Prosecutor Luis Moreno Ocampo's July 2008 announcement seeking the arrest of Sudanese President Omar al Bashir for genocide, crimes against humanity and war crimes was a lightning rod for Court-bashing and panic-mongering. At the time, critics argued that Ocampo’s move would come at the expense of peace in Darfur, the charge of genocide was over-reaching, and that the Prosecutor was on an unchecked wild-goose chase. Monday’s decision by the International Criminal Court (ICC) to reinstate three counts of genocide on Bashir’s arrest warrant may begin to silence those critics.
When Ocampo initially publicly announced the genocide charge against Bashir in 2008, critics claimed he was over-reaching and had badly misjudged the situation. Among their concerns about how the arrest warrant would affect the prospects for peace, they argued that the situation in Darfur no longer resembled the dynamics evident between 2003 and 2005, when a scorched earth policy, intended to eradicate members of the Fur, Masalit and Zaghawa ethnic groups, resulted in some 113,000 excess deaths. [i] The linchpin of these arguments was that a post-2005 Darfur should not be described as experiencing genocide but was instead suffering from a messier complex emergency. But this was simply a red herring. Whether true or not, the fact that genocidal acts may have been commissioned by the head of state at any time between 2003 and 2008 - the dates covered by the indictment - justified Ocampo decision to present his case to the three judges of the Pre-Trial Chamber. And that is why last week’s decision, that it was reasonable to believe that Bashir committed genocide and to move forward with charges, was the right one for the Court to make.
Now the Prosecutor is free to present the mass of evidence he has gathered since 2003, which covers atrocities that Bashir is alleged to have committed when he was the commander of the Sudan's civil and military apparatus. Specifically, they point to his role in masterminding a genocidal plan to eradicate the Fur, Masalit and Zaghawa ethnic groups. Acting on the pretext of counterinsurgency, this policy caused hundreds of thousands of civilians to be uprooted from their homes, destroyed their means of survival, and condemned many of them to death in the desert or in the overcrowded camps. As if this wasn't enough, Bashir employed what Ocampo asserts was control of the state apparatus in order to subject the survivors living in displacement camps to rape, hunger and even more attacks - and therefore eventually bring about their physical destruction.
The Prosecutor’s initial decision to take this case forward was dogged by claims that it was badly timed. Sudan's UN ambassador charged that the ICC action would also have "disastrous consequences" for the peace process in Darfur. This could only be true if there was evidence of a effective and substantive peace process in the first place. In reality, however, the Darfur Peace Agreement languished and two alleged abusers are signatories-President Bashir's government and the rebel leader Minni Minawi, now a conspirator of Bashir, who has been accused of heinous crimes himself. Looking to the situation in the wake of last week’s ICC ruling, the Doha peace process is in tatters. Even senior UN officials will admit privately that it has failed, and only continues now to because it can’t be stopped.[ii] Ocampo's view of the timing of the arrest warrant in 2008, which applies just as much today, was that as any prosecutor, with such evidence in his hand, had a duty to act and did not have "the luxury to look away." Ocampo, who also believes that he has a duty to contribute to the prevention of international crimes, has pointed out that every day which Bashir remains free enables him to engage in the commission of additional hostilities and abuses.
Many have argued that by acting beyond his competences, the Prosecutor has made a misstep in alleging genocide against a sitting head of state. This is not the case. It’s easy to forget that prosecutor's authority to act was bestowed upon his office by the UN Security Council (Resolution 1593) to investigate past and present crimes in Darfur. The prosecutor's decision to target the top of the food chain with his indictment of Bashir was taken only after his first set of indictments focused on two "middle men": Ali Kushaby, a Janjawid colonel, who was accused of leading the attacks against four villages, but was subsequently released by Bashir’s regime for "lack of evidence," and Ahmad Harun, former Minister of the State for the Interior, later promoted to Minister of State for Humanitarian Affairs - a position meant to provide assistance to the Darfuri people - who was indicted for rape, torture and murder.
Finally, what is unique about Monday’s decision by the ICC is that it shows that this young Court is working. By adding the charge of genocide to the Bashir “indictment” on appeal, these judges were saying that, like all judicial bodies, they sometimes get it wrong; that their decision-making was not affected by the very public criticism of Ocampo’s earlier attempts to secure a genocide charge; and that the trial chamber ultimately valued over all other considerations the pursuit of justice for the victims of Darfur. It is also clear that despite fears to the contrary, Ocampo is not a renegade Prosecutor. A strong system of checks and balances exist in the Court’s system which was responsible first for striking the charge of genocide in 2008, and then on appeal reinstating it in 2010.What is as clear today, as it was when this issue first came before the ICC two years ago, is that holding Bashir accountable for his acts may be the only way to achieve real and substantive peace in Darfur.
[i] O. Degomme and D. Guha-Sapir, “Patterns of Mortality Rates in Darfur Conflict”, Lancet, vol. 135 (23 January 2010), p. 298. At http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(09)61967-X/abstract
[ii] J. Flint, “Going Nowhere in Doha”, Making Sense of Darfur, 15 June 2010, at http://blogs.ssrc.org/sudan/2010/06/15/going-nowhere-in-doha/