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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."

 

Individual National Security Council Deputies Named in New Sudan Activist Ad Campaign

Mark Leon Goldberg January 19, 2010 - 9:28 am

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The Sudan Now! Coalition is back with yet another innovative ad campaign. You may recall that back in August the coalition of Sudan activist groups took out full page ads in Martha's Vinyard's two newspapers during the Obamas' summer vacation. Then, in November, they launched an ad campaign on Facebook targeting members of the "Executive Office of the President Staff" and the "Obama for America"  user groups. 

With a National Security Council "Deputies Meeting" on Sudan scheduled this week, the coalition is undertaking yet another targeted campaign. Tomorrow, the group (which includes The Enough Project, Genocide Intervention Network, Humanity United, iACT, Investors Against Genocide ) will take out ads in the Washington Post and Politico that cite individual cabinet deputies (<----) by name

Deputies are the number two officials behind the cabinet secretaries.  They meet regularly at the National Security Council to hash out the details of a policy so that by the time it gets kicked up to their bosses there is already broad concensus between the agencies.  In other words, it is at the deputies level where many of the most important policy decisions are made. Of course, outside D.C. wonk circles, these folks are not exactly household names and these kinds of meetings are rarely an occasion for fanfare.  I can't imagine, say, deputy Secretary of Defense Michele Flournoy or Deputy Secretary of State Jim Steinberg have ever found themselves in the public spotlight like this.  And this, of course, is the brilliance of the ad.  This seems to be to be a great way to get your message noticed by the small number of individuals who actually set policy.Here's the text of one of the ads. The Enough Project has more. 

Erica Barks-Ruggles, Tom Donilan, Jim Steinberg, Stuart Levy, Michele Flournoy, when the National Security Council Deputies Committee meet this week to review progress of the Obama Administration’s Sudan policy, you may hear that the war in Darfur is over, that new agreements with Khartoum are moving peace forward, and that upcoming national elections are reason enough for hope. But wishful thinking does not alter the reality on the ground.

The conflict in Darfur cannot be over while women in camps face an ongoing threat of rape. New agreements mean little if Sudan’s citizens are without basic freedoms and levels of violence are rising in the South. And there is no reason to put faith in an election that will likely be stolen from the people.A failure to secure peace in Sudan could lead to one the deadliest wars in African history. We urge you to act now in leading multilateral efforts aimed holding those who promote violence in Sudan accountable. We also urge you to immediately deploy full-time U.S. diplomatic teams to the region in order to accelerate peace efforts.

MILLIONS OF SUDANESE ARE YEARNING FOR PEACE.

HELP MAKE IT HAPPEN.

 

 

Susan Rice at the Holocaust Museum elaborates on U.S.-Sudan Policy

Mark Leon Goldberg December 11, 2009 - 11:02 am

Comment ( 9 )  

The United States Holocaust Memorial Museum hosted an event last night with Susan Rice, which was billed as a conversation about genocide prevention and timed to the one year anniversary of a high-level report on the topic.  The Q and A was not earth-shattering, but her fluid articulation of the challenges facing the United Nations and the United States in confronting genocide and mass atrocity did re-enforced every positive bias I have toward my UN Ambassador.  

I do think that those who follow the Darfur situation closely will be intrigued by the following exchange in which Michael Abramowitz, Rice's interlocutor for the evening and the the director of the museum's Committee on Conscience, presses Rice to elaborate on the set of incentives and pressures the Obama administration is willing to use to secure the Sudanese government's cooperation on Darfur and South Sudan.  You'll remember that last week, U.S. Sudan Envoy Scott Gration denied that such a list even existed.  Well, not only does Rice say that the list exists, but that the President himself has signed-off on benchmarks by which all parties to the conflict will be held. 

 

MICHAEL ABRAMOWITZ: Do you think there have been any consequences for the perpetrators in Darfur?
 

SUSAN RICE: Not enough. I mean, there’s an ICC arrest warrant for the president of Sudan, Bashir, whom we and others believe to have been complicit in crimes against humanity -- we say genocide -- and yet he continues to govern. He travels relatively freely. And the only indicted war criminal to submit to justice in the context of Darfur has been one of the rebel leaders, who voluntarily showed up in The Hague. So I think there’s no question that there has not been accountability for them.
Now, will there be consequences? The United States has imposed in the past sanctions on Sudan, not only for what has transpired in Darfur, for its support for terrorism, for its atrocities and human rights abuses in -- in the context, the longstanding context of the North-South conflict.
And the president’s new policy for Sudan highlights, first of all, the importance he attaches to effective action. It balances three very important and simultaneous priorities: one, ending mass atrocities, killings, violence, genocide in Darfur; two, effectively implementing the North-South peace agreement, the Comprehensive Peace Agreement, so that the final stage of a just and fair referendum can occur and the people of Southern Sudan can determine their own future; and preventing Sudan from again serving as a safe haven for international terrorists, like Al Qaida.
Those are three important core goals that are essential to our interests to regional peace and security. And we have clearly defined in each of those three areas specific benchmarks against which the behavior of the parties will be measured. We will review progress in achieving those benchmarks at a high level, interagency, on a quarterly basis. And we will assess, as the president set...

MICHAEL ABRAMOWITZ: So there are benchmarks in...

SUSAN RICE: Absolutely, very specific benchmarks.

MICHAEL ABRAMOWITZ: ... that have been agreed to by the senior officials in the government?

SUSAN RICE: By the highest officials, including the president of the United States, and by us at the principals level. And those benchmarks relate to very specific in each of those three areas. We have...

MICHAEL ABRAMOWITZ: Have you communicated those benchmarks to the Sudanese government?

