Title:The Al Bashir Appeals Chamber Judgment on Genocide: A Critical Appraisal in Law and in Context
Date:08 Mar 2010
Author:Jacobs, Dov
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Dov Jacobs*

President al-BashirThe case against the Sudanese President, Omar Hassan Ahmad Al Bashir has been the most publicised case at the International Criminal Court (ICC) since the Rome Statute entered into force in July 2002. It is a singular case in many respects.

First of all, it arises in the context of the first situation to be referred to the ICC by the UN Security Council in application of Article 13(b) of the Statute.1 This showed that the United States, one of the most vocal critics of the ICC, was willing to acknowledge its usefulness in some cases.2 Moreover it is the first case at the Court against a head of state. Finally, the case intervenes in a context of strong and unprecedented media attention and public opinion on the situation in Darfur.

The main point of debate surrounding the situation has been whether genocide has been or is being committed in Darfur. Currently, Bashir is charged with two counts of war crimes, and five counts of crimes against humanity, which include murder, extermination, torture and rape.3 The Prosecutor had requested that three counts of genocide also be included, but this was declined by the Pre-Trial Chamber. The Prosecution appealed the decision and the Appeals Chamber issued its Judgment last month, reversing the pre-trial decision.

This commentary will first focus on the current state of the legal proceedings on this issue, presenting the initial Pre-Trial Chamber decision and the Appeals Chamber Judgment (1). It will then provide a critical analysis of the Judgment (2) before looking to the future of the genocide charge, the nature of the genocide debate and how this issue is clouding the numerous difficulties faced by the ICC in relation to Darfur (3).

1. The Pre-Trial Decision and the Appeals Judgment

1.1. The Initial Decision by the Pre-Trial Chamber on Genocide

Pre-Trial Chamber I (PTC I) issued its initial decision on the Prosecutor’s Application for a Warrant of Arrest in March 2009.4 Following the procedure laid down by the Rome Statute,5 the Chamber endeavoured to establish that, 1) there are reasonable grounds to believe that at least one crime within the jurisdiction of the Court has been committed, and 2) that there are reasonable grounds to believe that Omar Al Bashir has incurred criminal liability for such crime under any of the modes of liability provided for in the Statute.6

Having established the existence of war crimes and crimes against humanity, the Chamber moved on to consider the most debated and controversial part of the Prosecutor’s request: the question of charges of genocide. Given that the Prosecution was not relying on direct evidence of genocidal intent, but was trying to infer the intent from acts committed, PTC I considered that a higher threshold of proof was required, namely that “the materials provided by the Prosecution in the support of the Prosecution Application [must] show that the only reasonable conclusion to be drawn therefrom is the existence of reasonable grounds to believe in the existence”7 of a specific intent to destroy in whole or in part the targeted groups (the so-called dolus specialis or ‘specific intent’ required for genocide). In other words:

If the existence of a [Government of Sudan]’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.8

Having laid down this burden of proof, the Majority9 found that the evidence provided by the Prosecution, namely the acts committed by government forces and statements made by officials, did not prove successfully that genocidal intent was the only reasonable conclusion, as opposed to an intent to commit war crimes or crimes against humanity.10 As a consequence, it declined to issue an arrest warrant in relation to genocide.

1.2. The Judgment by the Appeals Chamber

The decision was appealed by the Prosecutor on 13 March 2009 and leave to appeal was granted on 24 June 2009 in relation to the question of the standard of proof.11 In its Judgment on 3 February 2010,12 the Appeals Chamber reversed the Pre-Trial Chamber decision.

In a nutshell, the Appellate judges considered that PTC I applied too high a threshold for the satisfaction of the standard of proof as laid down at the arrest warrant phase of the proceedings. It held that requiring that genocidal intent be the only reasonable conclusion implied that the Prosecution must successfully eliminate all other reasonable conclusions. Therefore, the Prosecution is in effect asked to establish not that there are “reasonable grounds to believe”, as required by Article 58(1) of the Statute, but to establish genocidal intent “beyond reasonable doubt”.13

This went beyond the standard of proof of the Statute and therefore amounted to an error of law.14 As a consequence, and although the Prosecution had requested that the Appeals Chamber apply directly its conclusion to the evidence, the matter was remanded to the Pre-Trial Chamber, for it to re-evaluate the evidence in light of the correct standard of proof.

2. An Analysis of the Appeals Judgment

What conclusions can one draw from this Judgment? I will focus on the standard of proof (2.1) and the general failings of the Appeals Chamber (2.2).

2.1. The Unresolved issue of the Standard of Proof

Regarding the main finding of the judges on the standard of proof, my initial reaction when the Judgment was issued was to agree with it wholeheartedly.15 However, a more careful reading of the Pre-Trial decision has lead me to slightly qualify my enthusiasm. Indeed, I still agree that the standard of proof as laid down by PTC I seems a little high for such an early stage of the proceedings.

