Healing the Rift: the Impasse between the African Union and the International Criminal Court

Introduction

There are often in human affairs turbulent occurrences that grate the nerves. And just as often, they are left well alone for want of easy resolution—in hopes that passage of time will dull memory, mollify nerves, and all becomes substantially well again … eventually. But then, up pops a fresh pebble that lands smack on the still raw nerves.

Such is the story of the rift between the African Union and the International Criminal Court. An impasse was touched off in their relations when the ICC Prosecutor indicted President Omar el Bashir of Sudan in 2008. The AU protested. The trajectory of risen tension continued when an ICC Pre-Trial Chamber in 2009 confirmed the indictment in all other respects, save for the count of genocide. The AU squirmed and grumbled some more. But things came to a head when the AU requested the Security Council later in 2009 to defer the prosecution for 12 months, pursuant to article 16 of the ICC Statute. The Security Council did not act on the request. Feeling slighted and brushed aside, the AU passed a resolution, calling on African States to not cooperate with the ICC on the Bashir prosecution. This was in July 2009. [See Dapo Akande, ‘Is the Rift between Africa and the ICC Deepening?’: www.ejiltalk.org/is-the-rift-between-africa-and-the-icc-deepening-heads-of-states-decide-not-to-cooperate-with-icc-on-the-bashir-case/]

The two sides had been carrying on with the tension still between them; perhaps hoping that things would work themselves out. But in early February 2010, the Appeals Chamber of the ICC, ruling on the Prosecutor’s appeal, reversed the Pre-Trial Chamber’s decision that quashed the genocide count and remanded the matter back to the Pre-Trial Chamber for reconsideration.

This last event is that fresh pebble that popped up and landed on the still sore nerves of the AU. But this latest development affords occasion to reflect upon what has been gained by either side from this stalemate. The occasion is propitious, with the Kampala review conference looming large in the immediate horizon—affording, perhaps, a fresh opportunity of healing the rift.

It must, however, be said from the outset that, as a practical matter, the burden of this reflection appears to weigh heavier on the side that resists the AU request for the article 16 deferral.

A presumption of good faith

While some of the opposition to the AU request for deferral has been premised on a reasonable difference of opinions by responsible people, there remain traces of a cynical assumption in some quarters—often unspoken, but not always so—that anyone sympathetic to the AU call for the deferral must be seen as supporting, promoting or condoning impunity for violations of international humanitarian norms. The assumption is idle at best, and particularly foul when it is permitted to rise to the level of implicit or explicit suggestion that the AU leaders are just ‘a club of [African] cronies out to protect one of their own’. In fact, one CNN reporter once said as much.

It needs to be clearly said in defence of AU leaders that they must be accorded the presumption of good faith that they deserve, when they insist that justice must be done, but that they are more immediately concerned with securing peace and stability in Darfur and Sudan. Speaking on the Bashir indictment before the UN General Assembly in September 2008, President Jakaya Kikwete of Tanzania, the AU Chairman at the time, stressed the essential matter of justice, but insisted on the best sequencing of justice with the imperatives of security. As he put it: ‘Justice is a matter of essence—it must be done, it must be seen to be done. We are simply concerned with the best possible sequencing of measures so that the most immediate matters of saving lives and easing the suffering of the people of Darfur are taken care of first.’ [www.unmultimedia.org/radio/english/detail/35916.html]

What President Kikwete, the statesman, was saying late in 2008 finds eminent juristic support in the words of Benjamin Cardozo many years before: ‘Justice is not to be taken by storm. She is to be wooed by slow advances.’ Cardozo’s observation could, of course, be adjusted a little with the qualifier ‘some times’ or ‘when appropriate’. But the point is easy enough to grasp.

In the circumstances, the position of the AU, thus explained, deserves serious regard. It is wrong to drown out this consideration with presumptions of corrupt motive. For the reasons that follow, the opposite presumption is more appropriate. First, AU leaders, more than most of the people who oppose their position, bear the heaviest burden of legitimate worry. Many of those who want nothing more than immediate arrest and prosecution of Bashir will not share with AU leaders the trauma of concrete and immediate chaos that will result from the spiralling out of control of Darfur and Sudan, were Bashir to be immediately and forcibly removed from office and arraigned at The Hague for trial. Leaders of wealthy and able nations will be constrained to consider whether their domestic public opinion will permit them to ‘send [their] young men and women in harm’s way’ in any international military effort to stabilise a nation in chaos in distant Africa. African leaders will not have that luxury.

