ICC Prosecutor’s Inaccurate Statements about the Bashir Arrest Warrant Decision

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In an article in the Guardian Newspaper last Friday, the ICC Prosecutor, Luis Moreno-Ocampo has called on the world to take action to arrest Sudanese President Bashir following the recent decision of the Pre-Trial Chamber (PTC) of the ICC to issue arrest warrants for him on charges of genocide (see earlier post). However, in his piece, the Prosecutor makes statements about the findings of the PTC which are not only inaccurate but are shocking in their inaccuracy. The Prosecutor states that:

The genocide is not over. Bashir’s forces continue to use different weapons to commit genocide: bullets, rape and hunger. For example, the court found that Bashir’s forces have raped on a mass scale in Darfur. They raped thousands of women and used these rapes to degrade family and community members. Parents were forced to watch as their daughters were raped.

The court also found that Bashir is deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction.

The Prosecutor’s claim that the genocide is not over is a controversial one(see Bill Schabas at his blog). However, what is shocking is the Prosecutor’s claim that the PTC found that Bashir’s forces have committed the acts listed by the Prosecutor. This is just simply not true. No such finding was made. The decision by the Court was a decision to issue an arrest warrant. The standard applied under Art. 58 of the ICC Statute for such a decision is that there are “reasonable grounds to believe” that the crime has been committed. This is a  low standard. It is lower that the “substantial grounds to believe” that the crime has been committed which is required for a confirmation of charges and lower than the standard of “beyond reasonable doubt” which is required for a conviction. The meaning of the “reasonable grounds to believe” standard is precisely what was at issue in the Appeals Chambers decision on the Bashir Arrest Warrant. The Appeals Chamber made it clear that this standard is low and following the Appeals Chamber ruling it is clear that that there could be reasonable grounds to believe something and reasonable grounds to believe the opposite. So saying that there are reasonable grounds to believe that the crime of genocide has been committed is very far from saying that the Court found that the crime had been committed. For the Court to have so found at this stage would have been a stunning reversal of the presumption of innocence and of the right of the accused to defend himself.

Either the Prosecutor knows that his statements on this point in the Guardian peices are inaccurate or he does not know. Either conclusion would be very troubling . If he does know his statements are inaccurate then  he has wilfully misrepresented what the Court said. If he doesn’t know that his statements are inaccurate then this would suggests that he doesn’t know what the relevant procedural standards are . This would be bad enough in general but doubly troubling given that it is this precise issue that has been the subject of the PTC and Appeals Chambers decision in the Bashir case.

A further problem here (independent of the inaccuracies by the Prosecutor) is that the ICC judges issue unduly lengthy decisions at the arrest warrant and confirmation of charges stages. In law these decision only come to the conclusion that there are reasonable grounds to believe or substantial grounds to believe that crimes within the jurisdiction of the Court have been committed. The decisions appear to lend the weight of the Court’s authority to the view that the accused is guilty. In law and in strict terms, this is far from the truth but the appearance is of the Court reaching this conclusion after a weighty examination of the evidence.  Clearly the Prosecutor should know better but will the general public and is the Court contributing to an undermining of the presumption of innocence. I think so. This is unfortunate.

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