By Alemayehu G. Mariam
How Sweet It is!
“Justice is like a train that is nearly always late”, but it did arrive just in the nick of time for Omar Hassan al-Bashir, President of the Sudan. Al-Bashir is now a fugitive from justice, a wanted man by the International Criminal Court (ICC). In his application for an arrest warrant last year, ICC Prosecutor Luis Moreno-Ocampo alleged that over the preceding five years, al-Bashir had “masterminded with absolute control” and “appointed key personnel to implement” a criminal a plan “to destroy in substantial part the Fur, Masalit and Zaghawa ethnic groups as such. Forces and agents controlled by Al-Bashir attacked civilians in towns and villages inhabited by the target groups, committing killings, rapes, torture and destroying means of livelihood.” Al-Bashir was further accused of causing the deaths of 35,000 people “outright”. U.N. officials estimate as many as 300,000 people have been killed in the Darfur region since 2003, and 2.7 million displaced.
Last July, in one of my weekly commentaries I wrote, “For as long as there are determined and unrelenting prosecutors like Moreno-Ocampo, the likes of al-Bashir, Zenawi and Mengistu can be sure that one day the long arm of international law will catch them and bring them to kneel down before the altar of justice. Our question: ‘Bad boys, bad boys, what you gonna do, what you gonna do when the ICC (International Criminal Court) catches you!’”  Today, with a deep sigh of relief and a loud shriek of ecstasy, we can all say, “One down…!”
“Eat it! You Are Under My Shoe!”
Al-Bashir has long belittled the ICC and ridiculed the criminal allegations against him as a “Western conspiracy”, a “neo-colonial plot” and a trick to “steal Sudan’s oil.” A day before the arrest warrant was issued, a defiant al-Bashir taunted the ICC: “They will issue their decision tomorrow … this coming decision, they can prepare right now: they can eat it [the warrant].” In his special message, he said: “Tell them all, the ICC prosecutor, the members of the court and every one who supports this court that they are under my shoe.” His spokesman, Mahjoub Fadul, added: “It is a flawed decision. We do not recognize it, nor the court that issued it and we do not care about it at all.” Mutrif Siddiq, Sudan’s under-secretary of foreign affairs, dismissively told reporters that not only will al-Bashir disregard the arrest warrant, he will be attending “all Arab summits and all African summits” scheduled for the year. Three days after the arrest warrant was issued, al-Bashir kicked out all of the major international aid groups providing displaced Darfurians and others victims food and medicine, including Oxfam, CARE, Save the Children, the International Rescue Committee and several others. The reason: They gave evidence of war crimes and crimes against humanity to the ICC prosecutor. (Others simply pass heavy-handed “laws” to bottle NGOs for fear they may turn out to be ICC “snitches”.) In doing so, Al-Bashir continued his criminal enterprise by committing new war crimes (“deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” is a violation of Article 7 of the Rome Statute of the International Criminal Court.) The U.N. estimates that in the Darfur region 1.1 million people will be without food, 1.5 million without health care, and more than 1 million without drinking water. In the end, it may be Al-Bashir who will be “eating” a life sentence.
Execution of Arrest Warrant
To issue an arrest warrant is one thing. To apprehend and deliver the criminal suspect for trial at the ICC is another matter. The ICC does not have its own police force, and must necessarily rely on the cooperation of governments wherein the fugitive from justice is located. There is no expectation of cooperation from the Sudanese government. Al-Bashir has already rejected extradition requests by the ICC to hand over Ali Kushayb, (“janjaweed butcher of Darfur”) and Ahmed Aroun (former Interior Minister and later Minister of State for Humanitarian Affairs and chief architect of the janjaweed campaign of violence against civilians), accused of torture, mass rape and the forced displacement of entire villages in Darfur in 2003 and 2004. At the time, al-Bashir intoned: “I swear to God, I swear to God, I swear to God we will not hand over any Sudanese to the International Court.” The U.N. peacekeepers stationed in the Sudan do not have authority to arrest or detain war crimes suspects. But it is highly likely that the ICC has registered its arrest warrant with Interpol and al-Bashir’s name is now listed on Interpol’s Red Notice. Unless he is caught in transit in one of the 108 countries that have accepted ICC jurisdiction, chances of his arrest in the short-term are fairly low. The fact of the matter is that al-Bashir will be looking over his shoulder until he is collared and brought to justice.
