The Arrest Warrant for Bashir — Quick Reactions
In what proved to be the worst kept secret in the world, the Pre-Trial Chamber (PTC) has decided to issue a warrant for Bashir’s arrest on the war crimes and crimes against humanity charges, but not on the genocide charges. More substantive analysis will have to await an explanation of the PTC’s reasoning. For now, a couple of quick thoughts.
To begin with, it seems to me that the PTC’s decision is, from a political perspective, the worst of all possible worlds. 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 PTC has said that the Sudanese government did not pursue a genocidal policy towards the Fur, Massalit, and Zaghawa.
And make no mistake about it: that is precisely what the PTC is saying. As I have pointed out before, Article 58 of the Rome Statute required the PTC to issue the arrest warrant if there were “reasonable grounds to believe” that Bashir was responsible for genocide. Not proof beyond a reasonable doubt. Not clear and convincing evidence. Not even more probable than not. Just “reasonable grounds.” That is an extremely low standard of proof — and the PTC is saying that Moreno-Ocampo failed to meet it. That’s a very strong, and very shocking, conclusion. I disagree with those scholars who believe that Moreno-Ocampo would be unable to prove genocide at trial, such as Alex de Waal, but I readily admit that it’s a debatable point. I find it very difficult to believe, however, that the evidence of genocide — the murder of the male members of the tribes, the sexual violence and slow-death conditions in the IDP camps, etc. — doesn’t even establish reasonable grounds to believe that genocide occurred.
It is also worth noting that the PTC has apparently subjected the request for the arrest warrant against Bashir to an unprecedented level of scrutiny. Check out the decisions in Lubanga or Bemba: they are mere boilerplate, stating with no explanation whatsoever that the Chamber finds reasonable grounds to believe the OTP’s allegations. Perhaps the different treatment reflects the PTC’s belief that the cases against Lubanga and Bemba are simply far stronger; that’s certainly possible. The problem is that we have no way to know. We can only hope that the PTC provides a more detailed explanation of its refusal to find reasonable grounds for genocide.
Finally, it’s worth noting that this is not necessarily the end of the line for the genocide charges. Article 82 of the Rome Statute entitles Moreno-Ocampo to appeal the PTC’s decision to the Appeals Chamber. I very much hope he will.