Inappropriate Comments from the Prosecutor of the International Criminal Court

Earlier this week, a ruling of the Trial Chamber was published on this blog in which a spokesperson for the Office of the Prosecutor was chastised by the judges for giving misleading statements to the press. Today’s Guardian has a good example of this phenomenon.
The Prosecutor has authored an article that distorts the decision of the Pre-Trial Chamber issued at the beginning of the week authorizing three genocide charges in an arrest warrant directed against President Al-Bashir.
Here are the first paragraphs of the article, cited verbatim.

No more excuses. No more denial. This week, the international criminal court issued an arrest warrant for three charges of genocide against the president of Sudan, Omar al-Bashir.
The world once claimed ignorance of the Nazi atrocities. Fifty years later, the world refused to recognise an unfolding genocide in Rwanda. On Darfur, the world is now officially on notice.
The genocide is not over. Bashir's forces continue to use different weapons to commit genocide: bullets, rape and hunger. For example, the court found that Bashir’s forces have raped on a mass scale in Darfur. They raped thousands of women and used these rapes to degrade family and community members. Parents were forced to watch as their daughters were raped.
The court also found that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction. Millions of Darfuris are living in camps for displaced persons and, at the disposal of Bashir's forces, experiencing an ongoing genocide. They are helpless, voiceless and with no hope for the future. Darfuris need other voices to help end a genocide that should have been stopped years ago. We can still stop it but we must stop it now. The court's recent decision could provide a last chance for the world to react properly, to transform "never again" from a promise into a reality.

This is quite misleading. The Court did not find ‘that Bashir’s forces have raped on a mass scale in Darfur’. The Court did not find ‘that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction’. The Court did not – and would not – do anything to suggest the issue of whether or not genocidal acts had taken place was actually decided. It merely issued an arrest warrant.
The Court applied a test set out by the Appeals Chamber, based upon article 58. It said that there were ‘reasonable grounds to believe’ that rapes were perpetrated. This test is significantly lower than the ‘substantial grounds’ test of article 61. It is much lower than the ‘beyond reasonable doubt’ test of article 66. Experts familiar with the Rome Statute and criminal lawyers generally will understand this point. But the average reader of the Guardian may well be misled by the Prosecutor's words into believing that the Court actually reached the conclusion that Bashir’s forces raped on a mass scale in Darfur, or that Bashir was deliberately inflicting conditions calculated to bring about the destruction of ethnic groups.
Shouldn’t the Prosecutor remind readers that the presumption of innocence continues to apply? Shouldn’t he point out that this is only an arrest warrant, and that the issue as to whether the crimes took place and whether Bashir was responsible remains to be determined? Is this sort of statement really compatible with a Prosecutor who is supposed to show a measured neutrality and who should, according to article 54, ‘investigate incriminating and exonerating circumstances equally’? I don't ever recall such extragant language from prosecutor's at the other international criminal tribunals.
The statement begins with the words: ‘No more excuses. No more denial.’ It is an unfortunate use of the word ‘denial’, made even more ugly by the reference in the following paragraph to the Nazi holocaust. By using the word 'denial', the implication is that those who qustion whether genocide is the appropriate characterization of crimes committed in Darfur are in the same camp as the anti-Semitic hatemongers who claim there were no gas chambers at Auschwitz. Is the Prosecutor suggesting that the judges of the Pre-Trial Chamber who issued an arrest warrant in 2009 against President Al-Bashir for crimes against humanity and war crimes were ‘deniers’? That is how I would read his statement, and it is wrong and unfair.
The judges in this week’s decision who issued the arrest warrant on genocide charges did not disagree with the factual findings of the judges who issued the first arrest warrant in March 2009. The only question was the standard to be applied in deciding to issue an arrest warrant. The Prosecutor is making a lot more of this week’s decision than it deserves, and in doing so is suggesting that the earlier Trial Chamber was composed of ‘deniers’.
Let me point out that in the first two arrest warrants issued with respect to Darfur, the Prosecutor himself did not seek genocide charges. In his Guardian article, he says that Al-Bashir used Harun to co-ordinate genocidal attacks. But he never charged Harun with genocide. So was the Prosecutor, too, in 'denial' until he suddenly became obsessed with genocide charges in July 2008?
The implication in the third paragraph that the Court found the genocide was continuing is also quite misleading. It results from the assertion, in the third paragraph, that ‘the genocide is not over’, followed by the words, in paragraph 4, that ‘the Court also found’. It is compounded by the claim that the Pre-Trial Chamber found that ‘Bashir is deliberately inflicting…’ Note the use of the present tense.
But the Court made no statement or finding about any ongoing genocide. In fact, as this week's ruling makes clear, the Court refused to hear any new evidence. Thus, the decision was based on the very evidence that was before the Pre-Trial Chamber when it issued the first arrest warrant in March 2009. In that ruling, the Court turned to materials other than those supplied by the Prosecutor, including authoritative UN reports. It said that ‘the materials provided by the Prosecution in support of the Prosecution Application reflect a situation within the IDP Camps which significantly differs from the situation described by the Prosecution in the Prosecution Application’.
If the Prosecutor had succeeded in getting the Court to consider new and more recent evidence, I suspect the conclusion would have been that there is not serious evidence of ongoing genocide in Darfur.
Readers of the blog are referred to recent reports to the Security Council by Ibrahim Gambari, who is Joint Special Representative for the African Union and the United Nations Hybrid Operation in Darfur. He reported to the Security Council in May, and again in June, telling of some renewed fighting – much of it between rebel groups themselves – but did not say anything to suggest an ongoing genocide in the camps for internally displaced persons (see UN Doc. S/PV.6318, UN Doc. S/PV.6338) In May, Gambari told the Security Council: ‘‘In the areas of security and the protection of the civilian population, some progress has indeed been made, but pockets of instability remain.’ In June, he said, following a meeting with the Government, ‘the Government of the Sudan gave instructions to the relevant agencies to allow, immediately and wherever possible, access for both UNAMID and the humanitarian agencies’. Does this sound like genocide?
Here is the discussion of the situation in the camps in the most recent report on Darfur from the Secretary-General (‘Report of the Secretary-General on the African Union-United Nations Hybrid Operation in Darfur (UNAMID)’, UN Doc. S/2010/213), issued in April 2010:

