Tuesday, March 9, 2010

March 2010: The ICC and Darfur

Editor's introduction: ICC and DARFUR

Article under review: “The ICC's Blunder on Sudan” by Nesrine Malik. The Guardian. February 4, 2010.

~ The Editors

An Annotation

The establishment of the ICC as a permanent international criminal court signifies one of the most important advancements in international law. Yet the recent ICC ruling concerning the arrest warrant for Omar al-Bashir for genocide charges and for his participation in a five-year campaign of violence in western Sudan's Darfur region brought the role and work of this court once again to the center of the international debate.

This month’s centerpiece by Nesrine Malik, a Sudanese-born writer and commentator for The Guardian, argues that the ICC ruling undermines the ongoing peace process in Sudan and that the court’s decision may play out in favor of the current government authorities in the middle of an electoral process. As she indicates, “ (…) despite my belief that Bashir may be guilty of crimes against humanity, not only in Darfur but in other parts of the country, I cannot help but think that the ICC has over-reached itself in this instance. The timing was again unfortunate, with the first Sudanese elections in 24 years due in April and the country holding on to a fragile peace in preparation for a referendum in 2011 when the south will vote on secession.”

She also questions the validity of the court charge of genocide, indicating that genocide is not “merely an escalated form of human rights abuse.” She clarifies her point as follows: “Could he and his junta be guilty of gratuitous crimes against humanity in order to consolidate power and dispatch challenges to authority? Yes. But an organized, deliberate and concerted effort at ethnic cleansing diverts too much time and resources from a government much more concerned with the business of maintaining Khartoum as a fortress and securing strategic access to resources and oil-rich areas in the south.”

In addressing Malik’s comments on the court’s ruling and its impact, our panelists indicate that it is dangerous to downplay the level of massive atrocities committed in Darfur as “simple” human rights abuses. Bashir is accused of war crimes, crimes against humanity, and potentially genocide. The specific charges include widespread or systematic murder, extermination, rape, torture, and forcible transfer of large numbers of civilians. These are egregious atrocities, crimes that are understood to shock the conscience of humanity. Ultimately, the legal process in itself will clarify whether or not the intent of the Sudanese government was to target entire populations in Darfur, which would define the committed crimes as genocide.

The contributors agree on the serious legal and political challenges confronting this case, especially considering the fact that Bashir is the first sitting president to face an arrest order by the ICC and that the ruling takes place in the context of an internal conflict and humanitarian crisis in Sudan. However, the panelists underscore that these obstacles are integral and normal elements of the dynamic interaction between law and politics, and should not be used as an excuse to stop the search for universal justice. They support the idea that the future of the newly-formed ICC depends on its capacity to maintain independence from political considerations, and that the prospects for a peaceful solution to Sudan’s problems are intrinsically linked to the court’s capacity to hold the perpetrators of massive human rights abuses accountable for their crimes.

These issues and others are considered in this month’s Roundtable.


Can the ICC Ever Get it Right?

by Richard Burchill, University of Hull

"The difficulty lies in expectations about justice and about the use of international law to pursue justice. If the Prosecutor publicly stated that he felt it would be counter-productive to take action regarding accusations of genocide in Sudan, his office would be criticized. Whether the Prosecutor does or does not take action, there is criticism. So, can the ICC ever get it right? The quick answer is, probably not."

Nesrine Malik makes clear with her title, “The ICC’s Blunder on Sudan,” that something has gone amiss with the efforts of Prosecutor Luis Moreno-Ocampo to ensure the ICC statute is applied to those circumstances it was meant to address. But why is something amiss in this situation? The Prosecutor has a mandate and the legal regime for the ICC is relatively clear (at least procedurally); the crimes it covers can always be debated, but there is a degree of clarity present as to what acts are addressed; so what has gone wrong? The difficulty lies in expectations about justice and about the use of international law to pursue justice. If the Prosecutor publicly stated that he felt it would be counter-productive to take action regarding accusations of genocide in Sudan, his office would be criticized. Whether the Prosecutor does or does not take action, there is criticism. So, can the ICC ever get it right? The quick answer is, probably not. Someone will always have a reason (and usually a defensible reason) to criticize the ICC and its institutions for acting or not acting.

