Indicting Al Bashir

As promised, the International Criminal Court (ICC) has issued an arrest warrant for President Omar Al Bashir of Sudan (right) for crimes committed in the Darfur region of Sudan (map of Sudan, left) in response to a July 14, 2008 request from the ICC Prosecutor. (Prior posts addressing the indictment are available here). According to Article 58, the Pre-Trial Chamber will only issue an arrest warrant where the Prosecutor establishes that:

There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.

In his application for a warrant, the Prosecutor must provide:

1. The name of the person and any other relevant identifying information;


2. A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed;


3. A concise statement of the facts which are alleged to constitute those crimes;


4. A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and


5. The reason why the Prosecutor believes that the arrest of the person is necessary.

Based on the Prosecutor's application, the Pre-Trial Chamber determined that there were reasonable grounds to believe that Al Bashir has committed war crimes (directing attacks against civilians and pillage) and crimes against humanity (murder, extermination, forcible transfer, and rape) in connection with the counter-insurgency campaign in Darfur. The theory of liability is one of co-perpetration pursuant to Article 25(3)(a):

Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.

The Court declined to approve genocide charges, on the ground that the Prosecutor had failed to provide sufficient evidence of the President's specific intent to destroy a protected group. This omission provoked a dissent from judge Anita Ušacka (right). This may not be the end of the genocide story; pursuant to Article 58(6) of the ICC Statute:

The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or
additional crimes.

That the Court planned to issue the indictment was "leaked" to the New York Times several weeks ago and then formally announced last week in order to give NGOs and others working on the ground in Sudan time to prepare for any fallout. And fallout there was. Adding further proof to the brutality of this regime, the Government of Sudan has demanded that aid groups, which feed and shelter millions of Sudanese citizens, leave.

My colleague Michael Kevane (left), a Sudan expert and Chair of Santa Clara's Department of Economics, and I published the following an op-ed in the San Francisco Chronicle welcoming the arrest:

President Omar al-Bashir of Sudan has finally earned his day of infamy: On March 4, he became the first sitting head of state to be indicted for war crimes and crimes against humanity by the fledgling International Criminal Court . He joins Slobodan Milosevic of Yugoslavia, Charles Taylor of Liberia, and Jean Kambanda of Rwanda as heads of state subject to international justice for their international crimes. The fact that al-Bashir - sitting at the apex of a corrupt and brutally repressive state - is being prosecuted internationally is more
important than the outcome of any particular charge in the indictment. While we believe his arrest will be easier than many think, the indictment alone represents a moral victory and an important milestone in the movement for international justice.

Notwithstanding that the United Nations Security Council orchestrated the referral of the crimes in Darfur to the ICC, diplomats are still scratching their heads over how al-Bashir can be arrested. The practicalities of his arrest will be aided by political factors that have been building against him: Al-Bashir will likely be handed over by members of his own regime. He commands no personal militia, unlike Ugandan Joseph Kony, who has evaded arrest by the ICC by hiding out in the dense tropical no-man's-land at the Congo-Uganda-Sudan border with his loyal private army.
Al-Bashir has become an extraordinary liability to the top powerbrokers of northern Sudan. Their oil revenue has been decimated by the collapse in oil prices. Their livestock and agriculture export fortunes are also collapsing as Middle Eastern demand for Sudanese exports dries up. Suddenly, reconciling with southern Sudan, the source of the oil revenue and a potential rival to the Muslim north, seems like a good strategy. Southern Vice President Salva Kiir will surely demand respect for international law as a precondition to continued North-South harmony. Al-Bashir's regime also remains under threat from rebel groups in Darfur, who have so far managed to resist Khartoum's counterinsurgency campaign.

These sources of instability are directly attributable to al-Bashir, and his inner circle will likely throw him to the ICC to enable them to remain in power. Indeed, there is every possibility that the same regime leaders who turn over al-Bashir will also give up his two fellow at-large indictees, Ahmed Haroun (who ironically serves as minister of state for humanitarian affairs) and Ali Kushayb (a janjaweed militia leader). In all likelihood, al-Bashir's co-defendants will turn against him as other subordinates have in past international prosecutions in exchange for some prosecutorial leniency.

The prosecutor has so far presented a very strong case against al-Bashir, and the indictment accordingly charges him with responsibility for a horrific array of crimes: murder, rape, attacking civilians, torture, and pillage. But even if ICC prosecutor Luis Moreno-Ocampo does not ultimately persuade the judges of al-Bashir's guilt on all counts in the indictment, he will have accomplished several important goals. A head of state who presided over war crimes and crimes against humanity will have been arrested and removed from power. The trial will create a set of evidentiary, legal and political precedents. After years of war and repression, Darfurian victims will finally have their day of justice.