Darfur: Understanding the ICC arrest warrant

Notes by:Michael Kevane

Dept. of EconomicsSanta Clara University

29 January 2009For

Undestandingsudan.org

Notes on the application for

Arrest Warrant for Sudan’s president Omar al-Bashir

submitted by International Criminal Court prosecutor Luis Moreno-Ocampo, 14 July 2008 (public redacted version)

Context: Comprehensive Peace Agreement (CPA)

• Power-sharing and autonomy• Wealth-sharing of oil revenues• Timetable– Census– 2009 elections– 2011 referendum

• Abyei protocol• What comes after is not clear

Context: Darfur conflict

• Short history of Darfur– Sultanate until 1874, overthrown by Zubeir Pasha,

slave merchant– Conquered by Mahdiyya– Restored 1898-1916, British conquest– Marginalization

• Native Administration, Islamization, political mobilization

• Tribal and regional tensions in an ethnic mosaic

Darfur conflict

• Gradually escalating militarization, reinforced by Chad-Libya

• 2003- shadow of CPA impels SLA and JEM to launch attacks (pushed by SPLA? Pulled by CPA?)

• Janjawiid counterattacks• Massive war crimes and crimes against humanity-

deliberate targeting of civilian and destruction of villages

• One of world’s largest humanitarian crises, 2.5 million people displaced in camps

• Violent deaths in 2008 or order of ~2,000

Darfur intervention• April 2004 – Abeche cease-fire• Mid 2005, African Union force in Sudan (AMIS) about

7,000• May 2006 Abuja, Darfur Peace Agreement (DPA)

signed by Minni Minawi• Res. 1769 August 2006 authorized deployment of UN

troops, with Sudan’s consent• Res. 1769 July 2007 authorizing African Union/United

Nations Hybrid operation in Darfur (UNAMID)• Strength as of 31 December 2008: 15,136 total

uniformed personnel– 25 fatalities through 2008

The application has seven parts

• A summary• The law and evidence for act of genocide• The law and evidence for crimes against humanity• The law and evidence for war crimes• The evidence establishing individual responsibility of

al-Bashir• The evidence of the intent of genocide by al-Bashir• The evidence of the intent of crimes against humanity

by al-Bashir

Summary of the application

• Bashir is a dictator, who targets perceived threats to his power

• As Darfur threat grew, Bashir developed idea of destroying in part the groups that threatened him, masking intent as counter-insurgency – (i.e. there were many ways he could have successfully

counteracted the counter-insurgency, but he decided upon a final solution)

• Bashir’s forces specifically targeted substantial numbers of civilians of target groups

Summary of the charge of genocide

• Bashir intended to destroy part of the ethnic groups

• He used the entire state apparatus (see para 40-44)

• His forces and agents killed substantial civilians of the target groups

• His forces and agents displaced and inflicted bodily and mental harm on the target groups

• His forces and agents obstructed assistance, calculating that this would destroy their way of life

Charge of genocide

The prosecutor has to prove:• Victims belong to an ethnic group• That certain acts were committed• That acts were committed with the intent to

destroy part of the ethnic group• That acts took place in the “context of a manifest

pattern of similar conduct directed against each of the groups or was conduct that could itself effect the destruction of the group.” [i.e. acts are not an “isolated incident” or small in scope]

Genocide: Certain acts committed• The ethnic groups were targeted

– Field surveys of destroyed villages show unequivocally that they were targeted and Arab villages left alone

– Civilians were targeted (Sindu Hills in August 2003 and Disa in July 2003 and IDP camps)• Ethnic group members were killed

– 3000 villages were attacked March 2003-Nov. 2004– 35,000 killed in the attacks– Paras. 112-118 accounts of killings by witnesses

• Rape was committed– E.g. para 140, account of rapes in Tawila

• Torture was committed– E.g. para 153, witness JWB-331, account of beating amounting to torture

• Forcible displacement– E.g. describes life in IDP camps

• Conditions of life were inflicted– E.g. para 178, forces pursued civilians into desert– Para 181, villages have been re-occupied– Para 188 huamnitarian aid restricted– E.g. paras. 199-202 describes attack and aftermath on Kailek

Charge of Crimes against humanity

Prosecutor has to prove that:• The perpetrator committed a prohibited act• The conduct was committed as part of a

widespread or systematic attack against a civilian population

• The perpetrator knew that the conduct was part of, or intended to be part of, such an attack

Crimes against humanity acts• Murder of civilians in at least 13 villages– E.g. Para 214 attacks on four Kodoom villages, 32

civilians killed• Extermination (i.e. creating conditions where

people would die) in 2 villages• Forcible transfer in at least 13 villages, and

totaling 2.7 million persons• Torture in 3 villages– E.g. para 220, torture in Mukjar

