A Critique of the Public Application by the Chief Prosecutor of the ICC for an Arrest Warrant against Omer alBasheer

Alex de Waal

Social Science Research Council

Overview:

1. The Public Application for an arrest warrant by the Chief Prosecutor of theInternational Criminal Court against Sudanese President Omar al Bashir is on ten counts:
three of genocide, five of crimes against humanity and two of war crimes. This memorandum outlines a critique of the charges, focusing particularly on the genocide
charges and the mode of liability indicated in the Application.

2. The genocide charges, which make up the bulk of the case publicly presented by the Prosecutor but are not necessarily the most substantive parts of the application, arise from
new investigations by the Office of the Prosecutor (OTP), additional to those mounted for the 2007 case against Ahmad Harun and Ali Kushayb. The charges are broad-ranging, covering the entire period of the conflict since early 2003 until the present and the whole of Darfur, though specifically referring to the Fur, Masalit and Zaghawa tribes. The OTP
alleges not only genocidal intent but also a central genocidal plan. It would be extremely difficult to convict President Bashir of genocide on this basis.

3. The charges of crimes against humanity and war crimes are mostly specific to the period between July 2003 and April 2004 and consist of a reiteration of the charges already laid against Harun and Kushayb, with the addition of some additional recent incidents, plus President Bashir as another perpetrator through the mode of ‘perpetration
by means.’

4. Rather than arguing for modes of liability such as superior responsibility, conspiracy or joint criminal enterprise, the Prosecutor has chosen to pursue an ambitious and innovative mode of liability: indirect perpetration. It is unclear what the Prosecutor will need to prove for this to stick. In the Application, the OTP argues for Bashir’s total control over every relevant institution of the state, something neither demonstrated in the evidence presented nor supported by past patterns of action.

5. The Public Application is not in the interests of justice, peace and democracy for Sudan. Pursuing an arrest warrant against a head of state is tantamount to demanding regime change, which is in contradiction to the international strategy of negotiating with the Sudan Government to achieve peace and democracy. The approach is therefore a gamble with unknowable consequences and very large risks. It is already contributing to a negative reaction against the ICC by African governments and civil society.

6. Constituted as an independent court, the ICC is ill-suited to serve as an instrument for political leverage. An Article 16 deferral is an inadequate instrument for both Sudan’s political needs and for safeguarding the principle of justice. Nonetheless, a deferral is in the interests of peace and security in Sudan and its neighbours and should be enacted.

7. The flaws in the Prosecutor’s case are such that it is necessary to ask whether he ever expects it to come to court, or whether he prefers a contest in the court of international public opinion. The flaws are such that the Pre-Trial Chamber should send it back to the
Office of the Prosecutor for comprehensive reconsideration.

The Genocide Charges

8. In deciding to charge President Omar al Bashir for the crime of genocide, the Prosecutor of the ICC took a remarkably bold step. Genocide is difficult to prove. The 1948 Genocide Convention and the case law of prosecutions for genocide (derived from the ICTR and ICTY) provide a relatively modest basis on which to build a robust prosecutorial strategy. While it may not be difficult to show that Pres. Bashir has a case to answer (the threshold that must be met for the Pre-Trial Chamber to issue an arrest warrant), successfully convicting Pres. Bashir will be much a tougher test. Success in the latter would depend upon the Prosecutor managing to demonstrate three things:

a. The target groups qualify for protected status as ‘racial’, ‘ethnic’ or ‘national’ under the Genocide Convention;
b. The acts committed against these groups (actus reus) were of sufficient nature to warrant the categorization of ‘genocide’ under the Genocide Convention and sufficient gravity to meet the admissibility criterion of the Rome Statute; and
c. The charged individual (President Bashir) possessed the required genocidal intent (mens rea) to destroy these groups, as such, in whole or in part.

Determining the Identities of the Groups

9. Determining that the three groups—Fur, Masalit and Zaghawa—constitute ‘ethnical’ groups according to the definition of the Genocide Convention is the least difficult of the Prosecutor’s tasks. There is little doubt that these groups—equally well characterized as ‘ethnic groups’ or (in Sudanese parlance) ‘tribes’—are protected groups.

10. But some rudimentary ethnographic errors mar the text and raise the question of the OTP’s competence in this regard. In Paragraph 5, Dar Fur, Dar Masalit and Dar Zaghawa are given as though they were comparable categories. In fact Dar Fur is not an ethnically defined domain, it is the territory of the former multi-ethnic sultanate and as such encompasses the two other Dars. In footnote 3, the Ma’aliya would be surprised to find themselves bracketed with the ‘Mahamid, Northern Reizegat [sic], Jalul etc.’ The Ma’aliya are a distinct Arab tribe located in a wholly different area (south-east Darfur) where they have had serious political differences with their neighbouring (southern) Rizeigat over the last forty years, and have been only marginally involved in the current
conflict. One suspects it is a mistake and the OTP meant to refer to the ‘Mahariya’, which
is a clan of the Northern Rizeigat. In addition, the Jalul are a section of the Mahamid who
are themselves a section of the Northern Rizeigat, and listing them as though they identified comparable entities indicates a basic ethnographic misunderstanding.

11. An interesting secondary point is whether the OTP claims that President Bashir intended to destroy the groups as tribal entities or as a racial group. The Prosecutor has emphasized that the racial distinction between ‘Arabs’ and ‘Africans’ in Darfur is an artificial construction. He refers to the three tribes by their ethnic names not as ‘Africans,’ and makes no mention of other ‘African’ tribes in Darfur whose members have also been victims during the years of conflict (Berti, Birgid, Daju, Meidob, Tunjur etc.) Yet a significant element of evidence that the OTP adduces in support of its genocide argument refers to the racial categorization of the victims, both by President Bashir (who, it alleges, constructed the racial divide) and by those who directly perpetrated the crimes. Prominent among the alleged perpetrators are Ahmed Harun (of Borgu, i.e. ‘African’ origin) and Ali Kushayb (also of Borgu lineage, though he calls himself ‘Arab’). These would be minor points if the OTP had constructed a coherent account of the motivations and intentions of the perpetrators. But it is on such fine points of specifying intent that any successful prosecution for genocide will rest.

Inferring Intent

12. The second and third requirements are closely linked and this section will concentrate on these challenges, beginning with the need for proof of genocidal intent.

13. The most important point to note is that, in the absence of a guilty plea by the accused or evidence in which the accused states his genocidal intent in unambiguous and irrefutable terms, proof of intent can only be obtained indirectly. Intent must be inferred from the pattern of the crimes, the circumstances in which they occurred, the knowledge of them by the accused, and his control over the individuals and forces committing the crimes. Central to this is the identification of genocide as a crime committed by a collectivity or organization, not solely by an individual.1 It was such a method of inference that allowed the ICTR to attribute genocidal intent to the former Rwandese official, Jean-Paul Akayesu, and thereby obtain a conviction for genocide.

14. This approach is crucial for any prosecutorial strategy in two respects.
a. First, it places a requirement on the prosecution to show that genocidal
intent is the only reasonable inference that can be made from the

circumstances. If there are reasonable inferences other than genocidal intent, the case is not proven.
b. Second, this inference can only be made by the application of an implied socio-political theory of genocide. Individual intent must be situated within a broader organizational or collective ‘intent,’ which in turn requires socio-political analysis. This is why most prosecutions for genocide pursue modes of liability such as joint criminal enterprise, which allows for collective intent to be inferred from the pattern of crimes committed by the collectivity. The Public Application and the Prosecutor’s reports to the UN Security Council contain such a theory, derived from the paradigmatic cases of the Nazi Holocaust and Rwanda in 1994. But transferring this paradigm to Darfur is implausible. If this implied theory can successfully be challenged, then it follows that there are reasonable alternative attributions for President Bashir’s intent, and the Prosecution case will remain unproven.

