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The Politics of Proving Genocide in the Bashir Case

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The Politics of Proving Genocide in the Bashir Case

Posted by Maggie Fick on March 10, 2009

The Politics of Proving Genocide in the Bashir Case

As I watched the Hague press conference on television last week, this headline flashed across the screen as soon as the charges were announced: “Bashir not charged on genocide.” This is certainly the sound bite that may stick with some observers, and there are some critics of international justice who will choose to focus on the fact that the Court rejected the Chief Prosecutor’s genocide claims and cast it as a failure. But as Enough adviser Omer Ismail argued last week:

Even if the ICC’s pre-trial judges opt to dismiss the charges of genocide, Bashir will still be a war criminal with strong evidence against him. In the eyes of Darfuris and supporters of accountability and the end of impunity world wide, this is a major step forward.

I am not a lawyer, and so I am in no place to assert that proving the genocide charge is more difficult than other war crimes charges. I am also not going to touch the long-running debate over the term “genocide” (Instead I refer you to a recent series on’s Stop Genocide blog). However, I will take issue with Opinio Juris’ Kevin John Heller’s take on the arrest warrant:

Sudan’s response to the arrest warrant will be no less draconian simply because Bashir escaped (for now) being charged with genocide. Yet I think we can expect the rest of the world to lose interest in Darfur (again) now that the [Court] has said that the Sudanese government did not pursue a genocidal policy towards the Fur, Massalit, and Zaghawa.

I don’t mean any offense, but I think Heller must not be aware that the permanent, mobilized, motivated anti-genocide constituency here in the United States and around the world—including in Heller’s native Australia—is committed to seeing a just and lasting peace in Darfur and throughout Sudan. I doubt that the ICC case, and, in particular, the Court’s ruling on the genocide charges, will cause activists to throw in the towel. On the contrary, many activists are organizing to seize the opportunity that the arrest warrant represents to advocate for a renewed peace effort for all of Sudan.

As the ICC Chief Prosecutor said in his remarks at last week’s press conference:

There is no immunity for heads of state before the International Criminal Court. As soon as Omar al Bashir travels through international air space, he can be arrested. Like Slobodan Milosevic or Charles Tayle, Omar al Bashir’s destiny is to face justice. It could take two months or two years, but he will face justice.

And, as David Crane put it during an Enough conference call on March 4:

Be mindful of semantic issues related to what we call what has been going on. There’s still some debate as to whether it was or was not genocide. But at the end of the day, the end result is we have a prosecution for the horror story that was Darfur.

The promise of President Bashir one day facing justice is enough to keep any activist I know motivated, and with his recent steps to kick out numerous relief agencies from Darfur, Bashir himself seems eager to provide the court with enough evidence to make a genocide case.

Emily Roberts contributed to this post.