Alex de Waal’s Legally and Factually Challenged Attack on the Prosecutor

Alex de Waal criticizes Moreno-Ocampo”s decision to appeal the genocide issue today at his blog Making Sense of Darfur.  It’s a nasty and remarkably patronizing post.

It also exhibits not even a shred of understanding of the Rome Statute or the Prosecution Application.

Here is what de Waal writes:

I was surprised to learn that the Prosecutor of the ICC is seeking leave to appeal against the Pre-Trial Chamber’s decision to not to charge President Omar al Bashir with genocide. The Prosecutor’s complaint seems to resemble that of a student who has been given a fail grade, arguing that the examination board should have set the mark needed for a pass at 25% and not 50%. Much better for the Prosecutor to rest content that he managed to get an arrest warrant and quietly forget about his ‘ongoing genocide’ claims.

The judges of the Pre-Trial Chamber wrote in Paragraph 111 of their Decision:

[T]he Prosecution acknowledges that (i) it does not have any direct evidence in relation to Omar Al Bashir’s alleged responsibility for the crime of genocide, and that therefore (ii) its allegations concerning genocide are solely based on certain inferences that, according from the Prosecution, can be drawn from the facts of the case.

They went on to show that genocidal intent was not the only reasonable inference from the evidence presented, contrary to the Prosecutor’s claims. This was surely the correct decision. The evidence presented in the application is thin and the logic is replete with errors. If new evidence comes to light then the judges may revise the charges (as they have done, for example, with the Bemba case). That is of course standard.

Someone does indeed deserve a failing grade — but it’s not Moreno-Ocampo.  De Waal is correct about one thing: the Prosecutor is arguing that the Pre-Trial Chamber “set the mark needed for a pass” too high — requiring the equivalent of proof beyond a reasonable doubt instead of, as required by Article 58, simply “reasonable grounds.”

And guess what?  Moreno-Ocampo is absolutely right. I explained why in a previous post — and Judge Usacka explained why even more persuasively in her dissent.  Other scholars agree, including some, like Marko Milanovic, who are skeptical that Moreno-Ocampo can prevail on the genocide charges at trial.  Indeed, I have yet to encounter anyone who believes that the majority applied the correct standard.

The better analogy, then, would be to a student who received a 51% mark on a pass/fail test that required 50% to pass and was told — wrongly — that a passing grade actually required a mark of 95%.  Something tells me that most students, perhaps even de Waal himself, would complain in that situation.

That error, however, pales in comparison to de Waal’s second one. He writes:

Anyone who has seen at first hand a war, famine or genocide has little difficulty mistaking these things, and what we have in Darfur today is a low-intensity conflict.

My view is that if we treat what has been happening in Darfur over the last four years as ‘ongoing genocide,’ then genocide will become no more than a subcategory of war crimes, and just about every counterinsurgency or ethnic conflict in Africa and beyond will count as genocide.

Stronger arguments in support of a genocide charge could certainly have been made, based on the period of intense hostilities in 2003 and 2004. John Hagan and Winona Rymond-Richmond for example make a superior case in their book, Darfur and the Crime of Genocide. The Prosecutor chose not to base his case on that period and on similar arguments and we should not be surprised that the judges rejected his case, by a majority of two-to-one.

Has de Waal even bothered to read the Prosecution Application?  Or the Pre-Trial Chamber’s decision?  Here are some snippets of the application, beginning with the third paragraph:

3. The case proposed in this Application is the second case in the Situation and covers crimes committed in Darfur from March 2003 to the date of filing.

9. … The crimes covered in the Application are not the collateral damages of a military campaign. Since 2003 AL BASHIR’s forces specifically and purposefullytargeted civilians, in particular a substantial part of the target groups, who were not participants to any conflict.

12. In March 2003, after both negotiations and military action failed to end the rebellion in Darfur, AL BASHIR decided to destroy in part the Fur, Masalit and Zaghawa groups, on account of their ethnicity.

14.The attacks against villages have followed a common pattern for a period of more than five years from March 2003 up to the time of filing this Application.

16. … Thousands of women and girls belonging to the target groups were raped in all three States of Darfur by AL BASHIR’s forces since 2003.

37. Charges of crimes against humanity are also required to represent the full extent of criminal activity in Darfur since 2003. These charges reflect the acts of murder, rape, forcible displacement and extermination committed against members of the target groups and other, smaller ethnic groups, such as the Tunjur, Erenga, Birgid, Misseriya Jebel, Meidob, Dajo and Birgo.

53. Statements by AL BASHIR and his subordinates, as well as by the direct perpetrators he used to implement the Darfur plan, provide further evidence of AL BASHIR’s intent to destroy, in part, the target groups. In March 2003 AL BASHIR directed the Armed Forces to quell the rebellion in two weeks and not to bring back any prisoners or wounded; he declared at different times that he “didn’t want any villages or prisoners, only scorched earth”, publicly gave orders to the military, police and intelligence to eliminate the opposition and leave no survivors10, and told the Sudanese public that he had given the Armed Forces a carte blanche (in Arabic “atlakto yad al-jaysh”) in Darfur not to take “asra” (war prisoners) or inflict injuries.

And lest anyone think Moreno-Ocampo somehow hastily re-wrote the application and then backdated it, here is the PTC’s summary of its allegations:

38. The Chamber also notes that the Prosecution Application refers to conduct, including unlawful attacks against civilians, murder, extermination, rape, torture, forcible transfer and pillage, alleged to have taken place from March 2003 to the time of the filing of the Prosecution Application on 14 July 2008, in areas and villages of the Darfur region.

39. In relation to the jurisdiction ratione materiae, the Chamber observes that, according to the Prosecution, the said conducts give rise to genocide, crimes against humanity and war crimes insofar as they:

i. took place in the context of an armed conflict not of international character on the territory of the Darfur region, which had already started in March 2003 and continued through July 2008;

ii. were part of a widespread or systematic attack directed against the civilian Fur, Masalit and Zaghawa population of Darfur, which started after a speech allegedly given by Omar AI Bashir in El Fächer (Northern Darfur) in March 2003, and continued through July 2008; and

iii. were not only intended to destroy a substantial part of the Fur, Masalit and Zaghawa groups as such, but could by themselves effect such destruction or were at least part of a manifest pattern of similar conduct against the targeted groups.

So, de Waal admits that the “intense hostilities in 2003 and 2004” would have been the basis for “stronger arguments in support of a genocide charge.”  And lo and behold — the genocide charges are, in fact, based on those hostilities.  Am I missing something?

This is incredibly disappointing.  As I have said time and again, reasonable people can disagree over whether the OPT can prove the genocide charges at trial.  Before someone mocks Moreno-Ocampo, though, the least they could do is take the time to understand the Rome Statute and read the Prosecution Application.

Sadly, Alex de Waal has apparently done neither.