The Prosecutor’s Socio-Political Theory of Genocide

15. In deciding to charge President Bashir with genocide, the Prosecutor not only presented evidence in support of criminal charges but also constructed a socio-political theory of genocide in Darfur. He not only identifies the institutions of state allegedly responsible for the acts but also imputes a collective intent, derived from the individual intent of the man whom, he says, controls the state. The narrative developed by the Prosecutor imputes an eliminationist agenda to Bashir. This narrative was the central part
of his press conference on 14 July. This allegation places President Bashir as the political
and criminological heir of the Nazis and the Hutu Power ideologues in Rwanda.

16. In the Public Application, the Prosecutor makes a special point of not adopting an alternative socio-political theory, which is that genocidal acts are the regular corollary of the counterinsurgency strategy adopted by the Sudan Government, practiced repeatedly over the last 25 years. This is close to the position adopted by the International Commission of Inquiry into Darfur (ICID) headed by Antonio Cassese, which concluded that there was no evidence for a genocidal plan (implying that no collective genocidal intent existed) but that individual acts of genocide might have been committed. The ICID report of January 2005 did not specify who might have committed such acts but did not rule out senior commanders.

17. Pursuing such an argument would have lifted the requirement of demonstrating genocidal motive or plan and left the Prosecutor with the simpler task of proving that Bashir intended only community-targeted violence in pursuit of military and political objectives, i.e. that the genocidal acts and intent were limited geographically and temporally to the location and timing of military operations and were ancillary to the latter. The drawback of this argument is that making such a clear separation between motive and intent and arguing that genocide was committed without a plan as a byproduct of counterinsurgency, would have set a controversial precedent. It would have watered down or removed the requirement of proving specific genocidal intent and would have been tantamount to arguing that genocide is little different to aggravated murder or forcible dispossession. The judges might not accept this argument.

18. The first indication of the Prosecutor’s approach appears in Paragraph 7 of the Application:
AL BASHIR’s motives were largely political. His pretext was a ‘counterinsurgency.’ His intent was genocide. The goal was not simply to defeat a rebellion but to destroy those ethnic groups whose members challenged his power.

19. This is precisely wrong. But first it needs to be unpacked. The first and third sentences refer to ‘motives’ and ‘intent’. These are legal claims, though we can note the qualifier ‘largely’ which leads us back into the terrain of socio-political theorizing. The second and fourth sentences use the words ‘pretext’ and ‘goal.’ This refers to the Prosecutor’s socio-political theory, which becomes explicit at various points during the Application, which is that President Bashir had a genocidal plan above and beyond the suppression of insurgency.

20. The Public Application contains other statements that make it clear that this is indeed the Prosecutor’s belief. Paragraphs 349-355 describe the measures taken to suppress the political profile of the Fur following the SPLA incursion into Darfur led by an ethnic Fur, Daud Bolad, in 1991. These measures included the dismantling of the single state for Darfur and its replacement by three smaller states, thereby breaking up the Fur constituency. The Application does not mention that this was primarily the work of a Darfurian of non-Arab West African ancestry, now prominent in the political opposition to Bashir, named Ali al Haj Mohamed. Neither does the Application mention the fact that
throughout the entire period, members of the Fur, Masalit and Zaghawa served in senior
positions in government and the very substantial communities of these tribes in the national capital and central and eastern Sudan have continued to live as Sudanese citizens, subject to the same tribulations as other Sudanese but only rarely marked out for
targeted measures (as occurred, transiently, after the 2003 rebellion and the 2008 attack by JEM on the national capital). The fact that very substantial numbers of Darfurians served in the Sudan Armed Forces up to and during the Darfur war is also significant, and
also omitted.

21. Paragraph 49 asserts the existence of a genocidal plan or policy. But the following four paragraphs give no indication of any such genocidal plan or policy. What they demonstrate is precisely the kind of clumsy and violent counterinsurgency, targeted at civilian communities, that is characteristic of how wars are conducted in Sudan and the neighbouring countries. General Ismat al Zain is quoted as saying that during military operations ‘numerous small villages would be overrun.’ What the Application does not quote is the self-same General Ismat describing how his first step as officer commanding the Western Command was to arm paramilitaries from all tribes to try to counter the rebellion on a non-ethnic basis. After many Fur, Tunjur and Zaghawa paramilitaries deserted to the SLA with their weapons, the strategy was changed to arming only those who had demonstrated loyalty, i.e. the Arabs.

22. In Paragraph 10, the Prosecutor raises the claim that the Sudan government forces continued to pursue the destruction of the Fur, Masalit and Zaghawa ethnic groups after their displacement to camps. This we can call the ‘two stage’ theory of genocide, an account which was first publicly aired by the Prosecutor in his December 2007 statement to the UN Security Council. The argument is that President Bashir first sought to destroy the Fur, Masalit and Zaghawa through massacre (and related crimes) and then, having driven them to internally displaced persons (IDP) camps, sought to destroy them through ‘causing serious bodily and mental harm – through rapes, tortures and forced displacement in traumatizing conditions – and deliberately inflicting on a substantial part of these groups conditions of life calculated to bring about their physical destruction, inparticular by obstructing the delivery of humanitarian assistance.’

23. The target groups are, of course, assisted in the IDP camps in what has been for several years the largest humanitarian operation in the world. The fact of this assistance would seem to contradict any eliminationist agenda. This was pointed out in the ICID report authored by Antonio Cassese. In Paragraph 22, the Prosecutor rebuts this, saying that the groups are attacked in the camps, and that these attacks ‘are a clear indication of AL BASHIR’s genocidal intent.’ It is of course possible that congregating a population in camps could be part of a genocidal plan. But, as a rebuttal this falls well short of a refutation. There are many other explanations for the camps, consistent with established patterns in Sudan’s wars over the decades.

24. Should the case come to court, one would expect the defence to put the argument:
why should a man with genocidal intent allow such a huge humanitarian operation to assist the targets of his destruction? Since 2005, data for mortality and nutrition indicate near-normal levels in the majority of the camps. (This is implicitly conceded in Paragraph 197 which refers to nutritional indicators rising above emergency thresholds for the first time since 2005 in May 2008.) Much of the credit for this can go to the 12,000 humanitarian workers (most of them Sudanese, including government officials) who work in Darfur, chiefly in the camps. Comparisons with the Warsaw Ghetto would not be appropriate.

25. The crime of genocide is defined by intent rather than scale and gravity. The Prosecutor has tried to emphasize (and indeed exaggerate) the scale and gravity of the case. We may assume this is partly for public relations purposes and partly because the Rome Statute includes a gravity criterion for admitting cases. It would be odd if a genocide charge could be justified according to the Genocide Convention yet not meet a gravity threshold, but that theoretical possibility arises in the case of Darfur over the last few years given the low intensity of the lethal violence there.

26. The Prosecutor emphasizes gravity, both by citing numbers and by making comparisons. In the 14 July press conference, avoiding the question of the numbers of dead (perhaps because the ICC’s estimate of 35,000 violent deaths is lower than others),
he described the entire Fur, Masalit and Zaghawa populations in Darfur as victims of genocide. But he prefers high numbers for mortality too. Speaking publicly following his presentation to the UN Security Council in December 2008, he said that 5,000 IDPs were dying monthly. No data were provided in support of this claim. Neither the UN nor humanitarian agencies have put forward such a claim or data in support of it. A thorough expert review of mortality estimates for Darfur carried out by the U.S. General Accountability Office in 2006,2 concluded that the high-end estimates for death rates (such as those produced by Eric Reeves) were the least credible.

