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).