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On March 4, 2009, the International Criminal Court issued an arrest warrant for Sudanese President Omar El-Bashir. Gabrielle Kirk McDonald, formerly a judge and president of the International Criminal Tribunal for the former Yugoslavia, discusses the significance of the ICC’s decision.
TRANSCRIPT:
BRIDGET CONLEY-ZILKIC: Welcome to this week’s edition of Voices on Genocide Prevention. We’re very honored to have with us today Judge Gabrielle Kirk McDonald, who was a federal judge in Texas, a law professor, and civil rights attorney, and in 1993 was elected to serve as a judge at the International Criminal Tribunal for the Former Yugoslavia. She became president of that tribunal in 1997, retired from the court in 1999, and currently is a judge with the Iran-United States Claims Tribunal in the Hague. Judge McDonald, it is an honor to have you with me today.
GABRIELLE KIRK MCDONALD: Thank you. It is an honor to be here by telephone. I’m in the Netherlands.
BRIDGET CONLEY-ZILKIC: We are speaking with you today on the occasion, a rather momentous occasion, that the International Criminal Court has issued an arrest warrant for the president of Sudan. This is obviously not the first time that an international tribunal or court has issued an arrest warrant against a president. You were previously with the ICTY while it was involved in a warrant against President Milosevic, and the other case was obviously Charles Taylor. Can you talk about the specific role of the court in indicting particularly heads of state? What is at stake in indicting a president?
GABRIELLE KIRK MCDONALD: Well, what’s at stake I suppose, is that it’s a reaffirmation that heads of state are not immune. Those of us who have worked in this field know that that was established, you know, from the Nuremberg tribunal, but it’s something that needs to be reaffirmed regularly just to, if for no other reason to dissuade those who are in a position of authority and might think that somehow their crimes are insulated, so to speak, because of the position that they hold. So it’s important particularly for the International Criminal Court to make this statement that no one will be excused, that all are accountable. If they commit mass atrocities, they will be brought to justice. The Rwanda tribunal first indicted a sitting head of state. Most people think that Milosevic was the first one, but that is not so, Mr. Kambanda. He entered a plea of guilty and was sentenced to life imprisonment. He was the interim president in Rwanda. But Milosevic was indicted and then, as you said, Charles Taylor was indicted by the Sierra Leone Tribunal. But each of those tribunals were limited in that they were established for a particular conflict. The International Criminal Court is a standing international criminal court, and so it will be here. It is letting the international legal community know that this institution will not excuse alleged mass atrocities simply because a head of state maybe responsible.
BRIDGET CONLEY-ZILKIC: And the warrant today charges President Bashir with five counts of crime against humanity; murder, extermination, forcible transfer, torture, and rape. And two counts of war crimes, intentionally targeting directs against a civilian population and pillaging. These crimes obviously are extremely brutal, and damaging, and they have been recorded by many non-governmental, and governmental, and international organizations. The effect on the Darfurian civilian population has been devastating. But one count that is missing is the count of genocide, which the prosecutor of the International Criminal Court has asked to be included. The court said today that one of the reasons it was not included was that they did not feel that the case had been built to meet specific intent necessary for genocide. Can you help us understand better what is so specific about intent for genocide?
GABRIELLE KIRK MCDONALD: Well as you have said, it’s a specific intent meaning that one who is charged with genocide-- that a prosecutor must establish beyond a reasonable doubt that one who is charged with genocide had the intent to commit those crimes with the intention to eliminate in whole or in part an entire group. Here it would be either an ethnic group or a political group, so it is that intent to destroy in whole or in part that particular group. Whereas crimes against humanity are mass atrocities, but do not have that requirement that, for example, widespread rape, or widespread murder that it would-- that those crimes were done with the intent to destroy in whole or in part a particular ethnic group.
BRIDGET CONLEY-ZILKIC: And in the cases where there have been genocide convictions, what sort of evidence substantiates genocidal intent? Do you need a memo or some very specific smoking gun? Can it be inferred from consequences? How do we prove a genocidal intent?
GABRIELLE KIRK MCDONALD: Yeah, well, you-- it’s been I guess ’99. How many years is that? Seven years since-- I mean 10 years since I have been with the ICTY, but it depends. Of course, if you have a smoking gun and a memo that would say that this is a campaign to eliminate a particular group, that would be helpful but you don’t have to have a smoking gun. I think that you can infer it from all of the consequences of it. But you still have to have that intent to destroy in whole or in part as opposed to committing murder as part of a crime against humanity or war crime. You know, you may commit murders, but it is not your intent to destroy in whole or in part an entire ethnic group. Instead you’re in a war or armed conflicts situation where you are committing mass murder, but not to destroy the whole ethnic group. So it’s difficult though, which is-- which perhaps is why at this time the arrest warrant was not issued for that. But the prosecutor could always, should he find evidence that maybe sufficient for the judges in the pre-trail chamber, he could amend the indictment I would imagine. Certainly could at the ICTY.
