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ICC Rules on Genocide Charge of Sudanese President Omar al-Bashir

Mark Leon Goldberg February 3, 2010 - 9:45 am

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The appellate Chamber of the International Criminal Court just handed down a decision on whether or not Sudan's president Omar al Bashir can be tried for genocide.

Some background.  When the ICC prosecutor unveiled his functional equivalent of an indictment against Bashir in early 2009 he accused the Sudanese president of the crime of genocide.  However, when a panel of ICC judges known as the Pre-Trial Chamber actually issued the arrest warrant for Bashir, they did not include genocide among the charges (only war crimes and crimes against humanity).  The prosecutor appealed this decision, and moments ago an Appellate Chamber ruled that the Pre-Trial Chamber must revisit their decision to keep genocide off the arrest warrant. 

The Appeals Chamber did not decide one way or the other on the question of whether or not Bashir committed genocide. Rather, it objected based on procedural grounds to the decision to keep genocide off the arrest warrent.  From the ICC:

The Appeals Chamber explained that it was not concerned with the question of whether Mr Omar Al Bashir is, or is not, responsible for the crime of genocide. Rather, the Appeals Chamber addressed a question of procedural law, namely whether the Pre-Trial Chamber applied the correct standard of proof when disposing of the Prosecutor’s application for an arrest warrant.

In its 4 March, 2009, decision, Pre-Trial Chamber I rejected the Prosecutor’s application in respect of genocide stating that it would issue an arrest warrant for genocide only if the only reasonable conclusion to be drawn from the Prosecutor’s evidence, based on “proof by inference”, was that there were reasonable grounds to believe in the existence of genocidal intent. The Appeals Chamber found that demanding that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. The Appeals Chamber found this standard of proof to be too demanding at the arrest warrant stage, which is governed by article 58 of the Rome Statute. This amounted to an error of law.Check

Check out Kevin Jon Heller for a discussion of the legal merits of the decision. But from a political standpoint, it seems to me that we are seeing the International Criminal Court come to its own. Remember, the court is very young.  The jurisprudence under which it operates is relatively new.  Today's ruling shows that the court is capable of policing itself and that the institution's internal checks and balances are strong.  It also shows that the prosecutor is not "unaccountable" as some of the court's detractors would have you believe. 

Today's ruling should serve as a reminder to the United States that it has nothing to fear from joining this experiment in international justice.  As it happens, ICC prosecutor Luis Moreno Ocampo can tell American officials that in person. He is in  Washington, D.C. for the next couple of days.  

UPDATE: Don Kraus of Citizens for Global Solutions: “Today’s ruling by the International Criminal Court (ICC) judges demonstrates the wheels of international justice at work. We are now one step closer to holding accused war criminal Omar Al-Bashir in front of the world’s premier court for trying perpetrators of mass atrocities. Adding a charge of genocide to Al-Bashir’s arrest warrant, would be a first for the ICC and for a sitting head of state. This charge would add to the equally grave charges Al-Bashir faces of Crimes against Humanity and War Crime, including murder, extermination and rape."

 

ICC warrant working?

John Boonstra July 17, 2009 - 9:56 am

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Sudanese President Bashir, who'd previously shown few qualms in provocatively traipsing across Africa after his indictment by the ICC, visiting allies that he knew were non-signatories to the Court, has recently backed off a planned trip to neighboring Uganda.  Why?  Well, Kampala hasn't exactly been clear on the matter, but it seems that even the faintest threat of being arrested (Uganda has ratified the ICC's Rome Statute) was enough to dissuade Bashir from the chance of looking foolish -- and of ending up in the dock in The Hague.

This isn't surefire proof that the ICC warrant is "working," of course.  Bashir remains pretty safely ensconced in power -- at least as long as he remains in Sudan.  But this is exactly the point of the of the warrant, to constrain Bashir in his movement.  Whether it will actually result in his eventual arrest -- or, even better, a viable peace settlement in the country -- is far from clear, but if Uganda is willing to arrest send mixed signals about arresting Bashir, well, then that's a step at least.

 

UN Plaza: "The Reckoning"

Mark Leon Goldberg July 13, 2009 - 8:57 am

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In this edition of UN Plaza, I interview the film maker Paco de Onis, who's new documnetary about the International Criminal Court will debut nationally in the United States on PBS this week.  Check your local listings.  It's a great film. 

 

ICC in Kenya?

John Boonstra July 9, 2009 - 11:10 am

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Former S-G Kofi Annan, who mediated the post-election crisis in Kenya in early 2008, has passed on a secret envelope to Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court. Inside this envelope are names of those responsible for the shocking violence that swept across Kenya, with frightening ethnic undertones, after the contentious election.

Moreno-Ocampo, of course, is no stranger to such lists of names. In the case of Sudan, he went to the very top of the list. Top Kenyan officials are likely not included in this envelope, but Reuters reports that the names of two ministers "probably" are included (which seems just about inevitable, given that Kenya's Cabinet has something around four or five dozen members).

Will the ICC open up investigations in Kenya? Well, that depends. For one, the ICC only has jurisdiction over those most horrific of crimes: war crimes, crimes against humanity, and genocide. But if some instigators of the violence in Kenya did in fact pursue a strategy targeting particular ethnic groups, the ICC's mandate may indeed apply.

Second, the ICC will only be able to operate in Kenya if the Kenyan justice system falls short of trying these alleged crimes. And this seems to be the primary purpose of the handover of the envelope -- spurring Kenyan authorities to create an adequate tribunal system. While I admire Moreno-Ocampo's tenacity in this regard, I don't think his critics will be greatly comforted by the bravado of this statement:

The ICC's Moreno-Ocampo told Reuters this week it may take Kenya about a year to establish a tribunal if it agrees to do so in principle. "If Kenya cannot do it, I will do it. There will be no impunity," he said.