The Prosecution’s Case in the Inevitable Trial of Omar Hassan al-Bashir
Despite the worldwide publicity surrounding the arrest warrant, it is important to emphasize that al-Bashir is presumed innocent until proven guilty in a court of law. That is why Prosecutor Moreno-Ocampo carries the entire burden of proof in showing al-Bashir committed war crimes, crimes against humanity and other offenses beyond a reasonable doubt. Al-Bashir is also entitled to a fair trial complete with procedural protections guaranteed under the Rome Statute and other international conventions. Having said that, it is as sure as the sun will rise tomorrow that al-Bashir will be held to account for the crimes he is accused of committing whether it takes 1 year, 10 years or more; and he will be convicted. There is no question about that!
But there may be a question as to what legal theory Prosecutor Moreno-Ocampo will likely use to prove his case. He has many options, including a theory of personal culpability as to crimes specifically enumerated in Articles 6 (Genocide), 7 (Crimes Against Humanity) and 8 (War Crimes) of the Rome Statute. More likely, Moreno-Ocampo will prosecute al-Bashir using the legal doctrine of command responsibility (that is, a superior in the chain of command is responsible for crimes committed by his subordinates or other combatants under his direct or indirect control, and for failing to prevent or punish the violators after discovering the criminal acts under Article 28 of the Rome Statute.
Under Article 28, “A military commander or person effectively acting as a military commander shall be criminally responsible… if [s/he] either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and … failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.” Similar prosecutorial authority is found in the Additional Protocols to the Geneva Conventions, Protocol I (Article 86 (2) – Failure to Act “breach of the Conventions or of this Protocol …by a subordinate does not absolve his superiors from penal or disciplinary responsibility… if they knew, or should have known [of the crime]”), and Article 87 (Duty of Commanders- “military commanders [have a duty] to suppress and to report to competent authorities breaches of the Conventions and of this Protocol [and] to initiate such steps as are necessary to prevent such violations.. [and take] disciplinary or penal action against violators…”
What Prosecutor Moreno-Ocampo Must Prove to Obtain a Conviction
If Prosecutor Moreno–Ocampo uses the legal doctrine of command responsibility to prove his case, he must show beyond a reasonable doubt al-Bashir acted or failed to act with respect to the alleged crimes at least under one or more of the following circumstances. Al-Bashir, at the time of the alleged offenses, had 1) as a “civilian” president legal authority to command and control Sudanese soldiers and their commanders; 2) actual legal authority (de jure) over the Sudanese military and/or the janjaweed militia such that he can issue orders to them not to commit illegal acts, and punish them if they violate his orders; 3) operational power of command over military troops stationed in Darfur combined with the actual ability to control the conduct of these troops and their commanders; 4) de facto powers of command and control or other informal or indirect command and control over the janjaweed militia and their leaders; 5) de jure authority, command and control of such nonmilitary organizations as the Ministry of the Interior and other police and security agencies involved in actions against civilians in the Darfur region; 6) actual or constructive knowledge of crimes committed or about to be committed in Darfur, or acted or failed to act in willful disregard of available information indicating that crimes were committed or about to be committed in Darfur; 7) been negligent in gathering and processing information on crimes committed or about to be committed in Darfur and 8) known or should have known of crimes committed in the Darfur by the Sudanese military or the janjaweed and failed to punish the perpetrators or failed to take preventive action.
For purposes of Article 28 (a) (command responsibility) of the Rome Statute, and relying upon the Yamashita standard (WW II trial of Japanese war criminals on the basis of command responsibility) al-Bashir will have a very difficult time defending against the ICC charges. The facts of war crimes and crimes against humanity in Darfur were so notoriously known, so extensive and widespread both as to time (2003-present), area and victim populations, that the only reasonable conclusion by a fact-finder is that al-Bashir, as president of the Sudan and commander-in-chief of the Sudanese armed forces, must either have willfully permitted the commission of the crimes by members of the armed forces or the janjaweed who coordinated with the regular army units, or secretly ordered the commission of the alleged crimes.