27. A final observation on the socio-political theory of genocide is in order. This observation is that, once an allegation of genocide has been made by a credible authority, the prospects for a negotiated peace become more remote. If one party to a conflict possesses a specifically genocidal intent, the other (victim) party has reason to refuse to agree to peace on terms short of secession, regime change or international military protection. The socio-political theory of genocide adopted by the OTP implies two possible endings only, namely the overthrow of the genocidal regime or the elimination of the target group. There is no middle way.

The Flawed Argument for Genocidal Intent

28. The most substantive summation of the case for genocidal intent is contained in Paragraphs 364-400, which comprise the Prosecutor’s argument that ‘AL BASHIR’s intent to destroy the target groups as such in substantial part is the only available inference.’ The document promises a ‘comprehensive consideration of nine factors’, eight
of which are to be detailed in the following paragraphs (one having already been presented). In fact only six such factors are presented (the seventh being a concluding sentence), a copyediting error that is characteristic of a document that shows that hallmarks of having been hastily put together and poorly edited.3 The Prosecutor wishes to argue that when all these factors are taken into account, an overall picture of genocidal intent emerges.

29. The Prosecutor’s argument is not that each one of the factors is itself an act of genocide, but rather that these factors are sufficient to infer Bashir’s mens rea. It is unclear from this whether the refutation of any one of the factors would be sufficient to knock down the genocide charge. However, each of the six factors is sufficiently shaky to be refuted as an indication of genocidal intent.

30. The first factor mentioned is the ‘meticulous’ targeting resulting in burning of villages, and deaths of 35,000 people by violence. These and the continuing attacks on the IDP camps caused the ‘slow death’ of 85,000-265,000 others by other means. The selective targeting of villages for burning—in which predominantly Fur, Masalit and Zaghawa settlements were destroyed but Arab villages and camps left untouched—is powerful evidence for the ethnic nature of the campaign of destruction. As a piece of evidence, this stands. The OTP infers that a genocidal policy for such selective targeting must have come from the highest level. However, there are other reasonable inferences. If the central government chose to make use of, ethnically-based proxy militia as its forces, it would follow automatically that the destruction would be ethnically selective. The architects of such a policy could be held responsible for unleashing such forces in the knowledge of the near-certain outcomes of their actions. Thus (as indicated in the ICID report), it is possible that acts of genocide might be committed by individuals who directly perpetrated crimes, without there being a genocidal plan among those in positions of command. It is unclear whether this would make the latter genocidal criminals as opposed to those with command or superior responsibility for war crimes. And it is also unclear whether a the perpetration of a number of genocidal acts during a military campaign is sufficient to make a ‘genocide.’4

