Analysis of Lubanga Judgment

Prof. Kai Ambos has produced an analysis of the recent judgment in the Lubanga trial at the International Criminal Court. The decision, which is more than 600 pages in length, is rather hard to digest. Somewhere after page 400 we start learning about Lubanga and what the case is really about. So this prompt and thorough study, by a very distinguished scholar in the field, is most welcome.

Leiden University

I am very happy to announce that I have been appointed to a part-time position as Professor of international criminal law and human rights at Leiden University. A member of the Faculty of Law, I will be closely affiliated with the Grotius Centre for International Legal Studies in The Hague, where I will do some teaching and supervision of doctoral students. I am delighted about the chance to work with wonderful colleagues at Leiden, and to be associated with an academic institution that is so close to the international justice institutions in The Hague.

Sri Lanka Resolution Adopted by Human Rights Council

It was touch and go until the end. Finally, the Human Rights Council adopted the Sri Lanka resolution. This is a useful step towards accountability for the atrocities perpetrated in the final stages of the conflict, documented in the Channel 4 documentaries. Here is the text of the press release issued by the Office of the High Commissioner:

In a resolution (A/HRC/19/L.2/Rev1) regarding promoting reconciliation and accountability in Sri Lanka, adopted by a vote of 24 in favour, 15 against and 8 abstentions as orally revised, the Council notes with concern that the report of the Lessons Learnt and Reconciliation Commission of Sri Lanka does not adequately address serious allegations of violations of international law and calls upon the Government of Sri Lanka to implement the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission and to take all necessary additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability and reconciliation for all Sri Lankans; requests the Government of Sri Lanka to present, as expeditiously as possible, a comprehensive action plan detailing the steps that the Government has taken and will take to implement the recommendations made in the Commission’s report, and also to address alleged violations of international law; and encourages the Office of the United Nations High Commissioner for Human Rights and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the above-mentioned steps.
The result of the vote was as follows:
In favour (24): Austria, Belgium, Benin, Cameroon, Chile, Costa Rica, Czech Republic, Guatemala, Hungary, India, Italy, Libya, Mauritius, Mexico, Nigeria, Norway, Peru, Poland, Republic of Moldova, Romania, Spain, Switzerland, United States and Uruguay.
Against (15): Bangladesh, China, Congo, Cuba, Ecuador, Indonesia, Kuwait, Maldives, Mauritania, Philippines, Qatar, Russian Federation, Saudi Arabia, Thailand and Uganda.
Abstentions (8): Angola, Botswana, Burkina Faso, Djibouti, Jordan, Kyrgyzstan, Malaysia and Senegal.
United States, introducing draft resolution L.2, said the resolution enjoyed the broad support of 40 co-sponsors. It was almost three years since the end of Sri Lanka’s conflict and given the lack of action to implement the recommendations of the Sri Lankan Government’s own Lessons Learned and Reconciliation Commission and the need for additional steps to address accountability issues not covered in the Lessons Learned and Reconciliation Commission Report, it was appropriate that the Human Rights Council consider and adopt this moderate and balanced resolution. The resolution encouraged Sri Lanka to implement the recommendations of its own Lessons Learned and Reconciliation Commission and to make concerned efforts at achieving the kind of meaningful accountability upon which lasting reconciliation efforts could be built. The resolution urged Sri Lanka to work with the Office of the High Commissioner for Human Rights and drew on helpful expertise the Office could offer. The resolution was intended to help the people of Sri Lanka achieve a lasting and equitable peace that was marked by equality, dignity, justice and self-respect.
Cuba, speaking in a general comment, said Cuba wanted to address the legitimacy and credibility of the work of the Council and would ask co-sponsors whether it would not be possible to delay action on the resolution until the September session. Three years ago, President Obama said he would close the Guantanamo Bay detention centre but that had not been done. It would seem that this could be an arena for possible confrontation. Cuba asked co-sponsors to postpone the resolution, thereby avoiding any action that would undermine the Council’s work.
United States, responding to Cuba, said the resolution was a straightforward declarative resolution that asked Sri Lanka to take action on the report of its Lessons Learned and Reconciliation Commission. The resolution had been the subject of open dialogue and it was appropriate for the Council because it was charged with addressing situations of human rights and helping countries to address human rights. If countries wanted to vote against the resolution, they should simply vote against the resolution in an up or down vote. The United States hoped that Council members would vote against the motion to postpone the resolution.
Cuba said that Cuba sought a climate of cooperation and then read a text deploring country resolutions, agreed on by 14 States. The resolution set a negative precedent that risked singling out developing countries. The international community must allow space and time to countries emerging from conflict. The mission of the Human Rights Council was to provide technical assistance and cooperation to a country and build capacity with the consent of the concerned country. If done differently, it would put in question the sovereignty and independence of the concerned country. If the Council adopted the resolution on Sri Lanka, it would act contrary to the principle of non-intervention. Sri Lanka cooperated with the High Commissioner and the Special Procedures, which made the proposed resolution inadmissible, unjustified and unproductive.

