The ICC’s Weakening Case of Genocide Against Sudan

by Julian Ku

The ICC’s case in support of the genocide charge is taking a beating, as this Washington Post article details.  The problem might be Moreno-Ocampo’s erratic leadership, or it could be the ICC as a whole has too many brilliant ambitious lawyers with not nearly enough to do.  So they are quietly undermining Moreno-Ocampo by resigning or by writing articles critical of him.  In any event, it is hard to imagine the amount of damage that the ICC will sustain if it eventually has to withdraw the genocide charges against Sudan. But it could happen.  And then what?

3 Responses

  1. I think you’re boxing together several different players within the ICC’s Darfur situation when you say: “damage that the ICC has to sustain if it eventually has to withdraw the genocide charges against Sudan.”
    Correct me if I’m wrong here, but I believe that, at the moment, there is no genocide charge in place against Al-Bashir (I take it you mean him when you say ‘Sudan’?), let alone, one that can be withdrawn.
    Back in March, PTC I issued an arrest warrant for Al-Bashir for crimes against humanity and war crimes, explicitly denying the Proscutor’s claim of Bashir’s genocidal policies. It is on the basis of this exact rejection of genocide charges that the Prosecutor is requesting leave to appeal, which has been granted only a few days ago. To answer the question whether the Chamber agrees with the critical views and dubiety of Ocampo’s claims you point out in the Article, we’ll just have to wait around for the decision.
    Outside of that I’m not sure what the practical possibilities even are for an official withdrawal of a charge, if it has been established by the PTC. Can such a decision even be overruled? In either case, a bit of bad-mouthing from the likes of Gaddafi and indictee Al-Bashir, is not going to be legitimate grounds for an overhaul of a Chamber judgment.

  2. I think this post conflates individual criminal liability (what the ICC is concerned with) with the finding that a state has committed an internationally wrongful act (something the ICC is not called upon to decide, nor could it be called upon to decide). A quick glance at the ICJ’s judgment in the Bosnian Genocide Case (ICJ Rep. 2007, para 403 dealing with Tadic and the ICTY’s role) may be helpful to remind oneself of the distinction between the two concepts. Indeed, there is no such thing as a ‘case against Sudan’. Perhaps a re-formulation of the title of this post is in order?

  3. I’m not so sure that the ICC will be discredited very badly by a withdrawl of the charges.  Prosecutors withdraw charges all the time don’t they?  If anything, the ICC can save face by replacing Ocampo with another prosecutor and they can just blame his ego.  I think its stilly to conclude that the entire court would somehow have egg on its face just because the prosecutor made an error of judgement.  But if he DIDN’T make an error of judgement, but is forced to withdraw the charges simply because of politics…then they really do have a problem on their hands.

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