The Sudan Believes Bashir Is in the Clear!

by Kevin Jon Heller

Hope springs eternal in the Sudan — at least on the part of the government.  Apparently, Khartoum has managed to convince itself that the Pre-Trial Chamber’s recent request for additional information concerning the charges against Bashir means that it intends to dismiss those charges:

The Sudanese government hailed a decision by the judges of the International Criminal Court (ICC) requesting more information on the prosecutor’s request for an arrest warrant against president Omer Hassan Al-Bashir.

This week the judges of the Pre-Trial Chamber I which has officially started deliberating on the case against Al-Bashir earlier this month said in court documents that there are aspects of the ICC prosecutor’s application which require “additional supporting materials”.

The judges attached a confidential annex to their request which contained items for which the prosecutor is required to furnish extra documentation.

In mid-July the ICC’s prosecutor Luis Moreno- Ocampo filed 10 charges: three counts of genocide, five of crimes against humanity and two of murder and accused Al-Bashir of masterminding a campaign to get rid of the African tribes in Darfur; Fur, Masalit and Zaghawa.

An unidentified Sudanese official speaking to the daily Al-Sharq Al-Awsat published in London said that judges’ request “proves that Ocampo’s evidence is weak and fabricated and that Al-Bashir is innocent”.

The head of the Sudanese lawyers syndicate Fathi Khalil also said that the judges found that the evidence is non-compelling to build a case.

Khalil said that the prosecutor exceeded his mandate by the UN Security Council (UNSC) which did not find genocide being committed in Darfur.

Sudanese newspapers described the judges’ decision as an indication that Al-Bashir will be able to escape an arrest warrant.

It’s difficult to know where to begin with such silliness.  Most obviously, we have no idea what kind of additional information the Pre-Trial Chamber wants, because the requests are confidential.  The judges may have concerns about all of the charges; they may have concerns about one of the charges (genocide, most likely); they may be convinced that the charges have merit but want to ensure that their decision will not be second guessed, at least legally; or they may need information completely unrelated to the charges themselves.  We simply don’t know — so to assume that Moreno-Ocampo’s case is in trouble makes little sense.

My guess is that the request falls somewhere between (2) and (3).  I think there is little doubt that the Pre-Trial Chamber will issue the arrest warrant, given that Article 58 of the Rome Statute provides that the Chamber “shall” issue the warrant if “[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”  We need to remember that Bashir has been accused of war crimes and crimes against humanity as well as genocide.  So even if the Pre-Trial Chamber rejects the genocide charges, that does not mean it will refuse to issue the arrest warrant — it will be required to issue the warrant as long as it concludes that there are reasonable grounds to believe that Bashir is guilty of at least one war crime or crime against humanity.  And does anyone other than Bashir and his cronies doubt that he committed those crimes?

For all practical purposes, then, Bashir’s best-case scenario is to end up facing arrest “only” on the war crimes and crimes against humanity charges.  And I’m willing to wager that the Pre-Trial Chamber issues the arrest warrant on the genocide charges, as well.  They may be difficult for Moreno-Ocampo to prove at trial, but I have seen nothing that indicates there aren’t at least “reasonable grounds to believe” that Bashir is responsible for genocide — a much lower standard than proof beyond a reasonable doubt.  On the contrary, the OTP’s summary of the case against Bashir is quite compelling — and I counted myself among those (few) who believed that the Darfur Commission correctly concluded in 2005 that the Sudanese government had not pursued a genocidal policy in Darfur.  Moreno-Ocampo’s additional investigation of the situation in Darfur seems to have solidified the case for genocide considerably.

We will know in a couple of months whether that additional investigation was enough.  Until then, the Sudanese government would be well-advised to avoid premature celebration.

http://opiniojuris.org/2008/10/19/sudan-believes-bashir-is-in-the-clear/

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