International law expert William Schabas discusses the decision of the prosecutor for the International Criminal Court to request an arrest warrant for President Bashir of Sudan. The Sudanese president is charged with genocide, crimes against humanity and war crimes.
BRIDGET CONLEY-ZILKIC: This is Bridget Conley-Zilkic and with me today is William Schabas who’s Professor of Human Rights Law at the National University of Ireland, Galway, and Director of the Irish Center for Human Rights. Professor Schabas, thank you for joining me today.
WILLIAM SCHABAS: Hello.
BRIDGET CONLEY-ZILKIC: To start out, I wanted to know if you could introduce for us what exactly is the International Criminal Court?
WILLIAM SCHABAS: The International Criminal Court was established about six years ago. It’s created as a result of an international treaty called the Rome Statute of the International Criminal Court that was adopted in 1998. It’s a court, like the specialized tribunals for Yugoslavia and Rwanda, that can prosecute genocide, crimes against humanity and war crimes, and possibly in the future other crimes, including the crime of aggression. And it can prosecute them in countries that have joined the court-- there are now 106 countries that have joined the court-- and it can also prosecute them in countries that haven’t joined the court if it is authorized to do so by the United Nations Security Council. It’s really a culmination of the project that was started at Nuremberg in 1945 to bring perpetrators of atrocities to justice at the international level. It steps in when states fail in their duty to prosecute these crimes themselves. That’s why we need an international institution because the national ones don’t do the job that they should be doing.
BRIDGET CONLEY-ZILKIC: We’ll talk in just a minute about recent events, with indictments against the president of Sudan, but to give us a little bit of background, what other cases has the ICC prepared?
WILLIAM SCHABAS: Well the court began becoming fully operational in about 2003; so it’s a very new institution. It launched its first arrest warrants in 1995. It had five arrest warrants issued concerning the civil war in Northern Uganda, and none of those five have yet been enforced. I think three of the five people are actually believed to be dead and the two who are still at large they haven’t been able to apprehend. It’s complicated by the fact that there is a peace negotiation going on in Northern Uganda. There is some resistance to the idea of the court in some circles because people say that the threat of prosecution is complicating the peacemaking process. That is one issue; that is one dimension that is confronting the court at this point.
The second area where the court has been active is nearby; in the Democratic Republic of Congo, the country we used to call Zaire. All of these cases, including what is going on in Darfur, which we’ll talk in a minute, are all within a quite small region of the world, in Central Africa.
BRIDGET CONLEY-ZILKIC: And how did the case of Sudan, particularly with an emphasis on Darfur, come under ICC jurisdiction?
WILLIAM SCHABAS: In late 2004, around September, the United States government called upon the United Nations to take action for what it called genocide then underway in Darfur. The United Nations immediately prompted the creation of a Commission of Inquiry that was presided over by a very distinguished international law expert, Professor Antonio Cassese. There was a quick and very efficient investigation into the situation in Darfur. A report was issued in January of 2005 that outlined the range of atrocities that were being perpetrated in the course of the civil war in the Darfur region of Sudan.
The report was controversial in one respect, because it concluded that genocide was not the proper term to use to describe the atrocities, but the equally serious category of crimes known as “crimes against humanity” was being carried out. The Commission said that it would be better to use the definition of crimes against humanity for the prosecutions rather than genocide. “Crimes against humanity” was, of course, the category that was used to prosecute the Nazis at Nuremberg. I don’t think people have any doubt that it represents a very serious charge. That was what Göring was charged and convicted of, along with his accomplices. That is what the commission recommended.
It also recommended that they be prosecuted by the International Criminal Court. And the United States initially opposed the idea of this going to the International Criminal Court because the United States has not been sympathetic to the International Criminal Court, not in the past; although this, the developments in Darfur indicated a certain warming by the United States to the court. So the United States eventually decided to abstain in a vote in the Security Council. It has a veto, so if it wanted to stop this it could of course have done so, and so by abstaining it was in effect letting the whole matter go ahead.
A resolution was adopted at the end of March 2005 assigning the responsibility to the Security Council for the prosecution of cases in Darfur, Sudan. This was important because the court otherwise would not have been able to work in Sudan because Sudan has not ratified the statute, the Rome Statute. From that point, the prosecutor began working on these cases. He was rather slow about it really and people got quite impatient and frustrated with him.
Finally, it was more than two years after being assigned the responsibility for the prosecutions, he announced in around May in 2007 that he was seeking arrest warrants for two mid-level Sudanese leaders. One of them was a cabinet minister-- he was later made the Minister of Humanitarian Affairs-- and the other was a paramilitary guerrilla leader. Sudan didn’t cooperate in arresting these two people, and of course none of the other countries could really do anything, short of invading Sudan and capturing them, which was not something that anybody really seriously entertained as something to do at this stage. That is how things stood.
The prosecutor expressed his anger and fury at the Security Council in December of 2007 and then again in June of 2008. In June of 2008 he said, “I’m preparing new charges.” He said, “This is actually a systemic problem of crimes,” although that wasn’t a great surprise to anybody, we all knew that it was systemic, that this was coming from the government; after all, he’d charged a minister before. He said, “I’m going higher up. I’m going to go for the people at the top.” He didn’t name anybody but it was obvious if you prosecuted a minister of the government, then the next step up is the president. That has taken us up to early July of 2008.
