definitely give the blessing for his next elections win and wash aside every trace for this so called ICC threats. Those behind the scene can easily make things, as big as the ICC case against El-Beshir, disappear in thin air. The timing of mounting the pressure could always be a signal of a deal under way, similar to the warring parties in a conflict who intensify their operations on the ground prior to the peace talks to gain stronger positions in the negotiations.
Beshir definitely cannot afford to lose because of the ICC. The chances are quite high that he is destined to remain in power by H or C. Those who are aware of this fact are not ignorant of the opportunities that this situation could avail them in the political free market where there is a price for everything, position, or principle.
Our world is simply not a perfect one. Although there are genuine causes and genuine people who seek justice, the majority of the stories that the media tries to sell us are staged and skilfully designed operations. The ICC is sadly not an exception.
JUSTICE AFRICA (UK), June 18, 2004:
“In response to the question, ‘Is the Darfur conflict genocide?’ [,] if we strictly apply the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, there is no doubt that the answer is yes.â€
ALEX DE WAAL, LONDON REVIEW OF BOOKS, August 2004
“This [the Darfur counterinsurgency] is not the genocidal campaign of a government at the height of its ideological hubris, as the 1992 jihad against the Nuba Mountains was, or coldly determined to secure natural resources, as when it sought to clear the oilfields of southern Sudan of their troublesome inhabitants. This is the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit.”
WILLIAM SCHULTZ, EXECUTIVE DIRECTOR OF AMNESTY INTERNATIONAL, DARFUR PANEL AT THE KENNEDY LIBRARY, December 9, 2004 (from Kennedy Library transcript)
“Let me just conclude with this thought. You know, we often hear proudly sloganized at every opportunity the two words, “Never again.” Well, were we to draw analogies between Darfur today and the Holocaust, we would by now in Darfur be way past the Vanzi (?) Conference. We would be way past the Kristallnacht. We would be way past the initial deportations, way past SS thuggery, way past the holding camps, way past the first 40,000 deaths. About the only thing that remains in Darfur is full-scale Auschwitz. And until we stop this carnage, anyone, any one of us who has shouted ‘Never again’ ought to be too embarrassed to ever shout it again.â€
ALEX DE WAAL (at the same event at the Kennedy Library):
“We’ve heard the crisis, the conflict, and the mass killing in Darfur described as genocide, and I believe that’s correct. I think the comparison with Rwanda and the Holocaust is less exact than the comparison with southern Sudan and the Nuba Mountains. A colleague of mine in London, John Rowe (?), in response to, I forget who it was who had called Darfur ‘Rwanda slowed down,’ said, ‘No, this is actually southern Sudan speeded up.’â€
REPORT FROM PHYSICIANS FOR HUMAN RIGHTS (January 2006):
New Report on Genocide in Darfur, Sudan, Documents Systematic Destruction of Livelihoods of Three Villages in Unprecedented Detail:
“Assault on Survival: A Call for Security, Justice and Restitutionâ€
“We…saw that the Janjaweed had burned everything–fields with crops, houses, shops. Everything. There was nothing to salvage.”
–35-year-old mother from Darfur
Just days before Sudanese leaders responsible for orchestrating ongoing acts of violence in Darfur host the African Union summit in Khartoum, a new report from Physicians for Human Rights (PHR) reveals, in unprecedented detail, the underreported catastrophic elimination of traditional livelihoods in Darfur, Sudan. The report, “Assault on Survival: A Call for Security, Justice and Restitution,†spotlights the obliteration of the means of survival and the way of life in three villages by the Government of Sudan (GOS) and its proxy militia, the Janjaweed.
During three trips to the region between May 2004 and July 2005, investigators randomly surveyed dozens of survivors from the villages of Furawiya, Bendisi and Terbeba and documented–with hundreds of photographic images as well as hand-drawn maps–compelling evidence of attacks on lives and livelihoods that PHR has assessed as genocidal.
“’Killings, rape, torture and other heinous crimes against non-Arabs in Darfur are well-documented,’ said PHR investigator and report author John Heffernan. “But PHR’s in-depth investigation shows that the GOS and the Janjaweed, have in a systematic way attacked the very survival of a people by destroying property, livestock, communities and families, driving victims into a terrain unable to sustain life, and then repeatedly obstructing humanitarian assistance, their only lifeline.”
