The Majority’s Complete Misunderstanding of “Reasonable Grounds”
Having now read the decision on the arrest warrant, I am more convinced than ever that the majority completely misunderstands Article 58’s “reasonable grounds” requirement. The rationale for the majority’s argument that there are no reasonable grounds to believe Bashir is responsible for genocide comes in paras. 158 and 159, concerning the Prosecution’s proof of the Sudanese government’s genocidal intent (emphasis mine):
158. In applying the law on the proof by inference to the article 58 evidentiary standard in relation to the existence of a GoS’s genocidal intent, the Majority agrees with the Prosecution in that such a standard would be met only if the materials provided by the Prosecution in support of the Prosecution Application show that the only reasonable conclusion to be drawn therefrom is the existence of reasonable grounds to believe in the existence of a GoS’s dolus specialist specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups.
159. As a result, the Majority considers that, if the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.
Two points need to be made here. First, as Judge Usacka points out in her dissent, the majority misstates what the Prosecution actually argued. The majority quotes para. 366 of the Prosecution’s Application, which says that no inference of genocidal intent can be drawn unless that inference is “the only reasonable inference available on the evidence.” The majority conveniently ignores, however, the Prosecution’s footnote to para. 366, which says — correctly — that “[w]hile this is the evidentiary standard required for proof beyond a reasonable doubt, the Prosecution notes that for the purposes of an Art. 58 application the lower standard of reasonable grounds will instead be applicable” (emphasis mine). It is unfortunate — and deserving of criticism — that the Prosecution buried such an essential distinction in a footnote, but it needs to be said that the Prosecution did not take the position the majority ascribes to it.
Second, as Judge Usacka also points out, the majority’s interpretation of Article 58 is simply wrong. The majority completely elides the difference between “reasonable grounds” and “proof beyond a reasonable doubt.” No court has ever held — international or domestic — that the Prosecution cannot establish reasonable grounds to believe that a defendant acted with the necessary mens rea unless it can show that no other reasonable conclusion is possible. On the contrary, the “only reasonable conclusion” requirement applies exclusively to the standard of proof beyond a reasonable doubt. Here, for example, is the ICTY Appeals Chamber in Delalic et al.:
A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him – here that he participated in the second beating of Gotovac. Such a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted. (para. 458; emphasis mine)
Judge Usacka cites the ICTR Appeals Chamber’s recent decision in Karera to similar effect:
It is well established that a conclusion of guilt can be inferred from circumstantial evidence only if it is the only reasonable conclusion available from the evidence. Whether a Trial Chamber infers the existence of a particular fact upon which the guilt of the accused depends from direct or circumstantial evidence, it must reach such a conclusion beyond a reasonable doubt. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the nonexistence of that fact, the conclusion of guilt beyond a reasonable doubt cannot be drawn. (para. 34; emphasis the Judge’s)
The majority also claims that its interpretation of Article 58 “constitutes the only interpretation consistent with the ‘reasonable suspicion’ standard provided for in article 5(1 )(c) of the European Convention on Human Rights.” That is also incorrect. Here is how the European Court of Human Rights explained the “reasonable suspicion” standard in Ergadoz v. Turkey:
[F]acts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation. However, for there to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence” (para. 51; emphasis mine).
It is obvious that a person “may have committed” an offence even if it is also possible to conclude that he didn’t. The majority’s cite to the Convention thus undermines, not helps, its argument.
As I have said before, reasonable people can disagree over whether the Prosecution can prove beyond a reasonable doubt that Bashir is guilty of genocide. Indeed, I think reasonable disagreement is possible over whether the Prosecution’s evidence, as it stands today, would be enough to justify confirming genocide charges against Bashir — a standard that requires “sufficient evidence to establish substantial grounds to believe that the person committed the crime charged.” I do not think it is reasonable, however, to argue that the Prosecution has not established “reasonable grounds” to believe that Bashir has committed genocide. The majority itself does not claim that it is unreasonable to infer the Sudanese government’s genocidal intent from the Prosecution’s evidence; it simply argues that inferring that intent “is not the only reasonable conclusion that can be drawn therefrom” (para. 205; emphasis mine). Maybe not — but it doesn’t have to be. For all the reasons explained above, as long as genocidal intent is one reasonable inference from the evidence, Article 58’s “reasonable grounds” standard is satisfied.