ICC Permits Limited Observations on Genocide Appeal

by Kevin Jon Heller

Last January, I blogged about a request by the Sudan Workers Trade Federation Union (SWTU) and the Sudan International Defence Group (SIDG) to submit a brief to the ICC opposing the warrant for Bashir’s arrest.  The Appeals Chamber recently granted the request, limiting the groups to commenting on the legal issue at the heart of the appeal — whether the Pre-Trial Chamber correctly interpreted Article 58’s “reasonable grounds” requirement for issuing an arrest warrant.

I think this is clearly the correct decision, and it is important to recognize that it represents — contrary to breathless headlines in the Sudan Tribune like “ICC judges allow pro-Sudan groups to rebut genocide appeal” — a major defeat for the SWFTU and SIDG.  As I pointed out in January, the brief focuses almost exclusively on arguing that the arrest warrant will undermine the prospects for peace in Darfur (though it’s clear that the brief is much less interested in peace than in shielding Bashir from accountability); it says very little about the (non-existent) legal merits of the PTC’s decision.  Here is what I wrote then:

I simply want to note that the request’s insistence that arresting Bashir would damage the peace process in Sudan is legally irrelevant to the OTP’s request for an arrest warrant.  Article 58 of the Rome Statute makes very clear that the Pre-Trial Chamber cannot consider issues of peace vs. justice when it decides whether to issue a warrant: “the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that… [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”  That’s it: if the reasonable grounds exist, the warrant must be issued.  End of story.

To be sure, the request half-heartedly criticizes OTP’s insistence that there are reasonable grounds to believe that Bashir is responsible for genocide.  That section of the request is at least relevant — but it is hardly convincing.  Instead of directly confronting OTP’s allegations in its application for the arrest warrant, it simply asserts, without argument, that scholars question whether genocide can be proved, that the OTP has relied on unreliable sources, and that different views of the situation in Darfur are possible.  Here are the relevant paragraphs, quoted in full:

39. It is as if [Moreno-Ocampo] wants to ‘dare’ the court to deny him a genocide or any charge. He has done this in the full knowledge that there are many highly respected academics knowledgeable of Darfur who say, as a minimum, that the genocide count is impossible to prove.


43. Moreover, the actions of the ICC Prosecutor should be considered beside the reality that assertions in his (public redacted) application to the court for the issue of an arrest warrant against President Bashir have been highlighted as being inaccurate and false. There has, in particular, been widespread scepticism about charging genocide.  All of the above point to the need for heightened scrutiny of the Prosecutor’s applications, as already suggested, and the importance of taking into account the Applicant’s submissions.

44. The Prosecutor’s applications should be very carefully examined to see if he has, in the event relied on sources that are known to be unreliable and partisan. For example, were the Prosecutor to have relied on the expert views of Eric Reeves then the Pre-Trial Chamber would be urged to review materials which show this purported expert to be unreliable.

45. The actions of the ICC Prosecutor should also be set beside a body of material that shows reporting of the Darfur conflict to be controversial with many different perspectives recognised as being worthy of consideration.

Not much said needs to be said about these “arguments,” but it is worth noting that, even if paragraph 39 correctly summarizes the views of “many” experts (I don’t have access to the memo by Alex De Waal that it footnotes), the paragraph is still irrelevant to the arrest warrant issue: the OTP does not have to “prove” that Bashir is responsible for genocide in order to obtain an arrest warrant; again, it needs only to establish that there are “reasonable grounds to believe” that he did — a much lower standard of proof.  Perhaps the OTP will ultimately fail to convict Bashir.  So what?  That doesn’t mean it isn’t entitled to try.

The SWFTU and SIDG’s comments were due yesterday.  It will be interesting to see what they say.


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