31. In the context of arguing that President Bashir provided total impunity to those who
were carrying out his orders, the Public Application gives as supporting evidence,
Bashir’s decision to keep Ahmed Harun in his position. The decision to keep Harun in the
sensitive position as Minister of State for Humanitarian Affairs following his naming by
the OTP and the issuing of the arrest warrant by the Court two months later, is evidence
for the Sudan Government’s disregard for international public opinion and its support for
impunity. However, maintaining an indicted war criminal in a ministerial position and
failing to hand him over to the ICC to face trial are not of course offenses comparable to
war crimes or genocide. Nor do they constitute supporting evidence from which
specifically genocidal intent can be inferred.
32. A second factor argued by the Prosecutor is the ‘existence of a genocidal plan or
policy.’ In support of such a plan or policy he cites the Armed Forces Memorandum and
documents from the West Darfur State Security Committee. These documents are
instructions for the conduct of a coordinated counterinsurgency between the armed
forces, the militia and other organs of state. The late date at which they were produced—
after the outbreak of major hostilities—attests to the reactive nature of the government’s
planning rather than, as the Prosecutor implies, any genocidal plan pre-existing the
insurgency.
33. There was a policy or plan for the conduct of the war. The issue is whether this policy
or plan is genocidal or not. The Prosecutor argues backwards from the evidence presented
for the ethnic targeting of attacks to the necessity of the existence of a single plan, rather
than proving from the content of the planning documents that genocidal intent existed. As
such this second factor does not actually add to the first factor claimed.
34. These paragraphs in the Application appear to be an attempt to rebut the case that the
targeted destruction was the outcome of a counterinsurgency method that arose through
the fusion of local and national actors. In paragraph 379, the document cites a redacted
source to the effect that it is ‘inconceivable that the there would be two separate forces
operating on independent plans.’ It is however perfectly conceivable that there is
4 This definitional problem arises in part because genocide is both a legal term and a socio-political one.
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extremely close tactical coordination between the proxy forces carrying out a mission and
the central government forces cooperating in that mission, and directing its overall
conduct, in the absence of the two sharing all their strategic objectives and plans. The
militia had their own agenda and exploited Khartoum’s support to pursue these aims.
Indeed this is precisely how the Sudan Government has conducted its wars for a quarter
century. The divergence between the objectives of the two is illustrated by the recurrent
and predictable mutiny of the proxies when their leaders believe they have been misused.
This refusal to obey orders occurred in the war in the south and it occurred again with the
largest Arab militia leaders in Darfur during 2006 and 2007.
35. The Prosecutor mentions that Harun refused to reveal the contents of the plan or
circulate the document fearing it would end up with ICC, and by implication, implicate
him and others for the crimes committed. This could be an indication that Harun knew of
his responsibility for crimes committed. It is not relevant to proving a case for genocide.
36. The third supposed factor (paragraphs 384ff) consists of statements of those involved
in the crimes revealing their intention. These statements include President Bashir’s
announcement that the rebellion should be ended within two weeks and no prisoners
should be taken. Such an appeal to end the insurgency speedily is consistent with
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,5 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.
37. The Prosecutor quotes statements by militiamen and soldiers, obtained from victim
testimonies, expressing extreme racist sentiment. Three observations are in order.
a. While it is important to pay close attention to the testimonies of victims,
for many reasons, it is problematic to infer the mens rea of a perpetrator
from the mens rea of a victim.
b. Racism is an aggravating factor in murder and other crimes. But adding
racism to the motives of the perpetrator does not turn such a crime into
genocide.
c. The correlation between racist statements and the crimes committed does
not necessarily signal cause and effect. There is no doubt that such racist
statements were made consistently during the height of the conflict,
especially during military operations. There is also no doubt that there is
an ingrained racism in much of Sudanese society, and that this racism is
underwritten by the Arab and Islamist tenor of many official statements
and broadcasts. Some individuals have also indicated more ambitious
agendas for the racial reshaping of Darfur. But some of the Darfurian
militia leaders who have been reported to be responsible for both crimes
5 Also, arguably to the first civil war in southern Sudan (1955-72), to colonial policing operations and the
19th century wars of conquest.
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and racist statements, have also at different times rebelled against the
government, making deals with their erstwhile victims and enemies, and
have made comparably fiery anti-government statements, accusing the
government of ‘evil’ and resolving to fight it ‘to judgement day’. On then
making deals with the government, such fiery statements abruptly end. It
is quite consistent to argue that racist feelings were whipped up in order to
encourage militiamen to participate in operations which had already been
decided for other (military) reasons, knowing that ethnic sentiments are
the simplest way to mobilize and motivate irregular forces.
38. Also relevant here is the claim that Bashir ‘ordered’ the genocide, with a number of
public statements canvassed in this regard (paragraphs 270-275). The statements made by
Bashir are concerned with using all measures to destroy the rebellion, and do not include
racist or ethnically-targeted exhortations. These statements can certainly be canvassed as
evidence that Bashir authorized the armed forces and militia to operate with impunity and
commit war crimes. The statements attributed to the direct perpetrators of the crimes
(militiamen cited in paragraphs 276-279) are different. They include both references to
the authority given to them by President Bashir and examples of extreme racism, but not
the two conjoined.
39. Any connection between Bashir’s statements and the racism of the militiamen is
implied by the Prosecution but not demonstrated. An equally reasonable inference from
the evidence is that President Bashir ordered a counterinsurgency (as his words indicate)
and gave a high degree of latitude to the implementing forces to operate beyond the law.
If indeed acts of genocide were committed, individual responsibility for these needs to be
ascertained on a case-by-case basis.6
40. This wider context points to the need to see racist statements in their context, namely
the height of mobilization to destroy the insurgency. Racist exhortations are, quite
possibly, instrumental in the service of the counterinsurgency, rather than a causal factor
for the campaign. This does not mitigate the gravity of the crimes committed during the
counterinsurgency. Nor does it disregard the racist or supremacist motives of some
individuals. But it does cast doubt on whether a coordinated plan for a racist redefinition
of Darfur was the driving force behind the crimes committed.
41. Factor four (paragraphs 387ff) refers to forcible transfers as a material fact relevant to
deducing genocidal intent. It is possible that forcible displacement may be an act of
sufficient gravity to warrant consideration as an act of genocide in itself, and it may also
be a consideration relevant to inferring genocidal intent. It requires some effort to extract
a coherent logic from the Public Application. Four considerations are relevant here.
a. The first element alleged is that the displacement was conducted in such a
way as to ensure the death through starvation and thirst of substantial
numbers of the target group (i.e. the displacement is itself genocidal).
6 Once again, it seems that the report of the ICID, produced far more rapidly with much more modest
resources than those available to the OTP, contains a superior grasp of the situation in Darfur.
11
There is one documented case of forcible starvation during the Darfur
conflict, namely Kailak in early 2004 (cited in the Harun/Kushayb
application). There are other cases in which the destruction of villages in
the desert areas of north Darfur led, in a predictable and predicted way, to
deaths through starvation and thirst. These are both crimes. Whether they
constitute genocide depends upon intent. During the height of hostilities
(July 2003-March 2004), the Sudan Government restricted (but did not
prohibit entirely) humanitarian operations in Darfur. Subsequently it
(under pressure and with ill grace) permitted the world’s largest
humanitarian operation.
b. Second is that the destruction and dispersal of the groups is conducted in
such a way that they cannot reconstitute themselves. The criteria for being
unable to reconstitute themselves are not clear. However, the ethnic
identities and sense of common identity of the target groups have not been
weakened in the last five years, if anything the reverse. The Sudan
Government readily recognizes this and in fact, contrary to the political
strategies of the leaders of the rebellion, indeed prefers to cast the conflict
in ethnic terms. Government policy is for the Fur, Masalit and Zaghawa to
remain constituted as tribes, albeit under the political, administrative and
military control of Government-sponsored administrative chiefs.
c. The third consideration is that considerable parts of Fur and Masalit land,
once emptied of their former inhabitants, have now been occupied by
others, including both Darfurian Arab groups that formerly had poor
access to land and immigrants from west Africa. There is clear evidence
both that vacated land is being resettled and that the Government is (in
many instances) facilitating and supporting the settlers, in most cases after
they have spontaneously moved, for example through the control of the
Native Administration system and the associated allocation of positions
that involve jurisdiction over land. There are also important actions in the