Belgium, speaking on behalf of the European Union in a general comment on draft resolution L.2, said the European Union fully supported this initiative to promote national reconciliation and accountability in Sri Lanka. Genuine reconciliation among all groups and communities in Sri Lanka was essential and required justice and accountability for past events. The European Union regretted that questions raised in the report of the Expert Panel of the United Nations Secretary-General had not been reflected in the Lessons Learned and Reconciliation Commission Report. Accountability was an essential part of the process of national reconciliation and sustainable peace. The European Union expressed strong concern over continued reports of intimidation and reprisals against civil society representatives in Sri Lanka as well as in Geneva. The Sri Lankan Government should respect and protect the rights of individuals and civil society who had cooperated with United Nations mechanisms.
Czech Republic, speaking in a general comment on draft resolution L.2, said the Czech Republic fully supported the resolution as it urged national reconciliation among all groups in Sri Lanka which was dependent on practical measures being taken by the Government to ensure accountability for actions that had happened in the past. The recommendations of the Lessons Learned and Reconciliation Commission Report would help in this regard and the Czech Republic would support the resolution and encouraged other Member States to support it.
China, speaking in a general comment on draft resolution L.2, said constructive dialogue and cooperation was the proper way to resolve conflicts. The resolution submitted by the United States was a product of the politicization of human rights. The reconciliation efforts of Sri Lanka were beyond the mandate of the Human Rights Council. Sri Lanka required the assistance of the international community. The draft resolution interfered in the internal affairs of Sri Lanka and violated the principles of the United Nations. The international community should provide the Government with sufficient time and space to complete the national reconciliation process and China called on all Member States to reject the draft resolution.
Sri Lanka, speaking as the concerned country, thanked China and Cuba for the kind sentiments expressed in support of Sri Lanka. Many in the Council would agree that Sri Lanka had been a model, consistently and unambiguously engaging with everyone in the Council. Sri Lanka had been selectively targeted by certain counterparts at the behest of some who still bore resentment at the clear and decisive decision taken at the Special Session in 2009. The attempt to undermine the resolution of 2009 was unacceptable especially because of the continuing improvement in Sri Lanka during the intervening period. Sri Lanka needed more time to further consolidate the clear progress that had been achieved in the short period of three years. Sri Lanka was compelled to face a misconceived, unwarranted and ill-timed draft resolution that would have adverse ramifications, not only for Sri Lanka, but for many other countries. The way in which the matter was dealt with would decide whether or not purely parochial, if not political, agendas would prevail. The founding principles of the Council were being assailed. If the proposed intrusion was accepted by the Council, no domestic process would be free to deliver on its mandate. The resolution would not add value to the implementation process in Sri Lanka; on the contrary it may well be counter-productive. Ironically, proponents and sponsors of the resolution were among those who prescribed the Liberation Tigers of Tamil and sought to give comfort to proxies of the organization to assume their activities, undermining a well-established democracy.
Cuba, speaking in an explanation of the vote before the vote on draft resolution L.2/Rev.1, reiterated its request for a nominal vote as the resolution was based on a blaming and shaming exercise. Cuba could not accept the fact that only three years would be given to the programme of action proposed by the Government of Sri Lanka and regretted that the Council had not recognized the progress made in the country, notably in dealing with internally displaced persons. A double standard was being applied to Sri Lanka as the European Union and the United States had used violence to carry out executions and to attack civilian populations in other regions of the world with no action being taken by the Human Rights Council. Detention centres, secret flights, and the indiscriminate bombings by the North Atlantic Treaty Organization all required an independent commission of investigation. Cuba noted that 40 per cent of all income from arms sales between 1983 and 2009 in Sri Lanka had been sold to the Sri Lankan Government by the United States, the United Kingdom and Israel. The Sri Lankan Government had cooperated with the Human Rights Council and was committed to national reconciliation.
Ecuador, speaking in an explanation of the vote before the vote on draft resolution L.2/Rev.1, said that despite the number of violations of human rights and regardless of who had committed them, the Human Rights Council should not take a biased approach. The situation of human rights in Sri Lanka would improve to the benefit of minorities and the population in general. The Government was following the recommendations of the Lessons Learned and Reconciliation Commission and would inform the Council of the results of the investigations of past human rights violations in Sri Lanka’s next Universal Periodic Review. The situation of human rights in Afghanistan and Iraq should be investigated.

