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Nicole Fritz
The Business Day

IN THE debate over the International Criminal Court’s (ICC’s) indictment of Sudanese President Omar al-Bashir, the respective sides — the justice purists and the peace pragmatists — give no ground. Recent developments at the ICC and the African Union (AU) made that clear. But neither of these extremes offers good law or good policy.

As the ICC upheld an appeal clearing the way for al-Bashir to be charged with genocide, in addition to the crimes against humanity and war crimes charges he already faces, the AU was quick off the mark, criticising the decision as detrimental to the peace process in Sudan.

In truth, the decision is a technicality — going to evidentiary standards that must be discharged prior to the issue of arrest warrants — and it would be a negligent prosecutor who didn’t appeal against the initial, mistaken interpretation that sufficient evidence had not been established to support a genocide charge. But it isn’t hard to see why the decision might be read as an intensification of the campaign against al-Bashir. In the public’s perception, genocide represents the worst of crimes. Its possible addition to the charge sheet invites the public to view al-Bashir as even more irredeemable.

But if a charge of genocide is a powerful public advocacy tool, it’s not an effective legal strategy. Genocide is notoriously difficult to prove. The prosecution has to establish that the perpetrator had a specific intent to destroy, in whole or in part, a particular national, ethnic, racial or religious group. It isn’t enough to show the perpetrator intended to intimidate or oppress the group, or that the perpetrator intended to destroy all his political opponents, as political groups do not fall within the prescribed list.

This is why legal observers have questioned the prosecutor’s initial decision to charge al-Bashir with genocide against members of the Fur, Marsalit and Zaghawa groups in Darfur. If he were to be acquitted of these charges , many will see the judgment as a form of exoneration, a diminution of his legal responsibility, rather than what it is: an inability merely to establish the specific intent.

It may have been wiser simply to proceed with charges of crimes against humanity and war crimes — which, legally speaking, entail no fewer deaths and no less responsibility than does genocide.

At the AU last week, there was no greater willingness to see the bigger picture. Its statement on the ICC contained no repetition of the decision at Sirte, Libya, last year to withhold co- operation from the ICC in al-Bashir’s arrest and surrender but it did endorse SA’s proposal regarding deferrals of cases before the ICC. The AU is up in arms as the United Nations Security Council, which has deferral power, has not responded to its request for deferral of the Sudan matter.

The attention given to deferral as a way forward seems misplaced. Certainly it’s difficult to imagine how al-Bashir, unless particularly shortsighted, would be appeased by the prospect of a one-time deferral. Deferral, if granted, means the ICC will not pursue a case for 12 months, but after that the case springs back into action unless deferred again. This means that unless al-Bashir plans on staying in power in perpetuity and every year pressing upon his friends the need for deferral, he will have to face justice. The prospect of deferral can only generate a perverse incentive for al-Bashir never to relinquish office.

SA’s proposal for dealing with deferral requests only amplifies the perverse incentives. In terms of the proposal, if the Security Council has not acted on a deferral request within six months, the General Assembly can decide the matter. What this would mean for al-Bashir is that the six- month period during which the Security Council entertains the request would be most usefully spent not in bringing about reform in Sudan and progress towards peace, but in lobbying members of the General Assembly to grant the deferral request. It is likely only to intensify political wrangling on the matter.

The polarised nature of the al- Bashir indictment makes it unsurprising that the protagonists can’t see the wood for the trees, but recent developments suggest they’re at risk of setting it on fire.

N. Fritz is the director of the Southern Africa Litigation Centre.


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