Opinio Juris

The ICL community is abuzz with news that the ICC Prosecutor appears ready to issue new indictments that connect the "whole state apparatus" in Sudan to the crimes against humanity committed in Darfur. Here's Mark Leon Goldberg:

This is a big deal. On the one hand, indicting top government officials could seriously disrupt current diplomatic efforts to coax and cajole Khartoum into cooperating with the deployment of peacekeepers in Darfur. The international community also needs Khartoum's cooperation to shore up the separate peace agreement with the south and resolve the conflict in the Abyei region. Another way of looking at this, though, is that current international efforts to bolster UNAMID are already fledgling. Fighting in Abyei has already broken out (causing some 50,000 displaced) the north-south peace accord is already fledgling. This new intervention by the ICC, if it comes, could provide a critical point of political leverage over the political elites calling the shots in Khartoum.

So far, the international community has not been able to convince the Sudanese government that it is in their best interests to cooperate on Darfur, Abyei, and elsewhere. The threat of indictment (and the ability of the Security Council to suspend those indictments) could inject the necessary impetus for the government to finally take a conciliatory stance toward the international community. The problem is, ICC indictments are a relatively new phenomenon on the international stage. Diplomats seem not yet to have quite learned the best way use these indictments to serve their political ends. Here's hoping they learn fast.

I agree with Mark that this is a big deal. New indictments, particularly of Sudan's top leadership, will further isolate the murderous regime in Khartoum. I'm less sanguine, however, that they would encourage the Sudanese government to take a conciliatory stance toward the international community. It seems to me that the opposite is true -- that Sudan will simply ignore the new indictments and continue to level its ridiculous allegations of political bias against the ICC. That doesn't mean the Prosecutor's intended actions are ill-advised; on the contrary, Sudan's patrons, particularly China, may well find it more difficult to support the Sudanese government if all or most of its top leaders are indicted -- a worthy and necessary outcome. But we shouldn't have any illusions about how the Sudanese government will react.

Another aspect of the Prosecutor's recent statements are worth noting -- namely, that he is also considering whether to bring genocide charges regarding Darfur:

The international criminal court (ICC) is refusing to dismiss the possibility of genocide in Sudan's wartorn Darfur region, its chief prosecutor has said.

Chief prosecutor Luis Moreno-Ocampo made the claim in a briefing to MPs and peers in parliament 15 months after the ICC named Sudan's humanitarian affairs minister, Ahmed Haroun, and Ali Kosheib, Janjaweed leader, as chief suspects of war crimes against humanity in Darfur.

Mr Moreno-Ocampo said he had established a "clear case" against the two suspects based on crimes against humanity.

"We never dismiss genocide", he explained, adding that a "second investigation" is currently underway considering this "second aspect" of the Darfur crisis.

This is a huge deal, and I'm mystified as to why it has not received more media attention. NGOs and some governments, particularly the US, have long claimed that the Sudanese government's actions in Darfur amounted to genocide. Nevertheless, the Security Council-sponsored Report of the International Commission of Inquiry on Darfur specifically rejected that conclusion (though it did say that individual government officials and janjaweed militiamen might have acted with genocidal intent):

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

I think the Commission's report is very convincing, so it will be interesting to see whether the Prosecutor has been able to develop new evidence of a genocidal policy. Unless he has, any attempt to charge the Sudanese government with genocide will make it seem like he is simply giving in to western political pressure -- a result that, however unjustified, would further damage his already shaky reputation for independence.

Last month, I noted that the ICTR Prosecutor had "disowned" Human Rights Watch for daring to criticize his request to refer Yusuf Munyakazi to Rwanda for trial. I guess he'll now have to disown Trial Chamber III, as well, because on Monday it agreed with HRW and rejected the referral:

Chances of genocide suspect and former Rwandan Interhamwe militia leader Yussuf Munyakazi of being tried on home ground were diminished on Wednesday when the United Nations war crimes tribunal rebuffed opposition application to hold the trial in the small east African state.

Mr Munyakazi is facing charges of the 1994 Rwanda genocide in which UN estimates show that over 800,000 people, mostly ethnic Tutsis and moderate Hutus were allegedly murdered by his armed forces between April and July.

The 73 year-old former farmer and businessman was arrested in the neighbouring Democratic Republic of Congo (DRC) in 2004, prior to being brought before the International Criminal Tribunal for Rwanda (ICTR).

He allegedly masterminded and in some instances, actually participated in the killing of the Tutsis who had sought sanctuary in numerous churches in Rwanda’s Bugarame commune.

The Trial Chamber's decision is comprehensive and well-reasoned. National referrals are governed by Rule 11bis, which provides in relevant part that "[i]n determining whether to refer the case... the Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out."

The Trial Chamber began by noting that Rwanda had, in fact, abolished the death penalty. It pointed out, however, that defendants convicted in Rwandan courts of torture, murder, genocide, and crimes against humanity will be sentenced to life imprisonment "with special conditions" — namely, life imprisonment in permanent isolation from other prisoners. Such punishment, the Trial Chamber held, was inconsistent with international standards for detention, which require imprisonment in isolation to be an exceptional punishment "applicable only where necessary and proportionate" and to be imposed with numerous procedural safeguards, such as periodic judicial review to determine whether isolation remains necessary. Those safeguards are completely absent from Rwandan law.

Although the isolation ground would likely have been enough to deny the referral, the Trial Chamber offered two additional grounds for denying it:

• One judge would have presided over Munyakazi's trial, making the court particularly susceptible to political pressure from the Rwandan government — which has a long history of undermining the independence of the judiciary. (A panel of three judges, the Trial Chamber noted, would likely satisfy Rule 11bis. At present, however, Rwandan law does not provide for such panels.)


• The Rwandan government has consistently harassed, arrested, detained, and sometimes even killed witnesses for the defense, making it unlikely that Munyakazi would have the ability to secure and examine witnesses "under the same conditions as witnesses against him," a right guaranteed by Article 20 of the ICTR Statute. Moreover, the Trial Chamber noted that the Rwandan government has done nothing to help defendants in Rwandan courts obtain witnesses who are located outside of Rwanda.

The Trial Chamber's decision obviously represents a significant setback for the ICTR's completion strategy. Rwanda will now have to make additional, and likely time-consuming, changes to its criminal-justice system if it wants to receive the 17 suspects the ICTR intends to transfer. That said, the decision will no doubt help legitimize the completion strategy itself, which many have criticized — including an ICTR appellate judge — as being far less concerned with fairness to defendants than with dissolving the ICTR as quickly and cheaply as possible. At the administrative level, those criticisms may still hold. Fortunately, at least for now, the Trial Chamber seems disinclined to play along.