 

Listen to ICC radio in (the) C.A.R.

John Boonstra July 6, 2009 - 10:28 am

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One of the controversies the ICC has had to deal with is the notion that it is "biased" against Africa. Even though most of the ICC's work to date has been in African countries, this is a pretty hollow charge; the reason that the ICC is operating in three of these four states is because they asked it to do so.

Much of the resistance to the ICC in Africa, particularly since the indictment of Sudanese President Bashir, has come from other heads of state. Hence the AU resolution last week rebuking the court, which was concluded in a closed-door session and evidently did not garner the support of all participants.

Discomfort with the ICC among Africans on a populist level, though, does undeniably exist, even if much of it seems based on misinformation (often peddled by state governments). To counter these negative impressions, the ICC is taking to the airwaves.

The International Criminal Court (ICC) today launches a series of radio programmes in the Central African Republic (CAR) as part of an outreach campaign aimed at informing the country’s population about the court’s mandate and activities.

The 13-episode series, which will be broadcast in the Sango language, is called “Understanding the International Criminal Court” and uses a question-and-answer format. At least 14 separate radio stations are expected to air the programmes.

Crank that dial.

(image from flickr user fatcontroller under a Creative Commons license)

 

The long arc of international justice...

Mark Leon Goldberg June 30, 2009 - 11:45 am

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...bends toward ratification of the Rome Statute of the International Criminal Court. Yesterday, Chile became the 109th member of the ICC and the last South American state to ratify the treaty.  Bienvenidos! 

 

Sort of like Marbury V. Madison for the international law set

Mark Leon Goldberg June 2, 2009 - 11:30 am

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Contrary to popular perception, the International Criminal Court does not have universal jurisdiction over war crimes.  Rather, it operates under a unique legal principal called "complementarity" which stipulates that the ICC will only investigate crimes if national courts are unable or unwilling to do so.  The idea is to preference trials at the local level, and in so doing make the ICC only a "court of last resort."

The principal of complementarity had been generally untested since the court's founding in 2002.  That is, until yesterday--when defendant Germain Katanga, a Congolese war lord, filed a motion to challenge the ICC's jurisdiction in his trial for crimes against humanity. 

Katanga's counsel argues that complementarity was too narrowly applied and that the ICC should have left his case to Congolese authorities. Actually, it's slightly more complicated than that.  Bec Hamilton, who has been twittering from the proceedings, explains in plain English.

In essence it comes down to a fight over the meaning of the word "case." In this morning's hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word "case" that Pre-Trial Chamber I established several years ago in Lubanga - Namely that a case involves the same person and same conduct: ". . . for a case arising from an investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the court." (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.

By contrast, the Defense has argued in its submissions that this interpretation of the word "case" is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.

In short, the guiding jurisdictional principal of the ICC is being tested.  How the judges rule on this motion will have a profound impact on the whole edifice of international criminal justice and international humanitarian law. For all you international legal eagles this is certainly something to keep an eye on.

 

Taylor trial update

Matthew Cordell May 4, 2009 - 12:59 pm

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Former Liberian President Charles Taylor's defense lawyers had requested that the Special Court for Sierra Leone drop war crimes' charges. And, today the Court responded, "uh...no": 

"The prosecution has produced evidence capable of supporting a conviction of the accused ... based on his participation in a joint criminal enterprise," judge Richard Lussick said.

Taylor, if you'll recall, is charged with 11 counts of "murder, rape, conscripting child soldiers and sexual slavery" during the Second Liberian Civil War in which more than 250,000 people were killed.

 

Ask the Prosecutor

John Boonstra March 30, 2009 - 10:37 am

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Bec Hamilton features an opportunity for readers to ask Luis Moreno Ocampo a question in her upcoming interview with the ICC Chief Prosecutor. Wonder what it was like to indict the first sitting president with an ICC warrant? Just ask.

 

Congress Reverses Bush-era Policy on the International Criminal Court

Mark Leon Goldberg March 12, 2009 - 5:31 pm

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Don Kraus of Citizens for Global Solutions brings to my attention news that the so-called "Nethercutt Amendment" was excluded from the recently passed Omnibus appropriations bill.

What is the Nethercutt Amendment and why should we care?

In 2004 George Nethercutt (left), a Republican member of congress from Washington State, inserted a provision into the State Department/Foreign Operations appropriations bill stating that countries that cooperate with the International Criminal Court but do not sign so-called bi-lateral immunity agreements with the United States would not be eligible for U.S. foreign assistance funds. So, for example, if an ICC member like Peru declined to enter into one of these bi-lateral immunity agreements with the United States, then Peru would lose money earmarked for, say, efforts to reduce coca production and fight drug trafficking.

A number of America's allies declined to enter into these side agreements because they believed their obligations to the ICC prevented them from doing so. They were punished accordingly. Meanwhile, the administration, too, had chose between its opposition to the court and other -- arguably more important -- diplomatic and foreign policy priorities.

I wrote about the Nethercutt Amendment a full five years ago in the American Prospect. I argued then that this was pretty dumb public policy. And now, via Don, I'm glad to report that it has ended. From Don Kraus:

Thanks in large part to the work of House Foreign Operations and State Sub-committee chair Nita Lowey (D-NY) and her staff, the language has been removed from appropriations bill. Although her counterpart in the Senate, Patrick Leahy (D-VT) has successfully kept this language off of the Senate bill for many years, House Republican opposition ensured it remained in the final bill that went to President Bush. With the removal of the Nethercutt language, the [bi-lateral immunity campaign] is now officially over.

Amen!

 

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