The PTC Grants Leave to Appeal — And Indulges in a Bit of Revisionist History

by Kevin Jon Heller

A quick update on the OTP’s efforts to include genocide charges in Bashir’s arrest warrant.  Pre-Trial Chamber I has now granted leave to appeal the issue I’ve discussed before — whether it misunderstood Article 58′s “reasonable grounds” requirement when it rejected the genocide charges.

It’s a very defensive decision, almost certainly written by Judge Steiner, who is the only holdover from the previous decision.  (The new PTC I includes Judge Sonji Monageng, from Botswana, and Judge Cuno Tarfusser, from Italy.)  According to the PTC, “the Majority did not suggest that, in order to establish the existence of reasonable grounds in relation to genocidal intent, the Prosecutor must show that the only reasonable conclusion from the facts proven by the Prosecutor is the existence of genocidal intent beyond reasonable doubt” (p. 6):

[Q]uite the contrary, the Majority only required the Prosecutor to demonstrate that the only reasonable conclusion from the facts proven by the Prosecutor is that there are “reasonable grounds to believe” in the existence of genocidal intent (article 58 of the Statute evidentiary standard) (p. 7).

This is revisionist history at its best.  The PTC suggested precisely what it now denies it suggested.  Here is paragraph 159 from the original decision:

[T]he 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.

That is pretty clear: if it is reasonable to conclude from the Prosecution’s evidence anything other than the existence of genocidal intent, Article 58′s “reasonable grounds” test is not satisfied.  And that is simply incorrect.

Even if we grant the PTC its revisionist history, however, the Majority’s original decision is still unsound.  The Majority’s new claim reduces to this: if it is reasonable to conclude from the Prosecution’s evidence anything other than that there are reasonable grounds to believe in the existence of genocidal intent, Article 58 is not satisfied.  But that interpretation of Article 58 can be interpreted in two different ways, as arguing either (1) that Article 58 is not satisfied if it is reasonable to conclude from the Prosecution’s evidence that there are no reasonable grounds, or (2) that Article 58 is not satisfied if it is unreasonable to conclude from the Prosecution’s evidence that there are reasonable grounds.  Those are different interpretations of Article 58 — and in my view, only the second one is correct.  The problem with the first interpretation is that both of the following conclusions can be true based on the same set of evidentiary facts: (1) that it is reasonable to infer that there are reasonable grounds to believe in the existence of genocidal intent; and (2) that it is reasonable to infer that there are no reasonable grounds to believe in the existence of genocidal intent.  All that means is that reasonable people could disagree about whether the Prosecution’s evidence establishes reasonable grounds.  But that doesn’t matter — what matters is whether it is possible to reasonably believe the Prosecution’s evidence establishes reasonable grounds.  And the Majority admitted in their original decision that they believe it is:

[T]he Majority cannot but conclude that the existence of reasonable grounds to believe that the GoS acted with a dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups is not the only reasonable conclusion that can be drawn therefrom (para. 205).

Translation: it is reasonable to conclude from the Prosecution’s evidence that there are reasonable grounds to believe in the existence of genocidal intent, but it is also possible to reasonably disagree with that conclusion.  And that’s the ballgame: as long as the Majority believes that it is reasonable to conclude that there are reasonable grounds, Article 58 is satisfied.

http://opiniojuris.org/2009/06/27/the-ptc-grants-leave-to-appeal-the-reasonable-grounds-issue/

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  1. [...] given to the Prosecutor to appeal the genocide question (see Kevin Jon Heller’s discussion at Opinio Juris). President Bashir has not chosen to appeal but perhaps the Appeals Chamber can be persuaded by [...]