ICC Issues Arrest Warrant for Bashir, but Rejects the Genocide Charge

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Today the International Criminal Court issues an arrest warrant for Omar al Bashir, the serving President of Sudan, for crimes against humanity and war crimes in Darfur. (The decision is now available here). The news were expected after a leak a few weeks ago. What came as a pretty big surprise, however, is that the Pre-Trial Chamber rejected the genocide charges against Bashir. Though many commentators, including myself, have expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, the test for the issuance of an arrest warrant is much lower. Under Article 58(1) of the Rome Statute, all the prosecution had to prove to obtain an arrest warrant was that there were reasonable grounds for believing that the person in question committed the crimes charged.

It is a bit strange that the prosecution was unable to furnish such proof at this stage of the proceedings in respect of the genocide charge. Either that, or the judges themselves implicitly employed a higher standard. As a matter of policy, I certainly agree with the judges – it is better that the genocide charge is dropped now, than for a probable acquittal on the genocide charge to overshadow Bashir’s guilt on other charges after an eventual trial. Legally, however, the decision to reject the genocide charges could be somewhat suspect. (Similar thoughts from Kevin Heller, who rightly points out that the prosecution can appeal the PTC’s rejection of the genocide charge.)

Now reading the decision, the dismissal of the genocide charges was done by a 2 to 1 majority, Judge Usacka dissenting. As far as I can tell, the PTC did in fact employ something approaching a beyond a reasonable doubt standard when it comes to proving the specific intent of genocide, since the specific intent was being established only through inference. Thus the PTC says 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)

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.

Two further questions are deserving of attention. First, the exact theory of individual criminal responsibility that the prosecution is arguing, and that the judges have now approved – in its decision, the PTC discusses several different forms of perpetration and co-perpetration (paras. 209-223)

Second, the judges’ reasoning on Bashir’s lack of immunity. The Pre-Trial Chamber rejects any immunity for Bashir in four paragraphs of its decision (paras. 42-45). It first points out that the goal of the ICC is to prevent impunity, it then remarks that the Statute explicitly disallows any defense of immunity, it then observes that any sources of international law other than the Statute can only be applied if there is a lacuna in the Statute (and here apparently there is none), and finally says that by referring the Darfur situation to the Court the Security Council accepted the entirety of the Court’s statutory framework, thereby implicitly waiving Bashir’s immunity.

In my view, it is only this last reason that is truly persuasive – had, for instance, the Council said in its referral that it preserved the international law immunities of any persons connected to the referred situation, the Court could not in my opinion have exercised jurisdiction over Bashir, no matter what the Statute, a treaty to which Sudan is not a party, said. At any rate, the PTC’s decision on immunity is entirely correct, if somewhat superficial. (Readers might find this discussion over at OJ between Kevin, Dapo and me to be of interest).

Finally, the big question is now of course the enforcement of the warrant, and the perennial peace v. justice dilemma. On both issues the next move is on the UN Security Council. The initiatives by various African countries for the Council to suspend for a year the investigation against Bashir might now gain in momentum – though probably not. The warrant itself can naturally only be enforced if Bashir is ousted from power in Sudan, either by internal or by external forces. Time will tell whether this will happen, or indeed whether today’s decision will exacerbate the conflict in Darfur, or be the first step towards ending it. I do hope it turns out to be the latter.

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Carlos Espósito says

March 5, 2009

Marko, thank you for these interesting points. I was, however, surprise to see that you refer to the "perennial peace v. justice dilemma" as one of the big issues of this case. Do do you really believe that the peace v. justice dilemma is relevant in Darfur? I do not, and I think that the countries that support a Council suspension of the investigations are simply wrong on this issue if their argument is that peace would be impaired by justice in the present situation of Darfur.

Marko Milanovic says

March 5, 2009


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.

Dominika Svarc says

March 5, 2009

Marko, thanks for your (as usually) succint analysis and from the legal point of view, I have nothing to add.

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.

Amaury A. Reyes says

March 6, 2009


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.