But the Appeals Judgment does not comment on the initial problem that had led the Pre-Trial Chamber to adopt the standard in the first place: namely the nature of the evidence provided by the Prosecution. Indeed, as I mentioned earlier, the judges were faced with a situation whereby the Prosecution was relying not on direct evidence of intent, but on indirect inference, which is considerably more ambiguous. This sort of evidence is of course highly relevant, and is often the only kind available, in circumstances where the Prosecution is faced with an absence of cooperation from State authorities and does not have direct access to key government documents that would allow for a more solid evidentiary basis for the charges. The question does remain however, even if one agrees with the Appeals Chamber, of whether, just as in the case in trials at the ICTY and ICTR, circumstantial and indirect evidence should carry a more stringent standard of proof than direct evidence. This question is not answered by the Appeals Chamber.

2.2. The General Failings of the Appeals Chamber

Which leads me to the second comment on the decision itself, namely that the Appeals Chamber often seems to be doing a poor job. For one, it often does half the job. Indeed, by remanding the case to the Pre-Trial Chamber without giving more details on how to apply the standard of proof given the particular nature of the evidence provided, it leaves the Pre-Trial Chamber in the dark as to the correct path to take.

This is not the first time the Appeals Chamber has operated in this way. One can recall its complete destruction of the gravity test proposed by the Pre-Trial Chamber in the early Lubanga/Ntaganda arrest warrant decisions, without giving any hint about what the appropriate test might be, with the consequence that the Article 17 gravity threshold has been completely stripped of any content, and has not been used by judges since at the arrest warrant phase.16

Moreover, as pointed out by Professor Schabas, the Appeals Chamber is very slow in its decision making, and produces very short decisions in contrast to the time spent on preparing them.17 More generally, it appears that the framework of the ICC, initially set up to speed things up, has actually burdened the proceedings by multiplying the procedural hurdles before trial. There is a pre-investigative phase, where the Prosecutor is already partially under the supervision of the Court. Then comes the actual investigative phase, before the confirmation of charges and the actual trial. Moreover, from a technical point of view, each phase carries a different standard of proof. To launch an investigation, the Prosecutor must have a “reasonable basis to believe” that a crime within the jurisdiction of the Court has been committed.18 The Pre-Trial Chamber must have “reasonable grounds to believe” in order to issue a warrant of arrest19 and must determine that there is “sufficient evidence to establish substantial grounds to believe” in order to confirm the charges.20 And as the present case shows, there can be subtleties in the scope of these standards depending on the nature of the evidence provided. This multiplication of standards of proof leads to unnecessary semantic debates on such vague notions as “reasonableness” and serves to prolong the proceedings.

In light of all this, one can wonder if a simplification of the pre-trial phase should not be a priority at the upcoming review conference in Kampala, rather than the diplomatic backslapping and vain attempts at defining aggression that will otherwise be taking place.

3. What next? Genocide as the Tree that Hides the Forest

3.1. The Genocide Charge and the Genocide debate

It is important to stress that this Judgment does not reintroduce genocide into the warrant of arrest. As pointed out previously, the Appeals Chamber does not apply the correct standard of proof to the evidence, it just remands the case to the Pre-Trial Chamber. It is therefore entirely possible that PTC I will arrive at the same conclusion as before, just phrasing it differently. Indeed, beyond the technical aspect of the standard of proof, the decision is probably the consequence of a strong intuition on the part of the majority of PTC I judges that the Prosecutor does not have a very strong case on the genocide charges. One should recall that the UN Commission of Enquiry led by Antonio Cassese in 2005 had already failed to identify a genocidal intent on the part of the Government of Sudan21 and that there is strong debate among the academic community on this issue.22

Beyond the strict setting of the ICC, one can wonder why this issue of genocide has become so central. The idea seems to be that there is a hyperbolic reliance on genocide because of its alleged nature as a “worse” crime than for example crimes against humanity. If it is not genocide, then it is nothing at all. It is beyond the scope of this commentary to analyse this phenomenon and the place genocide in international criminal law.23 One can however wonder whether this is a sound policy on the part of NGOs in light of their overarching goal of preventing mass atrocities whatever their denomination.24 Indeed, their over-reliance on the qualification of genocide seems to have the effect of leading to a minimisation of other grave crimes or widespread human rights violations. More particularly, it is puzzling and even a little disturbing to see crimes against humanity forgotten, especially if one recalls that the expression was used to describe the Armenian genocide and to prosecute Nazi crimes at Nuremberg. The “never again” motto, if it is to become a reality, must rely on remembering the past, and more importantly, must be freed of semantic debates that occupy academics without helping the victims.

3.2. Beyond Genocide: a Forest of Difficulties to Overcome

From the point of view of the ICC, this question of genocide is the tree that is hiding the forest of legal and political difficulties surrounding the Darfur situation.

