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

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/03/16/alex-de-waals-factually-challenged-attack-on-the-prosecutor/

3 Responses

  1. Um….I won’t debate the legal points with (I’ll leave that to you and Alex), but where exactly does his post become “savage” or “nasty?”  Perhaps the expected level of discourse among international lawyers is more subtle than I thought, but I see nothing savage or nasty in his post.  Borderline patronizing perhaps, but nothing more.

  2. No matter what one thinks of the Chief Prosecutor of the International Criminal Court — and I’ve certainly been critical of him — comparing his decision to appeal an adverse decision to a student complaining about failing a test is as nasty as it is patronizing.

    I’ve amended the final paragraph to eliminate the “savage” reference.  I was thinking about more than just this post when I wrote that.  Thanks for the comment.

  3. Dear Keven Heller,
    If you are following Alex De Waal’s pattern of argument on his persistence in maintaining that what is happening in Darfur does not amount into genocide, you will then notice the contradictions and inconsistencies in his argument. Since Prosecutor Ocampo filed for an application for arrest warrant against Omar al-Bashir, De Waal then persistently attacks Ocampo’s evidence as weak. He cites it as one of the reasons he opposes the arrest warrant against al-Bashir.
    However, in a recent rebuttal on De Waal’s no-genocide in Darfur argument, Eric Reeve pointed out that in August of 2004, De Waal argued that the counterinsurgency actions in Darfur “were the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit.” This revelation exposed the contradictions and inconsistencies in De Waal’s recent argument where he consistently maintains that the killing in Darfur does not amount into genocide. The fact is that De Waal has one time believed that there was sufficient evidence of genocide committed in Darfur.
    So, if you see De Waal trying to adjust the timeline on when genocide really occurred in Darfur to fit the period of 2003-2004, then you know what he is trying to do, cover up for his past arguments. Like many people, he believed that genocide is indeed committed in Darfur.
    One may wonder why then De Waal changed his position on this issue of genocide? Well, weeks prior to Ocampo’s filing the application for arrest warrant against al-Bashir, De Waal is reported to have been tipped off on Ocampo’s move. In his part, De Waal alerted al-Bashir. It was perhaps here that one can speculate two of these might have happened, which obliged De Waal to maintain the argument of no-genocide committed in Darfur:
    1)      Given his confidence, De Waal might have promised al-Bashir that he is going to fight off the indictment, using all of his expertise.
    2)      Bashir might have requested De Waal to do the fighting for him.
    The facts are: De Waal, like the people he criticizes, (Ocampo included), believed that genocide is committed in Darfur; the period covered in Ocampo’s application for genocide charges against al-Bashir started from 2003—the period De Waal believes of genocide; and the  judges majority ruling of a 2 to 1 shows that at least the case stands in court since one judge of the three ruled in favor of the case. This is certainly not fitting with De Waal’s argument that this case is, “so shoddy any reasonable judge would throw it out.” At least, a reasonable judge ruled in favor of the case, and a little convincing by the prosecutor, perhaps through appeal will tip the scale the other way.
    Steve Paterno

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.