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Prosecutor v Omar al Bashir

As reported, the Pretrial Chamber of International Criminal Court has earlier today confirmed an arrest warrant for Omar al Bashir, the incumbent president of Sudan, for crimes against humanity and war crimes but not for crime of genocide against the Fur, Masalit and Zaghawa ethinc groups. Albeit a number of practitioners and experts of international criminal law foretold that the Pretrial Chamber would not issue an arrest warrant in relation to crime of genocide against al Bashir, it appears that such reasoning rests on shaky grounds. Article 58 (1) (a) of the Rome Statute provides that ‘the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, …, it is satisfied that:  there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court’. As explained by Kevin and Marko on their respective blogs this amounts to very low standard of proof. Nonetheless, the Pretrial Chamber held that:

205. In the view of the Majority, when all materials provided by the Prosecution in support of the Prosecution Application are analysed together, and consequently, the above-mentioned findings are jointly assessed, the 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.
206. As a result, the Majority finds that the materials provided by the Prosecution in support of the Prosecution Application fail to provide reasonable grounds to believe that the GoS acted with dolus specialis/spetific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups, and consequently no warrant of arrest for Omar Al Bashir shall be issued in relation to counts 1 to 3.

It follows from above paragraphs that the Chamber somewhat confusingly employed two standards of proof. Firstly, the Court employs in paragraph 205 the notion of ‘reasonable conclusion’, whereas it then moves in the ensuing paragraph to the Statute’s standard of ‘reasonable grounds to believe’. It would be helpful if the Chamber would have explained whether it intentionally employed different wording in those paragraphs and whether it believes that ‘reasonable conclusion’ amounts to different standard as ‘reasonable grounds’ standard. It seems questionable in the light of the affluence of evidence gathered in past years that the Prosecutor failed to produce evidence which would show reasonable grounds to believe that Al Bashir acted with specific intent to destroy the three ethnic groups in questions.  It remains to be seen if the Prosecutor decides to challenge this part of decision on appeal.

5 Comments

  1. V C Lindsay V C Lindsay 5 March 2009

    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.

  2. jernejl jernejl Post author | 5 March 2009

    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.

  3. V C Lindsay V C Lindsay 6 March 2009

    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).

  4. Luis Peraza Luis Peraza 6 March 2009

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

  5. V C Lindsay V C Lindsay 6 March 2009

    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.

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