Video commentary on ICC trials

Kevin Jon heller, with a big focus on Sudan/Darfur... very interesting. Can;t seem to embed though.
http://bloggingheads.tv/diavlogs/17898?in=28:58&out=34:51

Cherry Leonardi's paper on chiefship in Yei

Published in Africa (Vol 77(4), 2007), Leonardi's thick description of the internal politics of two chiefships, and their place in the broader regional arena, makes for a great reminder that all politics is local, and that the discourses of politics, especially the discourses of legitimation, are bafflingly inconsistent, dense, changing, situational, and well everything else. But they are eminently understandable, once one take the time (as Leonardi did) to listen to lots and lots of people.

So suppose someone asked the question, "Say I was going to an UNMIS project manager in the Yei area. What do I need to know?" At one level the response might be something like, you need to know the personalities and histories and identifications of the people involved. i.e. go read the "personnel files"... the British colonial authorities (and French, in their colonies) would keep on everyone- once a year. "A lazy thief." "Clever and cares about his people." "Worked with Slatin. Not to be trusted."

But Leonardi does more than that. She takes the local politics and personalities of chiefship in Yei to make a very general statement about one of the biggest and thorniest issues in African studies: What is the "constitutional" place of this office called chief? She shows the enduring power of a whole set of discourses brought to bear on the subject; and none of these discourses deal with democracy, checks and balances, merit, justice, etc. That is, the vocabulary of constitutional order based on the sovereignty of the people is absent when dealing with chiefship, much as it is absent when thinking about the priesthood in Catholicism. Tremendously important, because priests now content themselves to be counsellors, while chiefs continue to be rulers. Why would these discourses of democracy be so unresonant? Because the instituions that deploy these discourses, in the context of Sudan, do precisely the opposite in practice. They (states, rebel armies, freedom fighters) do not acknowledge the soveregnty of the people, instead they abuse, violently, the people they ostensibly claim to serve. They use- as means- people, to accomplish ends.

Recent overview of the situation in Darfur

The document Report of the Panel of Experts on the Sudan (S/2008/647 - Letter dated 7 November 2008 from the Chairman of the Security Council Committee established pursuant to resolution 1591 (2005) addressed to the President of the Security Council) is a pretty amazing and relevant report on the recent situation in Darfur. A bleak picture indeed.

Mode of liability applied to al-Bashir

From Kevin Jon Heller of Opinio Juris:

Finally, it is important to point out that even if Article 25(3)(d) did embrace JCE III, it would still not be an appropriate vehicle for convicting Bashir of genocide: “contribution” is a form of accessory liability, not prinicipal liability — and a “residual” form of accessory liability at that, one that most ICL scholars agree should only be invoked where principal liability or liability for aiding-and-abetting cannot be proven. “Contribution” liability may thus be appropriate for lower-level government officials like Kushayb and Haroun, but it is not appropriate for a head-of-state such as Bashir, who needs to be charged as a principal.

The Prosecutor, of course, recognizes this. That is why the request for the arrest warrant relies on perpetration by means, which is a form of principal liability, and not on “contribution.” As I will explain in a later post, that was the correct decision: perpetration by means — not JCE III — provides the Prosecutor with the ideal vehicle for convicting Bashir of genocide.

So what *was* up with that fakeout leak at the ICC???

Only the insiders and their friends know... here's some people who have good street cred... Wrongingrights:

ICC Definitely, Probably, Maybe, or Possibly Not About to Issue Bashir Warrant
Kind of a crazy day, huh?

First the New York Times reports this morning that the Pre-Trial Chamber of the ICC has decided to go ahead and approve Chief Prosecutor Luis Moreno-Ocampo's request for a warrant for President Omar Hassan al-Bashir of Sudan. Then hours later the ICC responds with a tersely worded statement to the effect of "Nuh-uh."

This is either hella embarrassing or kind of a mean trick to play on all those media organizations chomping at the bit to bust out some portentous headlines about the first head of state to be indicted by the International Criminal Court. Michelle at Stop Genocide speculates that it might be the latter:

"[B]y leaking the information in the days before the announcement, and then issuing an obligatory denial, someone out there might be trying to soften the blow, test the waters, or at least give a warning to the international community that this is finally coming."

Word on the street (by which I mean the actual streets of the Hague, where international justice rumors flow fast and hot like so much raw sewage) suggests that this may not be far off the mark. The general consensus seems to be that the only question left unsettled is when, not whether, the arrest warrant will be issued.

