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Print This PageThe 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.
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Congratulations!
Although I’m not sure that the Chamber (who must certify the issues as appealable) will be too enamoured by the title of your cited post..!
at 11:20 am EST MC
I would like to know your opinion relating to two other aspects of PTC I’s decision which were not included in the Prosecution’s motion for leave to appeal.
(1) The definition of the protected group. The Chamber considered that the charges should have been brought separately with respect to the three different African tribes in Darfur (i.e. genocide against the Fur, genocide against the Masalit, and genocide against the Zaghawa). In contrast, Judge Usacka placed a greater weight on the perception of the Arabs in Sudan, which treat these tribes as a single “African” entity (see Dissenting Opinion of Judge Usacka, para. 25).
(2) The Chamber’s finding that a killing which is legal under IHL can never qualify as a crime against humanity. At paragraph 92 of the decision:
“The Chamber observes that, as there was an ongoing armed conflict at the relevant time, the killing of the following two categories individuals, without violating international humanitarian law, cannot be considered unlawful, and therefore cannot be taken in consideration in assessing the Prosecution’s allegations for crimes against humanity:
(i) those members of the SLM/A, the JEM or any other armed group opposing the GoS in the ongoing armed conflict in Darfur; and
(ii) those other individuals who, despite not being members of the said armed groups, were assisting any of them in such a way as to amount to taking direct part in hostilities.”
This, in my view, could be considered erroneous on two grounds. Firstly, there is no requirement under the Statute that the victims of crimes against humanity be protected persons under IHL, and the ICTY Appeals Chamber in Martic found that combatants could qualify as victims of crimes against humanity (arguing, inter alia, that there is nothing in the text of the ICTY Statute requiring that individual victims of crimes against humanity be civilians — no such indication exists in the ICC Statute either). Secondly, there is no authority for the assertion that, in a non-international armed conflict, all members of an armed group may be lawfully targeted by governmental armed forces, as the notion of “combatant” does not exist in the IHL applicable to non-international conflicts. The test of “membership”, in the context of armed groups taking part in a non-international conflict, was accordingly discarded by the ICRC in Customary International Humanitarian Law in 2005.
This blanket refusal to consider combatants as victims of crimes against humanity could, in the future, impinge on the Trial Chamber’s freedom to make its own determination of the merits, as it could constitute a premature determination of the charges (just as Judge Usacka argued with regard to the issue of evidence of genocidal intent).
What is your opinion on the matter?
Many thanks.
- Guillermo Otálora Lozano (Colombia)
at 1:08 am EST Guillermo Otálora Lozano
That is, indeed, a great accomplishment. I salute you and your efforts at bringing justice to where so little exists.
at 2:58 pm EST Bryan J.