Fighting to keep genocide out of the Bashir arrest warrant

High profile international lawyers Sir Geoffrey Nice QC and Rodney Dixon have once again applied on behalf of the groups, the Sudan Workers Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG), to submit an amicus brief to the ICC in the Bashir case. Their first attempt to do this earlier in the year was rejected by the Pre-Trial Chamber.  Now they are applying to the Appeals Chamber as it considers whether the Pre-Trial Chamber used the incorrect standard to assess the evidence on the genocide charge against Bashir when issuing the arrest warrant.

According to their application the SWTUF is “the union of all trade unions of Sudan with affiliates from 25 state unions and 22 professional federations” and the SIDG is “a non-governmental committee of Sudanese citizens established out of concern for the negative effects that ICC arrest warrants could have for the peace process in Sudan and for the ordinary people of this country.” In this sense it is not a “Government of Sudan” application, however one of their arguments to the Court is that “the Appeals Chamber could benefit from submissions contrary to the Prosecution’s arguments which seek, in an adversarial setting, to highlight the flaws in the Prosecution’s submissions.” (Nice/Dixon, para 16). In this sense, they are asking to take on what would be the role of the Defence if President Bashir engaged with the ICC, giving some credence to speculation that Nice/Dixon are playing a role that allows the Sudanese government to interact indirectly with the ICC.

The only issue before the Appeals Chamber is “Whether the correct standard of proof in the context of Article 58 requires that the only reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (p.5 Decision granting Leave to Appeal ).

In its arrest warrant decision, the Majority stated that “if the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” (para. 159 ). The OTP’s document in support of appeal argues that this approach is incorrect. They argue that by requiring the inference of specific intent to be the only reasonable conclusion, rather than a reasonable conclusion, the Majority was defacto applying a “beyond a reasonable doubt” standard – one that should only be used at the trial stage, rather than the “reasonable grounds” standard required by Article 58 of the Rome Statute for the arrest warrant stage.

The Nice/Dixon application states that if they are granted leave to submit an amicus they will agree with the OTP that the appropriate standard to use is that of Article 58’s “reasonable grounds to believe” but that, contrary to the OTP’s position, they will argue that this was in fact the standard the Majority applied when assessing specific genocidal intent.

They argue that when the Majority said that in order to confirm the charges the only reasonable conclusion must be that reasonable grounds exist, the Chamber was simply saying that “it must be satisfied that reasonable grounds are established on the evidence.” (Nice/Dixon, para 39, italics in original ). They further argue that parts of the decision in which the Majority “uses words such “concludes”, “finds” and “considers” that there are reasonable grounds to believe serve the same purpose as [the phrase] “the only reasonable conclusion is that there are reasonable grounds to believe.”” (Nice/Dixon, para. 39 ).

It is with this latter argument that I particularly disagree. The only occasions in which the Majority phrased its standard as “the only reasonable conclusion” was when it was assessing evidence related to inference of specific intent. It seems implausible to argue that this was by chance and that what they really meant was to apply the same standard as they applied when assessing the rest of the elements, but just happened to use different phrasing to describe what they were doing.

I continue to believe that the Majority used the incorrect standard in assessing genocidal intent – but even if the Appeals Chamber agrees, this will not, in itself, take the Prosecution to a warrant for the genocide charge. Although the OTP’s document in support of appeal argues that if the Appeals Chamber finds the Pre-Trial Chamber did not apply the correct standard it has enough information on the basis of facts already confirmed by the Pre-Trial Chamber to rule that using the correct standard the genocide charge should be included, I will be surprised if they take this step. I think the most likely scenario is that it will be sent back to the Pre-Trial Chamber for reconsideration on the basis of the “corrected” standard. Bottom line – there’s a long road ahead.

In any case, issues relating to the substance of the Nice/Dixon arguments remain moot until we find out if the Appeals Chamber grants them leave to submit. It is an interesting approach they have taken to the argument of why they should be heard, effectively positioning themselves as the ‘Defence-in-lieu-of-a-Defence’. Might work. Will let you know what transpires . . .