Russian Federation, speaking in an explanation of the vote before the vote on draft resolution L.2/Rev.1, said that the process of national reconciliation in Sri Lanka should be carried out by the Government of Sri Lanka without interference from outside forces. The international community should not make hasty and ill-founded judgments. The Russian Federation remained firm in its position that country situations could be considered in the Council only with the agreement of the State concerned and attempts to dictate to a sovereign State how policy should be carried out was unacceptable. The Russian Federation would vote against the resolution and encouraged other States to do the same.
Uruguay, speaking in an explanation of the vote before the vote, said Uruguay would vote in favour of the resolution, as it was balanced and constructive. It sent a clear message from the international community that it was willing to cooperate with the reconciliation efforts at the national level. Uruguay appreciated the efforts of the Colombo Government, including the priorities for human rights laid out in the Action Plan and measures contained therein. The Council had cooperation instruments and tools for achieving these objectives, working together with the authorities. Uruguay urged Sri Lanka to investigate human rights violations, including reprisals against political opponents, human rights defenders and reports of enforced disappearances.
Kyrgyzstan, speaking in an explanation of the vote before the vote, said the delegation of Kyrgyzstan would abstain as it held the view that Sri Lanka had not had enough time to review the recommendations of the Commission. The Council should allow enough time for improvement of the situation without interference. Action at the international level would only destabilize the situation, which was not in the favour of any member of the international community.
Thailand, speaking in an explanation of the vote before the vote, said Thailand had always attached much importance to accountability and the fight against impunity as well as to engagement, cooperation and dialogue with the country concerned. Sri Lanka had shown a clear willingness to cooperate. For the moment, the home-grown process should be prioritized. So far, Sri Lanka had shown its willingness to cooperate with the Council. For these reasons, Thailand would vote against the resolution. Thailand urged the Sri Lankan Government to implement without delay, the recommendations of the Lessons Learned and Reconciliation Commission.
Nigeria, speaking in an explanation of the vote before the vote on resolution L.2/Rev.1, said Nigeria had decided to vote for the resolution, not to censure Sri Lanka but to encourage the process of reconciliation in the country. Nigeria had fought a civil war and the wounds of war had healed through an open and inclusive reconciliation process. Nigeria was ready to assist Sri Lanka and wished the Government and the Sri Lankan people every success in the reconciliation process.
Philippines, speaking in an explanation of the vote before the vote on resolution L.2/Rev.1, said the Philippines opposed the introduction of a trigger mechanism in the Council and attempts to turn technical assistance into a form of political pressure to influence Governments. This resolution was a reincarnation of the trigger mechanism and it attempted to turn international cooperation into a form of political pressure. The Philippines would vote against the resolution.
Uganda, speaking in an explanation of the vote before the vote on resolution L.2/Rev.1, noted the speedy publication of the Lessons Learned and Reconciliation Commission report, the progress made in implementing the report’s recommendations and the Government’s engagement with the international community and the Human Rights Council. The draft resolution denied a reasonable time to be accorded to the Government of Sri Lanka to implement the recommendations of the Lessons Learned and Reconciliation Commission report. Special consideration should be given to transitional countries emerging from war if their Governments demonstrated a clear intention and roadmap to address the post war conflict. Uganda would vote against the resolution.
China, speaking in an explanation of the vote before the vote, said attempts to interfere in the national reconciliation process and internal affairs of Sri Lanka were against the United Nations Charter and norms of international relations. China would vote against L.2 and called on all members to vote against it.
Maldives, speaking in an explanation of the vote before the vote, said it was a close friend of Sri Lanka and understood better than most the scale and impact of the conflict. The Maldives understood the trauma inflicted by the conflict and that it would take time to rebuild. In order to rebuild, there had to be accountability for all involved in human rights abuses, reconciliation had to be promote and had to ensure that a fairer and more equitable society was created. The Maldives believed the resolution was not necessary at the current juncture. Sri Lanka needed the time and space to implement recommendations. The Maldives would vote against the resolution.
Indonesia, speaking in an explanation of the vote before the vote, said it was with deep regret that the delegation was not able to support the resolution. This was due to the failure of the co-sponsor to respond in a constructive manner to the reconciliation process at the national level. The efforts of the Government of Sri Lanka to implement the recommendations of the Lessons Learned and Reconciliation Commission were not without imperfections. However, the process needed support and nurturing at the international level.
Bangladesh, speaking in an explanation of the vote before the vote on resolution L.2/Rev.1, said Bangladesh maintained a specific position to not support country specific resolutions without the approval of the country concerned. Such resolutions would make limited impact on the ground if the country concerned was not on board. Sri Lanka was a country that had been the victim of terrorism for more than three decades and had only recently come out of this violence. The Government of Sri Lanka had provided significant leadership in countering international terrorism and required time and space to heal from the long lasting effects of terrorism. Bangladesh would vote against the resolution.
Mexico, speaking in an explanation of the vote before the vote on resolution L.2/Rev.1, said Mexico would vote in favour of the draft resolution because the text was balanced, fair and constructive. Mexico said the Council was a cooperative, coordinating body and had the competence and responsibility to act not only where Sri Lanka was concerned but also in any other country where human rights violations had occurred. Mexico would support the resolution.
Angola, speaking in an explanation of the vote before the vote on resolution L.2/Rev.1, said it would abstain from voting on the resolution because the principles that guided the Council had not been respected. The resolution should encourage and help the people of Sri Lanka to pursue national reconciliation. Angola had gone through a complex and difficult process of national reconciliation and the results could not be achieved on paper but only at the grass roots level.