46. The humanitarian situation in the well-established camps for internally displaced persons remains stable. During the reporting period, food distributions carried out by the World Food Programme at some 300 points throughout Darfur regularly reached more than 95 per cent of the intended beneficiaries. Approximately 4.2 million vulnerable people continued to receive the direct food assistance of the Programme in this manner.
47. The continuous availability of a safe water supply was ensured for more than 1.2 million internally displaced persons through support for the operation and maintenance of more than 650 water systems, including the chlorination of the water supply. During the reporting period, a safe water supply was provided for 32,500 additional internally displaced persons and hosting communities through the construction of new water sources and was re-established for 26,000 through the rehabilitation of existing water sources.
48. Bilateral efforts are under way on the ground to provide assistance to internally displaced persons who are already returning voluntarily or who may decide to do so in the near future.

Does this sound like ongoing genocide?
In June, the Independent Expert of the Human Rights Council issued a report (‘Report of the independent expert on the situation of human rights in the Sudan, Mohammed Chande Othman’, UN Doc. A/HRC/14/41/Add.1). He said: ‘While significant progress has been made towards the protection of women, acts of sexual violence, particularly against internally displaced women and girls, continue to be of concern’ Referring to the humanitarian assistance situation, he wrote:

27. In the aftermath of the expulsion on 4 March 2009 of 13 non-governmental organizations from Darfur, the Government took positive steps towards facilitating humanitarian assistance in Darfur, including by publicly welcoming the remaining and certain new non-governmental organizations to work in the region. In August 2009, a high level committee on humanitarian affairs, comprising senior Sudanese officials, representatives of the diplomatic community, the United Nations, regional and nongovernmental organizations endorsed the creation of a mechanism to verify the voluntary return of internally displaced persons in accordance with international humanitarian principles. Humanitarian access in Darfur was uneven during the reporting period. Access to urban areas outside the State capitals improved thanks to the presence of UNAMID team sites, while access to other areas, such as Jebel Marra and Jebel Moon, in West Darfur, and Kass, in South Darfur, were restricted owing to renewed fighting between Government and rebel forces and intertribal clashes.

Does this sound like ongoing genocide?
The Prosecutor is free to apply for a new arrest warrant for genocide, dealing with the current situation, but he has not done so. If he tries, the current UN reports on Darfur will not be very helpful to him.