The report also illuminates and analyzes an overlooked clause in the Genocide Convention which defines the crime as including deliberate infliction on a group ‘conditions of life calculated to bring about its physical destruction in whole or part.’ The PHR investigators documented the precariousness of life in the vast no-man’s land beyond the network of villages and transport. One refugee told PHR investigators that she overheard her attacker say, ‘Don’t bother, don’t waste the bullet, they’ve got nothing to eat and they will die from hunger.’â€
JENNIFER TRAHAN, “Why the Killing in Darfur is Genocide,” Fordham Law Review, May 2008: currently the most sustained and compelling analysis of Darfur and the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (and particularly persuasive on the issue of “genocidal intentâ€).
[ PDF version of this article is available at http://www.sudanreeves.org/Web_Links-req-viewlink-cid-3.html ]
Professor Trahan is an Independent Consultant & Expert in the field of International Justice. She has served as Iraqi Prosecutions Consultant for the International Center for Transitional Justice, Defense Consultant for the Sierra Leone Special Court, and both Counsel and Of Counsel to the International Justice Program of Human Rights Watch.
ALEX DE WAAL AND JULIE FLINT, from “Darfur: A Short History of a Long War,†page 39:
“But…[the] ultimate objective [of the ‘Arab Gathering’] in Darfur is spelled out in an August 2004 directive from [Janjaweed paramount leader Musa] Hilal’s headquarters: ‘Change the demography of Darfur and empty it of African tribes.’ Confirming the control of [Khartoum’s] Military Intelligence over the Darfur file, the directive is addressed to no fewer than three intelligence services—the Intelligence and Security Department, Military Intelligence and National Security, and the ultra-secret ‘Constructive Security,’ or Amn al Ijabi.”
VOICES FROM DARFUR (and they could be multiplied endlessly):
“A refugee farmer from the village of Kishkish reported … the words used by the militia: ‘You are Black and you are opponents. You are our slaves, the Darfur region is in our hands and you are our herders.’†(Amnesty International Report, “Too Many People Killed for No Reason,†page 28, February 3, 2005)
“A civilian from Jafal confirmed [he was] told by the Janjawid: ‘You are opponents to the regime, we must crush you. As you are Black, you are like slaves. Then all the Darfur region will be in our hands. The government is on our side. The government plane is on our side to give us ammunition and food.’†(Amnesty International Report, “Too Many People Killed for No Reason,†page 28, February 3, 2005)
“Tamur Bura Idriss, 31, said he lost his uncle and grandfather. He heard the gunmen say, ‘You blacks, we’re going to exterminate you.’ He fled deeper into Chad that night.’†(New York Times [dateline: Tine, Darfur] January 17, 2004)
“‘I believe this is an elimination of the black race,’ one tribal leader told IRIN†(UN Integrated Regional Information Networks, al-Geneina [Darfur], December 11, 2003)
Dear Professor Reeves,
May I request you to clarify whether this is the ICC Prosecutor speaking through you? Or do you speak through the Prosecutor?
As a professor of literature you well know that for every quotation you so diligently cite, others could cite another, making the opposite point, equally lifted out of its context and abstracted from the writer’s intention. On this occasion you do not quote Mr Abu Sharati who I am sure has a lot to say in support of your position on this issue.
As long as the Sudanese citizens rely on the ICC for any political transformation they will be waiting for a change that will never come, and surrendering the political arena to the forces of reaction. The only struggle that can yield any genuine change will be that which comes from the people themselves.
Abd al-Wahab Abdalla,
I believe that Mr. Reeves is calling attention to the enormous body of evidence proving that what has happened in Darfur — the killing, raping, forced displacement, and destruction of livelihoods — is genocide, and the agreement of many leading experts in the field. My immediate impression was that he was providing a counterpoint to the view offered by Mr. Blayton. I see nothing to indicate that he speaks for, or is a proxy of, the ICC.