This is a major issue facing not just the ICC, but international institutions generally, especially those designed to deal with matters of justice. There is a tendency to place a great deal of confidence in the ability of international law and institutions to deliver a better world; this is the reason they are established. At the same international law and institutions are subject to changing views and priorities as to what is necessary for making the world a better place. In this context the debate over the effectiveness of institutions like the ICC will persist. The creation of international law is a political process and the outcomes achieved are the results of political negotiations, deals, and agreements. This is not necessarily a fundamental weakness, just the reality we have to face, and it means things are unlikely to ever satisfy all those concerned.

The ICC is the archetypal example of the tensions that result when action is taken to address a matter many believe has to be dealt with through international law. Often, those efforts may be seen as conflicting with other priorities. The story of where we are today when it comes to bringing those responsible for international crimes to justice is well known. The atrocities of World War II had to be acted upon through the creation of a system for international criminal responsibility; but this was a one-off event, and the political and strategic priorities of the Cold War displaced any urgency for further action. Then, with the end of the Cold War, events in the former Yugoslavia and Rwanda required a response from the international community, which decided to set up tribunals to deal with issues of international criminal responsibility. Of course, there are plenty of things that could be criticized regarding the effectiveness and how international justice was being implemented. But a trend was now in place, and more efforts were made to ensure that those responsible for abhorrent acts would be brought to justice. However, the tension between peace and justice remained.

The Rome Statute of the International Criminal Court entered into force in 2002. At the time, the Secretary-General of the United Nations heralded the Statute as an historic occasion, as it would deliver on “the promise of a world in which the perpetrators of genocide, crimes against humanity and war crimes are prosecuted when individual States are unable or unwilling to bring them to justice.” “No more impunity” became the mantra of those seeking peace and justice in the world. But the Statute is only an addition to the existing international system. It did not recreate that system, meaning it has to compete with existing tensions and difficulties. The ICC does not create a global cop; rather, the Statute is an international treaty that provides specific mechanisms for action and defines when action can occur. If any matter falls outside of the Statute, it may be unjust or even regrettable, but it is not a failing of the ICC. But even when the ICC does appear to work—i.e. there is evidence of actions covered by the Statute, a prosecutor issues an indictment, and procedures are followed—there is much worrying that, perhaps at this particular stage, the time is not right, or the circumstances are not appropriate for the ICC to be involved.

The Prosecutor is trapped in this dilemma. Malik puts forth a valid point about Moreno-Ocampo grandstanding on the genocide charges. There are currently arrest warrants are in place for Bashir regarding accusations of war crimes and crimes against humanity. Why pursue the charge of genocide? There are two ways of looking at this. The Prosecutor is mandated to seek justice for the victims of crimes covered by the Statute, and has argued that this is a primary factor in pursuing the genocide charge. So how can we be critical of such a standard? Malik explains that, due to the “international indifference” regarding the existing arrest warrants for Bashir, the Prosecutor has “a desire to flex muscles in the knowledge that it is unlikely Bashir will ever be tried.” This is possibly an accurate assessment, but the pursuit of the genocide charge by the Prosecutor is also justified in law. The ICC Statute covers the crime of genocide and there is sufficient evidence for the Prosecutor to undertake an investigation. If the Prosecutor ignored this evidence and did not act within the requirements of the Statute, it is likely criticisms would be levelled at Moreno-Ocampo.

At the same time, the ICC has already taken a major step in obtaining arrest warrants for Bashir concerning allegations of crimes against humanity and war crimes. These are the first warrants granted for a sitting head of state, and the first to come through the Security Council’s role in the ICC structure. What else may be gained by pursuing a further warrant for genocide? I can understand the normative arguments, but can the expenditure or time and resources be justified? There are many substantive responses to this question, such as ensuring deterrence, upholding justice, and removing impunity, all of which are agreeable; but would it not be better to focus on the existing warrants and to make every effort to ensure they are acted upon?

