Alex de Waal’s Article 58 Survey

In response to my previous posts on the correct interpretation of Article 58, Alex de Waal asked three lawyers to answer the following two questions:

1. Did the Pre-Trial Chamber misinterpret Article 58’s “reasonable grounds” standard?
2. If so, does the Prosecution Application establish reasonable grounds to believe Bashir is responsible for genocide?

It’s an interesting survey.  Two of the three lawyers agreed with me on the first question.  One did not, although he or she either misunderstood Alex’s question or has not bothered to read Article 58.  According to lawyer No. 2, “[w]hereas ‘reasonable grounds to believe’ is not absolute, the factor ‘only’ (in reasonable inference) is absolute. The question is, which one ‘wins’: should one lower the standards of ‘only’ because it is a pre-trial stage? I wouldn’t say so.” As I have pointed out, there is no “only reasonable inference” requirement in Article 58; that requirement is the invention of the PTC.  The lawyer’s argument is thus completely tautological: the question is whether the language of Article 58 supports the PTC’s argument, not whether the language of the PTC’s argument supports the PTC’s argument.

On the second question, the lawyers unanimously concluded that, even had it applied the correct standard, the PTC would have — and should have — refused to issue the arrest warrant on the genocide charges.  I obviously disagree with that conclusion, but it is certainly a debatable issue.

The post is well worth a read.  It’s available here.