11 Mar 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?