Darfur Roundtable at The New Republic

Darfur Roundtable at The New Republic

Speaking of what Obama should do about Darfur, The New Republic is currently hosting a fascinating roundtable discussion on precisely that question.  Contributors include Alex de Waal, Eric Reeves, my former professor Alan Wolfe, Elizabeth Rubin, and Andrew Natsios.

Not surprisingly, I agree with Eric Reeves, who both justifiably calls Darfur a genocide and defends the ICC arrest warrant.  Sadly, though, I have to correct him concerning the modes of liability underlying the war crimes and crimes against humanity charges.  Reeves writes:

It’s important to note as well that the ICC prosecutor, Luis Moreno Ocampo, made a serious strategic error in charging Bashir individually, rather than as part of a “Joint Criminal Enterprise” (a legal concept that emerged into international law during the Balkan conflicts and prosecutions).

As I have pointed out before, joint criminal enterprise doesn’t exist under the Rome Statute.  More importantly, although Reeves is correct that the Prosecutor did not charge Bashir with the Rome Statute’s closest equivalent to JCE, co-perpetration, instead relying solely on indirect perpetration (perpetration by means), the Pre-Trial Chamber approved the arrest warrant on both modes of liability.  Here are the relevant paragraphs:

214. The Majority finds that there are reasonable grounds to believe that soon after the April 2003 attack on the El Fasher airport, a common plan to carry out a counterinsurgency campaign against the SLM/A, the JEM and other armed groups opposing the GoS in Darfur, was agreed upon at the highest level of the GoS, by Omar Al Bashir and other high-ranking Sudanese political and military leaders…

221. The Chamber also finds that there are reasonable grounds to believe that Omar Al Bashir, as de jure and de facto President of the State of Sudan and Commander-in-Chief of the Sudanese Armed Forces at all times relevant to the Prosecution Application, played an essential role in coordinating the design and implementation of the common plan.

222. Furthermore, the Chamber finds that, in the alternative, there are reasonable grounds to believe that Omar Al Bashir (i) played a role that went beyond coordinating the implementation of the common plan; (ii) was in full control of all branches of the “apparatus” of the State of Sudan, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Forces, the NISS and the HAC, and (iii) used such control to secure the implementation of the common plan.

223. As a result, the Chamber finds that there are reasonable grounds to believe that Omar Al Bashir is criminally responsible under article 25(3)(a) of the Statute as an indirect perpetrator, or as an indirect co-perpetrator, for those war crimes and crimes against humanity for which the Chamber has already found in the present decision that there are reasonable grounds to believe that they were directly committed, as part of the GoS counter-insurgency campaign, by members of GoS forces, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Forces, the NISS and the HAC.

Interestingly, the majority never explains why it has the authority to consider a mode of liability not alleged by the Prosecution.  It simply implies (paras. 209-213) that because the Prosecution sought the arrest warrant on the basis of Article 25(3)(a), which includes indirect participation as well as co-perpetration, it has the right to issue the arrest warrant on both theories of liability. Judge Usacka did not challenge the majority’s belief, but she did dissent from its conclusion that there were reasonable grounds to believe that Bashir is guilty of war crimes and crimes against humanity as a co-perpetrator.  She would have issued the warrant solely on the basis of indirect participation.

I have no idea whether the PTC had the right to go beyond the Prosecution’s allegations.  Any ICC experts out there care to chime in?

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John C. Dehn


Not an expert but have read the ICC statute.  I think the majority must be relying on Art. 21, which allows it to apply law other than the statute.  It states that the Court “shall apply”, after the ICC Statute (Art. 21(1)(a)):

“(b)     In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict” (Art. 21(1)(b))

It seems pretty clear from Article 21 that the Court is not limited to the statute so long as:

The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.  (Art. 21(3))

All best.

Tamás Hoffmann
Tamás Hoffmann


In order to apply the JCE doctrine, the Court should prove that it is indeed part of customary law which could very easily prove to be a long shot.

As I have pointed out earlier, the Tadic Appeals Chamber invented this theory of liablity almost out of thin air and though it has been applied in a number of international jurisdictions, it is still extremely controversial.

Even though there are some alarming signs that the ICC judges are prone to blindly following ICTY precedents, without examining whether they actually reflect customary international law (I refer for instance to the Lubanga and Bemba Confirmation of Charges Decision, where the Chamber applied the ICTY test for internationalising internal conflicts, which I am convinced to be plain wrong), the ICC should follow its own path and only apply past jurisprudence if it is undeniably part of customary international law.

liberal interventionism
liberal interventionism

why is the situation in Darfur so eagerly considered one of genocide rather than civil war?

please read: http://www.lrb.co.uk/v29/n05/mamd01_.html

John C. Dehn

Tamas, A point well taken, though I had intended only to point out another source of law potentially available to the Court.  The Court should indeed be clear regarding the source of the law it applies.  The legality principle would also appear to require the clear (undeniable may be a bit strong) existence of the law.  If you object to JCE as a matter of CIL, which I would concede to be a valid concern, I wonder if you think JCE liability might also fit within Art. 21(1)(c): (c)     Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. I am not a comparative criminal law expert and therefore have no idea of the extent to which national legal systems recognize this theory of criminal culpability.  As a matter of U.S. law, it is recognized in various places.  U.S. military law, for example, recognizes the theory in the commentary to the statutory definition of a principal — though it is… Read more »