ICC Prosecutor charges the President of Sudan with genocide, crimes against humanity and war crimes in Darfur

On July 14, 2008, the Prosecutor of the International Criminal Court ("ICC", "Court") applied to Pre-Trial Chamber III of the Court for an arrest warrant against the President of Sudan, Omar Hassan Ahmad al-Bashir.[1] This is the first time that the Prosecutor filed charges against a sitting head of state. The Prosecutor charged Bashir with genocide, crimes against humanity and war crimes, claiming that Bashir was the "mastermind behind the alleged crimes" that were committed by forces over which he had "absolute control"[2] in the Darfur region of Sudan, in a conflict which has taken tens or hundreds of thousands of lives so far and displaced millions.[3] The Pre-Trial Chamber's decision on the Prosecutor's application is expected with the next several months.

This is the second case initiated by the Prosecutor in relation to his Darfur investigation. The Prosecutor had previously asked for and obtained arrest warrants against Ahmad Harun, a high-ranking official of the Sudanese government, and Ali Kushayb, the leader of the government-supported Janjaweed militia.[4]

Sudan is not a state party to the ICC, and accordingly has no treaty obligation to cooperate with the Court. The ICC has jurisdiction over the Darfur situation because the UN Security Council, acting under Chapter VII of the UN Charter and pursuant to Article 13(b) of the ICC Statute, referred the situation to the ICC Prosecutor by Resolution 1593 (2005).[5] The same resolution also obliged Sudan to cooperate fully with the ICC and provide it with any necessary assistance.

Issuance of Arrest Warrants

The Prosecutor's application for an arrest warrant is not a formal charging instrument or an indictment, but a measure to obtain the presence of an accused for trial. It is only after the arrest or voluntary surrender of an accused that the charges against him or her are confirmed by the Pre-Trial Chamber, in accordance with Article 61 of the Statute, and the trial is set to begin. Hence, the Prosecutor's theories of criminal responsibility of the accused, both as to the substantive crimes alleged and to modes of liability, are subject to change as the proceedings progress.

The Prosecutor is required to specify his charges upon applying for an arrest warrant, even though they are not determinative of the final charges brought against an accused. Under Article 58(1) of the Statute, to obtain an arrest warrant the Prosecutor must show, first, that "[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court" (emphasis added). This is a lower evidentiary requirement than the one for the confirmation of charges under 61(5) of the Statute, when the Prosecutor must "support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged" (emphasis added). Further, under Article 58(2) of the Statute the Prosecutor must demonstrate that the arrest sought is necessary (i) to ensure the person's appearance at trial; or (ii) to ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) to prevent the person from continuing with the commission of the crime charged or a related crime arising out of the same circumstances.

Bearing in mind the relatively low evidentiary threshold required for the issuance of arrest warrants, it is unlikely that the Pre-Trial Chamber will reject any of the Prosecutor's charges against Bashir at this point in time. It is also unlikely that the Chamber will declare the charges inadmissible pursuant to the complementarity principle enshrined in Article 17 of the Statute, since Sudan has clearly demonstrated unwillingness to investigate its high-ranking government officials for crimes in Darfur.

The Charges

The Prosecutor alleges that Bashir orchestrated a campaign of destruction and persecution against three distinct ethnic groups - the Fur, Masalit and Zaghawa - whom Bashir portrayed as "Africans", as opposed to "Arab" tribes supportive of the government, in order to suppress rebellion against his rule. According to the Prosecutor, that criminal campaign can be qualified as genocide.[6] The crime of genocide is defined in Article II of the 1948 Genocide Convention, which is reproduced in Article 6 of the ICC Statute:

[Genocide is] 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.

Genocide occurs when five different types of actus reus are committed. These also constitute elements of certain crimes against humanity and war crimes. Genocide is distinct from these crimes, however, because it requires not only that the acts be committed intentionally, but also with the specific intent to destroy, physically or biologically, the protected group as such, in whole or in part.[7] The specific intent requirement makes genocide a notoriously difficult crime to prove.

