The decision by the ICC to add genocide to the charges facing Sudanese President al-Bashir is surely to be a politically controversial. Below are some initial thoughts on why the charges of genocide, acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, is important.

In March 2009, al-Bashir was indicted by the ICC for war crimes and crimes against humanity in the conflict in Darfur. The ICC’s Prosecutor, Luis Moreno-Ocampo accused al-Bashir of creating camps with “genocide conditions, like a gigantic Auschwitz.” At the time of al-Bashir’s indictment, however, the ICC’s pre-trial chamber decided not to include charges of genocide against al-Bashir. Earlier this year, the Court’s Appeal’s Chamber ruled that the initial ruling by the pre-trial chamber had not appropriately adjudicated whether or not genocide charges should be levied against al-Bashir.

The judgement today declared it’s reasoning for the Court’s reversal on the genocide charges as follows:

The A Pre-Trial Chamber acts erroneously if it denies to issue a warrant of arrest under article 58 (1) of the Statute on the basis that “the existence of […] genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution”.

A spokesperson for the Court stated that “The judges of the court think that there are reasonable grounds to believe that al-Bashir is responsible for three counts of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups.” Interestingly, the 3 counts of genocide added to al-Bashir’s warrant include one referring what essentially amounts to genocide by attrition. Eric Reeves has argued that “[w]hat Khartoum was unable to accomplish with the massive violence of 2003-04, entailing wholesale destruction of African villages, will be achieved through a ‘genocide by attrition.’ Civilians displaced into camps or surviving precariously in rural areas will face unprecedented shortfalls in humanitarian assistance, primarily food and potable water.” In line with this more expanded view of the crime of genocide, the ICC charged al-Bashir with”genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.” I am no legal expert, but this is the first time that I have heard of legal charges of structural violence with amounting to an act of genocide. It could have significant implications on the future use of the term.

The baseline fact remains that whatever the legal status of the atrocities in Darfur, action must be taken to end the humanitarian catastrophe. Indeed, it seems morally dubious that a decision of whether or not genocide is occurring would decide whether or not effective action to stop mass suffering should be taken. However, the question of whether or not genocide has occurred remains important.

On one hand, the term genocide, the “crime of crimes”, has the ability to motivate public opinion and mobilize international consensus, although recent cases suggests this is often insufficient or simply too late. The widespread purchase of the term genocide may explain why so many advocacy and humanitarian groups choose to use the term rather liberally in order to drum up attention to and financial support for their work.

Further, genocide has the legal power to bind states to take action to halt genocide. However, here the record is also less than stellar. Although the US government holds the view that genocide has occurred in Darfur and that the Sudanese government was responsible, it has not taken any subsequent action that could legitimately be described as capable of stopping a genocide from continuing. This is in striking contrast to US reaction to the 1994 genocide in Rwanda, when the Clinton administration went to lengths to avoid the use of ‘genocide’ for fear they would be held legally bound to do something to stop it. It is a scary thought to think that a declaration of the existence of genocide is now deemed to have few significant consequences.

On the other hand, Rob Crilly, a journalist who has spent considerable time in Darfur and recently published Saving Darfur – Everyone’s Favourite African War, has written about the ability of Khartoum to manipulate false claims of genocide (and death tolls in Darfur) to illustrate Western bias and justify their own nonsensical figures. Further, Crilly writes that “[f]or all their hyperbole and visibility, the advocates…have merely succeeded in pushing Khartoum into a corner and reducing the possibility that diplomacy can prevail.” Rather than a genocide, Crilly, Alex de Waal, and others skeptical of genocide claims view Darfur not as a genocide but a low-intensity conflict.

Respected legal scholar and ICC expert William Schabas notes that “in a strictly legal sense, genocide has never before been so unimportant,” and “outside the strict confines of legal debate, the word ‘genocide’ remains desperately important.” Schabas has written extensively about his discomfort with what he sees as the abuse of the terminology of genocide, declaring that its expanded use and conflation with crimes against humanity has resulted in “careless and potentially misleading use of precise terminology”.

While Schabas’ articulate views are certainly worthy of consideration, there remain questions as to whether the expansion of the term genocide necessarily means the erosion of its effectiveness. The Genocide Convention (1948), as international political theorist Chris Brown argues, may be inherently backwards looking. It is a reaction and condemnation of the Holocaust. As such, it may not be able to capture or be an effective tool to prevent or stop contemporary genocide acts of today. The debate on the terminology of genocide is an important one that deserves greater public and scholarly attention.

The debate about whether or not genocide has or has not occurred in Darfur is nothing new. In 2005, the International Commission of Inquiry on Darfur, established by the UN, that Sudan had not pursued genocide. Almost simultaneously, and in contradiction to the Commission’s report, then US Secretary of State Colin Powell declared that genocide has been committed in Darfur and that the government of Sudan and the Janjaweed bear responsibility and genocide may still be occurring.” The debate has raged ever since.

Much attention will be brought on the implications of the decision to add genocide to Bashir’s arrest warrant. It is important to remember that observers against the ICC’s initial decision to indict al-Bashir, despite being unfairly vilified, were not against the ICC in principle but rather its timing.  There were legitimate concerns that the indictment would undermine peace negotiations, the precarious North-South peace held together by the 2005 Comprehensive Peace Agreement, and the humanitarian situation. While it may be too early to tell the effects of the ICC’s indictment of al-Bashir, 13 humanitarian aid organizations, responsible for about 50% of humanitarian aid in the region, were expelled. Many were subsequently allowed to return months later. However, the violence in Darfur did not escalate in the months following the indictments, peace negotiations continued with some modestly positive developments and the North-South peace agreement has held. Al-Bashir, however, has remained at large and further entrenched his stranglehold on power. He has travelled to a number of states, although notably not to any ICC state parties. He also recently handily won the first national election in Sudan in nearly two decades despite widespread criticism of voter irregularities. Al-Bashir has even mocked the indictment, saying that it has helped increase his popularity.

A view inside the International Criminal Court. Should al-Bashir ever be arrested, he will face charges of genocide in this setting (Photo: telegraph.co.uk)

There has yet to be a response to the added charges from the Sudanese government or Bashir himself, although the reaction will be predictable in its anti-Western, neo-colonial rhetoric. In the coming days the reaction of the African Union and the Arab League who have viewed the decision as potentially destabilizing peace negotiations and have been vehemently against the indictment in public will also be important. Further, how legal scholars react to the new charges will be interesting. One has already declared that while “the political merits are open to debate, this is clearly the correct legal decision.”

The addition of charges of genocide against al-Bashir will only make skeptics of the ICC’s role in Sudan more skeptical and its advocates and supporters more supportive. The government’s reaction will become clear in the upcoming days. As for the effect on al-Bashir himself, it’s unlikely the Court’s decision will add much to his international reputation. As a result of the various advocacy groups’ and the US government’s decision to declare that al-Bashir is responsible for genocide in Darfur, the stigma against him as a genocidal leader has long stood firm.

Once again, I am no legal expert, but perhaps some supporters and critics of the genocide charges against al-Bashir miss a fundamental point. Whether or not genocide has occurred in Darfur or not, are the chambers of the ICC not the ideal place in which to adjudicate on genocide charges and set a precedent on the future legal application of term? As the world’s first permanent international criminal court, one would certainly think so.

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Originally posted at http://kerstenskolumn.wordpress.com/2010/07/12/sudanese-president-charged-with-genocide-some-initial-thoughts-on-why-it-matters/