Raising the Burden of Proof: The Prosecutor v Omar Hussein Ahmad Al Bashir

Last Wednesday, hope for justice in Darfur was renewed with the news that the Appeals Chamber of the International Criminal Court (“ICC”) opened the door for an arrest warrant on the charge of genocide to be issued against Sudanese President Omar Hussein Ahmad Al Bashir. The Prosecutor hopes to add genocide to the existing arrest warrant for crimes against humanity and war crimes. It is alleged that Mr. Bashir’s government intended to ethnically cleanse the Fur, Masalit and Zaghawa peoples in Darfur.

Background

In March 2009, the Prosecutor brought an application before the Pre-Trial Chamber for an arrest warrant pursuant to article 58(1) of the Rome Statute [the Statute]. The latter is the treaty that established the ICC. In its decision, the Pre-Trial Chamber outlined three requirements for the arrest warrant to be issued. There must be: (a) reasonable grounds to believe at least one crime within the jurisdiction of the Court has been committed; (b) reasonable grounds to believe that Mr. Bashir has incurred criminal liability for such crime under any of the modes of liability provided for in the Statute; and (c) the arrest of Mr. Bashir must appear to be necessary pursuant to article 58(1) of the Statute.

With regard to the last requirement, the Pre-Trial Chamber shall issue an arrest warrant if the arrest appears to be necessary to ensure the accused appears at trial, prevent the obstruction of justice, or prevent the continuance of the commission of the crime. While the Prosecutor was able to satisfy all three requirements for war crimes and crimes against humanity, it was unable to do so for genocide based on the Pre-Trial Chamber’s erroneous adoption of a higher standard of proof with regard to article 58(1).

The Chamber Decision

The Pre-Trial Chamber applied a higher standard of proof by creating a “proof by inference” test. For there to be “reasonable grounds to believe that a crime was committed” pursuant to article 58, the Prosecutor would have to show that there was specific genocidal intent. The Pre-Trial Chamber held that an inference of genocidal intent may be drawn on the basis of all the evidence weighed together, even where each factor on its own may not warrant such an inference.

Its judicial error arises out of the requirement that the existence of the genocidal intent be the only reasonable inference available on the evidence in order for this inference to be drawn. Applied to the facts at hand, the Government of Sudan’s genocidal intent would “only be met if the materials provided by the Prosecution in support of the Prosecution Application show that the only reasonable conclusion to be drawn there from is the existence of reasonable grounds to believe in the existence of [the Government of Sudan’s] dolus specialis specific intent to destroying the whole or in part, the Fur, Masalit and Zaghawa groups” (emphasis added).

In other words, the Pre-Trial Chamber interpreted the phrase “reasonable grounds to believe” in article 58(1) to impose a hefty burden on the Prosecution to disprove any other reasonable conclusion and eliminate any reasonable doubt. It is only where there are no other possible options that there will be reasonable grounds to believe that the required specific genocidal intent exists for a mere arrest warrant to be issued. This type of reasoning is reminiscent of the criminal conviction standard in article 66(3), which is “proof beyond a reasonable doubt.”

Analysis

It is surprising to see the Pre-Trial Chamber straining itself to interpret article 58(1) as narrowly as possible so as to heighten the standard of proof in such a significant and well publicized human rights case. Moreover, it is difficult to understand why the Pre-Trial Chamber is requiring what amounts to a level of certainty in a preliminary stage. There is a reasonable rationale for a higher standard of proof during the adjudication of a conviction or the confirmation of a conviction, which is the opportunity to present more in-depth evidence during trial. By requiring the Prosecutor to exclude all other possibilities so that only the existence of reasonable grounds of the specific genocidal intent remains is tantamount to a mini-trial.

It should be noted that the Prosecutor was the co-author of its misfortune at the Pre-Trial Chamber. The Chamber adopted the Prosecutor’s line of reasoning in order to come up with the “proof by inference” test. Due to a lack of direct proof of genocidal intent at the time of its application, the Prosecutor was forced to rely upon proof by inference. In what seems like self-sabotage in retrospect, the Prosecutor was the one who argued that the standard of proof in article 58(1) would only be satisfied if there were no other reasonable conclusion to be drawn except that there were reasonable grounds to believe that there was specific genocidal intent to destroy the Fur, Masalit and Zaghawa groups. As a matter of pure legal strategy, the Prosecutor fell into a trap planted by itself when the Pre-Trial Chamber used the resultant higher standard of proof to cut down the evidence presented to prove genocidal intent.

The Appeals Chamber’s reversal of the lower court means that the Prosecutor can reapply for an arrest warrant on the charge of genocide. Given the need to properly assess the substance of the application, the Appeals Chamber refused to issue the warrant itself. Arguably, there was more at play than respect for jurisdiction when the Appeals Chamber refused to exercise its discretion to issue the warrant. The horrific nature of the allegations strongly tug at the heart strings, and call out for Mr. Bashir to be arrested on the charge of genocide.

Implicitly, the Appeals Chamber recognizes the need to properly adjudicate these types of politically charged legal problems in a fair manner. In a time where political support in the African Union has allowed Mr. Bashir to evade arrest, the ICC must use extra effort to properly adjudicate legal issues. When it makes mistakes on run-of-the-mill criminal principles such as the standard of proof, the ICC cannot cut corners to remedy its mistakes without the repercussions of undermining the legitimate claims of victims and its reputation as a legal adjudicative body.