This is where Malik has identified the real problem regarding Sudan—the inability of the international community to effectively support the ICC. Bashir is travelling freely, so clearly there is no political pressure being exerted by the Security Council requiring states to support the ICC’s efforts. The recent meetings in Qatar attended by Bashir appear to be heading towards the signing of a cease-fire agreement between Bashir’s government and the largest opposition group, which is to be welcomed. However, is this limited step toward peace worth undermining the pursuit of justice? The matter is further complicated by reports that representatives of the United States and the United Nations will be attending the signing of the peace agreement, a gesture that will clearly undermine the Security Council’s responsibility for upholding both peace and security. The United States cannot justify its presence by not being party to the Statute, as it is a member of the Security Council, i.e. the body that called for the Prosecutor to become involved in the first place. Equally, the United Nations cannot attempt to play multiple roles by justifying its presence as supporting both peace and justice.

This situation shows exactly what the ICC is about and what it is meant to do. It also shows the limits and realities we must face if the court is ever to be effective. But the issue is not with the Prosecutor; Moreno-Ocampo is doing the job he was given. If we think he is going too far, or does not have his priorities in line, that is our opinion. But would it not be equally critical if he did not do his job?

Dr. Richard Burchill is the Director of the McCoubrey Centre for International Law, School of Law, University of Hull. His research interests cover the promotion and protection of democracy in international law including human rights protection. He is the author of Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee, 2nd ed. (2009, with Alex Conte) and the editor of Democracy and International Law: Library of Essays in International Law (2006) and has published widely in international journals and edited collections.


Confronting the Politics and Law Behind Battles Over the ICC’s Bashir Indictment

by Anthony Chase, Occidental College

"Now is precisely the wrong time to become glib about the war crimes charges facing Bashir (…) Keeping that government and its crimes the target is essential to a political-legal strategy to contain the sort of violence Sudan has unleashed in the past, and threatens to unleash in the future. If efforts to create the ICC are to mean anything, now is its time to play that role."

Nesrine Malik points in the wrong direction in arguing that charges of genocide embarrass the ICC more than they do Omar al-Bashir. The embarrassment here should come from those, such as Malik, who snidely downplay the level of war crimes committed in Darfur, who discuss genocide as if it is a cultural rather than political matter (does Malik seriously think genocide ever has anything to do with a country’s cultural traditions, as she says in defending Sudan?), or who naively give credence to predictable political push-back from Sudan and its allies. The ICC faces serious legal and political obstacles, some of its own making. These obstacles, however, must be faced and overcome, not used as an excuse to cripple the ICC.

The political context that shields Omar al-Bashir from coming to trial and keeps Moreno Ocampo’s genocide charge from legal resolution is the crucial issue. A trial must take place during which the Prosecutor can press the validity of his charges and Bashir can defend himself from those charges. Until then, the hundreds of thousands killed in Darfur and the millions turned into refugees deserve better than Malik’s nonsensical claim that the Sudanese government lacks the wherewithal to be guilty of genocide, even as she allows that Sudan “could” possibly be guilty of “gratuitous” crimes against humanity—it is unclear what could possibly be gratuitous about war crimes. This ironic distance from the brutality of Sudan’s crimes in Darfur is of a piece with countries allied to Sudan that have used similarly pusillanimous language in shielding Bashir from international action.

Malik illogically pretends the distinguishing feature between genocide and mere “human rights abuse” is level of resources or organization, rather than the intent and actions of a government that has targeted entire populations in Darfur. Malik is not the only critic who has inferred that the issue here is if all actors have to be governmental for the government to be responsible. That is, however, a facile position. No violation of human rights or humanitarian law is dependent on governmental leaders doing every detail of planning or execution. Blackwater/Xe is in Iraq, for example, under the authority of the US government. There may be a level of separation between the United States and a private corporation, but the United States still holds ultimate responsibility if systemic rights violations take place. This is also the case with Sudan and the actions of government-armed and affiliated militias in Darfur. The legal test does not revolve around whether or not the Sudanese government directly committed each and every war crime, but rather if it knowingly facilitated these war crimes (and, potentially, genocide) for its own political purposes.

