The appellate Chamber of the International Criminal Court just handed down a decision on whether or not Sudan’s president Omar al Bashir can be tried for genocide.
Some background. When the ICC prosecutor unveiled his functional equivalent of an indictment against Bashir in early 2009 he accused the Sudanese president of the crime of genocide. However, when a panel of ICC judges known as the Pre-Trial Chamber actually issued the arrest warrant for Bashir, they did not include genocide among the charges (only war crimes and crimes against humanity). The prosecutor appealed this decision, and moments ago an Appellate Chamber ruled that the Pre-Trial Chamber must revisit their decision to keep genocide off the arrest warrant.
The Appeals Chamber did not decide one way or the other on the question of whether or not Bashir committed genocide. Rather, it objected based on procedural grounds to the decision to keep genocide off the arrest warrent. From the ICC:
The Appeals Chamber explained that it was not concerned with the question of whether Mr Omar Al Bashir is, or is not, responsible for the crime of genocide. Rather, the Appeals Chamber addressed a question of procedural law, namely whether the Pre-Trial Chamber applied the correct standard of proof when disposing of the Prosecutor’s application for an arrest warrant.
In its 4 March, 2009, decision, Pre-Trial Chamber I rejected the Prosecutor’s application in respect of genocide stating that it would issue an arrest warrant for genocide only if the only reasonable conclusion to be drawn from the Prosecutor’s evidence, based on “proof by inference”, was that there were reasonable grounds to believe in the existence of genocidal intent. The Appeals Chamber found that demanding 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 found this standard of proof to be too demanding at the arrest warrant stage, which is governed by article 58 of the Rome Statute. This amounted to an error of law.Check
Check out Kevin Jon Heller for a discussion of the legal merits of the decision. But from a political standpoint, it seems to me that we are seeing the International Criminal Court come to its own. Remember, the court is very young. The jurisprudence under which it operates is relatively new. Today’s ruling shows that the court is capable of policing itself and that the institution’s internal checks and balances are strong. It also shows that the prosecutor is not “unaccountable” as some of the court’s detractors would have you believe.
Today’s ruling should serve as a reminder to the United States that it has nothing to fear from joining this experiment in international justice. As it happens, ICC prosecutor Luis Moreno Ocampo can tell American officials that in person. He is in Washington, D.C. for the next couple of days.
UPDATE: Don Kraus of Citizens for Global Solutions: “Today’s ruling by the International Criminal Court (ICC) judges demonstrates the wheels of international justice at work. We are now one step closer to holding accused war criminal Omar Al-Bashir in front of the world’s premier court for trying perpetrators of mass atrocities. Adding a charge of genocide to Al-Bashir’s arrest warrant, would be a first for the ICC and for a sitting head of state. This charge would add to the equally grave charges Al-Bashir faces of Crimes against Humanity and War Crime, including murder, extermination and rape.”