The ICC Pre-Trial Chamber I* has granted the Prosecution leave to appeal its decision from March this year not to issue a warrant of arrest for Sudanese President Omar Al Bashir for genocide (it issued it for five counts of crimes against humanity and two counts of war crimes). The Prosecution raised its appeal on three grounds. Pre-Trial Chamber I granted them leave to appeal on the first ground, but not the other two.
The three grounds raised by the Prosecution were:
(i) “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”
(ii) “Whether the Majority considered specific extraneous factors in assessing the existence of reasonable grounds to establish genocidal intent”
(iii) “Whether the Majority failed to consider both separately and collectively specific critical factors in assessing the existence of reasonable grounds to establish genocidal intent”
If there was one ground upon which it would have been crazy not to grant leave to appeal it was most certainly this one. I thought the majority was outright wrong in its handling of the standard for inferring specific intent at this stage of proceedings. The “only reasonable inference” standard is what the ad hocs use for inferring specific intent at the trial stage. It should not be the standard for the ICC to make its judgments at the arrest warrant stage.
I wrote a (relatively) plain English summary of some of the key features of the March arrest warrant decision before I started this blog. For those who want either an intro or a refresher, I’m posting it here.
* For non-lawyers, a brief note of explanation about the Appeals process. Before any party (Prosecution or Defense) gets to present the substance of their appeal to the Appeals Chamber, they first have to apply for Leave to Appeal from the Chamber that issued the decision they are challenging (in this case, Pre-Trial Chamber I). In presenting their Leave to Appeal, the party has to show that what they wish to appeal is “A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.” (Art 82 (1) (d), RS). Only once the Chamber originally issuing the decision agrees that this has been shown will the party be allowed to present their substantive arguments to the Appeals Chamber (and even then, it is only in relation to the specific issue for which leave was granted).
When the charges that have not been contested by the ICC Pre-Trial Chamber are so serious, what is the point of going through an appeal against the decision of the ICC Pre-Trial Chamber on the charge of genocide ?
Well, it’s not just about the case at hand. This is the first time the ICC judges have had to look at a genocide charge and the standards they use for judging the evidence presented to them on this charge impacts not only the case against Bashir, but all future genocide cases. If, as the prosecution believes, the standard the Judges used for assessing the existence of specific intent for genocide was wrong in this case, they need to challenge it – not only in order to try and reverse the outcome in this particular case, but to ensure that what they view as the wrong standard is not locked in for all future cases.