ICC Prosecutor appeals al-Bashir Genocide Decision 07 Jul 2009
The Prosecutor at the International Criminal Court has filed an appeal against the Pre-Trial Chamber decision not to issue an arrest warrant for Sudanese President al-Bashir on charges of genocide.

At a recent AU summit, President al-Bashir received assurances from certain African states that they would not comply with the ICC Warrant regardless of their obligations under the Rome Statute The Prosecutor at the International Criminal Court (ICC) in The Hague, Luis Moreno-Ocampo, has filed an appeal against the decision of Pre-Trial Chamber I on 4 March 2009 not to issue a warrant of arrest for  President Omar Hassan Ahmad al-Bashir of Sudan on charges of genocide. The arrest warrant includes charges of war crimes and crimes against humanity, but the Majority Decision of the Pre-Trial Chamber found that the Prosecution had provided insufficient evidence to prove charges of genocide against the Sudanese President.

In its Decision, the Chamber considered that if, on the facts provided, the existence of genocidal intention “is only one of several reasonable conclusions available […] 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.” In the document filed on 6 July 2009 before the Appeal Chamber, the Prosecution submits that the Pre-Trial Chamber applied the wrong legal test for drawing inferences to determine reasonable grounds under Article 58 of the Rome Statute.

According to the Prosecution, while the Chamber recognised that the applicable legal standard is one of reasonable grounds to believe it in fact applied a higher level of proof which is only necessary for a conviction at the trial stage - beyond reasonable doubt –by requiring that the dolus specialis of genocide be the only reasonable conclusion to be drawn.

The Prosecution claims that by applying the incorrect legal test, the decision imposed an evidentiary burden inappropriate for the stage of proceedings. Citing the ICC’s own jurisprudence, the International Criminal Tribunals for the former Yugoslavia and Rwanda, as well as the European Court of Human Rights, the Prosecution argues that such a standard has no foundation in either statute or applicable law. The appeal asserts that the correct approach to drawing inferences under Article 58 is provided by Judge Ušacka in her Dissenting Opinion, determining that the Rome Statute “proscribes a progressively higher evidentiary threshold […] at each stage of proceedings”, which at the pre-trial stage for a warrant of arrest is only 'reasonable grounds to believe'.

State apparatus

The Prosecution nevertheless considers that by stating that genocidal intent is not the only reasonable inference on the evidence, the Chamber in fact accepts that such intent is reasonably inferred, thus allowing for an indictment on charges of genocide. The appeal notes that the Pre-Trial Chamber entered all the necessary factual findings for the establishment of reasonable grounds to believe that al-Bashir is criminally responsible for genocide. It accepted that he was in full control of the state apparatus, it found that his forces contaminated wells and water pumps of villages and towns, and it found that his forces obstructed medical and other humanitarian assistance to IDP camps in Darfur.

The Prosecution requests the Appeals Chamber to overturn the Decision not to indict al-Bashir on three counts of genocide, to set out the correct standard under Article 58 and apply that standard to the facts as found by the Pre-Trial Chamber. Further, the Appeals Chamber is requested to either direct the Pre-Trial Chamber to issue a warrant of arrest on the additional counts, or remand the Chamber to decide whether there are reasonable grounds to believe al-Bashir is criminally responsible for genocide, applying the correct standard.

President Omar Hassan Ahmad al-Bashir

The Situation in Darfur

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Court Documents / Documents juridiques

Prosecution Appeal against the Decision on Application for a Warrant of Arrest
6 July 2009

(uniquement en anglais)

Decision on the Prosecution's Application for a Warrant of Arrest

Warrant of Arrest

Mandat d'arrêt
4 March 2009

Related news items / Informations complémentaires

ICC issues arrest warrant for al-Bashir

La CPI délivre un mandat d'arrêt contre le président du Soudan
4 March 2009

Radio Netherlands Worldwide

ICC prosecutor wants Sudan's Bashir for genocide
7 July 2009