Tag: bashir

ICC Victory over Immunity in Recent Clash with al-Bashir

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[Note:  This is a guest post by Andrew G. Reiter, Assistant Professor of Politics at Mount Holyoke College]

In 2009, the International Criminal Court issued an arrest warrant for Sudan’s Omar al-Bashir on charges of crimes against humanity and war crimes committed in Darfur and expanded those charges to include genocide in 2010.  Yet al-Bashir recently claimed immunity as a head of state and requested a visa from the United States to travel freely to New York to participate in the UN General Assembly and return safely to the comfort of his palace in Khartoum.  In a “Marbury v. Madison” moment for the ICC, the battle between immunity and the reach of international criminal law was in the hands of the US.  A strong position by the US that it could not guarantee al-Bashir would not be arrested forced him to cancel his trip; a move that significantly advances international justice and helps the ICC come of age. Continue reading

ICC Issues Arrest Warrant for Bashir, But Not For Genocide

When Foreign Policy’s Morning Brief hit my inbox today, the top story was the arrest warrant issued by the International Criminal Court for President Omar Bashir of the Sudan.

FP’s header gets the charges wrong, however – Bashir is charged with war crimes and crimes against humanity, but not with genocide. The distinction is legally and politically significant – crimes against humanity include a host of horrible acts, when widespread and/or carried out systematically against a civilian population.

Genocide, however, is a crime not against individual civilians but against certain groups and requires a finding that the perpetrator carried out a series of acts with the express intent to wipe out not particular people but the group itself. Note the exact language the prosecutor had to work with, borrowed from the 1948 Genocide Convention and spelled out in Article 6 of the Rome Statute:

“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.”

This is a tall order, not only because the definition of what exactly constitutes a “group” is often ambiguous, but because even if the above acts have occurred, and even if they can be linked to the political leadership, those leaders are seldom careless enough to leave paper trails demonstrating the acts were carried out with intent to destroy the group as such.

This explains why there have been only a handful of convictions for genocide in the history of international war crimes tribunals.

In political terms, this is likely to be an unpopular decision – the colloquial use of the term “genocide” as a referent to Darfur, by diplomats and activists, has overshadowed the legal meaning of the term for several years, and many people view crimes against humanity as a lesser charge (though in my mind, systematic rape and slaughter is plenty bad even when there’s no intent to wipe out a whole group). But in legal and institutional terms, the absence of genocide from the charges is a no-brainer: as a new institution, the ICC prosecutor has an interest in making a case he thinks he can win. Whether or not this is a good decision politically is about to be a huge subject of debate – see for example Kevin Jon Heller’s reactions – but let’s remember, the ICC is a legal, not a political institution. In theory.

UPDATE: Not long after I posted this (or perhaps even before I did), Foreign Policy had made a correction – the actual website now shows “crimes against humanity” as the charge.

(Soft) Power Politics

Lots went on in international criminal justice this past week.

A few thoughts about three big news stories and a smaller one are below the fold.

1) Omar Bashir was indicted by the International Criminal Court. I was less surprised by the fact that a sitting head of state might be charged than that the list of charges actually included genocide. Not because the facts on the ground don’t suggest they should, but because of the nature of the crime and the nature of the court.

a) Genocide is an “intent” crime – to convict you have to prove not just that atrocities occurred, but that they were carried out with the specific intent to destroy a national, ethnic, racial or religious group. Historically, it’s been much easier to convict people for war crimes and crimes against humanity than for genocide, because few nefarious leaders are careless enough to leave a paper trail. Bashir, for example, has been a master of plausible deniability.

b) As a new institution still struggling for credibility within international society, the ICC has an explicit policy of going after only the most clear-cut cases, cases that it is likely to win. (Unlike its “activist” predecessors, the ICTY and ICTR, whose judges often made history with their interpretations of international law.)

But, perhaps this is a move calculated to make sure that some of the charges can in the end be dismissed. I predict the genocide charges won’t stand, for the same reason that the UN couldn’t condone a finding of genocide in its 2005 report on Darfur; but that crimes against humanity will. Then, the court can give the impression that it is evenhanded and apolitical.

2) Radovan Karadzic, former President of the Bosnian Serb breakaway republic in the former Yugslavia, was captured. I had little but kudos to say about it last Tuesday, but have followed a rather disturbing trend since whereby commentators and journalists refer to Karadzic as a “war criminal.” (I’m guilty myself, having cited Robert Farley’s blog post entitled “Genocidal Maniac captured.“) But the whole notion of international criminal law as rule of law is that a man like Karadzic is only a war crimes suspect until he is tried and found guilty. (At present, therefore, we must keep in mind that he is only an alleged genocidal maniac.)

3) The trial of Salih Hamdan, bin Laden’s former driver, will go forward at Guantanamo Bay after Hamdan’s attorney exhausted efforts to have it dismissed. The trial has been touted in the press as the first “US war crimes trial” since Nuremberg, though it’s really nothing of the sort.

a) The defense will argue that Hamdan was at worst a low-ranking al-Qaeda employee; and that much of the evidence against him was either coerced or provided willingly to military investigators on the hunt for bin Laden: Hamdan was not told that he was incriminating himself when he cooperated with the government.

b) The USG will argue that a terrorist is a terrorist, sexual humiliation isn’t degrading so evidence gained this way is admissible, and Miranda rights don’t apply to non-US citizens anyway so Hamdan’s cooperation with the USG doesn’t erase his crimes.

Leaving aside the question of whether a civilian who drives a car for the “enemy” has committed a “war crime,” one wonders about the implications for HUMINT operations if the USG develops a reputation for taking this stand. Which defectors from al-Qaeda or any other entity will provide us with actionable intelligence if we thank them by putting them on trial? Here is a clear case where following international rules is also in our concrete interest, a point continually lost on the Bush Administration. Good coverage of the Hamdan case over at SCOTUSblog.

4) Finally, John McCain told Wolf Blitzer that he could imagine bin Laden being prosecuted in an international court. If he means the International Criminal Court, the attacks of 9/11 couldn’t be prosecuted there: only crimes committed by al-Qaeda after July 2002 would fall within the court’s mandate. But more interesting is what this statement tells us about the likelihood of the US joining the ICC after the next election. Kevin Jon Heller writes about this and Obama’s position on the ICC at Opinio Juris.

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