By Christopher Valvardi
In March 2009, the International Criminal Court (ICC) issued its first arrest warrant for a sitting head of state, approving the Prosecutor’s application for the arrest of Sudanese President Omar al-Bashir arising out of the situation in Darfur. The charges initially levied against Bashir included war crimes, crimes against humanity, and genocide; however, the Pre-Trial Chamber originally rejected the counts of genocide proposed by the Prosecutor. Recently, the Appeals Chamber determined that those counts were rejected under an incorrect legal standard, and directed the Pre-Trial Chamber to re-examine the possibility of holding Bashir accountable for state-sponsored genocide. As yet, no date has been set for the Pre-Trial Chamber to revisit the issue. The decision puts further weight behind efforts to bring Bashir before the Court, and further refines the ICC’s threshold for attributing genocidal intent to high-ranking government leaders.
The UN Security Council’s referral of the Darfur situation to the ICC through Resolution 1593 did not explicitly address the subject of genocide; however, the Prosecutor’s July 2008 warrant application tied a large number of crimes against the residents of Darfur to genocidal intent at the highest levels of the Sudanese government. The warrant application listed three counts of genocide among the ten counts against Bashir, noting that he used state apparatus to kill members of three targeted non-Arab ethnic groups; to inflict serious physical and mental harm through rape, torture, and displacement; and to deliberately inflict conditions of life calculated to destroy those groups. To meet the “reasonable grounds” standard required for issuance of a warrant under Article 58 of the Rome Statute, the Pre-Trial Chamber has to infer genocidal intent from the facts produced by the investigation.
Despite the Prosecutor’s efforts, the Pre-Trial Chamber decided to issue the initial arrest warrant without the genocide counts. The Chamber explained that, although the results of the investigation may have supported counts of genocide, those results could also support various other inferences, and did not conclusively establish the reasonable likelihood of genocidal intent. The Prosecutor requested and received permission to appeal this decision, in order to resolve uncertainty as to the standard of proof.
Subsequently, the Appeals Chamber held that the Pre-Trial Chamber acted erroneously in basing its rejection of the genocide counts on the grounds that genocide was not the only possible conclusion. The Chamber distinguished the Article 58 “reasonable grounds for belief” standard from higher standards necessary to confirm charges or obtain a conviction. The Appeals Chamber found that the Pre-Trial Chamber’s reasoning too closely approximated the “beyond reasonable doubt” standard required for conviction, rather than the less restrictive “reasonable grounds” standard for the issuance of the arrest warrant.
The Appeals Chamber did not go so far as to approve the addition of the genocide counts, instead remanding the case to the Pre-Trial Chamber. Meanwhile, Bashir received overwhelming support in Sudan’s presidential elections in April – the country’s first democratic elections in 24 years – primarily because the major opposition party in southern Sudan boycotted the election, and hundreds of thousands of Darfurians are not registered voters.