opposite direction including efforts at state and local government level to
retain or restore prior patterns of land ownership. Whether land alienation
is a systematic policy or simply the widespread outcome of local agendas
for land expropriation and settlement, which the government has
opportunistically seized upon, is an empirical question, the answer to
which remains unclear.
d. The fourth consideration cited by the Prosecutor is that the attacks against
the target population in the IDP camps. He quotes (paragraph 392) the
conclusion of the ICID that there would be no policy of genocide ‘if the
populations surviving the attacks … live together in areas selected by the
government … where they are assisted.’ He argues that on the contrary the
population is attacked in the camps, which provides ‘a clear indication of
AL BASHIR’s genocidal intention.’ Since early 2005, UN records
indicate ongoing violence against the residents of camps. In the last two
years these have amounted to as much as half of the approximately 100-
200 lethal incidents which occur each month in Darfur. Those incidents
which qualify as attacks, by militia, bandits, and units of the security
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forces, are equally consistent with a combination of breakdown of law and
order and a policy of suppressing real security threats in the camps.
Several of the major camps are well-armed, the location for organized
crime and armed resistance, and barred to entry by police and security.
There have been a number of poorly-planned and brutal security
operations in and around the camps, initiated at different places within the
security apparatus and government structure. It would require a
remarkable leap of inference to take the Sudan Government’s policies
towards the IDP camps as evidence for the President’s genocidal intent.
42. The fifth factor cited in the Public Application as proof of genocidal intent (paragraph
393ff) is the prevalence of rape and sexual violence as part of the destruction process.
The level of rape is a particularly sensitive issue in Sudan and the Sudan Government has
been at special pains to deny its existence, and any official responsibility. The Prosecutor
argues for the destructive impact of rape based on examples from elsewhere (Rwanda,
former Yugoslavia) but the parallels with Darfur surely hold. Here again he uses the
testimony of the victims in support of the allegation of the mens rea of the perpetrators.
Key, however, is the claim that the rapes are ‘systematic.’ The evidence which exists
indicates that rapes are indeed widespread; that during the height of the conflict there
were many instances of rape by militia and soldiers during military operations, and that
subsequently there are many instances of rape with a greater proportion by nonuniformed
personnel and not during military operations. The question of what level of
sexual violence is necessary to count as ‘systematic’, and what threshold is then required
for such systematic violence to count as evidence for genocidal intent, is not addressed.
No evidence is provided that the rapes were carried out on instructions. High levels of
sexual violence are consistent with explanations other than genocidal intent.
43. Finally (paragraphs 396ff), the Prosecutor argues that the Sudan Government’s
‘strategy to deny and conceal the genocide’ is evidence of intention. There is no doubt
about denial and attempted concealment of the war and atrocities, although concealment
only lasted for the first year of the conflict and thereafter was inefficient and ineffective.
He argues for a ‘sophisticated cover-up strategy… by the person who controlled the
entire communication apparatus of the state.’ This is a remarkable claim. President
Bashir’s communication strategy has been anything but sophisticated and has
demonstrated very poor control over the state’s communication apparatus. It is
commonplace for senior spokesmen of the Sudan Government to issue different and
contradictory public statements. It was a matter of wry amusement to Sudanese that the
TV broadcast of the President’s public statement immediately following the Prosecutor’s
14 July press conference was cut short, replaced by music, presumably because President
Bashir was himself going off-message.
44. The UN’s Independent Commission of Inquiry into Darfur was accorded a high
degree of access and cooperation by the Sudan Government. The Sudanese national
Commission of Inquiry into Darfur, which included a number of independent Sudanese
lawyers, was also afforded a high level of access. Both found crimes against humanity
but not genocide. The ‘no-genocide’ findings were welcomed by the Sudan Government,
13
which took no additional judicial actions on the other findings. These are marks of a
confused and clumsy policy, with the default options of denial and prevarication usually
winning out.
45. This policy has led to the Government admitting crimes against humanity. It would be
both more logical and more constructive to take this admission at face value—namely
that crimes against humanity have been committed—than to take it as evidence of
concealing a crime of comparable gravity.
Crimes against Humanity and War Crimes
46. The 2007 Application for the arrest of Ahmad Harun and Ali Kushayb for crimes
against humanity and war crimes contrasts with the Application against President Bashir
in many ways. The Harun/Kushayb Application was made in February 2007 and the Pre-
Trial Chamber issued the arrest warrants in April after a relatively brief inspection of the
charges and evidence. The 2007 Application details a number of specific crimes
committed during the height of hostilities in 2003 and 2004, with particular attention to
the southern parts of West Darfur State, and lays out the precise alleged responsibilities
of the accused. An impressive array of evidence is produced from a variety of sources in
support of the Application. The mode of liability it focuses upon is ‘common purpose’ in
committing the crimes. This points to a different implicit socio-political theory of
criminal acts in Darfur, namely that they are the product of collective action by an
institution or group.
47. The charges of war crimes and crimes against humanity laid against President Bashir
consist essentially of a restatement of these charges, with some more recent incidents
mentioned, and the additional claim that Bashir indirectly perpetrated these crimes, using
the institutions of the state and security, and Ahmad Harun in particular, as his
intermediaries. While in some respects these charges are simply an add-on to the earlier
application, in respect of the mode of liability, they constitute an important departure.
48. The Application against President Bashir refers to recent incidents. It is worth
examining these because, in contrast to the evidence presented for the 2007 Application,
the investigation does not appear to have been systematic, leading to at least one factual
error in the Public Application. The bombing of Shigeg Karo on 5 May 2008 was initially
but erroneously reported by activists and the media as an aerial attack on a school in
which schoolchildren were killed and injured. Subsequent UN investigations discovered,
first, that the intended target for the attack might have been a JEM armed column that
was in the vicinity (and which participated in the attack on the national capital five days
later), and second, that the school was not in fact hit and children were not among the
badly wounded, who were only adults. Paragraph 233 reproduces the incorrect version of
events, indicating the Prosecutor’s reliance on quick turnaround reports from advocacy
organizations rather than more rigorous investigations. The incident may be a war crime
(use of excessive force and failure to take precautions to prevent civilian fatalities), but it
did not occur as described by the Prosecutor.
14
49. The manner in which the 14 July Public Application against President Bashir is
constructed makes it look as though the inclusion of the charges of war crimes and crimes
against humanity is an afterthought, perhaps inserted because the OTP feared that the
genocide charges might not pass muster.
50. These charges will not be further considered in this memorandum, save with respect
to the mode of liability proposed.
The Mode of Liability
51. At the 14 July press conference, Luis Moreno Ocampo was asked about his strategy
for prosecuting President Bashir. The questioner, a British television journalist, asked
whether the Prosecution case would be based upon conspiracy, joint criminal enterprise
or command/superior responsibility. The Prosecutor replied, none of the above, and that
he held Bashir to be guilty of indirectly committing a crime through another. This
represents a bold precedent in prosecutorial strategy and a departure from the previous
indictment. In the Harun/Kushayb Application, the mode of liability proposed was
criminal ‘common purpose’ responsibility with its implicit corollaries of conspiracy or
joint criminal enterprise.
52. The Public Application charges Bashir with committing the crimes ‘through persons,
including the state apparatus, the members of the Armed Forces, and Militia/Janjaweed’
(Paragraph 244). While it prefaces this with the disclaimer, ‘Without precluding any
other applicable mode of liability,’ the weight of the Public Application, and the
Prosecutor’s remarks at the press conference, indicate that he is not actively considering
other modes of liability.7
53. According to the OTP, proving ‘perpetration by means’ has three elements (paragraph
248):
a. It requires proof that the perpetrator is able to impose his will over the
direct perpetrator.
b. In the case of perpetration through an organization or group, that
organization or group must be structured in a way that it responds to the
demand of an individual, and the individual in question—the indirect
perpetrator—must possess sufficient authority to be able to enforce his
will.
c. The indirect perpetrator must be aware of his role and use it in order to
commit the crimes.
54. The OTP is entering legal territory with few precedents. Let us leave aside the
question as to whether this mode of liability, and the way it has been constructed by the
OTP, will be acceptable to the Court and examine the argument on its own merits.
7 It would be possible for the PTC to revise the Application and issue an arrest warrant based on a different
mode of liability, and/or for the Prosecutor to adopt a different strategy should the case ever come to court.
15
55. Proving that Bashir committed the crimes as an indirect perpetrator in the way
proposed, is the most difficult of all modes of liability to prove. The reason why