Moreno Ocampo has perhaps not been the ideal ICC Prosecutor. For example, his issuance of a public indictment against Bashir in 2008 rather than a sealed, secret indictment that had a better chance of being carried out may have been a blunder. And there is, indeed, legal contention over what precisely defines genocide and the precise time frame during whichgenocide took place in Darfur. Moreno Ocampo has won this particular legal battle in that respect, at least for this round. Nonetheless, this favorable ruling is part of an ongoing legal process. It could well be that, at the end of the day, “genocide” will be deemed an overreach and other specific charges under the rubric of war crimes will be deemed more legally appropriate. Time will tell on that front. That time will perhaps come more quickly, however, if commentators like Malik turn toward focusing political pressure on the states that protect Bashir from international justice. It is the lack of a trial that keeps these issues from being resolved; that trial, therefore, needs to be the focus of political attention.

Politics are not separate from law. Indeed, they are and must be intimately connected—law bereft of political support is dead letter law. The ICC as it has come into being is the result of a political and normative push that came from many parts of the world. The idea of a permanent international criminal tribunal has broad legitimacy, even if some powerful governments (such as the United States) continue to resist. The normative push that impelled the ICC into global politics should not be abandoned the first time a government under investigation (and its allies) pushes back politically. To do so would be to undermine the ICC during its crucial formative stage. It is predictable that the ICC will be challenged. If there is to be continued commitment to law’s role in containing political practices the world—via legal treaty, political pressure, and normative assumptions—has deemed illegitimate, such challenges must be resisted.

Close to three million Darfuris remain in displaced-persons camps. Even more dauntingly, there are fears that, even as the bloodiest of Darfur’s violence subsides, the Sudanese government is preparing to turn its ethnic cleansing machine once again on Sudan’s south. Now is precisely the wrong time to become glib about the war crimes charges facing Bashir. The ICC may not have pursued such charges efficiently, and some of these charges are indeed contentious, but the underlying war crimes are an embarrassment only to Sudan’s government and its enablers. Keeping that government and its crimes the target is essential to a political-legal strategy to contain the sort of violence Sudan has unleashed in the past, and threatens to unleash in the future. If efforts to create the ICC are to mean anything, now is its time to play that role.

Anthony Tirado Chase is Associate Professor of Diplomacy & World Affairs at Occidental College. Chase is currently completing Human Rights Debates in the Transnational Muslim World: Politics, Economics, and Society. Drawing on Professor Chase's training in international law, Islamic law, and international relations theory, this book explores when, how, and why the international human rights regime has mattered to some of the transnational Muslim world's most important debates - including those over free expression, economic development, and the treatment of sexual minorities. Other forthcoming works include "Mutual Renewal: On the Relationship of Human Rights to the Muslim World" and "On Justifications for Human Rights in Difficult Circumstances: Why 'Pushing the Envelope' is Essential to Human Rights Continued Global Resonance," each scheduled to be published as chapters in edited volumes. Previous works include
Human Rights in the Arab World: Independent Voices (University of Pennsylvania Press), a range of peer reviewed articles, and guest editorship of a Muslim World Journal of Human Rights special volume on The Transnational Muslim World, Human Rights, and the Rights of Women and Sexual Minorities.


Bashir and the ICC

by Kurt Mills, University of Glasgow

"Should the ICC Prosecutor take all of these things into account? What would happen if we expected domestic prosecutors to take political issues into account when they decided whether or not to charge somebody with a particular crime? No judicial mechanism is—or can be—perfect, but asking a prosecutor to take such considerations into account would immeasurably harm such processes, including those of the ICC."

Nesrine Malik argues that the International Criminal Court (ICC) made a mistake when it declared that it might charge Omar al Bashir with genocide, in addition to the existing charges of war crimes and crimes against humanity. She argues that the court’s ruling will contribute to Bashir's propaganda efforts and that the current charges have had no appreciable effect. Given the extreme duplicity of Bashir and the other crimes he has quite clearly committed, it is unclear how the genocide charge would make a big difference.

It is evident that Bashir and the Sudanese government have committed mass atrocities in Darfur. What we call these acts, in one sense, makes little difference. In 2005, there was a big debate over whether to call the situation genocide— – as the United States did—or to identify war crimes and crimes against humanity—as the United Nations did. This fraught debate allowed the international community to avoid taking action and missed the point. Whether we call it crimes against humanity or genocide, the fact is that the Sudanese government (as well as other actors) has been responsible for killing many people. Genocide is seen as the “gold standard” mass atrocity—the one that trumps all others. But the main differentiator is intent; whether the intent was to wipe out an entire population on ethnic grounds or to kill a lot of people in the pursuit of some other particular agenda makes little difference to the dead.