BRIDGET CONLEY-ZILKIC: And yesterday-- so that’s July 14th, 2008-- the prosecutor made a request of the judges. What did he ask for?
WILLIAM SCHABAS: Well the prosecutor has to apply to a bench of three judges, called a pre-trial chamber, to get authorization for an arrest warrant. He prepared documents, and supported by evidence, where he’s seeking an arrest warrant from the judges. He can’t now do any more; he can’t go any further really at this stage until the judges take a decision on whether or not to issue the arrest warrant, and on what charges. It is a rather unusual development because in the past he hasn’t generally announced that he was seeking an arrest warrant before he actually got it, and there have been rumors floating around the court that on at least one occasion he applied for an arrest warrant and didn’t get it.
There is more media and more publicity about this development. It is, of course, a very exciting and newsworthy development, and there is a big political dimension to it. He has decided this time to do something he hadn’t done in the past, which is to publicize it before obtaining the arrest warrant.
BRIDGET CONLEY-ZILKIC: And the arrest warrant this time is for the president of Sudan, President Bashir.
WILLIAM SCHABAS: Exactly, he sought the arrest of the president of a country. He has charged him with genocide, as well as with crimes against humanity and war crimes. The previous two arrest warrants that he obtained in 2007 referred to crimes against humanity and war crimes but not genocide. He not only ratcheted up his efforts in terms of whom he’s targeting, but he’s also increased the temperature in terms of the charges that he’s seeking.
BRIDGET CONLEY-ZILKIC: With this request, does that imply that he has a case ready to go to trial against President Bashir?
WILLIAM SCHABAS: He is supposed to, and he has said in the past that he won’t seek arrest warrants unless he has a case that’s ready for trial. That being said, it is a very common feature of prosecutions at the International Criminal Court, and really more at the tribunals for Yugoslavia and Rwanda, that prosecutors regularly ask to amend proceedings because they have new evidence. One can almost assume significant delays that would enable obtaining more evidence.
What he has to prove to the judges is what we would call a prima facia case; that is, that he has enough evidence that were judges to believe it and were there to be no evidence to counteract it, would be sufficient for a conviction. It is actually in law quite a low standard because it doesn’t factor into the equation the possibility that the person will have evidence in their own defense, and it doesn’t factor into the equation the possibility the judges may not just believe the evidence. But at this point the judges don’t have to decide whether they believe the evidence or what the other side of the story would be, they just have to decide whether there’s enough evidence to let this go forward.
BRIDGET CONLEY-ZILKIC: And I’ve seen interviews with the prosecutor where they say that he doesn’t have a smoking gun to prove genocide charges. So it looks like the case is largely being built on command responsibility. Is that your understanding as well?
WILLIAM SCHABAS: Well I haven’t seen the documents. I don’t believe they’re public at this stage as to exactly how he’s proposing to make the case. He will charge something called ’command responsibility.’ I think that’s quite predictable. Command responsibility is a special kind of a concept that we have at international criminal law that isn’t actually widely known or used in ordinary criminal justice systems within countries.
Under command responsibility we will hold somebody responsible for crimes perpetrated by their subordinate, if the subordinate committed the crimes and the commander should have known about them and should have stopped them being committed. You are really prosecuting the leader who sort of winks and nods and does nothing, but where you can’t prove that the leader actually was in command and gave the orders. He will no doubt ask for that because this is sort of his safety net; he can try to fall back on that if he doesn’t succeed with a more demanding degree of evidence.
What he is really alleging is that there was a statewide conspiracy to commit these crimes, and you can’t have a statewide conspiracy to commit crimes unless the president’s involved in it. In some ways, that is just as easy to prove. You establish a pattern of crimes-- just as easy or just as difficult I could say. It is certainly probably not very different than what he would have to prove to establish this idea of command responsibility. It is a more serious form of crime because you are not just accusing him of not intervening, but you’re saying, what must be the truth, that he was involved in organizing and that he was in command. He’s after all an African-- maybe dictator is too strong a word to describe the form of government they have in Sudan, but he’s certainly a very powerful man in the country. It is inconceivable that a policy that the prosecutor alleges was being carried out in Darfur could be carried out without President Bashir not only knowing of it, but actually ordering it.
Everything in there suggests that he is actually going for something higher than what we call command responsibility. People sometimes confuse it with-- because they think when you prosecute a commander you’re prosecuting under command responsibility. It is actually a term with quite a technical meaning, that means a commander who is sort of negligently supervising their troops. It is obvious the prosecutor is suggesting that more than that was at work.
BRIDGET CONLEY-ZILKIC: And finally, what’s at stake with this request for a warrant for the International Criminal Court, and for Sudan?
