Should the Sudanese Defence Minister Have Been Charged with Genocide?

The OTP is seeking an arrest warrant for Abdelrahim Mohamed Hussein, the Sudanese Defence Minister, in connection with a number of attacks on civilians in Darfur between August 2003 and March 2004.  The request alleges that Hussein is responsible for war crimes and crimes against humanity committed during the attacks, but does not include a genocide charge.  According to Bill Schabas, that absence indicates the “incoherence” of the OTP’s approach to genocide in Darfur:

Where is the genocide charge? In the case of President Bashir, the Prosecutor went on appeal when the Pre-Trial Chamber refused to authorize a charge of genocide. I have heard him lecture about ‘the ongoing genocide by attrition’ that continued until 2008 or 2009. For all I know, the Prosecutor thinks that genocide is still going on. How is it that there is an ongoing genocide but that the Minister of Defence does not seem to be involved? After all, the charges against Bashir were essentially based on the idea that as President of the country, he was responsible for the attacks. So why are the attacks genocidal for Bashir but not for Hussein?

The whole business smacks of incoherence. When he applied for the arrest warrant against Bashir, the Prosecutor spoke of Bashir’s orders to commit genocide, and said: ‘The attacks on villages across Darfur from March 2003 to the present were designed to kill members of the targeted groups and force the survivors from their lands, but also to destroy the very means of survival of the groups as such as described in paragraph 15 above.’ Aren’t these the facts that Hussein is charged with too?

With respect to Bill, I disagree.  The absence of a genocide charge against Hussein does not necessarily indicate that the OTP believes he wasn’t involved in the genocide between 2003 and 2004.  The OTP is not obligated to charge a defendant with every international crime supported by the evidence; the desirability of particular charges must always be be balanced against a variety of trial concerns, such as the quality of proof and the need to conserve scarce prosecutorial resources. Genocide charges are notoriously difficult to prove — particularly the crime’s specific-intent requirement.  So the OTP might have concluded, rationally, that it will be easier to establish the necessary specific intent for Bashir, the Head of State, than for Hussein, Bashir’s subordinate.  Or perhaps the OTP has decided that, from an expressive standpoint, it will be sufficient to hold the Head of State responsible for genocide in Darfur; additional genocide prosecutions, with their attendant time and cost, are unnecessary.  Indeed, were I advising the OTP, that is precisely the position that I would take.  One genocide defendant is enough.

It is perfectly legitimate to question whether Bashir is guilty of genocide.  (I seem to be in the minority of scholars who think that he is, although I strongly agree with Schabas and others that Moreno-Ocampo needs to stop referring to the “ongoing genocide,” focusing instead on the events of 2003 and 2004.)  It is also perfectly legitimate to believe that the OTP should, in fact, charge defendants with every crime supported by the evidence, regardless of how difficult and time-consuming those crimes may be to prove.  But it is not “incoherent” for the OTP to take practical concerns into account when making charging decisions.  Indeed, I think it would be far more problematic for them not to.