Arrest warrant issued, it seems

President Omar al-Bashir of Sudan has finally earned his day of infamy: the first head of state to be indicted for genocide, war crimes, and crimes against humanity by a legitimate International Criminal Court. Diplomats and international human rights lawyers are scratching their heads over how al-Bashir can be arrested. But there is no great mystery to the arrest denouement. The top figures in Sudan’s regime are human beings. Picture them sitting in a room together. Al-Bashir starts talking. What are they all thinking? “This man is going to jail for a long time. I am sitting her free. Why am I listening to him?” And al-Bashir knows they are thinking this. And they know he knows they are thinking this. So either he starts acting crazy, or one of them removes him from power. Acting crazy against his inner circle is really al-Bashir’s only hope. He has to start playing a random game of, “It’s Monday, you didn’t demonstrate loyalty to me in a way that will incriminate you, so you’re out.” The fear by his accomplices that they will be killed before al-Bashir gets arrested is the only shield he has.

Lundin Oil leaving Sudan

In a sign of the times, Lundin has sold its concession to continue exploring in Sudan, along with some other East Africa concessions. With oil at $40 a barrel, and stocks growing rapidly and projected to grow even more as the developed countries fall deeper into recession, prospects for rapid recovery look gloomy. This of course poses major challenges for the oil-exporting regimes of Africa, which rely on maintaining peace through generous disbursement to key urban and rural constituencies (as well as regime insiders). We can speculate about what happens in a downward oil price spiral. First workers in oil industries get laid off. Many of the exploration teams are foreign, so the hotels and catering companies that served their higher standards of living go bust. Will the Malaysians still want to operate the Grand Hotel, one of Sudan's finest, on the banks of the Nile? Then oil revenues to government go down, and suddenly all the projected spending has to be rethought. Builders are always the big beneficiaries of flush governments, so look for them to be hurting. Khartoum and Juba had been on building booms... that will definitely slow. Goverment services follow soon afterwards, and rural villages waiting for schools will end up waiting longer. By now you get the point: massive dissatisfaction amongst the well-educated and comparatively wealthy elites of the country. For the ordinary daily wage worker, the grind gets worse, but subsistence living means having to scrounge and scrape feels like more of the same rather than something radically different. The upshot is that mid-ranking officers connected to well-educated and connected politicians start plotting. And pretty soon you have a coup d'etat. How's that for a theory built on a small news story?

Sudan's Income per capita over time in comparative perspective

Interesting to see how Sudan caught up with Kenya and Nigeria using the oil investment and subsequent revenues, starting in 1995. But look at the tremendous lag against Indonesia and Malaysia.

Justice en route?

According to Sudan Tribune the International Criminal Court Trial judges have authorized an arrest warrant against Omar al-Bashir, Sudan's president and head of the military regime that took power in Khartoum in 1989. The prosecutor of the ICC, Luis Moreno-Ocampo, had filed an application for an arrest warrant in July. The principal charge is that as president and commander of the Sudanese army, and its allied irregular militias, al-Bashir organized and controlled a prolonged campaign against civilians of Darfur, in particular against three ethnic groups (Zaghawa, Masalit and Fur) in the course of a counter-insurgency campaign against a small rebel force. The prosecutor argued that the targeted campaign against civilians amounted to genocide (the intent was to destroy, in part, the ethnic groups as social entities). Of course, all the violence against civilians also formed the basis for charges of crimes against humanity and war crimes.

Since the ICC is so new, there is very little precedent for what kinds of evidence will convince the judges of al-Bashir's guilt on the various charges. Different scenarios are possible, from top regime officials turning against al-Bashir and offering testimony against him, to a "wall of silence" and victim and accomplice intimidation.

Some commentators have been positioning themselves as doomsayers, arguing that any violence from here on can be attributed to the arrest warrant, but the fact is that Darfur, and the tense North-South relationship, are boiling cauldrons that could bubble over at any time.

But the arrest warrant, if indeed issued, will dramatically change the power game in Khartoum. This is now the time for civilian activists around the world to be watchful, and always ready to argue that the ICC is an international institution of justice for the most heinous crimes, and therefore we all have an interest in persuading people to respect its authority, if we aspire to have some international mechanism of accountability. In some sense, a not-bad outcome would be for al-Bashir to stand trial and be found not guilty of many of the charges, with the judges in the process setting some evidentiary standards. The very fact of a trial will be an enormous deterrent to future wanton acts of violence by illegitimate regimes, rather than a license to violence. In my opinion (this is not evidence-based interpretation).