Today the Appeals Chamber at the International Criminal Court decided that the standard of proof the court used to reject the charge of genocide for Sudan’s President Omar al-Bashir last March "was higher and more demanding than what is required."
To recap: Last March, the Pre-Trial Chamber at the ICC issued an arrest warrant for President Bashir on seven counts of war crimes and crimes against humanity for violence in Darfur that left 3 million people displaced and an estimated 350,000 people dead. This decision set a remarkable precedent, sending the message that even a sitting head of state is not immune to international justice. Many headlines at the time, though, focused on the Court’s rejection of the charge of genocide.
Today’s decision finds that the Pre-Trial Chamber used too high of a standard to evaluate the genocide charge. The decision recognizes that the Prosecutor wasn’t asking the judges to say whether Bashir was guilty of genocide beyond a reasonable doubt; he was arguing that there were reasonable grounds for the Court to issue an arrest warrant for Bashir and have him face a trial that would establish if the genocide charge had been proved beyond reasonable doubt.
For anti-genocide activists, today’s ruling should be viewed positively for both its impact on international legal precedent and the case against Sudan’s President Bashir.
As lawyer and author Bec Hamilton noted, if the Court had ruled the other way today it could have set the precedent that “the Prosecution would have had to prove genocide beyond a reasonable doubt just to get an arrest warrant – making it unlikely that an arrest warrant would ever be issued for genocide in any future case.” Luckily, it did not.
Without knowing details about the evidence Ocampo has to support the charge of genocide against Bashir, the decision is promising for all those who believe the actions on the ground in Darfur were directed and coordinated by the Sudanese government at the highest level. Now the Pre-Trial Chamber will re-evaluate whether there are reasonable grounds to believe that Bashir should be arrested for genocide. This is an easier question to prove, which is why many mainstream media outlets are reporting this morning that today’s decision paves the way for Bashir to be accused of genocide.
Bec Hamilton’s full explanation is certainly worth reading if you want to know more. Be on the look out too for more insights from lawyer/blogger Kevin Jon Heller, who offered this interesting initial reaction:
I’m glad the Appeals Chamber reached the correct conclusion, but it’s absurd that it took them nearly eight months to issue an 18-page decision (13 of which are simply background). This was — at least from a legal perspective — an easy issue. The AC should not have kept the OTP, Bashir, and the rest of the world hanging so long.
We’re issuing a press release today, and here’s how our executive director John Norris views today’s ruling:
“The finding of the Appeal Chamber is sound, and makes it far more likely that President Bashir will eventually face a warrant for genocide in addition to the existing warrants for war crimes and crimes against humanity. As much as Bashir, his partners in the regime and some international diplomats would like the issue of genocide to go quietly away, today’s ruling is again a powerful reminder that we will not achieve lasting peace in Sudan without justice and accountability. We also hope that this well-reasoned ruling helps build additional support within the Obama Administration for resigning the Rome Statute."
Photo: Sudan’s President Omar al-Bashir.