Referring Syria to the International Criminal Court

As David Scheffer points out in a recent op-ed, referral of Syria to the International Criminal Court by the Security Council has already been called for by the High Commissioner for Human Rights and by France.

As things now stand, the Court cannot exercise jurisdiction over Syrian nationals for crimes committed in Syria. But the Security Council can change that situation by a resolution referring the situation in Syria to the Court, as it did with respect to Libya last February.

Professor Scheffer argues for a tailored approach to referral that some may find controversial. He proposes the following:

If, for example, the Security Council gave Assad and his colleagues one week to quit power and leave the country for asylum in, say, Tunisia (or perhaps Russia), the Council would explicitly omit their names from its referral of the Syrian situation to the Court.  Such officials would have to demonstrate indefinitely their complete withdrawal from political and military power in Syria in order to qualify for continued omission from the Court’s jurisdiction.

I’m still mulling over the viability of the proposal, and perhaps it can be fine-tuned. What is controversial is the idea that a tyrant like Assad would be given a “get out of jail free” card in exchange for leaving power. Many now take the view that amnesty is prohibited by international law, and allowing Assad to obtain asylum somewhere amounts to an amnesty.

London launch of All the Missing Souls at 9 Bedford Row. From left, Penelope Soteriou, Nadia Bernaz, David Scheffer, Paul Schabas, Julia Schabas, Giulia Pecorella.

It sounds a bit like what was done with Charles Taylor in 2003. Assad would probably want to know what kind of guarantees he would have to prevent a Charles Taylor scenario, whereby such an asylum deal in exchange for leaving power turned out to be a bit of a trick. Nigeria eventually revoked the asylum and handed Taylor over to the Special Court for Sierra Leone. His judgment is due next month.

Chapter 7 of my new book, Unimaginable Atrocities, discusses this “amnesty quandary”. I contest the view that amnesty is prohibited by international law, and argue for a more nuanced approach whereby it is retained as an option for peacemakers. And as I read David Scheffer’s proposal, this is precisely the sort of situation where a trade-off between justice and peace, such as he is proposing, is in everyone’s best interests.

David Scheffer is on a book tour throughout Europe speaking about All the Missing Souls, and was in London last week for a series of events, including a launch at the chambers of 9 Bedford Row that was co-sponsored by Middlesex University.