The Prosecutor charges Bashir with three distinct counts of genocide. First, the Prosecutor alleges that Bashir is guilty of genocide for killing members of the Fur, Masalit and Zaghawa ethnic groups. According to the Prosecutor, forces under Bashir's control did not confine themselves to attacking rebel armed groups, but they deliberately and systematically attacked the civilian population of the targeted ethnic groups. Moreover, they continued such attacks even against the overwhelming majority of the population of the targeted groups that was forcibly displaced into numerous refugee camps. This, according to the Prosecutor, demonstrates that the intent behind these attacks was the destruction of the targeted ethnic groups.[8]

Second, the Prosecutor charges Bashir with committing genocide by causing serious mental harm to the members of targeted groups, chiefly through a systematic campaign of rapes. According to the Prosecutor, thousands of women have been raped in Darfur by forces under Bashir's control, while a third of all rapes are rapes of children. Likewise, the Prosecutor alleges that massive forced displacement of the targeted groups was conducted in such a manner as to traumatize the victims and prevent the reconstitution of the groups. The cumulative effect of rapes and displacement causes serious mental or psychological harm to the members of the targeted groups.[9]

Third, the Prosecutor asserts that Bashir is responsible for genocide committed by deliberately inflicting on the targeted groups conditions of life calculated to bring about their physical destruction in whole or in part. Through displacement, usurpation of land, starvation, denial of medical assistance and obstruction of international relief efforts, the Prosecutor argues, Bashir intends to ensure the "slow death" of the targeted groups.[10]

The Prosecutor also charged Bashir with crimes against humanity, namely murder, rapes, forcible displacement and extermination, both against the members of the three specifically targeted ethnic groups, but also against the members of several smaller ethnic groups, for which the Prosecutor thought there to be insufficient evidence to sustain a charge of genocide. The Prosecutor likewise charged Bashir with the war crime of pillaging several towns and villages in Darfur.[11]

Since Bashir is not accused of committing the charged crimes directly, the Prosecutor has to offer a theory of Bashir's liability for the physical acts of others. In the case law of the ad hoc tribunals, the modes of liability most frequently used in that regard are joint criminal enterprise, or common purpose liability, as well as command and superior responsibility. The Application Summary does not state unambiguously on which theories of criminal liability the Prosecutor is relying, but states briefly that Bashir "committed crimes through members of the state apparatus, the army and the Militia/Janjaweed in accordance with Article 25(3)(a) of the Statute (indirect perpetration or perpetration by means)."[12] This is a novel form of criminal responsibility, which has to date not been used before international criminal tribunals.[13]

Whether a high ranking official who devised a broad criminal policy can be convicted as a perpetrator of all of the crimes committed by his subordinates, even if he had no knowledge of the circumstances of specific criminal acts, is unclear under the ICC Statute. Article 25(3)(a) of the Statute provides that persons shall be criminally responsible if they commit a crime within the jurisdiction of the Court, "whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible" (emphasis added). At least one Pre-Trial Chamber of the Court has held that such indirect participation in crimes can be read broadly.[14] But it will likely require several full trials and pronouncements by the Appeals Chamber to solidify the state of the law on modes of criminal liability before the ICC.

The Prosecutor could charge Bashir pursuant to several alternative, more established (if not themselves uncontroversial) theories of criminal responsibility. First, Bashir could be charged for ordering the commission of crimes by others, under Article 25(3)(b) of the Statute. Second, he could be charged on the basis of common purpose liability or joint criminal enterprise, under Article 25(3)(d) of the Statute. Third, he could be charged on the basis of superior responsibility, under Article 28 of the Statute.[15] Since Article 28 differentiates between civilian and military superiors, requiring a more stringent mens rea standard for the former than the latter,[16] it would be necessary to establish whether Bashir is a civilian or a military commander, as he is not only Sudan's president, but also a general and commander-in-chief of the Sudanese army.