There is a reasonable debate on whether to call what has happened in Darfur genocide or not, but making such a determination is what legal processes are for. The court will ultimately decide—if given the opportunity—whether or not to convict Bashir of genocide or the “lesser” crimes against humanity. The ICC just said there may be a reasonable case for trying him. Adding this charge will not, in the end, probably change all that much. He can already claim persecution by the international community to the few who will still listen to him. And the problems in Southern Sudan go far beyond this particular debate. We have seen the negative consequences of the original arrest warrant when Bashir kicked out most of the foreign NGOs providing food and medical care—an action which might itself constitute a war crime and which, regardless, underlines his complete lack of consideration for human life.

Malik claims that Bashir “travels freely and enjoys the support of his Arab and African brethren.” Here she is at least partly wrong. She mentions that he was in Qatar, “making a mockery of the arrest warrant.” Qatar is not a member of the ICC and so would be under no obligation to arrest him. It is true that most Arab countries and many African countries would not arrest him, given that they are not parties to the Rome Statute, and many have been unhappy with the arrest warrants. Yet, it is a much more complex picture. Many leaders see Bashir as a burden and would probably prefer that he just leave power, but will not say so because of the possible precedents this might set for their own rule. The African Union has made statements calling for the UN Security Council to defer the arrest warrants because of the possible impact on the peace processes in Sudan, and have declared that African countries will not cooperate with the ICC. However, the latter flows as much from anger that the Security Council ignored the African Union’s (AU) request to defer the investigation, as well as Libyan President Muammar Qadaffi’s bullying of many African countries into supporting the AU statements. There is, in fact, a feeling within the African parties to the ICC that they should carry out their responsibilities, and some, such as Botswana and South Africa, have stated that they will cooperate with the ICC and arrest Bashir if he should come to their countries. He does not have nearly as many friends as Malik indicates, and has, in fact, been restricted in the countries to which he can travel. He has been invited to some countries for international meetings while being informed privately what would happen to him if he actually accepted the invitation and visited an ICC member state.

Bashir will try to make himself out as being persecuted by the international community. There are fewer and fewer leaders who will accept this, even if they do not say so publicly. The fact that he was willing to let people die when he kicked out the humanitarian organizations demonstrates his heinous nature, as will any attempts to use this most recent development to sidetrack the multiple peace processes going on in his country. Adding one more count to his arrest warrant will, in the end, make little difference, even if publicly some leaders decry it. The arrest warrant is situated in a much broader geopolitical debate about changing human rights norms and sovereignty, and the place of Africa and other developing regions in the emerging global order. Should the ICC Prosecutor take all of these things into account? What would happen if we expected domestic prosecutors to take political issues into account when they decided whether or not to charge somebody with a particular crime? No judicial mechanism is—or can be—perfect, but asking a prosecutor to take such considerations into account would immeasurably harm such processes, including those of the ICC.

Kurt Mills is a Senior Lecturer in International Human Rights at the University of Glasgow. He previously taught at The American University in Cairo, Mt. Holyoke College, James Madison University, and Gettysburg College, and served as the Assistant Director of the Five College Program in Peace and World Security Studies at Hampshire College. Publications include Human Rights in the Emerging Global Order: A New Sovereignty?, and numerous articles on human rights and humanitarian issues in, among other journals, Civil Wars, Global Governance, Global Responsibility to Protect, Global Society, Journal of Human Rights, International Politics, Netherlands Quarterly of Human Rights, and Peace Review. He is currently working on a book examining international responses to mass atrocities in Africa. He is the founder of the Human Rights Section of the International Studies Association, and founder and co-editor of the H-Human-Rights listserv. His web page is: http://web.mac.com/vicfalls/


Politics and the Law: Enforcing Judicial Integrity

by Anna Talbot, Amnesty International

“To import political considerations into the application of the law would undermine the very fabric of the Rule of Law. This legal principle, which forms the basis of modern law, requires laws to be applied to all equally. The head of state is as bound by the law as any other citizen, regardless of what stage of the electoral process he or she is in. The law must be, and must be seen to be, independent of power dynamics within a community."