The Principle of Legality: Fictional Adherence or Judicial Straitjacket

Lectures in Honour of Judge Antonio Cassese

“The Principle of Legality: Fictional Adherence or Judicial Straitjacket.

Participants: Prof. William Schabas and Judge Howard Morrison.

Wednesday 21 March 2012, 7 pm

Hague Institute for Global Justice, Sophialaan 10, The Hague

Sponsored by: Grotius Centre for International Legal Studies; TMC Asser Instituut; Coalition for the International Criminal Court

The  lecture will be followed by the launch of Unimaginable Atrocities (Oxford, 2012).

Sri Lanka's Killing Fields

Last year, Channel 4 in the UK prepared a devastating documentary about atrocities committed during the final weeks of the civil war in Sri Lanka. It provided strong evidence of atrocities perpetrated by participants in the conflict, confirming the conclusions of a panel set up by the UN Secretary-General. Since then, the Sri Lankan government appointed a commission to study these issues. It issued a rather timid report late last year that does not begin to address matters adequately. Channel 4 has prepared a sequel, with new evidence of atrocities. It will be broadcast for the first time next Wednesday at 1055 London time. For details, click here.

International Criminal Justice and the Contours of the Judicial Function: Lectures in Honour of Judge Antonio Cassese

A lecture series in The Hague organized by the Grotius Centre focuses on the judicial function. The first session will be held next week, on 13 March, on the eve of the first verdict to be delivered by the International Criminal Court. It features Prof. Diane Marie Amann of University of Georgia. Her presentation will be followed by comments from Prof. John Dugard of Leiden University and Dr. Guido Acquiviva of the Special Tribunal for Lebanon. I’m participating in one of the lectures the following week, on 21 March.

For the full programme, click here.

Judicial Activism and International Humanitarian Law: Coming Event

Judicial Activism and the Development of

International Humanitarian Law

A dialogue between
Professor William Schabas
Middlesex University

&
Professor Charles Garraway

Chatham House

·

Chair: Louise Arimatsu

Chatham House

Wednesday, March 14th, 2012, 18:30-20:00

CLM 7.02 (Clement House), LSE

This event is free and open to all. No ticket is required.

Galway Doctoral Seminar

The Irish Centre for Human Rights, National University of Ireland, Galway will host the 2012 Doctoral Seminar from Monday 30th April - Friday 4th May. This week provides PhD candidates an opportunity to present an area of their research to fellow students and experts in the field of international human rights law, international humanitarian law and international criminal law. The experts this year will be: Prof. Michael O'Flaherty, Prof. Suzannah Linton, Dr. David Keane and Prof. Koen De Feyter.
There is no fee to attend but participants are expected to stay for the full week. If you would like to attend the seminar, please email Helen McDermott (helen.mcd1@gmail.com).
For more information about the seminar and the Irish Centre for Human Rights, please visit: http://www.nuigalway.ie/human_rights/

Gay Marriage, the Universal Declaration and a Cardinal

Cardinal Keith O'Brien has launched an attack on gay marriage in the United Kingdom, saying that its legalization "represents a grotesque subversion of a universally accepted human right". O'Brien is head of the Catholic Church in Scotland. This morning, interviewed on BBC4, he twice referred to the Universal Declaration of Human Rights as authority for his proposition that same sex marriage breaches fundamental human rights.
Here is what the Universal Declaration states:

Article 16

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 2 is also relevant:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  (my italics)

A literal reading of article 16 does not indicate anything that would suggest it condemns same sex marriage. What article 16 does is recognize the right to marry. Arguably, especially taken in the context of the adoption in 1948, it was meant by the drafters to apply to couples of opposite sex.

I am in the course of completing a compilation of the drafting history of the Universal Declaration of Human Rights, to be published by Cambridge University Press. I have reviewed all of the documents relating to the drafting of article 16, and I do not think there is anything in that material to support the Cardinal's interpretation.

The only significant issue when article 16 was being drafted was clarifying the status of women as equal partners in marriage, and affirming their right to divorce on the same terms as men ("...at its dissolution"). I suspect that the distinguished Cardinal doesn't even agree with article 16's recognition of such a right.

It is a well-recognized principle of interpretation that international legal texts are to be construed in a dynamic manner, taking into account evolving values. Although article 2 does not specifically mention sexual orientation - the subject did not arise in 1948 - for many years I have given it as an example of a contemporary reading of the provision (note the words "such as").