The Genocide Charge

The decision to charge Bashir with genocide will be viewed as controversial, as genocide is the international crime most hard to prove because of its specific intent requirement -- especially where the proof required is one beyond a reasonable doubt. Further, the UN Commission of Inquiry on Darfur concluded in 2005 that there was insufficient evidence to qualify the grave crimes in Darfur as genocide.[17]

The Prosecutor does not seem to dispute the Commission's factual findings, but rather finds that the best evidence of Bashir's genocidal intent are the attacks against the civilian population of the targeted ethnic groups in refugee camps that happened after the Commission issued its report and which could have no other purpose but the destruction of the civilian population.[18] In the Prosecutor's view, the only reasonable inference from the evidence available is that Bashir intends to destroy substantial parts of the targeted ethnic groups as such.[19]

A further potential difficulty in proving genocide is that the targeted groups - the Fur, Masalit and Zaghawa - which speak the same language and are of the same religion as the alleged perpetrators, might not qualify as protected groups within the meaning of Article II of the Genocide Convention. This raises the issue whether the protected groups should be defined objectively or subjectively, i.e., on the basis of the group's self-perception and that of the perpetrators. Thus, in its report the Commission of Inquiry concluded that the targeted groups could not be qualified as distinct ethnic groups pursuant to an objective test, but could indeed be so qualified if a subjective test was used. [20]

The Prosecutor's characterization of the crimes in Darfur as genocide has several other consequences. First, under Article I of the Genocide Convention all states parties have on obligation to prevent genocide. As interpreted by the International Court of Justice in the Bosnian Genocide case,[21] the obligation to prevent genocide is not limited to the state's own territory.[22] The obligation is incumbent on all states, and it requires them to exercise due diligence and "employ all means reasonably available to them, so as to prevent genocide so far as possible."[23] A State's obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed."[24] At a minimum, the Prosecutor's charging Bashir with genocide puts all states on notice of a serious risk that genocide is being committed in Darfur. Moreover, Sudan acceded to the Genocide Convention on 13 October 2003, and made no reservation to the compromisory clause in Article IX of the Convention, which grants jurisdiction to the ICJ.[25] There is therefore no obstacle to a state, or a group of states, initiating proceedings against Sudan before the ICJ regarding Darfur.

Immunity

An additional question is whether Bashir could invoke personal immunity before the ICC as a sitting head of state. Article 27 of the ICC Statute expressly provides that immunities shall not be a bar to the Court exercising its jurisdiction. However, it could be argued that, since Sudan is not a party to the ICC Statute, it has not waived the immunity of its head of state by virtue of Article 27. Moreover, the fact that the ICC is an international court does not ipso facto mean that immunity cannot be invoked before it, as the ICC member states could not have transferred to an international organization the power to try persons whom for want of jurisdiction they could not try themselves, e.g., the head of state of a non-party.[26]

One potential response to the latter argument is that, even if immunity could be invoked before the ICC (Article 27 notwithstanding), it could be argued that when the UN Security Council used its Chapter VII powers to refer the Darfur situation to the ICC it implicitly waived Bashir's head of state immunity. The Council explicitly waived head of state immunity when it created the ad hoc UN tribunals for Rwanda and the former Yugoslavia.[27]

Peace versus Justice

The charges against Bashir also raise a quintessential political question: whether the prosecution of the Sudanese president will impede any progress towards peace in Darfur. Pursuant to Article 16 of the ICC Statute, the Security Council can defer a prosecution or an investigation for a renewable period of twelve months. Some Council members have already indicated that they would favor a deferral.[28] It seems unlikely, however, that absent new developments there will be sufficient consensus within the Council for a deferral of Bashir's prosecution. On the other hand, the success of the prosecution will also largely depend on the pressure that the Security Council brings to bear on Sudan, as well as on the strength of Bashir's hold on power within the country. The ball is now squarely in the Security Council's court.

About the Authors

Marko Milanovic, an ASIL member, is a PhD candidate in law at Gonville & Caius College, University of Cambridge and an Associate of the Belgrade Centre for Human Rights. E-mail: marko.milanovic@gmail.com. The author would like to thank Kevin Jon Heller for his comments on the draft of this Insight.

Footnotes