The Arrest Warrant for Bashir — Quick Reactions

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/03/04/the-arrest-warrant-for-bashir-quick-reactions/

9 Responses

  1. The discussion of immunity is surprisingly sparse (see Decision on the Prosecution’s Application for a Warrant  [en] [fr], paras. 41-45).    The bulk seems to be that because the Security Council referred the situation, Article 27 applies (para. 45).  

    The press release says: “Omar Al Bashir’s official capacity as a sitting Head of State does not exclude his criminal responsibility, nor does it grant him immunity against prosecution before the ICC, according to Pre-Trial Chamber I.”  [en][fr]

    But I don’t think that the decision says that.  I think that the decision says that the Security Council referral (of a non-state party) effectively abrogates the immunity.  

    Or maybe I’m splitting hairs? 

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    The PTC stated that today’s decision does not prevent the ICC Prosecutor from presenting additional evidence to request an amendment to the arrest warrant under article 58(6) of the Statute to include the crime of genocide. Specifically, the PTC rejected the sufficiency of the evidence showing the Government of Sudan ‘s genocidal intent, not just the intent by President al-Bashir himself. The PTC concluded that the statements by President al-Bashir and other government officials only showed persecutory intent, not genocidal intent. Further, the PTC provides several examples of plausible intervening causations that would thwart the claim of genocide. Fundamentally, the PTC seems to be struggling with how to infer genocidal intent from circumstances and the contextual element of genocide. I agree that the PTC was timid in arriving at the conclusion that the evidence did not meet the standard of “reasonable grounds.” They seem to be looking for more concrete evidence of purposeful genocidal action not attributable to other causations.

  3. The Pre-Trial Chamber majority decision (the decision is here) seems to base its rejection of the genocide charges on the fact that the Prosecutor put no hard evidence before the Chamber to support intent – he intended the Judges to “infer” that intent.  Interestingly Judge Usacka, dissenting, holds that genocidal intent does exist, “by reasonable inference”.
      
    Is a “reasonable inference” the same as or as good as “reasonable grounds”?  I’m not sure that it is.  By failing to recognise an “inference” as a sufficient standard, the majority are sticking mechanically to the text of the Rome Statute – evidence is needed, under Article 58(1).  
     
    The PTC is not, as you suggest, dismissing that genocide occurred – it is, rather, saying that the OTP has not put the evidence before it to support the claim.  The Prosecutor, as you rightly point out, has the opportunity to go out and collect more evidence.  So the position may change.
     
    Also I’d dispute your “boilerplate” argument.  The warrants you have linked to are backed up by substantial decisions that outline in detail the reasoning behing issuing the warrant – here’s Bemba and here’s Lubanga (joined with Ntaganda).  They are still quite a bit shorter than the Al-Bashir decision, but confirm that a thorough and proper consideration was made.

  4. I think you’re wrong on this point. This is one area of international law which is moving and developing in exactly the same direction of policy. Art. 2 of the Convention on the prevention and punishment of the crime of Genocide before describing the examples of the types of conduct that amount to genocide in subsections (a)-(e) states that there must be a clear intention to “destroy, in whole or in part”. If you, take the Holocaust as a definitive example, and draw a line to Rwanda. The acts perpetrated in the Former Republic of Yugoslavia and Darfur fail to reach that high level. Both in policy and in law there has, and will always be attempts to try to distinguish ‘lower acts’ of ‘ethnic cleansing’ as distinguishable from genocide. In many respects, Ocampo has taken a sensible view on the direction that the law is moving in on this issue. On a practical level, he has also acted as a prudent prosecutor, as the war crimes charge in addition to the crimes against humanity charges amount to a stronger case in totality.

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