Cardinal O'Brien is hoping to get some progressive buzz out of his invocation of the Universal Declaration of Human Rights. This morning's BBC interviewer challenged him very well on some points, but unfortunately did not take him up on this abusive and incorrect reference to the Declaration.

The Cardinal is in over his head He doesn't know what he is talking about here. The Universal Declaration of Human Rights, taken as a whole and read in a contemporary context, provides support for legalization of same-sex marriage.

 

Call for Papers

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held at the University of Georgia School of Law on 20-21 October 2012. The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress by Society members. All ASIL members are invited to attend the Forum, whether presenting a paper or not.
Interested participants should submit an abstract (no more than 500 words in length) summarizing the scholarly paper to be presented at the Forum. Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome. Member proposals should be submitted by April 15.  Proposals will include 1) the name, institutional affiliation, professional position, and contact information for the author(s), and 2) an abstract.  Review of the abstracts will be blind, and therefore abstracts should not include any identifying information about the author. Abstracts containing identifying information will not be reviewed. Proposals will be vetted by the Research Forum Committee with selections to be announced by July 15.
At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers. All authors will be required to submit a draft paper 4 weeks before the Research Forum.  The expectation is that drafts will be posted on the Research Forum website. 
The 2012 ASIL Research Forum Committee:  Laura Dickinson (George Washington), Co-Chair; Timothy Meyer (Georgia), Co-Chair; Jose Alvarez (NYU); Laurence Helfer (Duke)è Hari Osofsky (Minnesota); Kal Raustiala (UCLA); David Zaring (Wharton).

Has the Prosecutor Changed His Mind About Genocide in Darfur?

A few days ago, a Pre-Trial Chamber of the International Criminal Court granted the Prosecutor’s application for an arrest warrant directed against the Sudanese minister of defence, Abdel Raheem Muhammad Hussein. The charges are crimes against humanity and war crimes.

According to the decision, the crimes ‘overlap with those crimes for which the Chamber issued an arrest warrant against the President of the Republic of the Sudan, Omar Hassan Ahmad Al Bashir ("Omar Al Bashir") on 4 March 2009, having found reasonable grounds to believe that a common plan was formulated at the highest levels of the Government of the Republic of the Sudan ("GoS"), a core component of which was an unlawful attack on that part of the civilian population of Darfur - belonging largely to the Fur, Masalit and Zaghawa groups - perceived as being close to the rebel groups opposing the GoS in the armed conflict in Darfur’. (para. 3). Furthermore:

4. The Prosecutor alleges that Mr Hussein, as Minister of the Interior in the Republic of the Sudan, Special Representative of the President in Darfur and an influential member of the key decision making group within the GoS, at the time relevant to the Prosecutor's Application, played an essential role in the formulation and implementation of the common plan of the GoS, both directly and through Ahmad Harun, then Minister of State for the Interior in Darfur, who was his direct subordinate.

The decision notes that Hussein was ‘the President's Special Representative in Darfur’ and that he ‘exercised both de jure authority and a degree of de facto power over security bodies in the region’ (para. 31). Indeed, the application alleged that President Bashir was ‘a co-perpetrator in the same common plan’ (para. 34).

The arrest warrant of 4 March 2009, to which paragraph 3 of the latest decision refers, did not include charges of genocide. But the Prosecutor appealed the decision, and subsequently the Pre-Trial Chamber added genocide charges to the arrest warrant directed against President Bashir.

Why isn’t Bashir’s Special Representative also charged with genocide? The Elements of Crimes of the International Criminal Court require that the acts constituting genocide take place ‘in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’. Does it make sense that Bashir’s acts occurred ‘in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’ but that those of his deputy did not? If Hussein was in on the 'common plan', does this mean that the Prosecutor does not think there was a common plan to perpetrate genocide, and that this was some private, individual obsession of President Bashir that he did not share with his henchmen.

The inconsistency in the Prosecutor's approach is difficult to understand. It might be recalled that when the International Court of Justice was asked to rule on charges of genocide formulated by Bosnia against Serbia, the inconsistent practice of the Prosecutor in charging the crime of genocide was a relevant factor contributing to its conclusion that genocide had not taken place (with the exception of the Srebrenica massacre).