The Standard for Determining Intent to Commit Genocide

by Julian Ku

As Kevin notes, the ICC Appeals Chamber has overruled the Pre-Trial Chamber on the question of whether Sudan’s President Bashir can be charged with genocide.  In a very useful note, Chile Eboe-Osuji points out here that the Appeals Chamber did not in fact provide the Pre-Trial Chamber with guidance on what standard it should adopt to determine whether there was sufficient evidence of the “intent” to commit genocide to issue an arrest warrant.  As he puts it,

Curiously, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. This is not very helpful.

Read the whole post to see his best guess as to what the standard will be.  I would be curious to see if folks have different views than his.

One Response

  1. As I point out in my own commentary, the Appeals Chamber has actually made a habit of doing half the job: reversing and remanding, but giving very little guidance as to what the actual “correct” legal approach should have been taken in the first place.
    I don’t know what the exact test should be, but there is clearly some hairsplitting semantic debate going on with the various tests to be applied. Let’s just take “the reasonable grounds” at the arrest warrant phase, and the “substantial grounds” at the confirmation phase. what’s the actual difference? shouldn’t the evidence brought to the judge for the arrest warrant be substantial? shouldn’t the evidence brought to the judge for the confirmation be reasonable?

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