• Rapes in 6 villages and also IDP camps

Debates over the ICC prosecution of al-Bashir

• Demonstrate “perpetration by means” and satisfactorily prove “intent” – Encourage secondary actors to testify against al-

Bashir once in custody

• Secure a physical arrest• Prevent al-Bashir regime from committing– Retaliation against U.N. personnel or other foreigners– Undermining CPA (or return to war)– Attacks against IDPs

Inferring genocidal intent

• Since there is no express manifestation of intent, intent can be inferred if facts are such that existence of intent is only reasonable inference (i.e., some facts can only be explained by a genocidal intent … only way to answer question: “Why would someone make this happen?” is to answer, “Because they wanted to destroy part of the group.”)

Existence of a genocidal plan or policy

• Evidence is that army planned the operations in Darfur and wrote memos on the operations in Darfur

• Evidence is that written documents are available that might be incriminating of a plan

• Al-Bashir gave statements authorizing attacks on civilians (would “fiery rhetoric” count as evidence of intent?)

• Evidence is that al-Bashir has concealed and denied • i.e. if court finds there was genocide, and prosecutor shows that al-Bashir

and subordinates were aware that genocide was a possibility (i.e. genocide-like crimes were reported to them), and al-Bashir and subordinates denied there was genocide, their denial is evidence of their intent; if they had not intended genocide they would have investigated and cooperated, rather than denied.

The “mode of liability”• Responsibility of commanders and other superiors

– In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

– (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

– (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior? by Chantal Meloni* Journal of International Criminal Justice Advance Access published online on June 22, 2007 Journal of

International Criminal Justice, doi:10.1093/jicj/mqm029 • And see also: http://en.wikipedia.org/wiki/Command_responsibility

“Perpetration by means”

• The person in control, the “principal”, is the person who is responsible for the crimes– There was a hierarchical relationship – Al-Bashir had the “final say”– Al-Bashir was aware that he was in control

• Para 251-274 demonstrate Al-Bashir’s control of hierarchical relationship, his final say, and control

• See: http://opiniojuris.org/2009/02/11/jce-iii-and-the-rome-statute/

De Waal: Conviction on genocide relies on a “socio-political theory”

• “…any successful prosecution for genocide also requires a socio-political theory of genocide.”– “We should not allow the courts to be the sole arbiters of the crime.”

(Absolutely, but not germane to the proposition.)– “…human rights reporting is an interesting genre that reflects the

hybrid nature of the genocide and crimes against humanity.” (Assert that is hybrid, so far without explanation.)

– “…presentational format and moral tenor of human rights NGO reports has influenced the approaches taken by international tribunals including the ICC.” (Does he have an alternative format and tenor in mind? Does not say.)

De Waal: Conviction on genocide relies on a “socio-political theory”

• “An individual acting alone cannot commit genocide… the requirement of a specific intent for genocide is important. There must be a shared plan or project of some kind.” (OK, so the socio-political theorizing is about whether there is a shared project?)

• De Waal asks: “…what kind of plan or project should be considered genocidal, and what kind of collectivity or institution can be said to possess such a plan or project.” Goes on… State as whole? Unit in the state?

• JCE “lowers the bar on standards of proof for establishing the existence of a plan or project—it can be inferred from a systematic pattern of crimes.”

De Waal: Conviction on genocide relies on a “socio-political theory”

• “… about the possibility of an individual in control of a state committing genocide …” “this does not obviate my point about the need for a socio-political theory of genocide. To the contrary, in such cases (Stalin’s USSR and Saddam Hussein’s Iraq might be among the rather few examples), we need a socio-political account of the structure and functioning of the state, such that one individual possesses and wields such power. On the empirics, I believe it is clear that President Bashir does not and did not possess such individual power.…. To prove the case that Bashir is in total control of the state, it is not enough to compile a list of cases in which he had the last word—it is necessary to show that he had the last word each and every time.”

March 4, 2009:The decision of the pre-trial chamber

• Accepted merit of charges of crimes against humanity and war crimes

• Rejected application for charge of genocide• Authorized issuance of arrest warrant

Why did pre-trial chamber reject genocide charge?

• Accepted merit of charges of crimes against humanity and war crimes

• Rejected application for charge of genocide• Authorized issuance of arrest warrant

How can al-Bashir be arrested?

• Al-Bashir immediately travelled to a variety of countries, all non-signatories of the ICC, to demonstrate that he was still in power and would not quickly succumb to an internal coup or regime change

• Lively scholarly debate over whether even ICC signatory countries could arest al-Bashir, since normally a head of state enjoys diplomatic immunity