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.

Arabic Forum