Flawed Justice for Sudan

THOSE who follow events in Darfur closely know very well that Sudan’s President Omar Hassan al-Bashir leads a group of political and military leaders responsible for the serious and large-scale crimes against Sudanese citizens that the country’s military forces, with the assistance of paramilitary groups and militias, commit every day in the region.

These citizens are guilty only of belonging to the three tribes (Fur, Masalit, and Zaghawa) that spawned the rebels who took up arms against the government a few years ago. Any step designed to hold Sudan’s leaders accountable for their crimes is therefore most welcome.Nevertheless, the decision of Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to request an arrest warrant against al-Bashir is puzzling, for three reasons.First, if Moreno-Ocampo intended to pursue the goal of having al-Bashir arrested, he might have issued a sealed request and asked the ICC’s judges to issue a sealed arrest warrant, to be made public only once al-Bashir travelled abroad.The Court’s jurisdiction over the crimes in Darfur has been established pursuant to a binding decision of the United Nations Security Council, which means that even states that are not parties to the ICC statute must execute the Court’s orders and warrants.Having instead made the request for a warrant public, al-Bashir – assuming the judges uphold the request – can simply refrain from travelling abroad and thus avoid arrest.Second, Moreno-Ocampo has inexplicably decided to indict only Sudan’s president and not also the other members of the political and military leadership that together with him have planned, ordered, and organised the massive crimes in Darfur.If Hitler had been alive in October 1945, the 21 indictees who were in fact tried at Nuremberg would not have been let off the hook.Finally, one fails to understand why Moreno-Ocampo has aimed so high and accused al-Bashir of the “crime of crimes,” genocide, instead of filing charges that are more appropriate and easier to prosecute, such as war crimes (bombing of civilians) and crimes against humanity (extermination, forcible transfer of people, massive murders, rape, etc.).True, genocide has become a magic word, and people think that its mere evocation triggers the strong outrage of the world community and perforce sets in motion UN intervention.But this is not so.Moreover, strict conditions must be met to prove genocide.In particular, the victims must form an ethnic, religious, racial, or national group, and the perpetrator must entertain “genocidal intent,” namely the will to destroy the group as such, in whole or in part.For example, one kills 10 Kurds not because they are obnoxious or because the perpetrator has strong feelings against each of them taken individually, but only because they are Kurds; by killing those 10 persons he intends to contribute to the destruction of the group as such.In the case of Darfur, according to Moreno-Ocampo, each of the three tribes does constitute an ethnic group; although they speak the same language as the majority (Arabic) and embrace the same religion (Islam) and their skin is the same colour, they constitute distinct ethnic groups because each tribe also speaks a dialect and lives in a particular area.Under this standard, the inhabitants of many European regions – for example, Sicilians, who, in addition to the official language, also speak a dialect and live in a particular area – should be regarded as distinct “ethnic groups.”Furthermore, Moreno-Ocampo has inferred al-Bashir’s genocidal intent from a set of facts and conduct that in his view amount to a clear indication of such intent.However, according to the international case law, one can prove by inference a defendant’s state of mind only if the inference is the only reasonable one that can be drawn based on the evidence.In the case of Darfur, it would seem more reasonable to infer from the evidence the intent to commit crimes against humanity (extermination, etc.), rather than the intent to annihilate ethnic groups in whole or in part.The arrest warrant, assuming that the ICC issues it, seems unlikely to produce the extra-judicial effects – the political and moral delegitimisation of the accused – that sometimes follow.This happened in the case of former Bosnian Serb leader Radovan Karadzic, who, although never arrested, has been removed both from power and the international arena as a result of his indictment in 1995.Instead, Moreno-Ocampo’s request may have negative political repercussions by creating much disarray in international relations.It may harden the Sudanese government’s position, endanger the survival of the peace-keeping forces in Darfur, and even induce al-Bashir to take revenge by stopping or making even more difficult the flow of international humanitarian assistance to the two million displaced persons in Darfur.On top of that, Moreno-Ocampo’s request might further alienate the Great Powers (China, Russia, and the United States) that are currently