From an international law perspective, it raises several difficult questions. For one, there is the issue of head of state immunity that Al Bashir might be able to claim as President of Sudan. More importantly, although this remains broadly undebated, the overall legality of the referral system by the Security Council can be challenged. Indeed, to what extent is it compatible with the UN Charter that a treaty (the Rome Statute) claims to give authority to a UN body (the Security Council) that should normally obtain its competence only from its constitutive body? Moreover, the referral framework actually gives the Security Council more power than it has under the Charter since the referral makes the Rome Statute binding on the state, despite it not being a party, as in the case of Sudan. However, the Security Council has never had the power to make a treaty automatically binding on a state without its consent. Sudan would therefore make a solid legal argument against being bound by the Statute, despite the Chapter VII referral by the Security Council.

From a political perspective, support for ICC action in Darfur has met with increasing scepticism. In July 2009, the State parties to the ICC at the African Union adopted a Resolution regretting the warrant of arrest for Bashir, calling for a deferral of any investigation in accordance with Article 16 of the Statute25 and deciding that there would be no cooperation with the Court in relation to the warrant.26 This trend will perhaps likely only accelerate given the context of the recent peace deal between the Government and JEM rebels, as well as the upcoming elections in Sudan.27

The Prosecutor might be tempted to see the Appeals Chamber Judgment as a victory. But generally, especially after the Pre-Trial Chamber refused to confirm charges against Abu Garda in what appeared to be an open-and-shut case,28 it does appear that the Darfur situation is getting out of control, and one can wonder with Professor Schabas, if the Prosecutor “has not bitten off more than he can chew”.29


*Ph.D Candidate at the European University in Florence and currently a Research Fellow at the Asser Institute in The Hague. Comments welcome (dovjacobs@gmail.com).

1 Security Council Resolution 1593, UN Doc. S/res/1593/2005, 31 March 2005. Article 13(b), ICC Statute : “The Court may exercise its jurisdiction [...] if: [...] (b) A situation in which one or more such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”.

2 Arguably, the support was very reluctant. The United States abstained from voting the Resolution, obtained a paragraph stating that nationals of non-state parties present in Sudan not be subject to the jurisdiction of the Court and another paragraph affirming that the UN would not bear any costs relating to the proceedings. In a statement following the vote, the US representative also expressed her preference for a hybrid court. See the UN Press Release SC/8351, 31 March 2005.

3 Prosecutor v. Omar Hassan Ahmad Al Bashir, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, PTC I, 4 March 2009.

4 Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, PTC I, 4 March 2009.

5 Article 58(1), ICC Statute.

6 Supra, note 5, §28.

7 Supra, note 5, §158.

8 Supra, note 5, §159.

9 Judge Anita Usacka dissented on this part of the decision, both in relation to the burden of proof and the factual findings of the Chamber.

10 Supra, note 5, § 205.

13 Supra, note 13, §33.

14 Supra, note 13, §39.

15 Dov Jacobs, Of Zeitgeist and Law : The ICC Bashir Decision, Spreading the Jam, 4 February 2010.

16 For a commentary of these decisions, see Dov Jacobs, Commentary on “ICC Arrest warrants in DRC and Uganda situations”, Klip, Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol 23, forthcoming.

17 William Schabas, Nice Work if You Can Get It, PhD Studies in Human Rights, 3 February 2010.

18 Article 53, ICC Statute.

19 Article 58(1), ICC Statute.

20 Article 61(7), ICC Statute.

22 For a good overview of various aspects of the question, see Special Issue on the Darfur Crisis, Genocide Studies and Prevention, Vol. 4, no.3, Winter 2009.

23 Dov Jacobs, supra note 16 and Dov Jacobs, Mass Atrocities and the International Community: Moving Beyond the "Genocide Debate" (February 2010). Theory vs. Policy? Connecting Scholars and Practitioners, ISA Annual Convention 2010, New Orleans: 2/17/2010 - 2/20/2010, Available at <http://ssrn.com/abstract=1564901>.

24 One reason put forward for the reliance on genocide is that it might trigger a legal duty to intervene. However, this is not currently the reality of international law, the Genocide Convention being extremely vague on the issue and the ICJ in its 2007 Genocide decision having only found a breach of a duty to prevent in relation to Serbia only in light of Serbia’s special relationship to the Bosnian Serbs. See Dov Jacobs, supra, note 21.

25 Article 16, ICC Statute: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions”.

26 For a commentary and link to the Resolution, see William Schabas, African Union Defying International Criminal Court, PhD Studies in Human Rights, 10 July 2009.

27 For an overview of the current political situation, see the recent All Africa report.

28 Dov Jacobs, Abu Garda: Justice Follows its Course, Spreading the Jam, 25 February, 2010.

29 Supra, note 27.

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