prosecutors have preferred ‘common purpose’ liability, including conspiracy and joint
criminal enterprise is precisely because it is much easier to prove guilt in this way,
inferring responsibility from involvement in an organization which has committed crimes
in a systematic fashion. The avenue of superior or command responsibility also allows for
prosecution on the basis that the accused should have known that a crime was going to be
committed but took no steps to prevent it, or failed to punish crimes he knew had been
committed. It is considerably harder to prove that an individual intended a specific crime
and directly instructed others to commit it on his behalf. This is especially the case for
genocide, for which proof of intent is all-important.
56. Failing to present either a confession or the documentary evidence which would
substantiate the charge that President Bashir directly instructed others to commit the
crime of genocide, the Prosecutor relies instead on attempting to prove that Bashir was in
total control of a hierarchical organization that responded to his will and only to his will.
The Prosecutor again appears to rely on inference from some general facts. However,
other inferences are compatible with these facts, plenty of other evidence exists
indicating that Bashir did not exercise such total control, and the defence would have no
difficulty in disposing of this line of argument.
57. Repeatedly, throughout the Public Application, the Prosecutor asserts that President
Bashir is an absolute dictator. For example, Paragraph 40 states that Bashir ‘sat at the
apex of, and personally directed, the state’s hierarchical structure and the integration of
the Militia/Janjaweed within such structure. He had absolute control.’ Paragraph 41 states
that ‘AL BASHIR’s control of the state apparatus was not only formal; it was absolute.’
Paragraph 373 infers from the scale of the destruction and deaths to the mens rea of the
actor, noting that the principle of inferring from outcome to intent ‘carries particular
weight where, as here, the accused exercised total control over the hierarchical structure.’
58. The OTP has constructed a socio-political theory of the Sudanese state as a genocidal
regime in the tradition of Nazi Germany and Hutu Power Rwanda. This is an
extraordinary approach. The main argument in this regard is detailed in paragraphs 250-
346. It has the following elements.
59. First, Bashir held supreme authority in the hierarchically organized structure of the
Government of Sudan. This is true constitutionally. However, both the 1998 Constitution
and the 2005 Interim National Constitution (INC) constrain presidential powers in
important ways. While the INC increased the powers of the Presidency as an institution,
it also limited the President’s security powers, notably in that the most important national
security decisions (e.g. declaring a state of emergency) could now only be taken with the
consent of the First Vice President, who is also the President of South Sudan and the
Chairman of the SPLM/A.
60. The Public Application details the formal reporting procedures of the government
ministries, the armed forces, and state security committees. President Bashir sits at the
16
apex of these structures and receives their reports. However, for the Prosecution case to
stand up, it is important to prove that Bashir exercised de facto executive control as well
as de jure authority. This is particularly important as the record demonstrates that the
President’s exercise of executive power on a day-to-day basis is largely formal, and that
key decisions (including the negotiation of the Comprehensive Peace Agreement and the
administration of security organizations) are taken by others. There are in fact multiple
power centres within the government, ruling party and security apparatus, and senior
figures exercise executive powers independently of the President. Junior officials do so
too: in one widely-reported incident in November 2005 when U.S. Deputy Secretary of
State Robert Zoellick visited Darfur, a local commissioner defied instructions from
Khartoum saying ‘I’m Bashir here.’ It is quite possible that the President’s authority is
cited in support of decisions taken by other levels of authority within the Sudan
Government’s multiple structures, and that while the President is (usually) informed he is
not the one making the key decisions in practice. The Prosecutor has thus chosen to argue
a viewpoint at odds with most analysis, and he needs strong evidence to make a solid
argument, let alone prove his case.
61. The difference between reporting and control is significant. President Bashir received
reports from all branches of government, and is reportedly a master of detail.8 However,
his exercise of executive authority need not be commensurate with his receipt of reports.
The details of reporting lines laid out in the Public Application (paragraphs 264-5 and
Appendix 6) do not constitute evidence for Bashir’s executive decision-making.
62. The sole concrete example of de facto authority provided is in Paragraph 266, which
refers to the important occasion on which the President refused the UN troops mandated
under UN Security Council Resolution 1703. He announced this decision at a cabinet
meeting on 3 September 2006, without consulting with his First Vice President. The
Public Application fails to point out (as sources for this incident indicate9) that this was
an exceptional occasion in which the President took such executive action, one of only a
handful of cases over the previous seventeen years. Moreover, the subsequent history of
this decision illustrates the limits of Bashir’s power. Despite the President’s statement
(and contrary to Paragraph 266 of the Application), the African Union peacekeeping
operation was not in fact terminated at the end of that month. The military offensive
unleashed was a poorly-managed affair which was rapidly defeated, in significant part
because of poor coordination based on differences of opinion between the army and
militia, and within the army command. In addition, no sooner had the President made his
announcement than other senior members of the government were busy revising it and
backtracking. This, the apparent centrepiece of the Prosecutor’s argument for President
Bashir’s absolute and total control, in reality demonstrates the reverse: the limited nature
of the President’s authority.
8 He insisted on this reporting after the embarrassment of June 1995, when individuals based in Sudan
backed by senior figures in the government tried to assassinate Egyptian President Hosni Mubarak in
Ethiopia.
9 Julie Flint and Alex de Waal, Darfur: A New History of a Long War, London, Zed Books, 2008, pp. 268
and 274.
17
63. The immunity from investigation and prosecution extended by President Bashir to
Ahmad Harun, when the Minister of Justice opened an investigation against him, does
not prove Bashir’s total control. To the contrary, the fact that a cabinet minister would
decide to open such an investigation demonstrates the opposite—the President’s lack of
such control.
The Interests of Justice, Peace and Democracy
64. The UN Security Council referred Darfur to the ICC with Resolution 1593, which
affirmed that justice and accountability are critical to achieve lasting peace and security
in Darfur.10 The Security Council has the authority to revisit that decision. It is the only
body which could decide that, in the case of the Application against President Bashir, a
deferral of prosecution is critical to achieving peace and security in Sudan.
65. According to the Rome Statute, the Prosecutor of the ICC is required to ensure that
any prosecution is in the interests of the victims and the interests of justice. Within the
ICC, only the Prosecutor has the obligation and authority to weigh these concerns and
make the decision. He is required to balance his own interest in mounting prosecutions
against any other interests which the victims may have, such as peace and stability. It
might have been more logical to place this authority elsewhere within the Court structure
so that the Prosecutor is not overly influenced by his professional interest in pursuing
prosecutions. Once the Prosecutor has made such a determination there is no additional
mechanism within the Court to adjudicate whether this judgement has in fact been
correctly made. The Pre-Trial Chamber may only assess an application on the basis of the
evidence and the applicable law. Only the Security Council then has the authority to
intervene on other grounds.
66. There are strong reasons to suppose that pursuing a case against President Bashir is
not in the interests of justice.
Tensions between Prosecution and National Stability
67. Seven years ago, the international community, including the strongest critics of the
Sudan Government such as the United States, decided to engage in a negotiated transition
to peace and democracy in Sudan. The decision was that a ‘soft landing’ for the National
Congress Party (NCP) was necessary and that negotiated peace and political reform were
possible. Although international avowals of commitment to the Comprehensive Peace
Agreement (CPA) have not been matched by commensurate diplomatic effort and
resources, this remains the international priority engagement with Sudan. Subsequently,
international priorities have included the consensual deployment of two international
missions in the country, one in support of the CPA (UNMIS) and one to provide civilian
protection and other peace support activities in Darfur (UNAMID). Achieving these
objectives requires good-faith negotiation with the Sudan Government. The record of the
Sudan Government in honouring its obligations has been poor—neither as good as the
10 It did this within weeks of authorizing the UN Mission in Sudan to support the implementation of the
CPA. The Security Council has often failed to treat Darfur as part of a single nation called Sudan.
18
government avows nor as bad as some of its critics claim. The international partners have
also had a mixed record of fulfilling their promises. But notching up points on the
scorecard is not the issue. The challenge is establishing a robust common understanding
of the objectives of international policy and the rewards for success. As Sudan faces the
toughest test of its post-independence period, in the form of national elections (scheduled
for 2009) and a referendum on self-determination in southern Sudan (scheduled for
2011), it is essential that political negotiations are sustained and the pace of implementing
agreements is accelerated.
68. The Prosecutor’s application to arrest President Bashir stands in contradiction to the
negotiation strategy. If the arrest warrant is to be enforced it demands a change in the
