Bashir arrest warrant decision in bullet points and (relatively) plain English

The arrest warrant was issued against Omar Al Bashir for five counts of Crimes Against Humanity (murder, murder, rape, torture, extermination and forcible transfer committed as part of a widespread and systematic attack against a civilian population) and two counts of War Crimes (killing and pillaging).

Standards of proof at different stages of proceedings:

Under the Rome State, the legal standard upon which the Pre-Trial Chamber must assess the Prosecution’s evidence in determining whether to issue an arrest warrant is whether there are “reasonable grounds to believe” (see Art 58 of the Rome Statute) the accused is criminally responsible for the crimes charged.[NOTE: Once the accused is in custody, the charges will be confirmed if there are “substantial grounds to believe” (see Art 61 of the Rome Statute) the accused is criminally responsible for the crimes charged, and when the case goes to trial, the accused cannot be convicted unless there is proof “beyond a reasonable doubt.”]

Below is a brief summary of the conclusions of the different Judges on the key issues:

I. Mode of Liability

Judges Steiner and Kuenyehia (the Majority):

§  There are alternative modes of liability available (both fall under Art 25(3)(a) of the Rome Statute). Either indirect perpetration (as presented by the Prosecution), or indirect co-perpetration (not argued by the Prosecution, but available on the basis of material presented by the Prosecution). [NOTE: The essential difference between these modes is the extent to which others (co-perpetrators) in the Sudanese Government were involved.]

§  Because of the possibility that Bashir is a (indirect) co-perpetrator, as opposed to (indirect) perpetrator, the Majority refers to the “Government of Sudan’s” intent, rather than “Bashir’s” intent throughout the remainder of the decision.

Judge Ušacka (dissent):

§  The evidence only leads to one possible mode of liability: indirect perpetration.

II. Crimes Against Humanity and War Crimes

All 3 judges agree there are reasonable grounds to believe:

§  Omar Al Bashir is criminally responsible for five counts of Crimes Against Humanity (murder, rape, torture, extermination and forcible transfer) and two counts of War Crimes (killing and pillaging).

III. Genocide

The Rome Statute tracks the Genocide Convention by defining genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

– Killing members of the group;

– Causing serious bodily or mental harm to members of the group;

– Deliberately inflicting on the group conditions of life calculated to bring about its  physical destruction in whole or in part;

– Imposing measures intended to prevent births within the group;

– Forcibly transferring children of the group to another group.

i. Group “as such” requirement

Judges Steiner and Kuenyehia (the Majority):

§  The Fur Zaghawa and Masalit each constitute distinct ethnical groups, as such.

Judge Ušacka (dissent):

§  The group is defined as “African tribes” which includes subgroups of Fur Zaghawa and Masalit.

ii. Mens Rea [in plain English this means the mental state of the perpetrator.]

For the crime of genocide to be committed, the perpetrator does not just have to commit the acts, but must commit them with the intent to destroy, in whole or in part, the group as such. This is called the specific intent requirement

Judges Steiner and Kuenyehia (the Majority):

§  The specific intent to destroy (as opposed to target or remove) is not the only reasonable inference that can be drawn from the evidence (other inferences could be drawn). Thus the specific intent requirement is not met.

[NOTE: Since there is rarely a “smoking gun” in these kinds of cases, international tribunals like the ICTR and ICTY have inferred specific intent from the evidence. Likewise in this case, the Prosecution asked the Chamber to infer specific intent. Using this inferential approach a person can only be convicted of genocide if his/her specific intent to destroy the group was the only reasonable inference that could be drawn from the evidence (if it was not the only reasonable inference then there would be a reasonable doubt about whether the person had the specific intent required and so they could not be convicted)]

Judge Ušacka (dissent):

§  The “only reasonable inference” test is the incorrect test to use at this stage of proceedings. When inferring genocidal intent from the evidence, the “only reasonable inference” test is to be used when the burden of proof is “beyond a reasonable doubt” (i.e. at the actual trial). Because at the Pre-Trial stage of proceedings the burden of proof is “reasonable grounds to believe” the correct standard for assessing specific intent is whether it is a reasonable inference of specific intent arises from the evidence. In this case, the specific intent to destroy the group is a reasonable inference to draw from the evidence, thus the standard is met for the purposes of issuing a warrant.

iii. Actus reus [in plain English, this means the “guilty act” committed – such as killing]

Judges Steiner and Kuenyehia (the Majority):

§  As a consequence of not finding specific intent, the Majority do not go on to consider the actus reus question.

Judge Ušacka (dissent):

§  There are reasonable grounds to believe all three counts of genocide put forward by the Prosecution have occurred [genocide by killing; genocide by causing serious bodily or mental harm – via rape, torture and forcible transfer; genocide by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part].