Meaning and relevance for the crime of Genocide

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					ICC Prosecutor Mr. Luis Moreno-Ocampo applies for a warrant of Arrest against Omar Hassan Ahmad Al Bashir, President of Sudan on 14 July 2008: Meaning and relevance for the crime of Genocide On the 14th July 2008 ICC Prosecutor Mr. Luis Moreno-Ocampo presented his evidence to support an arrest warrant for Sudanese President Omar Hassan Ahmad Al Bashir. The application carries charges for ten counts of genocide, crimes against humanity and war crimes in relation to the atrocities committed in the Darfur region of Sudan. The application will now be considered by the Pre-Trial Chamber of Judges Kuenyehia, Steiner and Ušacka with their decision on whether to grant the warrant expected in around three months time. The evidence presented by Mr. Moreno-Ocampo seeks to support the prosecution of President Al Bashir for his criminal responsibility for genocide under the Rome Statute of the ICC. According to the evidence, he is responsible for: (a) killing members of a protected group; (b) causing serious bodily and mental harm to members of the group; and (c) deliberately inflicting conditions of life calculated to bring about their physical destruction. Since Sudan does not recognise the ICC, the case was referred to the Prosecutor for investigation by the UN Security Council in 2005. Incidentally, Sudan is party to the 1948 Genocide Convention (since 2004), whose definition of genocide was reproduced verbatim in the Rome Statute. Should the warrant for the arrest of President Al Bashir be granted it would build upon precedents set from the ICTR in the Kambanda case, the ICTY in trying Milosevic and the trial of Charles Taylor, and mark the next step along an international prosecutorial line by charging the first sitting head of state with genocide. It would represent another strong and clear condemnation of the crime of genocide, and demonstrate that those who bear responsibility for its commission will be brought to justice and not enjoy the freedom of impunity, regardless of who they are. In this respect the situation highlights the importance of universal jurisdiction for the prosecution of international crimes, as well as the growing support for international norms and the rule of law. On the other hand it highlights state concerns for their national sovereignty and control over affairs within their borders, which is evident from many of the subsequent objections made to the application for the arrest warrant by other states. These issues take on even greater significance when crimes such as genocide are charged. Nevertheless, the situation is also much more fraught than the above suggests. It is by no means indisputable that the situation in Darfur constitutes ‘genocide’ according to the strict legal definition as codified in international law. Despite ‘genocide’ and ‘Darfur’ becoming somewhat synonymous over recent years and despite the undeniable atrocities that have taken place in the region, there is a distinct division of opinion upon the issue of genocide. The UN Commission of Inquiry on Darfur for example concluded that there was no evidence of a policy of genocide pursued by the central government of Sudan. Nonetheless, Mr. Moreno-Ocampo alleges that President Al Bashir has “mobilised the entire state apparatus” in the commission of genocide in Darfur, being guilty of the crime through indirect perpetration and perpetration by means. In addition to the evidence of killings and serious bodily harm, he alleges, with clear reference to the Holocaust and Rwandan genocide, that “Al Bashir does not need gas chambers, bullets or machetes. This is Genocide by attrition”. His evidence suggesting the use of rape as a weapon producing “Janjaweed babies” and thus leading to the destruction of the mother’s ethnicity, the targeting of water supplies, crops and villages to bring about conditions of life aimed at destruction, as well as targeting of populations forcibly displaced, all builds upon the interpretations of the definition of genocide made at the ICTR and ICTY. What remains contentious however is what the decision of the Pre-Trial judges will be concerning the other elements of the crime of genocide. Whilst it is seems clear that President Al Bashir through the Janjaweed militia shown to be under his control has the requisite intent for genocide in respect of the targeting of civilians and the destruction of specific villages belonging to certain tribes, it remains unclear whether the targeted groups, the Fur, Masalit and Zaghawa tribes, will be found to constitute ‘protected groups’ within the definition of genocide. Although the evidence suggests that President Al Bashir directly contributed to the polarization of ‘Arabs’ and ‘Africans’, and although jurisprudence from the ICTR suggests that these subjective perceptions of ethnic difference are definitive, difficulties arise since the definition of genocide does not protect tribes and since the perpetrators and victims in Darfur are in many respects difficult to distinguish in terms of objective identities. Finally, the application for the warrant of arrest also raises issues concerning the desirability for seeking prosecution, and engages the debate over whether peace and justice are compatible, or whether seeking prosecution may destabilise the region even further. This issue is brought into sharp focus given the already fragile situation for those now in need of humanitarian assistance, as well as those members of UNAMID seeking to keep the peace in order to facilitate such assistance. It is possible that granting the warrant could have an adverse effect on both of these groups of actors within Darfur and continue to perpetuate gross violations of human rights, and possible acts of genocide.

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