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  Charges Against Sudan's Omar al-Bashir: Accusing a President of Genocide

Charges Against Sudan's Omar al-Bashir Accusing a President of Genocide

By Thomas Darnstädt

Part 2: A 'Highly Explosive' Case

To build the case against al-Bashir, Moreno-Ocampo deployed a team of specially trained investigators for three years in Darfur and the surrounding region. Each researcher was armed with a laptop that could be used to type the brutal accounts of victims and witnesses directly into a computer system. For perilous missions, Moreno-Ocampo developed "case matrix" software -- a sophisticated database that enables investigators to immediately identify which facts are still needed in a particular case to back up each charge the prosecutor is seeking.

But will that be enough to secure an indictment against a head of state for genocide? It's a charge that can seldom be proven.

There are few historical precedents. International law enabling the prosecution of genocide first evolved after the Allied Tribunal, during the Nuremberg Trials, failed to find an appropriate legal framework to prosecute German Holocaust criminals. The last time the world attempted to prosecute the attempted physical decimation of an entire ethnicity was after the Srebrenica massacre. The Yugoslavian Tribunal recognized the mass murder of all of the city's men as genocide, and the International Court of Justice, or ICJ, in The Hague agreed.

But the ICJ isn't the International Criminal Court -- and its judges could once again view the situation differently.

Were the victims in Darfur really killed because they, like the Jews, were members of a recognized ethnic group? Can it also be called genocide when those responsible allow people to slowly perish in refugee camps? These legal questions will pose a minefield for Moreno-Ocampo's case.

Either way, Moreno-Ocampo's move is "highly explosive," argues Cologne-based international law professor Claus Kress. Kress represented Germany in negotiations on the Rome Statute founding the ICC. He is also one of the authors of the rules of procedure that are now being applied to the Sudanese. He says a "central preliminary question in the proceedings" will be whether the court accepts that a serving head of state should appear before a tribunal in The Hague. If so, under what conditions?

ICC statutes rule out the possibility of automatic immunity for statesmen -- in other words, the right to veto legal proceedings in order to keep a leader from going on trial. But Sudan's potentate could still insist on immunity. After all, his state hasn't ratified the International Criminal Court.

This is where things could get suspenseful. Former Serbian leader Slobodan Milosevic and ex-Liberian President Charles Taylor were both indicted while in office, but through different courts, and under different rules.

Has it become an option under international law for lawyers to ignore the immunity of their clients? And who would be the next unjust leader to be hauled out of his palace by the functionaries of the world legal system? Which president will be the first to leave diplomatic peace talks in one of the world's capital cities in handcuffs?

If, in the near future, a van with bars pulls up to the International Criminal Court carrying al-Bashir, and if judges dressed in dark blue assemble to hear the Darfur case, then they will be writing legal history. Perhaps world history.

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