Firstable, thank you for your analysis, i find your it very accurate, i also expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, and not even for a confirmation hearing and i also agree with your analysis in this part:
“This is in my opinion highly problematic. Of course there are several reasonable conclusions available for qualifying the crimes in Darfur – one is genocide, the other, more supported, is persecution as a crime against humanity. But the standard set in the Statute is reasonable grounds for believing, not the only possible reasonable conclusion”

The relevant point responds to the a simple reading of the statue regarding the several evidentiary standards: art. 58; Art.61.7 & , realated to The issue of a arrest warrant, confirmation charges and trial phase, where differents standards are set by the statue for all judicial phases – situation phase or case phase – . Assuming what i believe also is the “only possible reasonable conclusion” – as you well point out – is putting a high burden of proof on the prosecution the next time he files an application for an arrest warrant in the near future. In fact, if we take a reading to the Decisions on the art 58 application for the arrest warrants against Mr. Ngudjolo and Chui, the standard set by the Pre Trial I was lower than the one set for the analysis of the charge of genocide and even in the Al-Bashir’s decision, where appears that the standard set in respect the others charges were also lower than the one set for genocide by the Chamber.

Taking in account past decisions on victims participation, specially from this Chamber (ICC-01/04-101; ICC-02/05-110) stablishes a standard for situations petition on grounds to believe, and for pre-trial petition reasonable grounds to believe. These concepts may find their application on different matter but the fundamental, with a reasonable analysis, is practicly the same for the purposes of the topic.

Somehow, in my opinion, this raises up a ‘contradiction’ and even a possible ‘issue’ that might give an oportunity for the prosecution to appeal, not as a matter of law, but under art.82.d of the Rome Statue. (Leave to Appeal Proceedings). Now the question is whether or not this represents an ‘issue’ as the Appeals Chambers set (ICC-01/04-168):

(i) “[o]nly an issue may form the subject-matter of an appealable decision”; (ii) “[a]n issue is constituted by a subject the resolution of which is essential for the determination of matters arising in the judicial cause under examination”; (iii) “[n]ot every issue may constitute the subject of an appeal”,9 but “it must be one apt to ‘significantly affect’, i.e. in a material way, either a) ‘the fair and expeditious conduct of the proceedings’ or b) ‘the outcome of the trial’”; and (iv) “[identification of an issue having the attributes adumbrated above does not automatically qualify it as the subject of an appeal” insofar as “the issue must be one ‘for which in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings’”

The approach assumed by the Pre-Trial Chamber reveals a problematic situation, as you pointed out, Marko and specially, in my opinion, on future application under art. 58. Independtly from my skepticism regarding the crime of genocide, i think that this issue may relate to an ‘issue’ definition in the young ICC’s caselaw: a topic which resolution is essential for the determination of situtations related to the case under examn (Cfr. ICC-01/04-01/07-384) which may have an impact in future proceedings (Cfr. ICC-01/04-01/06-478) and a resolution by the appeals chamber is neccesary, in my opinion.

As far as the peace/justice discourse is concerned, there seem to be two opposite lines of thinking with regard to Darfur: those who think the two are mutually exclusive under the current circumstances, and those (including myself) who think they go hand in hand.

In that respect, I respectfully disagree with you, Carlos, that this discourse is irrelevant when it comes to Darfur – if nothing else, the sheer weight of those actors (states and IGOs, such as Russia, AL, …) who have reacted with caution if not open calls for suspension of Bashir’s prosecution, might importantly affect the enforcement of the arrest warrant.

At the same time, I join both of you in rejecting the calls for suspension and believe that the sooner Bashir gets a ticket to the Hague, the better, and hope that while the arrest warrant may temporarily reinforce Bashir’s power in Sudan and lead to retaliation against civilians, peacekeepers and humanitarian workers (we can just pray the blood price for the AW will not be too high), the sheer message it sends to the government officials in Sudan might stir the internal political dynamics in Sudan and eventually lead to Bashir’s fall and journey to the Hague. I may be overly optimistic, but I sure hope not.

Just to clarify, I agree with you that in the case of Darfur there is really no peace process that has been disrupted by the ICC warrant. But that is not to say that justice can never impede peace. Of course it can – but ultimately, that is always a political judgment, and it is properly up to a political organ, the UNSC. If I was a voting member, I would certainly not vote to suspend the Bashir prosecution.