March 4, 2009 marked an important turning point for international criminal justice. It was on that day that Pre-Trial Chamber I of the International Criminal Court (ICC) issued a warrant for the arrest of Sudanese President Omar Hassan al-Bashir on charges of committing crimes against humanity and war crimes in Darfur. This is the first arrest warrant ever issued against a sitting head of state.
Readers may recall that on June 14, 2008, Bashir also became the first sitting head of state to be indicted by the ICC. At that time, the ICC's chief prosecutor, Luis Moreno-Ocampo, filed 10 charges against the Sudanese leader -- three counts of genocide, five of crimes against humanity, and two of murder.
Also, in May 2007, the ICC issued warrants for the arrest of the Sudanese minister for humanitarian affairs, Ahmad Harun, and a regional Janjaweed militia leader, Ali Kushayb. However, the government of Sudan refused to co-operate with the court, and these individuals are still at large.
The chief prosecutor had effectively accused Bashir of running, overseeing, aiding and abetting a campaign of genocide that afflicted the Sudanese western province since 2003. Based on the UN's conservative estimates, as a result of these atrocities some 35,000 Darfuri people were killed outright, at least 100,000 died through "slow death," and roughly 2.5 million have been forced to flee their homes (some as refugees and others as internally displaced persons -- IDPs). Other estimates place the death toll in Darfur at closer to 400,000.
The decision by the judges of the International Criminal Court to issue, officially, a warrant for the arrest of Bashir is an indication that this fledgling judicial body, created by a conference of plenipotentiaries in 1998, does in fact have "teeth." This move is especially welcomed by those who have been challenging the impunity of Bashir, his army and his associates known as the Janjaweed.
The indictment also lends weight to the relatively new norm that holds individual state leaders responsible for crimes committed while they are in office.
It suggests that Bashir may be criminally responsible, personally, for the mass slaughter of innocent people in Darfur since 2003.
So, it comes as a bit of a surprise that the ICC's arrest warrant for Bashir only lists five charges of crimes against humanity and two of war crimes (including murder, extermination, torture and rape). The ICC judges who issued the warrant claimed there was insufficient evidence to support the charges of genocide.
Perhaps they caved in to political pressure, since the majority of the member states of the United Nations have been reluctant to call the mass slaughter in Darfur by its real name: "genocide." It should be pointed out that the United States government, under the Bush administration, had assigned this label for the Darfur killings.
I, and some of my international law colleagues, have argued for some time that the Bashir government should be held accountable for the crime of genocide, particularly given the manner in which this term has been used and the way it was defined in the Convention on the Prevention and Punishment of the Crime of Genocide (which became a part of international law in January 1951), by the UN's International Law Commission (ILC), and in the Rome Statute that ushered in the ICC.
Note that it was Raphael Lemkin, the Polish-Jewish lawyer, who first coined the term "genocide," in response to the Holocaust, back in 1943. Lemkin had campaigned vigorously at the Legal Council of the League of Nations as early as 1933 to have acts of barbarity (mass slaughter) outlawed.
The Genocide Convention acknowledged Lemkin's claim that genocide, whether committed in times of peace or war, ought to be considered a punishable crime under international law. "Genocide" was defined in the convention as "deliberate acts designed to eradicate, in whole or in part, an entire national, ethnic, racial, or religious group." The Rome Statute created a permanent international court to deal with the core crimes of genocide, war crimes and crimes against humanity (including mass rape and ethnic cleansing). The Rome Statute made it exceedingly clear as to what would be considered "genocide." The "crime of genocide" includes any of the following acts, committed with the intent of eliminating, in whole or in part, a national, ethnic, racial or religious group: killing members of the group, causing serious bodily or mental harm to members of the group, inflicting in a deliberate fashion certain harsh conditions of life calculated to physically destroy the group in whole or in part, imposing measures that would prevent births within the group, forcing a specific group out of its homeland, and forcibly removing children from that group to another group.
Since February 2003, the Bashir regime has been arming nomadic Arab militias, as well as supporting horseback attacks by the Janjaweed, in its onslaught on several rebel groups, including the Sudan Peoples Liberation Army (SPLA) and Justice and Equality Movement (JEM). In the process, the government of Sudan launched aerial bombardment campaigns and helicopter gunship attacks against the mostly black African farmers in Darfur. It is believed that Bashir, himself, presided over these attacks.
Over the past five to six years, humanitarian groups like Human Rights Watch, Physicians for Human Rights and Médecins sans Frontières have been documenting these acts of killing, torture, gang rape and other sexual violence, abduction of children, burning down of houses and crops, poisoning of wells, looting of property, harassment and intimidation, forced migration and internal displacement in the western area of Sudan.
Perhaps the ICC judges thought that it might be difficult to prove that these acts were committed with the premeditated intent of eliminating, in whole or in part, a particular group in Darfur. But it is clear that much of the violence has targeted deliberately the black African Fur tribe -- a sedentary people living in that part of Sudan -- hence the name Dar (home) Fur, as well as the Masalit and Zaghawa groups. And, it is that state-sponsored attempt to eliminate those groups that provoked the international outcry against the predominantly "Arab" Bashir regime.
Regardless of whether "genocide" is included in the arrest warrant, Bashir's day of reckoning is at hand. If he is arrested and brought to the ICC in the Hague, he will have to answer to the charges of crimes against humanity and war crimes -- very serious charges indeed.
According to the Rome Statute, "crimes against humanity" include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other forms of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender ... , or other grounds that are universally recognized as impermissible under international law.
That same document includes the following acts under the label of "war crimes": wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile power; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; and the taking of hostages.
The evidence against Bashir is strong. According to the arrest warrant, the Sudanese leader is "suspected of being criminally responsible, as an indirect (co-) perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property." Now that the ICC has done its job, it is up to the international community, as represented by the member-states of the United Nations, to back up this judicial move by supporting the arrest warrant. This would mean that from now on, Bashir's movements will be seriously curtailed. If he travels to any UN member country he will have to worry about being arrested and shipped off to the Hague.
It may not happen today, it may not happen tomorrow. But at some time in the not too distant future, Bashir's day of reckoning will come, and he will be held accountable for the suffering he has caused the people of Darfur.
Dr. W. Andy Knight is professor of international relations in the department of political science at the University of Alberta.