Perhaps, Iraq must be kept in mind here; for it has become an object lesson in what happens when well-intentioned people undertake by storm the evidently just cause of removing and prosecuting bad men who hold their peoples stably together even with barbarous strings of tyranny. The prompt removal, capture, trial and execution of Sadam Hussein did not as promptly reward the people of Iraq with the promised dividends of peace and security that they deserve and clamoured for all those years under Sadam. America has now served Iraq a pullout notice, requiring Iraqis to take care of their own security. After the pullout, there will be a distance of continents and oceans and thousands of miles separating America and Iraq. But if Sudan goes the way of Iraq upon a precipitous removal of Bashir, there will be no continent or ocean or a thousand miles to separate AU leaders from Sudan. Their fate in the face of chaos in Sudan is simply that stark.

Notably also, the AU High Level Panel on Darfur, under the Chairmanship of former President Mbeki of South Africa, went to great lengths to stress that the advancement towards peace, justice and reconciliation in Darfur will require an integrated package of solutions which must necessarily balance the requirements of the imperatives of peace, justice and reconciliation. The Panel was ‘convinced that any attempt to emphasise the importance of any of these three objectives at the expense of the others, would not bring about the just and stable peace we all desire for the people of Darfur, and which the Darfurians themselves seek.’ [See Mr Mbeki’s speech to the UN Security Council on 22 December 2009.]

The point of the foregoing is not that tyrants must be allowed to strangle their own peoples forever with vicious cords of relative stability. The point rather is that the available choices are not limited to either (a) perpetual tyranny that promises ostensible social stability or (b) instant removal and prosecution that yields instant chaos to society. There is a middle course. That course is the AU model of sequencing and balancing of the imperatives of justice and social stability. While not a perfect model, it has been known to bring eventual justice, or the immediately realizable promise of it, in certain cases where, as in the Bashir case, the need was seen for prosecution of a malignant dictator. And that brings us to the second reason why good faith must be presumed on the part of AU leaders.

We must not be quick to forget that it is the AU leaders that passed a resolution requiring Hissen Habre (the former President of Chad) to be tried in Senegal for violations of international humanitarian norms. Similarly, the African leaders have tacitly endorsed the prosecution of Charles Taylor. Notably, ECOWAS leaders were visibly embarrassed—and they duly protested—when David Crane (the first Chief Prosecutor of the Special Court for Sierra Leone) surprised them at an ECOWAS peace conference in Accra in June 2003, by showing up unannounced and brandishing an indictment and warrant of arrest against Charles Taylor, who then was the President of Liberia and a fellow participant at the conference. Yet, neither the ECOWAS nor the AU leadership has been known to complain against the eventual arrest and trial of Charles Taylor by the Special Court for Sierra Leone, sequenced after his prior, safe tease-out from Liberia and grant of exile in Nigeria. Indeed, it was his asylum host, Nigeria’s President Obansanjo, that eventually arrested him from his refuge in Nigeria and handed him over to the SCSL for trial.

These antecedents are sufficient to demonstrate the folly of the suggestion that it is the motive of protection of a fellow ‘old boy’—rather than their seriousness about sequenced measures—that explains the position of the AU leaders in respect of Bashir.

It is for these reasons and more that the AU leaders must be accorded a presumption of good faith, rather than not, when they seek a deferral of the Bashir prosecution. [In his own blogs, Dapo Akande has reviewed other reasons why good faith should be presumed on the part of AU leaders: see for instance, Akande, supra. See also Dapo Akande, ‘Africa and the International Criminal Court’: www.ejiltalk.org/africa-and-the-international-criminal-court/]

So, what was the point of the stalemate?

It is also with the foregoing in mind that we return to the question: What has the impasse between the ICC and the AU achieved that inures to the benefit of the Bashir prosecution? After much reflection, the answer to this question is hardly edifying.

Notably, the current phase of the stalemate resulted from the non-action of the Security Council to the AU request for deferral—a request based on a procedure in the ICC Statute that the AU felt entitled to invoke. This is the procedure under article 16, for deferral of investigation or prosecution. Now, let us pause for a minute and consider that procedure and the reasons for it. In the words of the provision: ‘No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.’