BRIDGET CONLEY-ZILKIC: One of the biggest questions now confronting Sudan and nations that do business with Sudan on a diplomatic or other level is, who is responsible for and who ultimately can arrest the president of Sudan?
GABRIELLE KIRK MCDONALD: And you want me to answer that.
BRIDGET CONLEY-ZILKIC: If you can?
GABRIELLE KIRK MCDONALD: Well, the statute requires that all State’s parties have an obligation to enforce an ICC arrest warrant. So it would be the State’s parties, assuming that President Bashir is found in their territory. Again though, and this would be, I imagine, something to be decided at some point later in the process, I would say that all member states of the United Nation have an obligation to execute the arrest warrant since this was a Security Council referral. A finding by the Security Council that what was going on in the international crimes that were being committed were a threat to international peace and security. So it would obligate more, more states, all member states of the United Nations.
BRIDGET CONLEY-ZILKIC: One of the criticisms when the ICC prosecutor first presented his case and announced that he was going after president Bashir was that he was playing with fire in Sudan. It is unclear what Sudan’s government response will be. There is word all ready that Médècins Sans Frontières is pulling out some of its staff for fear that there will be retaliation. What is the role of a court in a complex, evolving, uncertain political and military situation? What is their first obligation and how do they take account for the fact that their legal decisions will have effects that are as yet unknown on the ground?
GABRIELLE KIRK MCDONALD: Well, you can’t foresee the reaction. It was the same concern in the former Yugoslavia when arrest warrants were issued. Once again, the question being is this a threat to the people who are living there? And in fact what happened is that it resulted in the removal really of people in positions of power, not of course the head of state, we didn’t get to that point until many years later. But the international court if charged with using the law as a mechanism to bring about peace and that is all that it can do. So, you know, that is the focus. It can’t be dissuaded or discouraged because of what people say maybe the reaction. What has been shown is that the issuance of an indictment and the issuance of arrest warrants have helped to bring about peace. They help to bring about the date and accords. They help to bring peace in Sierra Leone as well. So an international court is given a job and it has to carry out that job.
BRIDGET CONLEY-ZILKIC: Over the course of your career, you were a key person in the development of the first international criminal tribunal since the Nuremberg trials at the end of World War II, and now seeing the ICC getting its feet under itself and really starting to take on cases, what do you think is the overall direction for international criminal law? How do you think it will continue to develop and what are your hopes for it?
GABRIELLE KIRK MCDONALD: Well, I think it will continue to develop because I think the efficacy of international criminal law has been established by the ad hoc tribunals that have been established this far. We’ve seen for example, that the Lebanon Tribunal just began its operations. So I don’t think that we see a curtailment of tribunals. I think it is kind of a reaffirmation of the importance of international criminal justice. I had thought that once the ICC was established that we wouldn’t see ad hoc tribunals. But as I said, we have seen one established for the Lebanon situation, and I think it will continue.
You mentioned that the ICC currently has under investigation only persons from African countries. I don’t think that Africa is being targeted, so to speak, by the ICC. But I would hope that the ICC does not limit its investigations to African countries, and is willing to take on situations that they see exist throughout the world.
It is true that genocide is not included in the arrest warrant in the charges but crimes against humanity are also wide spread. What is missing is, at this time at least, evidence or sufficient evidence to show that there is the specific intent that we spoke about. That is a focused actual intent not just to commit mass atrocities, but to commit the mass atrocities with an intention to destroy in whole or in part an ethnic group. So although genocide is not included, as I said, it’s something that could be included, if the prosecutor offers sufficient evidence. Of course, if there is a finding of genocide, then that triggers the obligation of all states to respond to that-- all states that are parties to the Genocide Convention to respond to those crimes. They have to take action. That has not been done at this point, but we will see what happens. So I see it as another step in what has been shown to be potential for international criminal justice. I think it is a good thing.
BRIDGET CONLEY-ZILKIC: Judge McDonald, thank you very much for your time today.
GABRIELLE KIRK MCDONALD: Oh, you are quite welcome.
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.
