Some highlights of the proescutor's case, a summary of which is available here:
- Al-Bashir would be indicted for genocide, rejecting the conclusions of an International Commission of Inquiry on Darfur, which concluded in its final report that it could not infer a state policy to commit genocide. I took issue with the Commission's methodology and conclusions here.
- Al-Bashir would be indicted for causing serious bodily or mental harm to protected groups (members of the Fur, Masalit and Zaghawa tribes), but also for deliberately inflicting on those groups "conditions of life calculated to bring about their physical destruction in part." This form of genocide has been underutilized under international criminal law. (Physicians for Human Rights (PHR) has an excellent report setting out the case for this form of genocide within Darfur). Tribunals have recognized the concept of “slow death,” where conditions of life are inflicted upon a protected group that may not lead to the immediate death of members of the group, but will eventually lead to that result if implemented over a long period of time. The International Criminal Tribunal for Rwanda defined “slow death” as:
methods of destruction by which the perpetrator does not necessarily intend to immediately kill the members of the group,’ but which are, ultimately, aimed at their physical destruction. The Chamber holds that the means of deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part, include subjecting a group of people to a subsistence diet, systematic expulsion from their homes and deprivation of
essential medical supplies below a minimum vital standard. Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgement, para. 52 (Dec. 6, 1999).
- The use of rape as a means to commit genocide is also specifically mentioned in the prosecutor's submission to the Court.
- In addition to crimes against humanity, al-Bashir would be indicted for war crimes (intentionally directing attacks against the civilian population and pillage).
With this indictment, al-Bashir joins Serbian President Slobodan Milosevic and Liberian President Charles Taylor in a club of sitting heads of state being prosecuted by an international tribunal.
Proceedings involving Darfur (map of Sudan, left) before the ICC were preceded by an International Citizens' Tribunal for Sudan organized by elements of civil society (including non-governmental organizations and individuals) concerned about the lack of international response to the crimes against humanity unfolding in Darfur. Nobel laureate Wole Soyinka (right) presided over the proceedings.
The ICC Indictment focuses on al-Bashir's use and abuse of the state apparatus to effectuate and cover up the charged international crimes. This is the same approach taken by the prosecutorial team (of which I was one member) in its model Indictment of Bashir for genocide, crimes against humanity and war crimes (condensed indictment here).
In addition to testimony by former U.S. Department of State personnel, journalists, academics, and PHR's Susannah Sirkin (left, in black and white), a number of Sudanese ex-patriots and Darfur refugees movingly testified before the Tribunal.
A short film compiling the trial highlights is available here.