The Pushback Against the Appeals Chamber Begins

by Kevin Jon Heller

I intend to closely follow the reactions to the Appeals Chamber’s decision on the genocide charges against Bashir.  The pushback has already begun in a predictable place: the Making Sense of Darfur blog, which has led the charge against the arrest warrant. The post itself, in which David Barsoum asks “what is the ICC really after in Sudan?”, is not particularly noteworthy, because the answer is straightforward: accountability for a mass murderer who has done everything he could for nearly two decades to prevent any kind of peace that would threaten his regime.  More interesting — and more troubling — is Alex de Waal’s comment to Barsoum’s post.  He writes:

This episode at the ICC is somewhat bizarre. In March last year, the pre-trial chamber issued the arrest warrant that the Prosecutor had requested. This made Pres. Bashir into a fugitive from justice. The crimes for which he is charged are no less heinous than genocide. Any additional charges added subsequently make absolutely no difference to that reality. The Prosecutor’s decision to appeal against the exclusion of the genocide charges, while perfectly permissible in law, served only the purpose of satisfying the personal or political ambition of the Prosecutor. If the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence. Insisting on them at this stage is a political act.

None of Alex’s claims are compelling.  First, it is difficult to seriously maintain that there is no difference between charging someone with crimes against humanity and genocide.  There may be no difference in terms of the maximum possible sentence, but it clear that genocide is viewed as far more serious than even the crime against humanity of extermination.  That’s why Raphael Lemkin coined the term “genocide.”  That’s why we have a Genocide Convention.  That’s why activists and scholars and governments put so much energy into ensuring that various situations — Saddam’s gassing of the Kurds, the Khmer Rouge’s “auto-genocide,” China’s treatment of Tibet, Australia’s treatment of aboriginals, etc. — are (or are not) labeled genocide instead of “mere” crimes against humanity.  Perhaps it is regrettable that we rank international crimes, but there is no question that we do.  Indeed, if Alex genuinely believed there was no difference between genocide and crimes against humanity, he would not have spent so much time and energy over the past year attempting to rebut the claim that Bashir committed genocide.  He admits that Bashir committed crimes against humanity on a massive scale, so if there is no difference, why bother to oppose describing the situation in Darfur as genocidal?

(There is, of course, an important theoretical justification for viewing genocide as more serious.  The identity of the victims is irrelevant in the crime against humanity of extermination; any mass killing will suffice.  In genocide, by contrast, the victims are singled out for extermination because they are members of a particular racial, ethnic, religious, or national group.  Genocide is thus more serious than extermination in two ways: (1) the crime threatens the existence of a particular protected group, a result that would reduce human diversity; and (2) the victims are specifically targeted for extermination by the perpetrator, a more culpable mental state than the one required by extermination, which is simply the intent to kill.)

Alex’s second claim — that the decision to appeal the Pre-Trial Chamber’s decision on the genocide charges “served only the purpose of satisfying the personal or political ambition of the Prosecutor” — is simply incorrect.  The Pre-Trial Chamber completely misunderstood Article 58′s “reasonable grounds” standard, leading it to wrongly exclude the charges.  Whatever one thinks of the genocide charges against Bashir — and Moreno-Ocampo is far from the only person who supports them — the OTP could not permit the Pre-Trial Chamber’s flawed standard to go unchallenged, because it would have almost certainly come back to haunt the office in other cases involving different charges.  As the Appeals Chamber noted in its decision (para. 33), “requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt.”  In other words, the Pre-Trial Chamber effectively converted the “reasonable grounds” requirement into a requirement of “proof beyond a reasonable doubt,” the standard that applies at trial, not at the arrest warrant stage.  That erroneous interpretation of “reasonable grounds” was not limited to the Bashir case or to the genocide charges; it represented the Pre-Trial Chamber’s first sustained interpretation of Article 58.  The OTP thus had to challenge it.

That explanation of the OTP’s decision to appeal helps rebut Alex’s third claim, which is that we can conclude that the decision was a “political act,” because “[i]f the ICC ever succeeds in getting Pres. Bashir in Court, the Prosecutor can then add whatever charges he believes are warranted by the evidence.”  Adding the genocide charges later would not address the mischief created by the Pre-Trial Chamber’s erroneous interpretation of Article 58.  Moreover, seeking to amend the arrest warrant is far more fair to Bashir (or to any defendant in like circumstances) than waiting until the confirmation of charges hearing, because it puts him on notice now — not months or years from now — that he will be facing genocide charges.  Bashir is going to be a fugitive from justice either way, so isn’t it better for all the charges to be on the table as early as possible?  I can only imagine the outcry from Bashir supporters and defense attorneys (including me) if the OTP had never mentioned genocide charges until Bashir was standing in front of the Pre-Trial Chamber!