Abd al-Wahab Abdalla:
You ask, “May I request you to clarify whether this is the ICC Prosecutor speaking through you? Or do you speak through the Prosecutor?â€
Such vacuous sniping hardly warrants a reply, but I will point out that you don’t bother to distinguish between the ICC and the ICC Prosecutor; I do, even as I have been critical of Moreno Ocampo on a number of occasions, including for some of the reasons articulated on this blog. In any event, even before UN Security Council Resolution 1591 referred atrocity crimes in Darfur to the ICC (March 2005), I had written extensively about the UN Commission of Inquiry Report (January 2005) and its finding concerning “genocidal intent.†My critique, in two parts, was posted on my Website in February 2005 and re-published in the on-line, peer-reviewed journal “Idea†in October 2005:
“Report of the International Commission of Inquiry on Darfur: A critical analysis†(in two parts), by Eric Reeves
Idea: October 14, 2005 — Vol.10, No.1
Part 1: http://www.ideajournal.com/articles.php?id=38
Part 2: http://www.ideajournal.com/articles.php?id=39
Why do I suspect you will not read this analysis? Of course sniping is much the easier blogging sport….
But what’s most troubling in your comments here is the claim that,
“As a professor of literature you well know that for every quotation you so diligently cite, others could cite another, making the opposite point, equally lifted out of its context and abstracted from the writer’s intention.â€
This claim—certainly nothing that my professional training has led me to believe—is characteristically glib and profoundly false. I have lifted nothing out of context, as should be obvious from the forcefulness of the claims I cite. Certainly “intention†was not misrepresented in any case. Qualifications might be made by all, other related points were certainly articulated with these comments, and the views of individuals and organizations may have changed in the interim; but there is nothing distorting about my quotes.
Most perniciously, you suggest—and the issue is whether or not genocide has occurred in Darfur—that someone disagreeing with my views might be just as persuasive by “making the opposite point, equally lifted out of context.†This is finally intellectual and political nihilism, and leads to the conclusion that nothing of the truth about Darfur’s agony can be known: there will always be those “making the opposite point, equally lifted out of context.†The regime in Khartoum would love such a view to take hold, but I can have nothing to do with such nihilism.
Eric Reeves
Dear Prof. Reeves,
I honestly did not expect you to remain at such a superficial level in your response. Like many lifelong opponents of tyranny and injustice I am critical of your views and so-called activism because you mistake pathological symptoms for structural causes and advocate solutions that succour the infantilist tendencies among our opposition forces. You seem to regard any political-economic analysis that goes beyond the tabulation of lists of crimes as an attempt at explaining away or justifying those crimes. To assail your critics as providing succour to the NIF regime is a mechanical error as well as a cheap shot.
I agree with Abd al-Wahab Abdalla on one thing: dismissing criticism of one’s opinion as aligned with the political views of the NIF regime is unnecessary. This kind of guilt-by-association is not constructive and alienates those who hold an opposing view to your argument. I have seen this happen so many times on this blog, and other venues where the genocide question is debated, and it shows a very bi-polar view of reality.
Prof. Reeves,
No doubt there is an enormous body of evidence that suggests that what happened in Darfur could amount to acts of genocide. The difficult question, however, is proving genocidal intent on part of NIF, specifically the individuals who were indicted by the ICC. In that respect, the information provided above does not really address this point. There’s no need to launch another round of the debate about whether genocide has been committed or not. However, at least from a strictly legal point of view, some people believe that it will be difficult to prove that if Bashir and co. are brought to the Hague. As other posters noted above, obtaining a conviction for genocide is legally complex, tedious and drawn-out process, and will require a very high standard of proof.
And for the record, I have faith in the ICC and I don’t think they’re a political tool. I doubt that the ICC will be able to convict the indicted with genocide, though.
A small technical correction to Karim’s posting. President Bashir has not been indicted for anything yet. There is an arrest warrant outstanding for him, so technically he is a fugitive from justice. The Pre-Trial Chamber has been asked to reconsider the genocide charges requested by the Prosecutor. The next stage will take place if Pres. Bashir appears before the Court, in the form of a confirmation of charges hearing. At this stage the charges will be presented again and the lawyers will have the opportunity to argue for and against. Only when charges are confirmed will Pres. Bashir be formally indicted. Similar processes will apply in the case of the other individuals wanted by the Court.
This is a very healthy discussion about the functions and purpose of the ICC. To be informed with up to date information about the ICC, visit http://www.ijcentral.org. IJCentral is a resource of articles, blogs, discussions, and videos about the ICC. It would be another place to hold open discussions about the ICC, especially in regards to the case with President Bashir.