The Irrelevant Application of the Citizens’ Organisations of the Sudan

by Kevin Jon Heller

In the comments to my post below on the BBC story, Mark C has kindly provided a link to the “formal request” allegedly submitted on behalf of “millions” of Sudanese who oppose arresting Bashir.  (The request also opposes arrest warrants for the rebel leaders, although perfunctorily — protecting Bashir is its primary objective.)  I hope to address the request’s numerous factual and legal inaccuracies in a later post.  For now, I simply want to note that the request’s insistence that arresting Bashir would damage the peace process in Sudan is legally irrelevant to the OTP’s request for an arrest warrant.  Article 58 of the Rome Statute makes very clear that the Pre-Trial Chamber cannot consider issues of peace vs. justice when it decides whether to issue a warrant: “the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that… (a) [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”  That’s it: if the reasonable grounds exist, the warrant must be issued.  End of story.

To be sure, the request half-heartedly criticizes OTP’s insistence that there are reasonable grounds to believe that Bashir is responsible for genocide.  That section of the request is at least relevant — but it is hardly convincing.  Instead of directly confronting OTP’s allegations in its application for the arrest warrant, it simply asserts, without argument, that scholars question whether genocide can be proved, that the OTP has relied on unreliable sources, and that different views of the situation in Darfur are possible.  Here are the relevant paragraphs, quoted in full:

39. It is as if [Moreno-Ocampo] wants to ‘dare’ the court to deny him a genocide or any charge. He has done this in the full knowledge that there are many highly respected academics knowledgeable of Darfur who say, as a minimum, that the genocide count is impossible to prove.

[snip]

43. Moreover, the actions of the ICC Prosecutor should be considered beside the reality that assertions in his (public redacted) application to the court for the issue of an arrest warrant against President Bashir have been highlighted as being inaccurate and false. There has, in particular, been widespread scepticism about charging genocide.  All of the above point to the need for heightened scrutiny of the Prosecutor’s applications, as already suggested, and the importance of taking into account the Applicant’s submissions.

44. The Prosecutor’s applications should be very carefully examined to see if he has, in the event relied on sources that are known to be unreliable and partisan. For example, were the Prosecutor to have relied on the expert views of Eric Reeves then the Pre-Trial Chamber would be urged to review materials which show this purported expert to be unreliable.

45. The actions of the ICC Prosecutor should also be set beside a body of material that shows reporting of the Darfur conflict to be controversial with many different perspectives recognised as being worthy of consideration.

Not much said needs to be said about these “arguments,” but it is worth noting that, even if paragraph 39 correctly summarizes the views of “many” experts (I don’t have access to the memo by Alex De Waal that it footnotes), the paragraph is still irrelevant to the arrest warrant issue: the OTP does not have to “prove” that Bashir is responsible for genocide in order to obtain an arrest warrant; again, it needs only to establish that there are “reasonable grounds to believe” that he did — a much lower standard of proof.  Perhaps the OTP will ultimately fail to convict Bashir.  So what?  That doesn’t mean it isn’t entitled to try.

The NGOs behind the formal request, of course, do not want the OTP to have that opportunity — which is what makes the following argument against the arrest warrant so (inadvertantly) amusing:

37.  Third, on the contrary, [Moreno-Ocampo] asserted as facts things that had been alleged in his applications but never tested before a court of law such as (passages highlighted in Annex 18): “Today massive crimes are being committed in Dafur”; “They are targeted by the very officials who are responsible for protecting them”; “the attacks against civilians in their homes, the massive campaign or rapes, the forced displacement of almost 3 million people, were not the product of self-defence militias or the result of ‘inter tribal fighting’. They were the actual goal of an operation planned and implemented by the Sudanese state apparatus, executed by the Army, the Air Force and Reservist forces integrating tribal militias called ‘janjaweed’”…

Get that?  The OTP should never get to test its allegations against Bashir in a court of law because… those allegations have never been tested in a court of law.  Does anything else really need to be said about the merits of the formal request?

http://opiniojuris.org/2009/01/17/the-irrelevant-application-of-the-citizens-organisations-of-the-sudan/

4 Responses

  1. Your analysis of the argument is unquestionably correct, as far as it goes.  But the fact that Bashir will not be arrested reinforces that international law is nothing more than realpolitik.  It purports to be more, but in the end will never be.

  2. Dreadnought, although the reality of international relations should of course be acknowledged, it doesn’t mean that international law is or should necessarily be realpolitik.  
    The existence of a norm, especially in Criminal Law, is a moral stand that has an existence irrespective of the reality of its application. With your logic, things would never change. Whatever the diplomats do, and however frustrating it may be, our humble duty as international lawyers is to make sure that the law is understood, in its possibilities (issuing an arrest warrant against a head of State for Genocide), but also its limits (in the current situation, the ICC cannot prosecute Israel, whichever way you look at the Statute (see previous posts)).
    The creation of a norm always stems from a political decision, whether in the international legal order, or a national law. Those whose sole criticism of international law is based on this are 1) reinventing the wheel, 2) contesting the legislative procedures of any legal system and 3) starting from the unsubstantiated assumption that “politics” are inherently bad, which is intellectually unsatisfying in light of centuries of political theory showing how politics in the noble sense is a essential part of the organisation of any social group.
    The key is that lawyers should make sure that the socio-political motivations that lead to the existence of a norm, not be reintroduced in its application.

  3. Bashir would be well advised not to travel abroad–at least, not to a State Party to the Rome Statute.

  4. Rather than going through a whole long thing, I’m going to just say: I’m currently taking Int’l Crim. Law in law school. The semester is young, yet. Perhaps all shall be clear in time, but for now, I feel the need to say something, hopefully to stimulate some kind of response. Not just to get a reaction, but because this has been bothering me, but in truth, I don’t (yet) have any well-thought-out arguments. I just don’t know, but it bothers me.

    Is there any firm agreement about how to understand international criminal law? Some of what I’ve been reading at the outset considers models alternative to an international criminal law regime (e.g., criminal prosecution in a State’s courts for lesser (or at least different) crimes than would be charged internationally (e.g., murder vs. genocide), truth commissions, conditional amnesty, etc.). That these questions were even raised gave me pause. It appears that even advocates for a more robust international criminal law regime have left open the question of such a regime’s viability. I’ve seen made on several occasions comments to the effect of: “Well, international criminal law is a new field; there has been a lot of (rapid) growth lately. We all know there are basic issues about the system to be resolved, and we’ll just have to see how it goes as we try to muddle through.” I suspect that I’m just not personally comfortable with how ambiguous that leaves the whole project of international criminal law. All of which is not to announce my future opposition or antagonism to it. Rather, the impression I’ve been left with is dissatisfying, if not disturbing, and I’m saying something because I’m wondering how other people deal with the uncertainties of this fledgling system.

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