January 20, 2018

Legal std used to reject genocide charge for Bashir was wrong

In a straightforward delivery before a packed public gallery, the Presiding Judge in the ICC Appeals Chamber, Erkki Kourula (Finland) handed down the Appeals Chamber’s unanimous decision to reverse the Pre-Trial Chamber’s (PTC) decision with respect to the legal standard on which the PTC rejected the Prosecutor’s application for an arrest warrant for Bashir on the charge of genocide. The Appeals Chamber has sent the case back to the PTC for reconsideration using the correct legal standard.

To be clear about what this does not mean: It does not mean that the Bashir arrest warrant now includes the genocide charge – at least not yet. The Appeals Chamber believes that the legal error (see below) that the PTC made had a material impact on its decision not to issue the warrant with the genocide charge included, which is why the PTC’s rejection of the genocide count cannot stand. However it is now back to the PTC to decide – this time using the right legal standard – whether or not to include the genocide count.

The legal error was the one the Prosecution identified in its appeal brief. As the Appeals judgment summarized it:  “. . . requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt.” (para. 33, Appeals decision).

Put simply, the PTC had applied the standard of proof required for a conviction at trial to the decision of whether or not to issue an arrest warrant. This was wrong as a matter of law (See here for summary of different standards of proof required at different stages of the process.)

In my view this was a completely accurate decision, and I’m happy that Nice/Dixon’s attempt to persuade the court otherwise was rejected.  If this had been decided wrongly, the impact would have been broader than the Bashir case – it would have set the ICC’s jurisprudence on this question down the wrong track, leading to a point where the Prosecution would have had to prove genocide beyond a reasonable doubt just to get an arrest warrant – making it unlikely that an arrest warrant would ever be issued for genocide in any future case.

Now the wait begins again while the case goes back to the PTC.

Interestingly the composition of the PTC that the case will go back to has changed since their initial decision. In their original decision there were two judges, Steiner and Kuenyehia (the majority) who used the wrong legal standard (now reversed) and then one Judge, Ušacka (the dissenter) who used the correct standard. When it now goes back to the PTC for reconsideration using the correct standard, only one of the original judges (Judge Steiner) remains. Replacing Ušacka and Kuenyehia will be Judges Sanji Mmasenono Monageng (from Botswana) and Cuno Tarfusser (from Italy). Stay tuned . . .


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