hostile to the ICC.Project Syndicate * Antonio Cassese, the first President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and later the Chairperson of the United Nations’ International Commission of Inquiry on Darfur, teaches law at the University of Florence.Any step designed to hold Sudan’s leaders accountable for their crimes is therefore most welcome.Nevertheless, the decision of Luis Moreno-Ocampo, the Prosecutor of the International Criminal Court, to request an arrest warrant against al-Bashir is puzzling, for three reasons.First, if Moreno-Ocampo intended to pursue the goal of having al-Bashir arrested, he might have issued a sealed request and asked the ICC’s judges to issue a sealed arrest warrant, to be made public only once al-Bashir travelled abroad.The Court’s jurisdiction over the crimes in Darfur has been established pursuant to a binding decision of the United Nations Security Council, which means that even states that are not parties to the ICC statute must execute the Court’s orders and warrants.Having instead made the request for a warrant public, al-Bashir – assuming the judges uphold the request – can simply refrain from travelling abroad and thus avoid arrest.Second, Moreno-Ocampo has inexplicably decided to indict only Sudan’s president and not also the other members of the political and military leadership that together with him have planned, ordered, and organised the massive crimes in Darfur.If Hitler had been alive in October 1945, the 21 indictees who were in fact tried at Nuremberg would not have been let off the hook.Finally, one fails to understand why Moreno-Ocampo has aimed so high and accused al-Bashir of the “crime of crimes,” genocide, instead of filing charges that are more appropriate and easier to prosecute, such as war crimes (bombing of civilians) and crimes against humanity (extermination, forcible transfer of people, massive murders, rape, etc.).True, genocide has become a magic word, and people think that its mere evocation triggers the strong outrage of the world community and perforce sets in motion UN intervention.But this is not so.Moreover, strict conditions must be met to prove genocide.In particular, the victims must form an ethnic, religious, racial, or national group, and the perpetrator must entertain “genocidal intent,” namely the will to destroy the group as such, in whole or in part.For example, one kills 10 Kurds not because they are obnoxious or because the perpetrator has strong feelings against each of them taken individually, but only because they are Kurds; by killing those 10 persons he intends to contribute to the destruction of the group as such.In the case of Darfur, according to Moreno-Ocampo, each of the three tribes does constitute an ethnic group; although they speak the same language as the majority (Arabic) and embrace the same religion (Islam) and their skin is the same colour, they constitute distinct ethnic groups because each tribe also speaks a dialect and lives in a particular area.Under this standard, the inhabitants of many European regions – for example, Sicilians, who, in addition to the official language, also speak a dialect and live in a particular area – should be regarded as distinct “ethnic groups.”Furthermore, Moreno-Ocampo has inferred al-Bashir’s genocidal intent from a set of facts and conduct that in his view amount to a clear indication of such intent.However, according to the international case law, one can prove by inference a defendant’s state of mind only if the inference is the only reasonable one that can be drawn based on the evidence.In the case of Darfur, it would seem more reasonable to infer from the evidence the intent to commit crimes against humanity (extermination, etc.), rather than the intent to annihilate ethnic groups in whole or in part.The arrest warrant, assuming that the ICC issues it, seems unlikely to produce the extra-judicial effects – the political and moral delegitimisation of the accused – that sometimes follow.This happened in the case of former Bosnian Serb leader Radovan Karadzic, who, although never arrested, has been removed both from power and the international arena as a result of his indictment in 1995.Instead, Moreno-Ocampo’s request may have negative political repercussions by creating much disarray in international relations.It may harden the Sudanese government’s position, endanger the survival of the peace-keeping forces in Darfur, and even induce al-Bashir to take revenge by stopping or making even more difficult the flow of international humanitarian assistance to the two million displaced persons in Darfur.On top of that, Moreno-Ocampo’s request might further alienate the Great Powers (China, Russia, and the United States) that are currently hostile to the ICC.Project Syndicate * Antonio Cassese, the first President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and later the Chairperson of the United Nations’ International Commission of Inquiry on Darfur, teaches law at the University of Florence.