Those who have some familiarity with the evidence against al-Bashir will likely agree that Prosecutor Moreno-Ocampo will be able to prove his case beyond a reasonable doubt by showing that al-Bashir:
Was president of the Sudan when the crimes began taking place in Darfur in 2003 and continue to the present day.
As Sudan’s president was (and is) responsible for national security; and that as a commander-in-chief of the Sudanese military directed and maintained close contacts with field commanders in the Darfur region who reported to him directly, and that he had full authority to supervise and administer Sudan’s military.
Himself a former army general, was (and is) the chief architect of military policies and actions in the Darfur region with ultimate authority over military and civilian government organizations and operations involved in that region.
Has been informed of war crimes and crimes against humanity in Darfur through direct and indirect means. In September, 2004 President George W. Bush took the extraordinary step to inform him of crimes committed in Darfur when he declared, “The world is witnessing terrible suffering and horrible crimes in the Darfur region of Sudan, crimes my government has concluded are genocide.” International human rights organizations have put al-Bashir on alert for years concerning violations of international human rights law, and has taken vindictive actions against them after an arrest warrant was issued against him because they performed their duty of reporting war crimes and crimes against humanity as required by international law.
Had direct communication with janjaweed militia leaders, or indirectly through his ministers, and was well informed of their criminal activities in Darfur.
Has and continues to have de facto command and control and authority over the janjaweed militias and their leaders directly or through Sudanese military officers, the interior ministry and other government agencies; that he has provided the militias arms, training, tactical and logistical support in their criminal activities against civilians in Darfur.
Has directed or caused Sudanese military commanders to order and/or instruct the janjaweed to “mop up” and eliminate “insurgents” in the camps, and determined the details of such operations.
Was made aware of certain information concerning war crimes and crimes against humanity in Darfur, (including an extraordinary statement by the President of the United States in 2004 and other international human rights organizations), and presented with such alerting information was under a legal duty to investigate further, and to take all necessary measures to prevent the crimes from taking place.
Had the power to impose disciplinary or criminal sanctions against soldiers and commanders and janjaweed forces involved in crimes against civilians in Darfur. No commanders or janjaweed criminal perpetrators have ever been punished for war crimes or crimes against humanity.
Prosecutor Moreno-Ocampo has dozens of eyewitnesses to testify about the atrocities that took place in Darfur. He has substantial forensic, physical, documentary, photographic, videographic and a variety of circumstantial evidence of war crimes and crimes against humanity committed in Darfur. Based on the totality of the evidence, the ICC could reasonably and effortlessly conclude or infer that 1) al-Bashir knew or should have known of large scale atrocities committed against civilians for years in Darfur, 2) that he possessed sufficient knowledge of the Darfur atrocities to enable him to anticipate the eventual course of events that occurred between 2003 and the present, including the repeated commission of war crimes, crimes against humanity and other offenses; 3) that in those cases where he did not have actual knowledge of the crime, he remained willfully ignorant and failed to stay adequately informed of the circumstances in Darfur with gross criminal negligence, 4) that as president and commander in chief, he willfully refused to investigate war crimes and crimes against humanity and punish those who committed atrocities implicitly acquiescing to the crimes (or effectively ratifying the criminal conduct after the fact thereby encouraging the commission of additional atrocities in the future); and 5) that he was one of the few individuals who actually could have prevented atrocities in Darfur by providing for proper precautionary measures. Therefore, the ICC will likely determine that al-Bashir bears heavy attribution of personal and command responsibility for war crimes and crimes against humanity committed in Darfur beginning in 2003.
For whom the Bell Tolls
To al-Bashir’s soulmates who have “been saddened” by the arrest warrant issued against him, we offer them a verse from John Donne:
Send not to know
For whom the bell tolls,
It tolls for thee.