The ruling by the International Criminal Court (ICC) in early February concerning the arrest warrant for Omar al-Bashir provoked controversy. The role of the Court has been called into question, with Nesrine Malik’s piece surmising that the ruling has shown that the Court is out of touch with political reality. She argues that the decision plays into the hands of authorities who are using it to their own political ends; that the charge of genocide is unjustified; and that the practicalities of enforcement undermine the Court.

This ruling, however, is merely a procedural one. It clarifies the standard of proof to be applied in deciding whether an arrest warrant can be issued against Bashir for genocide. It does not itself amend the arrest warrant, which remains the same as it has been since it was issued. In this sense, Malik’s comment misconstrues the ruling and its impact. Further, while there is no doubt that much about law in general is political, the integrity of the law requires that its enforcement must be independent of political considerations. Rather than demonstrating the flaws of the ICC, this judgment affirms that the Court is operating with integrity.

History of the Judgment

The Prosecutor, in his initial application to the ICC in 2008 for an arrest warrant for Bashir, listed counts of genocide alongside those of crimes against humanity and war crimes. In its decision, however, the Pre-Trial Chamber granted the warrant only on the basis of evidence of the latter two crimes. In relation to the counts of genocide, the Court found that the “existence of [the government of Sudan’s] genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution.” It considered that this meant that the standard of proof had not been met, with no warrant being issued on grounds of genocide.

The Prosecutor disagreed with this assessment, asking the Appeals Chamber to clarify the standard and to remit the matter to the Pre-Trial Chamber who should re-decide the matter on the basis of the newly clarified standard.

The Appeals Chamber agreed with the Prosecutor in finding that the standard applied by the Pre-Trial Chamber was too stringent. It found that the standard required by the Rome Statute to issue an arrest warrant (that there be “reasonable grounds to believe” that the accusation is true) should be the easiest standard to meet in the hierarchy of proofs required. As such, it decided that the Pre-Trial Chamber had erred in requiring that the existence of genocidal intent be the only reasonable conclusion available based on the evidence.

No decision was made by the Appeals Chamber as to whether that standard was met by the evidence before it in this case. In this sense, Malik misunderstands the ruling when she argues that the Court is giving Bashir and his regime more credit than is due. The ruling makes no reference to the conduct of the Bashir government. His regime is credited with nothing.

Law and Politics: Controversy Surrounding the ICC

Malik recognizes the controversy surrounding the International Criminal Court, particularly on the issuance of an arrest warrant against Bashir, a sitting head of state. The politics are complicated and emotive. It is probably true that there are those who see this ruling as demonstrating the irrelevance of a Court that is seeking to indict a man who may well win an upcoming election.

The law itself is, of course, inherently political. Legal analysis is also, and should be, aware of the political landscape in which laws operate. Where politics has no place, however, is in the enforcement of law. Malik argues that the timing of this judgment is unfortunate. With the first Sudanese Presidential and Parliamentary elections in twenty-four years due in April, authorities will construe this decision as seeking to disrupt a peaceful exchange of power. The Court, however, cannot defer to such political considerations in its own scheduling. It must make the decisions it is asked to make as quickly as possible, with reference to all available information, to minimize uncertainty. This is particularly so with controversial and high-profile cases such as that against Bashir. To do otherwise would be misguided, and would undermine the independence of this Court, which is at the heart of the international criminal law regime.

To import political considerations into the application of the law would undermine the very fabric of the Rule of Law. This legal principle, which forms the basis of modern law, requires laws to be applied to all equally. The head of state is as bound by the law as any other citizen, regardless of what stage of the electoral process he or she is in. The law must be, and must be seen to be, independent of power dynamics within a community. It is by maintaining independence that the law retains its strength.

Anna Talbot has worked in the legal department of Amnesty International since January 2008. Before that she graduated with honors in Law and History from the Australian National University and qualified as a barrister and solicitor of the Supreme Court of Victoria (Australia) in 2007. She has also completed the Advance Course on the International Protection of Human Rights through the Institute for Human Rights at Åbo Akademi University in 2009.