ICC ProsecutorLuis Moreno-Ocampo
Yesterday in The Hague, the International Criminal Court’s Appeals Chamber reopened a door that could allow Omar al-Bashir to face charges of genocide.
On March 4, 2009, the judges of the International Criminal Court’s Pre-Trial Chamber 1 issued an arrest warrant for Sudanese President al-Bashir on five counts of crimes against humanity and two counts of war crimes. The Pre-Trial Chamber did not include in the warrant the three counts of genocide requested by the court’s Prosecutor, Luis Moreno-Ocampo.
Yesterday, the Appeals Chamber unanimously reversed the Pre-Trial Chamber’s decision not to include the crime of genocide in the warrant, on the basis that the Pre-Trial Chamber applied an erroneous standard of proof. The ruling upheld an appeal submitted by the ICC’s Prosecutor in July 2009.
In yesterday’s ruling, the Appeals Chamber held that the Majority (2) of the ICC’s three Pre-Trial Chamber judges applied an incorrect standard of proof when it required that the existence of reasonable grounds to believe that Omar al-Bashir is criminally responsible for genocide must be the only reasonable conclusion from the evidence presented by the Prosecutor. It noted:
In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt.
The Appeals Chamber noted that such an evidentiary threshold is higher and more demanding than what the ICC’s Rome Statute requires for the issuance of an arrest warrant. The Rome Statute requires higher evidentiary thresholds for the confirmation of charges (“substantial grounds to believe”) and the threshold for a conviction (“beyond a reasonable doubt”).
The case has now been sent back to the Pre-Trial Chamber to decide whether there are reasonable grounds to believe that President Omar al-Bashir is criminally responsible for genocide, applying the correct standard of proof. The Appeals Chamber refused a request by the Prosecutor that it enter its own finding and direct the Pre-Trial Chamber to issue an arrest warrant on the genocide counts.
It is unknown how long the next step will take. Due to rotations of judges at the ICC, Pre-Trial Chamber 1 is now made up of different judges than the three judges who made the original ruling on the Bashir warrant.
The Save Darfur Coalition welcomed the Appeals Chamber’s decision, noting that justice and accountability are essential components of the comprehensive solution required to finally end the crisis in Darfur.
Regardless of the eventual decision made by the Pre-Trial Chamber on the genocide charges, al-Bashir remains wanted on charges of crimes against humanity and war crimes. Also at large are Ahmad Haroun and Ali Mohamed Ali (“Ali Kushayb”), for whom the court issued arrest warrants in April 2007.
The opinions expressed here are those of the author(s) and do not necessarily reflect the position of the Save Darfur Coalition.
Tags: ICC, Luis Moreno-Ocampo, Omar al-Bashir
