Genocide and the ICC

>> Thursday, February 04, 2010

Mark Leon Goldberg of UN Dispatch explains yesterday's decision of the International Criminal Court's Appeals Chamber to require the Pre-Trial Chamber to reconsider including the crime of genocide in the arrest warrant against Sudanese President Omar al-Bashir. The Pre-Trial Chamber previously included "only" war crimes and crimes against humanity in the warrant. The ruling is here.

Via Veronica Glick, Don Krause argues that the ruling demonstrates the ICC is governed by rule of law. That's a good point. But I also think the fact that a relatively minor procedural decision is being treated as so significant tends to demonstrate why the PTC may have sought to avoid the charges in the original indictment. On procedural terms, the ruling makes absolute sense. But in political terms the earlier decision may have made sense as well.

An important distinction between "crimes against humanity" and "genocide" is that in the case of genocide, the burden of proof is on the prosecutor not only to demonstrate that atrocities occurred, but that the defendant ordered them with the intent that they have a particular effect on groups, rather than people. Intent crimes are extremely difficult to prosecute. At the same time, genocide is considered by the public to be more heinous than crimes against humanity, and many people take it for granted already that what went on in Darfur was genocide, which is why UN lawyers' equivocating on this point was so unpopular in 2005. So the charges over genocide will likely be both more politicized and harder to prove than "crimes against humanity." By prosecuting genocide, the court may set itself up to disappoint a lot of people if it is unable to convict.

The salience of the "genocide" concept in public understandings of Darfur also explains why this new ruling has been greeted with so much enthusiasm by Darfur watchers. Yet I tend to agree with Alex de Waal (see his comment on David Barsoum's blog) that the significance of the legal distinction here may be overblown. How different does genocide seem from crimes against humanity from the perspective of the victims of killing, rape, or forced displacement? There is also no difference in terms of the maximum sentence. So at best the charges are somewhat redundant; at worst I fear the insistence on genocide charges erroneously suggests that crimes against cultural groups are somehow worse than crimes against people, or that if something is not "genocide" then somehow it's not quite as bad. (On this, Kevin Jon Heller has a dissenting view.)

I would be interested in seeing the definition of genocide in the Rome Statute reconsidered by states parties given the decades of reconsideration and critique of the 1948 definition, which is not only hard to prosecute but also extremely limited (excluding purges of political groups, for example).

All that said, the procedural issue here was an important one. Al-Bashir may now have, if he is ever apprehended, a more costly and politically complicated trial but in any case one that meets ICC internal procedural standards - which is itself good for rule of law and may help dampen criticisms of the court. Will justice itself ultimately be served by this decision? I think this ruling shows that the a landmark case like this is never only about justice, but also about institutional credibility. And it shows that how to balance those two goals is not always entirely clear.

[cross-posted at current intelligence]


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