SUSAN RICE: We have communicated our expectations to all the parties involved, including the government of Sudan. But if I might just continue for a second...

MICHAEL ABRAMOWITZ: Please. I’m sorry.

SUSAN RICE: ... then we have also, very specifically, outlined both the incentives we are prepared to deploy for positive behavior and positive progress, measurable, tangible, not rhetorical, but practical progress for steps along those benchmarks, as well as the pressures, sanctions, and punitive measures that we would be prepared to take for -- and this is important -- for the status quo persisting, because the status quo is inherently unacceptable, and/or for backsliding by the parties with respect to those benchmarks.
And we’ll have this quarterly review, and we will take decisions in light of the facts on the ground, as to how to proceed. And, in fact, if you look at the president’s speech in Oslo today, he -- he spoke about this, not only in the context that you highlighted, of human rights abuses or cases of Darfur, Burma, Zimbabwe, but he explained that this approach of engagement and pressure for which there’s no magic formula, no cookie-cutter model, is, in fact, the basis of our approach in many complex situations, from Iran to Zimbabwe or Burma.

 

A Bad Omen as Sudan Cracks Down on Opposition

Mark Leon Goldberg December 7, 2009 - 4:58 pm

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The Sudanese government has detained top politicians from the Sudan People's Liberation Movement, a group comprised of southern Sudanese ex-rebels who signed a 2005 peace accord with the central government.  Why is this significant? Well, according to the agreement Sudan is meant to have its first parliamentary and presidential elections in April.   In turn, these elections are a precursors to a 2011 referendum on Southern Sudanese independence.  If the Sudanese government effectively blocks the national elections, chances are that it will also block the 2011 referendum, precipitating a resumption of a decades-long civil war.   

Of course, activists have been warning for years that these elections were doomed.  E.g. John Prendergast:

It was fanciful of the United States and other donor nations to think that the ruling National Congress Party, or NCP, which has ruled Sudan with an iron fist and tolerated no peaceful dissent, would suddenly loosen its grip and allow peaceful elections and their necessary precursor: peaceful freedom of assembly.

And the always insighful Bec Hamilton notes:

We can expect to see more and more incidents like this in the coming weeks. In my view, the only real question is when (not if) the tipping point will occur and discrete incidents will overflow into sustained conflict.

Should (when) that point come, the 2005 Comprehensive Peace Agreement will look more like a brief pause in a 20 year civil than anything resembling a peace accord.  I just wonder (and worry) about how the 10,000 or so peacekeepers in Southern Sudan will respond?

 

UPDATE: Sean Brooks offers a run-down of disturbing recent developments in Sudan. 

 

Activist groups none-too-pleased with Darfur envoy Scott Gration

Mark Leon Goldberg December 4, 2009 - 1:01 pm

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After the Obama administration rolled out its much anticipated Sudan Policy Review in mid-October, activists praised the content of the review, but adopted a "wait-and-see" attitude as to whether or not the policy recommendations would be implemented.  Well, they've waited. And after yesterday's Congressional testimony from U.S. Sudan Envoy Gen. Scott Gration, they are not too happy with what they have seen.

John Norris at Enough says that Gration's testimony suggests that "the administration has not actually done credible planning on incentives, pressures or benchmarks at a time when Sudan seems to be lurching back toward a war."  Sam Bell of the Genocide Intervention Network says, “After hearings in the Senate and House of Representatives and the public release of an Administration policy, we still haven’t heard what specific benchmarks Special Envoy Gration is using to measure progress in Sudan." 

Both Norris and Bell are referring to somewhat shocking revelations yesterday that there apparently is no ready-set list of potential pressures or incentives to compel Sudan to become a more reliable partner for peace.   The thing is, when policy makers released the Sudan Policy Review, they made much about a so-called "classified annex" that contained, in the words of Secretary Clinton, "a menu of incentives and disincentives, political and economic, that we will be looking to, to either further progress or to create a clear message that the progress we expect is not occurring." 

Activists seized on this statement as evidence that the administration was prepared to adopt a harder-line against Sudan should that become neccesary.  Apparently, though, the classified annex does not actually exist.  From the Sudan Tribune

"There is no annex," Mr. Gration insisted when pressed by Rep. Smith, though he did assent to give a briefing. "I’m telling you that I’ve never seen one. The only thing I’ve seen is the classified working papers that are part of the NSC [National Security Council]."

For more evidence of policy incoherence, watch this painful exchange between Gration and Senator Sam Brownback. (h/t Enough)

 

U.S. Sudan policy review finally completed

Mark Leon Goldberg October 19, 2009 - 10:50 am

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At the State Department this morning, Hillary Clinton laid out the results of the Obama administration's long-awaited Sudan policy review. 

I'll have more on the content of the policy shortly. My initial reaction is that the thrust is quite good (i.e. greater support for the peacekeeping mission in Darfur and a concerted effort at implementation of the north-south peace accord). At the same time, I think we should probably reserve judgment on the effectiveness of this policy until we see some evidence that it is working. (You can read it for yourself here and Obama's statement here.) 

In the meantime, I would note that as important as the content of the review were the optics of the roll-out this morning.  Standing behind Clinton were Susan Rice and Sudan Special envoy Scott Gration. These two represent competing ends of the Sudan policy spectrum, with Gration favoring engagement and an incentives-based approach with the Sudanese government and Rice taking a more hard-line stand against the utility of working with Khartoum.  This morning, however, the two were standing side-by-side in a show of symbolic unity around the administration's new Sudan policy.  

Expect a few more posts on this today.  I am about to hop on a call to see how the activist community is responding.

 

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