President Omar al Bashir dodged a bullet on Monday. So did the International Criminal Court. Had the South African government fulfilled its obligations under the law, and prevented the Sudanese leader from leaving the country so that it could execute the arrest warrant, the prosecutor’s office in The Hague would have been thrown into a panic.
Seven years ago, the then Prosecutor of the ICC, Luis Moreno Ocampo made a public application for an arrest warrant, accusing Omar al Bashir of war crimes, crimes against humanity, and genocide. At the time, the debate swirled around the legality of prosecuting a sitting head of state and the wisdom of attempting to do so, when that individual still held great power—power of the lives of victims, power to make and unmake peace agreements, and power to allow democracy to proceed, or to thwart it. The debate was vibrant. What no-one expected was that when the prosecutor finally made the actual application public—several months later—it would be such a botched job.
The lack of professionalism in the application for an arrest warrant begins with simple factual errors. For example, the document identifies the Ma’aliya as a “Janjaweed” tribe. The Ma’aliya people, who are Arabic speaking, live in the east of Darfur, several hundred miles away from where the conflict was fought in 2003-05, and to the extent that they have subsequently been involved, they were on the opposite side of the conflict to the principal Arab tribes, such as the Rizegat. Presumably the prosecutor got them muddled up with the Mahariya, who were indeed identified with the Janjaweed—a simple but revealing error.
Ocampo’s document focuses on the genocide charge, obscuring war crimes and crimes against humanity. He tries to construct a narrative, according to which Bashir had a long-standing genocidal plan to eliminate the “African” tribes of Darfur, and was merely awaiting the right opportunity. Without minimizing the gravity of the crimes committed in Darfur, Ocampo’s version of events is contrived and implausible. In trying to prove Bashir’s genocidal intent—critical to prove the case—he cites a memorandum concerning military control of the militia that dates from 1985 (four years before Bashir seized power) and an administrative reorganization of 1994 (the brainchild of an African Darfurian who later joined the opposition).
The application asserts that al Bashir had a two stage genocidal plan. Stage one was the massacres and forced displacement of 2003-04, and stage two was gradual extermination in the displaced camps, by means of hunger, deprivation of basic services, and sexual violence. But, as humanitarians (among them the former head of Medecins Sans Frontieres) were quick to point out, when had previous genocidal regimes allowed humanitarian assistance to go to their victims, such that general population mortality rates had quickly returned to normal?
No expert considers that Bashir personally directed the Darfur massacres, and so lawyers speculated about how Ocampo could frame the charges. Would he claim a joint criminal enterprise? Or command responsibility? Instead of these, the prosecutor sought the most direct and most difficult route: he alleged direct perpetration.
Such was the disarray in the prosecutor’s office during those years, that most of the senior legal experts left and sought positions elsewhere. Ocampo instead surrounded himself with a small team of inexperienced investigators. Seeking an arrest warrant for President Bashir was an act of self-aggrandizement by Ocampo.
Duly satisfied that there were reasonable grounds to believe that Bashir had committed a crime within the jurisdiction of the Court, the ICC judges issued the arrest warrant in March 2009. This was a low bar for evidence and analysis, and Ocampo only just cleared it—initially the judges threw out the genocide charges.
Had Bashir been arrested and brought to The Hague, the next stage would have been a confirmation of charges hearing. This process is unique to the ICC, which describes it in these words: “Within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber holds a hearing in the presence of the Prosecutor, the person charged and his/her counsel to decide on the confirmation of charges before trial. At the hearing the Prosecutor has to support the charges with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged.” This is a much higher hurdle. Doubtless, Bashir’s defense counsel would demand an immediate hearing and make a mockery of Ocampo’s document.
It’s likely that the ICC has more evidence that it hasn’t made public. But six months ago, the current prosecutor Fatou Bensouda, suspended further investigations on the Darfur file because of lack of progress. But the prosecutor will have to rethink the case from scratch and gather far more evidence—or face the supreme embarrassment of having the judges of the pre-trial chamber throw out the case.
President Bashir’s narrow escape from South Africa has shown that an executive decision by the African Union’s leaders, including the South African president, to refuse cooperation with the ICC, does not have legal force to override domestic law. It has shown that the ICC has no recourse if a government decides to ignore its obligations under the Rome Statute—only the domestic courts and authorities can enforce its decisions. It has embarrassed the African Union, which looks to be re-inventing itself as, in the words of the late Tanzanian leader Julius Nyerere describing its predecessor the Organisation of African Unity, a “trade union of dictators”. Most international sympathies will lie with the ICC: it has scored a moral point. But only the former and current staff of the office of the prosecutor, and others who followed the Bashir case closely, will be aware that the Sudanese president’s unseemly escape from South Africa also saved the ICC itself from what could have been severe embarrassment.