Comments on: Prosecutor v Omar al Bashir

By: V C Lindsay

V C Lindsay — Fri, 06 Mar 2009 12:50:28 +0000

The theory is that immunity is waived by the Sudan by virtue of its UN Membership (since late 1940′s) and consequent promise under Article 2 of the UN Charter to comply with all UN Security Council resolutions made pursuant to Chapter VII (peace and security). That is why SC referrals are not limited to States who are party to the Rome Statute. It is enough to be a member of the UN. It is the same theory of implied waiver that was used when Milosevic was indicted as a sitting head of state at the ICTY.

By: Luis Peraza

Luis Peraza — Fri, 06 Mar 2009 12:13:01 +0000

What happes with the International Court of Justice case law Yerodia that gives absolute inmunity to seating heads of state?

By: V C Lindsay

V C Lindsay — Fri, 06 Mar 2009 05:31:06 +0000

It is true I am a defence counsel professionally. But I do not think it helps the discussion to attribute my views to this. (I see myself fighting for individual freedoms and an international legal system based on law and not politics.) It would be easy to attribute the push for genocide to NGO fundraising. But it is better to focus on the legal issues.

What is reasonable depends on the ultimate legal standard to be applied. Contrary to Judge Usacka’s approach, it is not a one size fits all standard. The section of her opinion describing the evidence directly related to al Bashir says it all. (paras. 38 to 39).

By: jernejl

jernejl — Thu, 05 Mar 2009 08:57:34 +0000

The point is that majority misunderstood the ‘reasonable grounds’ standard as illustrated by Latvian judge Usacka in her dissenting opinion. That said, it is understandable that such reasoning can be welcomed by defence lawyers/consultants.

By: V C Lindsay

V C Lindsay — Thu, 05 Mar 2009 05:14:21 +0000

The application for the arrest warrant relied ONLY on circumstantial evidence. But it is not so easy to draw an inference of specific intent. The inference drawn must be the ONLY reasonable inference possible. If, as in this case, there are other equally plausible explanations besides genocidal intent, then the inference cannot be drawn. Even in an arrest warrant with a low standard of proof.