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

(Updated)

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.