Wednesday, March 04, 2009

Hold the Parade

The ICC has officially issued an arrest warrant for Sudan President Omar al-Bashir, the first time a sitting state leader has been indicted for war crimes.

People are celebrating. But perhaps they shouldn't. International law expert Kevin Jon Heller argues that, by refusing to specifically indict al-Bashir for the crime of genocide, the ICC has effectively absolved him of the allegation:
As I have pointed out before, Article 58 of the Rome Statute required the PTC to issue the arrest warrant if there were “reasonable grounds to believe” that Bashir was responsible for genocide. Not proof beyond a reasonable doubt. Not clear and convincing evidence. Not even more probable than not. Just “reasonable grounds.” That is an extremely low standard of proof — and the PTC is saying that Moreno-Ocampo failed to meet it. That’s a very strong, and very shocking, conclusion. I disagree with those scholars who believe that Moreno-Ocampo would be unable to prove genocide at trial, such as Alex de Waal, but I readily admit that it’s a debatable point. I find it very difficult to believe, however, that the evidence of genocide — the murder of the male members of the tribes, the sexual violence and slow-death conditions in the IDP camps, etc. — doesn’t even establish reasonable grounds to believe that genocide occurred.

Normally, refusing to indict does not signal anything about culpability, but that's because indictments normally are discretionary. If Prof. Heller is correct that the indictment for genocide is not supposed to be discretionary so long as there are "reasonable grounds to believe" al-Bashir is liable for genocide, then the ICC is effectively absolving him of all fault. That's a disturbing thought.

Obviously, I'm glad that the ICC has finally taken some action (though I am skeptical that even this will go anywhere). But it is a baby step, and the people of Darfur need and deserve more than that.

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