head of state. Given that the OTP has in effect imputed criminality to the entire
government, this entails regime change. It is difficult to see how negotiations can be
pursued while also trying to arrest the head of state of the country concerned. While it is
possible that this approach will yield sufficient political pressure to generate positive
outcomes, it is more likely that it will have the converse effect of destabilizing the
transitions to peace and democracy, with adverse results. It is an immense gamble with
the future of Sudan.
69. The relationship between peace, democracy and justice is complicated, and should be
empirically determined on a case-by-case basis rather than asserted as a matter of
principle. The mantra that ‘there is no peace without justice’ is clearly incorrect, as many
countries have obtained peace without justice. Peace, democracy and justice are all good
things that are to be pursued for their own sake. Justice is a human right and the argument
in support of justice is not that it is instrumental to achieving lasting peace or democracy.
In some instances, exercises in accountability will accelerate or consolidate peace and/or
democracy, in others they may have no impact, and in yet other cases they may contradict
one another.
70. Most of the precedents commonly cited have little bearing on the Sudanese case.
Most prosecutions of officials of a former regime occur after a transition to democracy, in
the context of a new democratic government consolidating its power. Only two arrest
warrants have been issued against serving of state, and neither of them is an
informative precedent for the Sudan case. The arrest warrant against the former Liberian
President Charles Taylor was issued during negotiations for him to step down from
power. It served to delay his departure from office, which was secured only on the
promise of asylum in Nigeria (an undertaking later betrayed by the Nigerians, prompted
in part by Taylor’s own failure to abide by the terms of his asylum). The arrest warrant
against Yugoslav President Slobodan Milosevic was issued when he was under military
assault by NATO.
71. Some arrest warrants have been issued during ongoing conflicts. The arrest warrants
against the Bosnian Serb leaders did not derail the Dayton peace talks because there was
a higher authority (President Milosevic) which had the power to sell them out and did so.
The arrest warrants against the leaders of the Ugandan Lord’s Resistance Army
galvanized the peace process, but, according to scholars of the conflict, only because the
19
LRA leader Joseph Kony erroneously believed that the arrest warrants could be
withdrawn after a peace settlement were reached. The LRA has come very close to
reaching a peace deal but Kony has always insisted that he must have personal guarantees
before he signs, and they have not been forthcoming. The LRA remains active.
72. As mentioned above, a genocide charge also carries the important political
implication, at least in the popular understanding, that there cannot be any negotiated
compromise with a genocidal individual or state. It delegitimizes the government,
emboldens the opposition, and implies that reconciliation between victim and perpetrator
is either impossible or can only be achieved on the basis of far-reaching changes such as
revolution, secession or international military protection.
International Strategies with Respect to the Application
73. The Prosecutor of the ICC has put the Sudan Government under greater pressure than
at any time since 9/11, when the country’s prior association with international terrorists
exposed it to the possibility of U.S. military action in the war on terror. Pressure in itself
is neither good nor bad, it depends how it is used in pursuit of what ends, and how the
party under pressure responds. Currently, there is no single or coordinated international
strategy with respect to the OTP Application. For this reason alone, international actions
either to enforce an arrest warrant or to use it as leverage to achieve other objectives, are
likely to fail.
74. An arrest warrant against President Bashir will be extraordinarily difficult to
implement. For the UN or foreign governments to demand its implementation would
paralyze all their other forms of engagement with the government in Khartoum. It is
possible that the Sudan Government will not need to take any steps against the UN or
governments that are parties to the Rome Statute, because the latter’s lawyers will insist
that they cannot do business with Sudan.
75. Leading western governments prefer to see the arrest warrant as a form of political
leverage, akin to economic sanctions, to be used in pursuit of other objectives. However,
while sanctions can be switched on and off, or applied in different degrees, an ICC arrest
warrant cannot be recalled or modified. There are insuperable difficulties in using an
arrest warrant as a form of political pressure.
76. One international approach is to demand that the Sudan Government cooperate with
the ICC, i.e. hand over Bashir and the two other indicted men for trial. This could then
form the basis for a process of political normalization. A problem with this approach is
that few people within the ruling party, army and security apparatus have any expectation
that the political or judicial purge would stop there. The ICC Prosecutor, by alleging that
Bashir has used the entire state apparatus to commit crimes, appeared to criminalize all
members of the government. There is much speculation in Khartoum as to who else
might be on a supposed sealed list of individuals for arrest held by the Prosecutor. Any
assurances that may be given by western governments or even the Prosecutor himself on
20
the limits of his prosecutorial ambitions are not legally binding. He cannot issue an
amnesty.
77. A variant on this is to use the ICC actions as leverage for a domestic political process
that would bring prosecutions against those responsible for crimes in Darfur. Following
this route could make the cases inadmissible by the ICC on the basis of the principle of
complementarity, namely that primary jurisdiction remains with national courts and the
ICC only takes up cases if the national authorities are unable or unwilling to do so.
Proposals for hybrid courts, using international lawyers to try cases according to
Sudanese law in Sudan, have been floated. These could be a workable mechanism to try
many cases. But a hybrid court of this nature could only prosecute President Bashir if he
were removed from office.
78. Another possible approach is to hold out the promise of deferring the arrest warrant
for twelve months using Article 16, in pursuit of objectives such as a peace agreement in
Darfur, UNAMID deployment or CPA implementation. Three of the countries that have
discreetly canvassed this option (the Permanent Three, P3 of U.S., France and Britain)
have all (in different ways) tried to use the ICC as an instrument to press the Sudan
Government in these directions. This approach faces three main difficulties.
a. First is the problem that the ICC is not designed to be used in this manner.
The Article 16 provision was itself not designed to be used by the Security
Council to countermand its own earlier referrals. While there is no legal
obstacle to the Security Council acting in this way, it goes against the
spirit of the Court and the Rome Statute.
b. Second, it is not clear what the Sudan Government needs to do to meet
international demands in full. There is a vocal international activist
constituency, which wants nothing less than regime change and Bashir in
court. A hardline faction within the Sudan Government believes that this is
the ultimate position of the western powers and that any other demands are
mere tactics to make this goal more easily achievable. Others within the
Sudan Government are seeking compromises, but are hampered by the
intrinsic difficulty of obtaining a compromise with the ICC. An Article 16
deferral lasts only a year and many in the Sudanese leadership suspects
that if it makes concessions, western policies will not change and
additional demands will be made a year later. For this reason the Sudan
Government does not regard Article 16 as a solution, but demands a
revocation of Resolution 1593.
c. An important but neglected factor is that the Sudanese political system
moves at a certain pace which cannot be accelerated, and the time needed
to demonstrate results is simply too short for the P3 to see the measurable
results they want. If the demands made were a matter of, for example,
halting military flights in Darfur, obtaining compliance would be
relatively straightforward. But complicated political bargaining in Sudan
is a slow process which, if set to work against a tight deadline, tends to
21
derail. There is simply insufficient time for an Article 16 resolution to be
negotiated.
Sudanese Responses to the Application
79. In Sudan, several impacts can already be seen, and some hoped-for or feared
repercussions have not materialized, at least not yet. The entire Sudanese political class is
preoccupied with the ICC issue. The government has not expelled UN missions. Nor has
it reneged on existing commitments including the CPA. It has neither declared a state of
emergency nor cancelled elections. It has not mounted major new offensives in Darfur. If
any of these things were to happen, direct responsibility for the action would fall upon the
Sudan Government. However, the Prosecutor would have played a leading role in
bringing about a state of affairs which influenced the Sudan Government to act in this
way. Indeed, if the Government were indeed to be the criminal institution that the
Prosecutor alleges, it would be expected to act in such a brutal or undemocratic way.
80. It would be a mistake to see the relatively cool response of the Sudan Government in
the six months since the 14 July announcement as an indication that business as usual
will continue. This period has been marked by the NCP and other Sudanese parties
testing the ground, domestically and internationally. The Sudan Government tried and
failed to obtain support at the Security Council to force a vote on an Article 16 deferral. It
hoped to make sufficient progress in the Darfur peace process to convince the
international community that there was a genuine prospect of peace worth protecting, but
so far without success. The NCP tried and failed to obtain sufficient domestic political
support from partners in the Government of National Unity to present a united front.
Perceiving the internal and international weakness of the Government, some opposition
forces, including the Popular Congress Party and the Justice and Equality Movement,
