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July 11, 2008 International Criminal Court Prepares to Charge Sudanese President with Genocide The announcement of genocide charges against the Sudanese head of state would be a hugely significant action, the most dramatic step by far taken by the Court's prosecutor since the organization came into being six years ago. The prospect of the prosecutor seeking an arrest warrant against Bashir has apparently caused deep concern amongst UN officials and others involved in peacekeeping and aid operations in Sudan, who fear they will be the target of reprisals after the announcement is made. Under the ICC's statute, the prosecutor does not issue indictments but names individuals whom he has reasonable grounds to believe have committed crimes within the Cout's jurisdiction. He can also ask the Court to issue warrants for their arrest. It is likely that the Court would decide on the prosecutor's request within two or three months. Two arrest warrants have already been issued in connection with the situation in Darfur, against a government minister and a leader of the Janjaweed militia, but the Court charged them only with crimes against humanity and war crimes, not genocide. The charges follow an earlier statement by the ICC prosecutor, Luuis Moreno-Ocampo, to the UN Security Council on 5 June, in which he made clear that he believed the crimes committed in Darfur were on a scale that would only be possible if they were an act of state: "The entire Darfur region is a crime scene. For 5 years, civilians have been attacked relentlessly. In their villages. Then into the camps. They cannot return. Their land has been usurped. To plan and commit such crimes, on such a scale, over such a period of time, the criminals had to mobilize and coordinate the whole state apparatus, from the security services to the public information bureaucracies and the judiciary." This statement gives some indication of the possible basis on which charges against President Bashir would be laid. To prove someone guilty for crimes against humanity, the prosecutor must show that crimes were committed against a civilian population in a widespread or systematic way. As head of state, Bashir could be alleged to be responsible either through the theory of joint criminal enterprise, in which a suspect participates in a common plan that entails certain criminal acts, or under the doctrine of command responsiblity, whereby a commander or official is responsible for crimes committed by someone under their control, if the commander knew (or should have known) that crimes were being committed and did nothing to stop them. The position regarding possible genocide charges is somewhat different. Genocide, often regarded as the gravest crime under international law, is distinctive in requiring both a particular action and a particular motive. As defined in the Rome Statute of the ICC (in language taken from the 1948 Genocide Convention), genocide involves "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or In other words, to prove someone guilty of genocide, the Court must prove that the crimes were committed with the aim of destroying the group involved, or a significant part of it. If the crimes were committed to displace members of a group, or as part of a counter-insurgency campaign, without any separate intent to destroy the group, then they would not qualify as genocide. It was for this reason that the 2005 International Commission on Inquiry on Darfur, reporting to the UN Secretary General, concluded that "the Government of Sudan has not pursued a policy of genocide... Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group Some experts on Darfur, such as Julie Flint and Alex de Waal, have criticised the prospect of genocide charges against President Bashir as prosecutorial overreaching. In a recent article, they claimed that the pattern of abuse in Darfur "has changed since the firestorm of 2003-04, when more than 90 percent of the violent deaths occurred... Many crimes have been committed in Sudan. The systematic eradication of communities today is not one of them." Flint and de Waal also argued that the announcement of criminal charges against the Sudanese leadership at this point would set back efforts to achieve peace and security, saying the prosecutor would be "gambling with the future of the entire Sudanese nation." But John Prendergast, a prominent campaigner on Darfur who was formerly Director of African Affairs at the US National Security Council under President Clinton, told the New York Times that it was "absolutely imperative to go straight to the top," and predicted that Bashir would back off from any retaliation if it was clear that the international community would stand firm. Senior officials from Britain, France and the United States appear to share the concerns about the impact of the charges, and there have been emergency meetings at the United Nations and in national governments about the consequences. But it was these countries' decision, as members of the UN Security Council, to refer the situation in Darfur to the International Criminal Court in 2005 (since Sudan is not a party, the Court would not otherwise have had jurisdiction). The responsibility of the prosecutor is to pursue the interests of justice. A likely consequence of the charges will be to prompt leading members of the Security Council to think more deeply about the circumstances in which they think the involvement of the ICC is helpful in the resolution of conflicts and the pursuit of peace and security. If arrest warrants are issued against President Bashir and other government officials, all countries that are party to the ICC would be obliged to arrest them if they entered their territory. In addition, Sudan is legally required by the Security Council's resolution referring Darfur to the ICC to cooperate fully with the Court, though they have not made the slightest effort to cooperate so far. Other countries, not party to the ICC, are merely "urged" to cooperate fully, meaning they would not be legally required to execute the warrants. The Security Council cannot lift an arrest warrant issued by the Court, but under the Rome Statute it has the power to defer an investigation or prosecution for a period of twelve months (renewable) if it decides that it is not in the interests of international peace and security for the Court to proceed. News reports also suggested that Sudan's Vice President, Ali Osman Mohammed Taha, might face charges of aiding and abetting genocide and crimes against humanity.
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