Good news today for any international criminal lawyer interested in the International Criminal Court’s role in bringing perpetrators of mass atrocities in Darfur to justice: Omar al-Bashir, the recently re-elected President of Sudan, has been indicted by the Pre-Trial Chamber I on charges of genocide (here is the document, in PDF).
The Pre-Trial Chamber had refused the first time to charge al-Bashir with the crime of genocide, charging him “only” with crimes against humanity and war crimes, on the ground that the evidence presented by the Prosecutor concerning the crime of genocide did not meet the “reasonable grounds” standard defined by article 58(1)(a) of the Rome Statute. The Chamber considered at the time that the Prosecutor had not sufficient evidence indicating that Omar al-Bashir had specific genocidal intent, a required element of the crime of genocide.
For those unfamiliar with the Rome Statute or genocide as a legal, not social, matter, a brief explanation is I believe necessary. The crime of genocide is a very specific and strictly defined notion. Considered by many to be – in the words of Professor William A. Schabas – the “Crime of Crimes,” it is defined by article 6 of the Rome Statute, which states:
“For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
The keyword here which I emphasized is “intent”, which is the subject of much discussion among academics and of much misunderstanding between legal scholars and others who adopt a larger, more “social” definition of genocide. As far as international criminal law is concerned, to be guilty of genocide, an individual must have the specific intent to destroy a national, ethnical, racial or religious group. Destruction of such groups without the specific intent to eradicate is not – legally speaking – considered genocide, but falls into the “crimes against humanity” or “war crimes” categories. The former category is known informally among international criminal lawyers as the “bucket crime,” as anything that falls short of genocide ends up being considered as a crime against humanity.
Perhaps another subject of clarification for some but that should appear as obvious to many: under the Rome Statute just like most democratic Western-style judiciary systems, a Prosecutor must convince a Judge that his evidence is solid enough to justify an arrest warrant. In the case of the ICC, the Chief Prosecutor must convince 3 Judges composing the Pre-Trial Chamber, who may or may not issue an arrest warrant as demanded by the Prosecutor. The Prosecutor may, however, appeal the Pre-Trial Chamber’s decision before the – you guessed it – Appeals Chamber (article 57 and article 82 of the Rome Statute).
To return to the ICC and al-Bashir, the first decision by the Pre-Trial Chamber was hotly contested by certain scholars, such as Opinio Juris’ Kevin Jon Heller, who considered that the court’s interpretation of article 58’s “reasonable grounds” requirement was far too strict. The Appeals Chamber later on also sided against the Pre-Trial Chamber’s position in a decision dated on 3 February 2010, lowering the standard of proof initially required.
This led to today’s decision by the Pre-Trial Chamber I to issue an arrest warrant against Sudanese Omar Al-Bashir, this time on the count of genocide.
Battle’s not over yet, in any case. A lot still needs to be achieved. Although Mr. al-Bashir’s traveling plans have been disturbed, he has still not been arrested, has been recently re-elected (which politically always complicates things), and some still see him as taking part in a peace plan, a sad repeat of the “Milosevic Strategy” adopted by the U.S. State Department in the 1990s which had produced mitigated results.
That being said, it is still good news.
PS: I’m looking forward to read Kevin Jon Heller’s perspectives on the latest decision over at Opinio Juris.
Finally, on the arrest warrant and the question of head of state immunity, see Dapo Akande’s post over at EJIL: Talk!