Wednesday, February 3, 2010

Breaking News: Al Bashir Can Be Prosecuted for Genocide

As we've blogged in the past (see, e.g., here, here, & here) the question of genocide in Darfur remained an open one. The Appeals Chamber of the ICC recently ruled that the Pre-Trial Chamber had erred in a prior ruling when it failed to confirm the genocide counts proposed by the Prosecution against Sudanese President Omar Al-Bashir (right).
The new ruling is premised on the burden of proof at the arrest warrant stage. The Appeals Chamber concluded that the Pre-Trial Chamber (PTC) had essentially demanded proof beyond a reasonable doubt of Al Bashir's genocidal intent when it required proof that
the only reasonable conclusion to be drawn [from the evidence presented] is the existence of reasonable grounds to believe in the existence of the [Government of Sudan's] dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups.

In so holding, the Appeals Chamber agreed with the lone dissent on the PTC, Judge Anita Ušacka of Latvia (left), who argued that the Prosecution had met its burden at the arrest warrant stage.

In its ruling, the Appeals Chamber emphasized that
the evidentiary threshold of "reasonable grounds to believe" for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges ("substantial grounds to believe", article 61 (7) of the Statute) and the threshold for a conviction ("beyond reasonable doubt", article 66 (3) of the Statute).
The Pre-Trial Chamber has been directed to re-consider the scope of the arrest warrant pursuant to the appropriate standard of proof on remand. Stay tuned!

No comments: