The Prosecution Appeals the Genocide Issue — and They Cite Me!

I am happy to report — though some readers will no doubt be unhappy to hear — that the OTP has requested leave to appeal the Pre-Trial Chamber’s decision on the genocide charges.  The appeal cites my recent post on the majority’s misunderstanding of the “reasonable grounds” standard, which is both a tremendous honor and a testament to the ever-increasing visibility and importance of blogging.

The OTP’s appeal raises three issues:

1. Whether the “reasonable grounds” standard requires the Prosecution to prove that genocidal intent is the only reasonable inference from the evidence (paras. 15-17).

2. Whether the majority took irrelevant considerations into account when determining Bashir’s genocidal intent: the fact that a number of attacks on Fur, Massalit, and Zaghawa villages did not result in large numbers of injured and dead; the fact that the Prosecution did not allege that the Sudanese government had established long-lasting detention camps in Darfur; and the fact that the Prosecution did not allege that Haroun was reponsible for genocide in its application for his arrest warrant (paras. 18-22).

3. Whether the majority failed to appropriately weigh — individually and collectively — the nine factors that the Prosecution offered in support the inference of genocidal intent.

I don’t see how the OTP can lose on the first issue.  Regardless of what the Appeals Chamber thinks about the merits of the genocide charges, it simply cannot allow the majority’s elision of the difference between the “reasonable grounds” and “proof beyond a reasonable doubt” standards to stand — the consequences for the OTP’s ability to obtain arrest warrants in future cases could be catastrophic.

I also think the OTP has a strong argument on the second issue.  The first fact is irrelevant, because the application for the arrest warrant does not simply allege that Bashir is responsible for genocide by killing; it also alleges that he is responsible for genocide by subjecting the Fur, Massalit, and Zaghawa to conditions of life calculated to ensure their destruction.  The second fact is irrelevant because it does not matter where the members of a protected group are subjected to the conditions of life calculated to destroy them, as long as those conditions exist.  And the third fact is irrelevant because Haroun’s statements, as the OTP points out, “acquire genocidal significance in the context of Al Bashir’s use of the entire state apparatus to commit the crimes.”  (I would add that the PTC’s argument makes no sense.  I know of no principle in any system of criminal law that says a prosecutor who brings charges X and Y against a defendant is somehow collaterally estopped from later bringing charges A, B, and C against him.)

The third issue is the most difficult one.  Weighing multiple factors is a notoriously inexact science, if it even qualifies as a science at all.  Indeed, I don’t think the OTP is actually taking issue with the majority’s analysis; it simply disagrees — justifiably, in my opinion — with the majority’s conclusions.  It is thus very possible that the Appeals Chamber will give the OTP a Pyrrhic victory, holding (1) that the majority misinterpreted the reasonable-grounds standard, but (2) that the evidence in support of the application still falls short of establishing reasonable grounds.

I hope that doesn’t happen — but I would not be shocked if it does.  Stay tuned.