Critics of the ICC often claim that the Court pays insufficient attention to politics.  I think it’s safe to say that most of those critics pay insufficient attention to law.

UPDATE: At his NUI-Galway blog, Bill Schabas, one of the great ICL scholars, goes even further than Alex, writing that “This is all much ado about nothing. Given the close overlap between genocide and crimes against humanity, even with the existing arrest warrant the Prosecutor would be unconstrained in producing relevant evidence that might lead to a conclusion that genocide was taking place. The judges would be relatively free to add a conviction for genocide, if they thought it appropriate.”  I have to respectfully disagree.  I think it would be a terrible prosecution strategy to adduce evidence that supports a conviction for genocide during trial and then hope that the Trial Chamber enters a conviction for genocide even though it wasn’t charged.  After all, the Appeals Chamber very recently rejected a similar “recharacterization” of the evidence in Lubanga, refusing to add new crimes against humanity charges because the “facts and circumstances” in the confirmation of charges did not support them, thereby violating Article 74(2) of the Rome Statute.  I simply fail to see how, if Bashir went to trial only on the war crimes and crimes against humanity charges, the “facts and circumstances” in the charging document would support “recharacterizing” them to support a genocide conviction, given genocide’s objective requirement that the targeted individuals be members of a protected group and its subjective requirement that the defendant have specifically intended to destroy the protected group as such.  Frankly, Alex’s suggestion — that the OTP seek to amend the charges once Bashir was arrested but before trial — would be the lesser of two evils.

3 Responses

  1. de Waal’s statement is a bit incongruous isn’t it?  If the charge of crimes against humanity is no less heinous than genocide why is it a political act by the Prosecutor to get a genocide charge included at this stage?  The only reason to say that it is a political act is that the Prosecutor believes that the public perception is that genocide is a more heinous charge.  And I think that view is probably right.

    That said, I don’t like ranking international crimes either. The question isn’t whether or not one crime is worse than the other; it’s whether or not the crimes being charged accurately meet the facts of the case. A prosecutor has an obligation to seek the most vigorous charges he can get a conviction for under the law.  Sometimes a prosecutor has to settle for convicting an Al Capone on tax evasion, but it would have been much more appropriate to convict him for racketeering and murder instead.

    The only way for this to be truly a “political” act is if you think, as de Waal seems to suggest in his second paragraph, that the Prosecutor knows he doesn’t have the facts to support the charge.  I don’t think that’s a necessarily accurate assumption.

    (I also completely agree with you regarding strategy.  Why would you want to wait on the genocide charge and possibly put it at risk if you could get the charge included now?)

  2. Great post, agreed on much of it.  A couple of things to ponder, though:
    Perhaps there is some merit to Professor Schabas’s argument.  You cite the Lubanga recharacterisation decision of the Appeals Chamber as a rebuttal of Schabas’s position, but that decision dealt with a case where the facts to be added – sexual slavery etc – simply could not be found in a confirmation decision that dealt solely with child soldiers.  The leap just could not be made.  Here, though, it seems a bit more plausible, given that the crimes against humanity with which President al-Bashir is charged essentially amount to the same actus reus that the genocide charges would require.  The subjective element could then be inferred from the evidence that comes along in the trial, and this would not require a departure from the facts contained in the charging document.  The Appeals Chamber, at paragraph 100, implied that offences could be “upgraded” into more serious offences, without ruling on it specifically.  My basic point is that the situation is different here, and it’s plausible.  I would agree that it would certainly amount to a poor strategy, though…
    On a different note, I wonder if there is any role for Article 101, the “Rule of Speciality”, which provides that “a person surrendered to the Court […] shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered”, subject to approval from the surrendering state.  Arguably this provision could fairly easily be navigated around, by arguing that the conduct underlying the crimes against humanity was the same conduct underlying the genocide (see my argument above), but I doubt that the Prosecutor would want to risk falling foul of the provision – all the more reason to get genocide into the warrant.  Any thoughts?

  3. Dear KJH,
    As you propose to follow the reactions to the Bashir Appeals Decision, I humbly flag my own commentary.
    Although I agree with your criticism of De Waal and Schabas on the timeliness of the decisions, I find you a little too hasty on the “genocide as a worse crime” debate. The fact that genocide “sells” and draws attention doesn’t explain why in theory genocide should be considered as worse than crimes against humanity. I find your theoretical arguments, if classical, unconvincing… why should it be worse to kill someone with one motive rather than another one?

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