New Warrant for Darfur, but Where is the Genocide Charge?

The Prosecutor of the International Criminal Court has applied for an arrest warrant against thecurrent Sudanese Defence Minister, Abdelrahim Mohamed Hussein, for crimes against humanity ande war crimes. According to the presss release from the Office of the Prosecutor:

The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein. “The evidence shows that this was a state policy supervised by Mr. Hussein to ensure the coordination of attacks against civilians”, said Moreno-Ocampo.

“Moreover, the evidence shows that directly and through Mr. Harun, Mr. Hussein played a central role in coordinating the crimes, including in recruiting, mobilizing, funding, arming, training and the deployment of the Militia/Janjaweed as part of the Government of the Sudan forces, with the knowledge that these forces would commit the crimes,” said the Prosecutor.

Where is the genocide charge? In the case of President Bashir, the Prosecutor went on appeal when the Pre-Trial Chamber refused to authorize a charge of genocide. I have heard him lecture about ‘the ongoing genocide by attrition’ that continued until 2008 or 2009. For all I know, the Prosecutor thinks that genocide is still going on. How is it that there is an ongoing genocide but that the Minister of Defence does not seem to be involved? After all, the charges against Bashir were essentially based on the idea that as President of the country, he was responsible for the attacks. So why are the attacks genocidal for Bashir but not for Hussein?

The whole business smacks of incoherence. When he applied for the arrest warrant against Bashir, the Prosecutor spoke of Bashir’s orders to commit genocidfe, and said: ‘The attacks on villages across Darfur from March 2003 to the present were designed to kill members of the targeted groups and force the survivors from their lands, but also to destroy the very means of survival of the groups as such as described in paragraph 15 above.’ Aren’t these the facts that Hussein is charged with too?

I would make another observation about the recent statement by the Office of the Prosecutor. I do not think that Pre-Trial Chamber I ‘ruled that Local Security Committees coordinated these attacks’. All that the Pre-Trial Chamber did was confirm that there were ‘reasonable grounds’ for the Prosecutor’s allegations, which is not at all the same thing. It is a big mistake to describe such rulings of a Pre-Trial Chamber, made ex parte (that is, without hearing the defence) and on the basis of unchallenged evidence, a ruling on a factual issue. Those who write the press releases in the Office of the Prosecutor might exercise a bit more caution.