Ottilia Anna Maunganidze, International Crime in Africa Programme, ISS, Pretoria
Max du Plessis, International Crime in Africa Programme, ISS; Associate Professor, University of KwaZulu-Natal
On Monday 12 July 2010, the Pre-Trial Chamber of the International Criminal Court (ICC) confirmed the charge of genocide laid against Sudanese President Omar Hassan al-Bashir by the ICC Prosecutor. In its decision the Pre-Trial Chamber found that there are reasonable grounds to believe that al-Bashir is responsible for acts of genocide committed in the Western Sudanese region of Darfur against the Zaghawa, Fur and Masalit ethnic groups. The charges are in terms of Article 6 of the Rome Statute and are for genocide by “killing, causing serious bodily or mental harm and deliberately inflicting on each target group conditions of life calculated to bring about the group`s physical destruction." It should be noted that this second arrest warrant is supplementary to an earlier arrest warrant issued for al-Bashir in 2009 by the ICC for war crimes and crimes against humanity.
To add genocide to the mix is controversial, not least of all because of the seriousness of the crime and the difficulty in assessing whether such a crime has been committed. Genocide is the gravest crime in international law and requires a special form of mental intention: the intention to eradicate “in whole or in part” a racial, religious or ethnic group. Al-Bashir is accused by the Prosecutor of the ICC of intentionally keeping over 2.5 million refugees from the Fur, Masalit and Zaghawa ethnic groups in camps in Darfur “under genocide conditions”. As in all criminal cases, the burden of proof rests on the prosecution. But before the ICC, before any charge can be confirmed, the Court must be satisfied that there is sufficient reason to proceed.
The importance of Monday’s decision is that the Court has now accepted that there is sufficient evidence against al-Bashir of genocide for a warrant to be issued. This is an effective reversal of an earlier decision by the Pre-Trial Chamber rendered in March 2009. The ICC Prosecutor had lodged an appeal to the Appeals Chamber against the March 2009 decision in July of the same year, arguing that the Pre-Trial Chamber had erred in its application of the law. He argued that the Pre-Trial Chamber had adopted an overly strict standard for the evidence of genocide. The Sudan Workers Trade Unions Federation and the Sudan International Defence Group were granted leave by the Appeals Chamber to make submissions as amici curiae. The Appeals Chamber also authorised eight victims to make submissions. The inclusion of these submissions aided the Appeals Chamber in arriving at its decision on 2 February 2010 in which it agreed with the Prosecutor, and ordered the Pre-Trial Chamber to reconsider the genocide charge against al-Bashir with reference to the correct legal test. The decision of the Pre-Trial Chamber on 12 July 2010 is thus both a confirmation of the genocide charge and a culmination of a lengthy legal process around the proper definition of the “crime of crimes”.
Khartoum is predictably outraged. It should be stressed that the charges laid against al-Bashir arise from the application of law by independent and impartial judges of the ICC. In this regard a spokesperson for the UN Secretary General Ban-Ki Moon is correct to have reiterated the need for all to respect the autonomy of the ICC. However, the Sudanese ambassador to the United Nations, Abdalmahmood Abdalhaleem Mohamad, has dismissed the decision as being politically motivated. He also alleges that the ruling will only serve to further undermine Sudan’s prospects for peace and vowed (again) that al-Bashir would never be surrendered to the ICC.
This rejection of the ICC’s decision by the Sudanese is unsurprising. What is disconcerting is that Sudan feels emboldened to make such claims with apparent support of the African Union (AU). In July 2009, at an extraordinary Summit in Sirte, African leaders resolved not to cooperate with the ICC in effecting the arrest of al-Bashir. They reiterated their view in February 2010, adding that a charge of genocide would undermine peace. The decision not to cooperate with the ICC is one that apparently stands within the AU and its structures, notwithstanding that there is very little (if any) evidence of a real commitment to peace by al-Bashir or his government, and a mockery of domestic justice initiatives within Sudan to hold accountable those that are guilty of mass atrocities in Darfur.
The AU is set to meet for its 15th Ordinary Summit from 19 – 27 July 2010. The genocide charge against al-Bashir is likely to be a keen discussion point. While African leaders debate the AU’s position, it is to be hoped that the facts get in the way of the politics (rather than the other way round, as happened at Sirte). At least three facts might be kept in mind: 1) Independent judges, in accordance with strict legal criteria, have concluded that there is sufficient evidence to confirm charges against al-Bashir of the world’s worst crimes, including genocide; 2) Al-Bashir’s government has failed miserably to convince the world that there is a peace process underway which is or might be jeopardised by the ICC prosecution; 3) While the ICC is based in The Hague, the thousand upon thousand victims of al-Bashir’s crimes live in Africa.