Detour to Africa Via Den Haag

The Pre-Trial Chamber of the International Criminal Court has issued an arrest warrant for Omar al-Bashir, the President of Sudan, for war crimes and crimes against humanity. Interestingly, and some would say incomprehensibly shamefully, the warrant does not include the charge of genocide.

Apparently the PTC did not even think they could establish the low standard of "resonable grounds" necessary to include the charge of genocide in the warrant. I have to imagine that perhaps this was ultimately a political decision aimed at minimizing the reaction in Khartoum. Either way, I have to share in other commentators' dismay.

But there might be other factos at work too. I imagine that establishing Bashir's genocidal "intent" might be hard to establish. And correct me if I'm wrong, but I believe that the ICC can only consider conduct that occurred after the entry into force of the Rome Statute in 2002, so Bashir's activities during the pre-Darfur civil war with the SPLA in Southern Sudan during the mid-to-late nineties and early naughts would not be able to be considered. So I think the lead prosecutor's case will have to be based on mostly the conduct in Darfur.

He has been charged with:

• five counts of crimes against humanity: murder – article 7(1)(a); extermination – article 7(1)(b); forcible transfer – article 7(1)(d);
  torture – article 7(1)(f); and rape – article 7(1)(g);
• two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities – article 8(2)(e)(i); and pillaging – article 8(2)(e)(v).

The reaction in Khartoum, however, has been quick. Protests were almost instantaneously started and the Sudanese seem to have revoked the licenses of several NGO aid organizations that operate in the country. Apparently this is Bashir's way of punishing the West by further punishing his own people.

Now at the risk of sounding clinical, this is going to be an interesting experiment, as it will be testing ground for the ICC in a new area. It will be a new chapter in the ongoing argument between those who think that impunity cannot be tolerated and that those who are reasonably believed to have committed war crimes or crimes against humanity should be tried in the Hague if the local country is unwilling or unable to do so, and those who are not sure if the meddling of the international community will help, and might only make wounds fester.

For further information about the long civil war in Sudan, the one that preceded Darfur, I highly recommend a book by David Eggers entitled "What is the What."