WILLIAM SCHABAS: I think there are probably two big issues here. The first one is the humanitarian crisis that people say this may provoke. It’s a complicated issue of international criminal justice. Fifteen or 20 years ago, if you had a war going on or a peace process or a humanitarian crisis, the actors were pretty much confined to the warring parties and the United Nations and whatever other interested parties, but essentially other governments would be involved in the process. It was a profoundly political and military process of dealing with conflicts and resolving it.
It seems it is very good news; there is a peace process underway in Sudan and the reports are that it’s been going rather well recently and that actually there’s been more progress on it in the last few months than there had been for some time. Now we have heard that before in Darfur and I can’t be sure that it won’t melt down, but I don’t have any reason to dispute those who say that it has actually been rather exciting in terms of the progress they have made in the last few months. The concern is that the arrest warrants might complicate that process because now we have a situation where you have all these political and military actors involved in a conflict, and then almost out of the blue comes a prosecutor who lays charges against one of the participants, or maybe several of them, and it has the effect of destabilizing the process. It means there’s a factor that the political actors can’t really control, or at least at this stage in history they haven’t figured out how to control. There is always a mechanism where the UN Security Council, under the statue of the International Criminal Court, can step in and stop the prosecution, but it can only do that for 12 months. Even then, the Security Council can only suspend an arrest warrant, and so it doesn’t eliminate the engagement of the court with the process, at any rate.
There is also considerable fear that the humanitarian workers on the ground will in some way be now victims of some sort of reprisal or some sort of reaction within Sudan to the fact that the International Criminal Court has taken this step. I am not inclined to give that part of it so much attention. We can wait and see -- and I might be proven wrong in a week if some terrible things happen -- but a year ago they did issue arrest warrants against two prominent personalities in the Sudanese government and nothing in particular happened. I don’t really see the case for this being the result now.
The other thing is we have two other examples in recent history of heads of state being charged by international tribunals while they were sitting heads of state-- Slobodan Milosevic in Serbia in April of 1999 and Charles Taylor of Liberia, who was charged in March of 2003, although he only learned of the charges and it only became public in June of 2003. Nothing particular happened; the only thing that happened was that the two dictators, Milosevic and Taylor, weakened politically, were further weakened, and ultimately lost power. That is the first big dimension of the consequences of this arrest warrant.
The second, is for the health of the court itself. The court itself has been going through a very difficult period. It’s now six years since the statute, the Rome Statute, entered into force. The actual anniversary will be two days from now. People were looking forward to having big celebrations but I think in recent months the ardor has cooled. People are wondering what’s to celebrate, because the court has yet to start a trial, and the first trial that it was supposed to undertake, originally in March of 2008 and then in June of 2008, has been postponed indefinitely. It has not been going well. It does not mean that the court’s a disaster or that it is a failure. It’s going through the kind of problems that some organizations do as they struggle to find their way. It is in difficulty. The current difficulties, the principal one, with starting a trial, is the responsibility of the prosecutor. He can’t get the trial started, in part because the judges don’t want to start it because of what they think are mistakes he made in gathering evidence, and so he was looking in pretty bad shape a week or two ago.
This dramatic move of charging the president, and charging him with the super-crime of genocide – it is one of those things that takes your eye off the guy’s problems and then he starts to look exciting and dynamic again. I think there is concern that is perhaps driving some of this. The problem then is that if we can’t carry through with this-- I mean, if you can’t carry through with getting them arrested, then it just looks like a publicity stunt, in a way. It doesn’t go much further than that. He hasn’t been able to get the other two guys arrested, so why is it going to be any different with the president? That is one concern.
The other concern I think is with his addition of the charge of genocide, which he was warned against by the UN Commission of Experts that looked at Sudan. That was three years ago, of course, but I don’t think that the situation has changed in any qualitative respect since 2005; if anything, it’s improved and the worst of the atrocities took place prior to that. If he proceeds with a charge of genocide, rather than what would be the more cautious and wiser charge of crimes against humanity, and then the judges, if they follow what would be the current law as expressed by various tribunals in recent years, he’s not likely to succeed. There is a danger of an acquittal for the charge of genocide, and that’s not a desirable development. It would be better not to charge it at all than to inflict upon the poor suffering people of Darfur one more defeat, which would be having a charge of genocide dismissed and therefore, in a partial sense, making President Bashir look good.
That is what happened in Bosnia. The Bosnians insisted, after years of having their own victimization affirmed and reaffirmed by the international criminal tribunals, for crimes against humanity, they then had a case of genocide taken to the International Court of Justice. And it said, well no, it wasn’t really the proper way to describe the atrocities that took place from 1992 to 1995 in Bosnia and Herzegovina, with one exception. The Bosnians took this as a big defeat; which it was. It was a shame that they were humiliated, because they had been such victims. That is another aspect of the danger for it.
It is like the old Chinese expression for crisis, that I think Richard Nixon was fond of citing. It is combined; two characters make up the Chinese character of crisis. One is danger and the other is opportunity. This has got a bit of both in it.
BRIDGET CONLEY-ZILKIC: Thank you very much for taking the time to speak with me today.
WILLIAM SCHABAS: My pleasure.
NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about preventing genocide, join us online at www.ushmm.org/conscience. There you’ll also find the Voices on Genocide Prevention weblog.