ICC Rules on Genocide Charge of Sudanese President Omar al-Bashir

Mark Leon Goldberg - February 3, 2010 - 9:45 am

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."

Reader Comments (Page 1 of 1) Subscribe to these comments

Devid @ Mar 17th 2010 8:14AM

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Visitor @ Feb 18th 2010 8:00PM

You know, I agree with your sense of absolute outrage. But the real reason that women have these things happening to them, is because we, as a world society have convinced ourselves that men are inherently superior to women. And that's a lot of crap. But it starts in infancy when we tell little girls abour Cinderella and "Prince Charming". The girls grow up expecting to meet "their prince" who'll sweep them off of their feet and into some non-existent fantastical fantasyland, and it just ain't so! I tried to teach this to my own daughter, who was beaten by her first serious "boyfriend", the father to her own child, a beautiful daughter. This guy doesn't pay his own child support support; his mommy does. And he makes no effort to see or write his own daughter. And I had to argue with my daughter, who was brought up by me with the assistance of my mother, a retired businesswoman, to get her to leave that bastard.My daughter has victimized her own self in this area, and she won't fight back. When she was hit, she didn't call or tell anyone who would have helped; not even any of her three bigger brothers! OR her step-dad, who is a good man.
She tried to continue on, literally for the sake of her daughter, to give her a daddy. Sure. A daddy who regularly hit mommy. It is NEVER right, or allowable, but over 2/3's of this world does it, and we, here in a country where it happens also, and on a regular basis wonder "Why?". Until we put a stop to this here, and start teaching girls real self defense, and allow it as a positive defense in the Courts, it will not start changing.

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Visitor @ Feb 18th 2010 7:48PM

I am shocked. Not that Muslim women were caned. That was a LIGHT punishment under Shari-a. The real punishment for adultery for a woman is stoning. But what shocks me is that we are worried about people a half a world away, when right here in Idaho, women in our own jails cannot get medicine that is routinely made available to the men in Idhao jails. When I had an interview with a female warden about 2 years back, she told me that the reason that the women do not get all that the men get in the Kuna jail is because "The women don't riot, but the men will". That was her explanation as to why there is no exercise facility for the women other than a courtyard to walk around in and why many meds, particularly psychiatrics are not made available to the women. And I find THIS to be abhorrent to our own way of life. I have written to politicians, and not been answered yet. And I have told many people in Idaho about it, and although statistically about 1/3rd the entire state's families have at least on family member either in jail currently or who has been in jail in the recent past, I cannot get a commitment from anyone to even write a letter to a local newspaper. Part of the problem is that Idaho has a kind of a "shield law" that provides that anything that "may harm" either the state or any of its' employees cannot be printed or investigated by a newspaper or other news agency (outside agencies). And this is in AMERICA!

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Chris de Ocejo @ Feb 23rd 2010 10:32AM

Stoning to death (rajm) is not a punishment prescribed by the Qur'an. Several ahadith exist which suggest it, but these tend to go against the explicit instructions of the Qur'an, and their authenticity requires examination as well. Moreover, the jurisprudence on the subject in the Sunni schools requires the sworn testimony of 4 eyewitnesses to the act of penetration itself, which is a near-impossible evidentiary burden. The shari'a is neither as monolithic nor as barbaric as you imply, sir.

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Visitor @ Feb 18th 2010 7:37PM

No. We piloted the Nuremburg Courts, and we proved than that this concept can work. We don't have to literally subjugate our National Soverignty, which would be necessary in becoming a signatory nation, in order to work with that body. Besides this, it would unconstitutional for us to become a signatory nation. That has to do with our 2nd, 4th and 10th Amendment Rights, and the fact that no President or Senator can sign away any degree of our National Soverignty. Such would be a breach of their respective oaths of office and that would be what the Constitution describes as a "High Crime", ie: a Felony committed while in Office and Under Oath. And that is the stuff of Civil War. There are States that have, within their Constitutions articles that speak to these very issues. Most, if not all of the Governors of "the Several States" are specifically enjoined by oath of office and by dint of articles of their respective constitutions to not allow "Foreign Incursion" upon the soil of their respective states, or "by any other Staes' Armed Forces". This is the case in Idaho and in a number of Eastern States, most particularly the "Original Thisrteen".
Chew over that.

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Visitor @ Feb 18th 2010 6:35PM

I wonder why the President of Chad wants the MINURCAT to leave when they are protecting people???

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Visitor @ Feb 11th 2010 2:49PM

The ICC is a good start, but could be strengthened significantly. The fact that the United States hasn't joined is troublesome to me as an American: if we truly believe what we say we believe, then there is nothing to fear.

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Visitor @ Feb 6th 2010 11:26PM

The ICC is doing heroic work. I am disappointed in the USA for not yet joining.

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