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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 committed against Sudanese citizens 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 have 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 traveled abroad. The Court’s jurisdiction over the crimes in Darfur has been established by a binding decision of the United Nations Security Council, so 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 traveling 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 who have planned, ordered, and organized 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 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, but its mere evocation no longer triggers the strong outrage of the world community and perforce sets in motion UN intervention.
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.
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 color, they constitute distinct ethnic groups because each tribe also speaks a dialect and lives in a particular area. Under this standard, any people that, in addition to the official language, speaks a dialect and lives in a particular region – for example, Sicilians – should be regarded as a distinct “ethnic group.”
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 delegitimization of the accused – that sometimes follow. This happened in the case of former Bosnian Serb leader Radovan Karadzic, who, although never arrested, was removed both from power and the international arena as a result of his indictment in 1995.
Instead, Moreno-Ocampo’s request may have serious negative political repercussions. It may harden the Sudanese government’s position, endanger the survival of the peace-keeping forces in Darfur, and even induce al-Bashir to stop or further impede the flow of international humanitarian assistance to Darfur’s two million displaced persons. 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.
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.
Copyright: Project Syndicate, 2008.
www.project-syndicate.org
