ICC: Appeal Chamber upholds Arrest Warrant appeal 03 Feb 2010
The ICC Appeals Chamber has upheld the Proseuctor's appeal against the decision on the Al Bashir arrest warrant.

On 3 February 2010 the Appeals Chamber of the International Criminal Court (ICC) delivered its judgement upholding the Prosecutor’s appeal against the Pre-Trial Chamber’s decision to not include genocide in its warrant of arrest of Sudan President Omar Hassan Ahmad al-Bashir. The Appeals Chamber reversed the decision that the Prosecution had not provided sufficient evidence to include the crime of genocide. The Appeals Chamber found that the Pre-Trial Chamber applied the incorrect test in determining whether there were ‘reasonable grounds’ under Article 58 of the Rome Statute. The question will now be sent back to the Pre-Trial Chamber to decide on whether to include the genocide count, using the “correct standard of proof”.

Warrant of Arrest

On 4 March 2009, Pre-Trial Chamber I at the ICC issued an arrest warrant for the President of Sudan, President Omar Hassan Ahmad al-Bashir for war crimes and crimes against humanity related to the situation in Darfur, Sudan. However, the Pre-Trial Chamber rejected the Prosecutor’s request to include charges of genocide. The Majority held that Prosecutor had provided insufficient evidence to include the count of genocide. In its Decision, the Pre-Trial 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.”

Prosecution Appeal

On 6 July 2009 the Prosecutor filed an appeal against the decision of the Pre-Trial Chamber. The Prosecutor argued that the Pre-Trial Chamber applied the wrong legal test in relation to drawing inferences to determine “reasonable grounds” under Article 58 of the Rome Statute. According to the Prosecution, while the Pre-trial 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 argued 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 argued that such a standard has no foundation in either statute or applicable law. The Prosecution submitted 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'.

Appeal Chamber Decision

The Appeals Chamber held that the evidentiary threshold at the pre-trial stage for the issuance of an arrest warrant (“reasonable grounds to believe”) must be distinguished from the threshold required for the confirmation of charges (“substantial grounds to believe”) or for conviction (“beyond reasonable doubt”). The Appeals Chamber stated that the Pre-trial Chamber “should not require a level of proof that would be required for  the confirmation of charges of for conviction”. Thus, by requiring the Prosecutor to establish that the existence of genocidal intent is the only reasonable conclusion based on the evidence, the Pre-trial Chamber required proof of genocidal intent “beyond reasonable doubt” rather than the lower threshold of “reasonable grounds to believe”.

The Appeals Chamber therefore found that the Pre-Trial Chamber had made an error of law in coming to its decision on the arrest warrant. The issue will therefore be sent back to the Pre-Trial Chamber, which will now decide whether to add the crime of genocide to the existing seven counts of crimes against humanity and war crimes, including murder, extermination, torture and rape.

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