Posts Tagged Genocide
Twitter will never cease to surprise me. How can 140-character messages be so thought-provoking and generate such pertinent and interesting debates? It’s a mystery, but it’s also a fact.
Today’s post relates to one of Daveed Gartenstein-Ross‘s tweets and the debate that followed. Here is the tweet:
Daveed was referring to Juan Cole’s story on the current violent attacks carried out against Christians in the Middle East, most notably in Iraq but also in Egypt. More specifically, Daveed was commenting Mr. Cole’s concluding paragraph:
The attacks on Christians in Iraq are serious, and hold the danger of ethnically cleansing that community. The threats against Copts, while they cannot be discounted, are less credible and may well backfire.
Juan Cole’s conclusion and Daveed’s reaction ask interesting questions for international criminal lawyers – does ethnic cleansing apply to religious group? And if it doesn’t, then does “religious” cleansing amount to genocide?
International lawyers who are familiar with the debates these notions generate within the international legal community will know what Juan Cole and Daveed Gartenstein-Ross have stepped in, namely how complex and endless these debates are, starting with the question of whether ethnic cleansing is not a form of genocide (recently shut down at least in part in the ICJ’s 2007 Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide – §190), and not to mention the general confusion between “social” and “legal” definitions of such crimes.
Without being so ambitious as to engage in these debates, I would like to clarify a certain number of these notions from a legal perspective.
I apologize for not having posted anything in what appears to be way too long, even though from my perspective it feels as if it was just yesterday. I have been busy here and there, with work, The Hague, and finishing my LLM dissertation. Now that most of that is behind me, I can get back to this blog, and boy, there’s been plenty to talk about these past few weeks: the UN Mapping Report regarding crimes committed in the Democratic Republic of the Congo in the 1990s, a delicate political situation in Sudan, and some worrisome news from the front lines of the global struggle against terrorism. And let’s not forget the Pope’s visit to the UK, and the temptation by a certain number of people to put him on trial for crimes against humanity.
I will write on some, if not all, of these issues in the following days (again, forgive me for my lateness in reacting to these events), but I want to start off with a post on a NGO project called Darfurian Voices that I came across a few weeks ago. Read the rest of this entry »
There’s been a media firestorm in response to Sudanese President Omar al-Bashir’s trip Friday to attend the promulgation of Kenya’s new constitution, despite the ICC warrant for his arrest (see Xavier’s post below). A quick response:
In a press release, Michelle Kagari, Amnesty International’s Africa Deputy Programme Director, said, “It is disturbing that the Kenyan government is celebrating a new constitution – the national centrepiece of the rule of law – while obstructing justice for victims of such serious human rights violations in a neighbouring country.” Apparently the whole ‘neighbor’ part is being used by the Kenyan government to defend al-Bashir’s attendance: Foreign Affairs Minister Moses Wetangula stated, “[al-Bashir] was here today because we invited all neighbors and he is a neighbor.” Well, thanks, Mr Wetangula, for that priceless bit of social precedent. Next time I have a barbecue, I’ll be sure to invite the serial killer down the block, even though I promised my friends that I wouldn’t associate with him.
I don’t know where Wetangula is finding these gems, but he keeps them coming: “[Bashir] is a state guest. You do not harm or embarrass your guest.” Yes, Mr Wetangula, it seems the only thing Kenya is embarrassing lately is itself. To be fair, there is some hope for the sanity of select Kenyan government officials. Deputy Defense Minister David Musila stated, “Kenya has brought shame to itself by allowing President Bashir to visit the country. If he is still in the country he should be arrested immediately and handed to the ICC.” Unfortunately, Kenya’s apparent war crimes poster boy is already safe and snug back in Khartoum.
My apologies for the tone of this post. If I sound bitter, that’s because I am.
But do follow me on twitter @cminall.
Cate and I have been monitoring this since the news that Sudanese President Omar Al-Bashir would be visiting Kenya today broke yesterday evening (Central European Time), and have been tweeting about it since (follow us @cminall and @xrauscher_, respectively), but I was holding out to see what was going to happen today, and notably what the Court’s reaction would be, before posting. Now that the day is coming to an end, and the Court has reacted, I have no more reasons to wait.
As you may or you may not yet know, Sudanese President Al-Bashir made a surprise visit to Kenya today as Kenya celebrated the signing into law of its new Constitution, and was able to enter and leave the country untouched. Omar Al-Bashir is indicted by the International Criminal Court for war crimes and crimes against humanity since March 2009, and for genocide – the crime of crimes – since last July.
By inviting him into the country and not arresting him, Kenya failed to meet its international obligations, and this on two different planes:
First of all, the situation in Sudan was referred to the International Criminal Court by the United Nations Security Council. In its Resolution 1593 referring the situation in Sudan to the ICC, the Security Council, at §2,
“recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;“
It could be very well interpreted that Kenya is in breach with its obligations as a UN member. However, some could argue that the use of the word “urge”, preceded with the “recognizing that States not party to the Rome Statute have no obligation…” (thank you John Bolton for that one), makes it non-binding. Read the rest of this entry »
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!