have been emboldened to make themselves the domestic champions of regime change
through handing over Bashir to the ICC.
81. The ICC issue has the potential to be a life and death issue for the government
leadership. In this context, the response of the NCP and security leadership to an arrest
warrant will depend upon the reactions of others. No options have been ruled out. While
the possibility of things continuing unchanged exists, it should not be taken for granted.
82. There is a real possibility of political business grinding to a halt. This would be a
threat to Sudan’s peace and security, insofar as key deadlines in CPA implementation are
looming, notably the national elections, and a further slowing of the political process
could easily generate a crisis. A likely scenario is that the arrest warrant will lead to the
entrenchment of President Bashir in office, and a slow tightening of the screws on civil
society, democracy and the international humanitarian and peacekeeping efforts. The
national elections, scheduled for 2009 in accord with the CPA, were initially envisaged as
a democratic exercise to provide popular legitimacy to the Government of National Unity
and the CPA. They are now in danger of becoming a purely tactical exercise,
instrumentalized in support of the NCP and its leader remaining in power. If this is the
22
outcome of the Prosecutor’s initiative it will not be an impressive contribution to peace
and democracy in Sudan.
83. The possibility of a crackdown on human rights activists, political opposition and
humanitarian workers is real. The possibility of restricting UN and foreign diplomatic
and assistance activities is real. The possibility of a new round of hostilities in Darfur is
real, possibly in response to military-political initiatives by the armed movements.
Human rights activists in Sudan are concerned that the Prosecutor has set in motion a
process which is likely to result in their repression, without the ICC having any means to
contain the consequences and protect those at risk from the backlash.
Wider Implications for the ICC
84. More widely, the Bashir case is undermining the standing of the ICC across Africa.
African countries, which were early supporters of the Court, are having second thoughts.
The 14 July Application came in the wake of the arrest of the Congolese opposition
leader Jean-Pierre Bemba while visiting Brussels, and arrest warrants issued by French
and Spanish magistrates against Rwandan government officials.11 The sense among
African politicians, and increasingly among civil society leaders and human rights
activists, that international justice is becoming a tool for western countries to control
Africa in neo-imperial fashion, has led to a strong African reaction against universal
jurisdiction and the ICC. When the Peace and Security Council of the AU met in closed
session in September 2008, to review the ICC-Sudan case, every single representative
who spoke criticized the ICC. Many regretted having signed the Rome Statute. Few made
reference to Sudan, rather focusing on the wider implications of the OTP strategy for
Africa. It is inconceivable that another African state will refer a case to the ICC in the
foreseeable future, and most unlikely that any will cooperate with the ICC in executing
arrest warrants. Africa may become zone free from ICC jurisdiction as a result, quite the
opposite outcome to that heralded by the drafters of the Rome Statute and those African
leaders who enthusiastically embraced the Court in its early days.
Additional Observations
85. Several additional aspects of the Public Application demand attention. First is the
poor technical quality of the document, purely in terms of the extent to which it has been
copy-edited and fact-checked. Although the Prosecutor announced the Application at a
press conference on 14 July, the document itself was not released to the public until
September. In the meantime, many pages of errata were added. This indicates that the
document was not ready in final version at the time when the Application was
announced.
86. The Prosecutor explained the timing of his announcement by referring to the fact that
he did ‘not have the luxury to look away’ and that urgent action was needed in the
context of an ongoing genocide. If this was indeed the case, then it is odd that he took
11 One Rwandese official, Rose Kabuye, was arrested in Germany in November, and later released on bail.
23
such a long time to produce a document that could easily have been compiled at the
outset of his investigations. (The ICID report of January 2005, produced in just three
months, is no less substantive.) In addition, the Prosecutor had two other options which
might have yielded a more rapid decision by the Pre-Trial Chamber. One was to present a
shorter, more focused and less controversial application. At the time of writing, the
judges of the PTC have been considering the Application for six months. This is a long
time to wait for action. If the case were so urgent, why construct such an elaborate
Application which demands such time for it to be scrutinized and adopted as the basis for
an arrest warrant? Why not pursue simpler prosecutorial options, the approval of which
would have been a rapid formality for the PTC?
87. The second option was to present a sealed application to the judges of the PTC. If
indeed the Prosecutor’s intention is to have the accused arrested and brought to court, he
has a far better chance of success if his deliberations and the decision of the PTC are
made in secret. Following the Public Application for an arrest warrant for Harun,
precisely this point was made—namely that a sealed warrant would have surely led,
sooner or later, to the arrest of the suspect. Just seven weeks before the July Application,
the Prosecutor secured the arrest of Jean-Pierre Bemba using a sealed warrant. A less
public route would undoubtedly have increased the chances of success.
Conclusion
88. I conclude that if the Prosecutor were to prosecute President Bashir for genocide
using the arguments contained in the Public Application, then he would most probably
fail to obtain a conviction. Bashir would be acquitted.
89. I further conclude that if the Prosecutor were to prosecute President Bashir for war
crimes and crimes against humanity using the mode of liability, ‘perpetration by means,’
he would also face a high likelihood of failing to obtain a conviction.
90. It is remarkable that, facing a government which during its nineteen years in power
has presided over a wide range of unspeakable violations including some of the most
heinous crimes under international law, the Prosecutor of the ICC should set himself up
for such a failure. Sudan’s most seasoned human rights activists and its best-informed
political analysts are astonished at this shortcoming.
91. My recommendation to the Pre-Trial Chamber is that the Application should not go
forward. While President Bashir has a case to answer, the Prosecutor has not made that
case. The Application shows that he is not ready for a trial. The case should be returned
to the OTP for reconsideration.
92. The substance of the Public Application does not delimit the Prosecutor’s strategy
should the Bashir case ever come to court. The Prosecutor still retains the option of
abandoning the charge of genocide and the mode of liability presented in the Public
Application, and instead pursuing a prosecutorial strategy much more likely to result in a
conviction. This may indeed be his intention. He has surely received advice on the flaws
24
in his approach. However, if this is the strategy, why would the Prosecutor gamble on
presenting such a flawed document in such a manner?
93. It is remarkable that, given the wealth of evidence available and number of accessible
and attractive options for prosecuting those suspected of responsibility for crimes in
Darfur, including President Bashir, the Prosecutor should seek the most controversial and
hardest-to-substantiate charges. The principal benefit of this approach is that it gains the
maximum publicity for the Prosecutor and places him at the centre of a major
international controversy. On the international stage, Moreno Ocampo appears as the
champion of justice while his opponent, the head of a widely-reviled state, has few
credible advocates ready to speak out on his behalf. A trial of sorts is already being
conducted in the court of international public opinion. This perhaps is where the
Prosecutor feels most comfortable.
94. The Prosecutor of the ICC has forced the hand of the most prominent international
supporters of the Court, including both State Parties to the Rome Statute and nongovernmental
human rights advocates. Given the choice between backing Sudan and
backing the ICC, most instinctively choose the latter. Closer scrutiny of the facts of the
case in Darfur and the prosecutorial strategy suggest that the Prosecutor is not only
gambling with the future of Sudan, but with the future of the Court as well.
95. My recommendation to the UN Security Council and its member states is that they
should use Article 16, flawed though it is, to defer the Bashir application for twelve
months. No case should be brought against the Sudanese President at least until such time
as the CPA has been successfully completed. This deferral should be unconditional. To
place conditions on it would be to undermine the principle of justice and make it ancillary
to political objectives.
96. The awful suffering of the people of Darfur, and especially the victims and survivors
of war crimes and crimes against humanity, should not be the occasion for public
posturing in ways that cannot bring real material benefits to them, and hold out no real
prospects for advancing peace or justice. The best interests of the Darfurians will be
surely served by maintaining humanitarian programmes, making progress towards peace,
and implementing the provisions of the CPA leading Sudan towards democratization.

1 Some scholars argue that genocide should be seen as a state crime, or the crime of a state-like
organization. Recently the Forces Democratique de Liberation du Rwanda, a militia in eastern Democratic
Republic of Congo, has been labeled a ‘genocidal organization’—a labeling that would appear to indicate
the stretching of collective intent beyond states. Few would argue that an individual, acting solely in an
individual capacity, could commit an act of genocide.
2 GAO, “Darfur Crisis: Death estimates demonstrate severity of crisis, but their accuracy and credibility
could be enhanced,” Washington DC, GAO 07-24, November 2006.
3 It reportedly required thirty pages of errata before being publicly released more than two months after the
application was made.