Under that procedure then, the resulting deferral has a non-self perpetuating life of 12 months. A fresh resolution would have to be tabled after the 12 months, if a renewal of the deferral were needed. It is difficult to imagine that there would be much appetite (on the part of the Security Council) or conviction (on the part of the AU) for repeated renewals after the initial one.

In addition to inquiring into the practical effects of the resistance to the AU request for deferral of the Bashir prosecution, one cannot help wondering what it was that motivated the resistance to the first AU request in the first place. That question necessarily provokes the underlying inquiry as to why it was considered necessary to have article 16 in the ICC Statute in the first place. Is the AU request wholly outside those reasons? A cursory view of the Rome Statute’s travaux preparatoires does not support that conclusion. Article 16 is the product of a proposal from Singapore and Canada aimed at balancing two critical interests, to wit: (a) ICC’s judicial interest in exerting justice in the face of criminal responsibility; and (b) the Security Council’s political interest in maintaining international peace and security—sometimes in precarious circumstances. That balance was adequately captured by Mr Perrin de Brichambault of France whose remarks were recorded as follows: 'The proposed article [16] provided an excellent working basis as far as the role of the Security Council was concerned. There must be consistency between the actions of the Court and the actions of the Security Council where there were situations endangering peace. The Statute should provide for the Security Council to be able to ask the Court to defer action in situations coming under Chapter VII of the Charter of the United Nations ....' [Emphasis added.] [United Nations, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June - 17 July 1998, Official Records, Vol II, Doc No A/CONF.183/13 (Vol. II) p 189]. Similar comments were made by other delegations that spoke in favour of article 16. See, particularly, the comments of Mr Mwangi of Kenya [op cit, p 317] and Mr Rowe of Australia [op cit, p 299] who respectively spoke of the need to strike a ‘balance’ in the suggested manner.

Justification for the resistance to AU’s deferral request must be founded upon the proposition that the request may rightly be seen as unduly tipping that scale. But that would be a hard proposition to sustain, keeping fully in view the case of good faith made above in favour of the AU.

At any rate, the following question still remains: what exactly was the practical value of resisting the AU their first request for deferral, when it should have been obvious to anyone that Bashir could not be arrested and arraigned before the ICC within those initial 12 months, even without the requested deferral? In the absence of a practical value to that resistance, it seems that the only result achieved has been a needless—possibly self-indulgent—aggravation of the nerves of AU’s leadership, and a resulting widening of the gulf of damaged relations. It is possible to imagine how the current reality of the product of that treatment, in terms of soured relations with the ICC, so poorly compares with that of a positive consideration of the deferral request. A positive consideration of the request would have stirred in the AU leaders feelings of respect, dignity and high regard to which they are entitled. With the leverage of the deferral, they might have been empowered to achieve more in terms of peace and security in Sudan and Darfur, especially if the international community had made steps along those lines conditions of the grant of the deferral request. And the damage in relations with the Court might have been avoided or repaired.

Bridging the Gulf

How then do we move forward in order to bridge the gulf of tension between the AU and the ICC? One important consideration in the effort to heal the rift is that the views of the AU must be treated with respect and dignity and given due regard. Failure to do that runs a great risk of alienating one of the—if not the—most important constituencies of this young Court.

For obvious reasons, alienation of the AU will not augur well for the Court. I anticipate here a demurrer to the effect that this amounts to mixing justice with politics. It certainly is. For, it will be a painful show of naïveté to presume otherwise. But, the presence of restraining politics in the affairs of the Court ought not impede it in substantially achieving the central aim for which it was founded: being the aim of banishing impunity from the minds of persons who abuse humanity and threaten international peace and security in alarming ways. The task for the Court then is to negotiate around these political obstacles and pitfalls and fog-spots, and remain dogged in its pursuit of justice and accountability. Granted, the potential achievements of the Court in those circumstances will be attenuated, as compared to the achievements of a court operating in a political vacuum. Yet, those attenuated achievements will be far superior than would be the lot of modern civilisation in a vacuum of international criminal justice. That is to say, the glass of justice represented by the Court, operating in a political reality, is not an empty glass. It is a glass half full. That is precisely the sort of balance contemplated by article 16 of the Court’s Statute.

A Thought for Kampala: Kleptocracy

Onward to Kampala

As all eyes are trained on Kampala in May-June this year, for the first review conference of the International Criminal Court, we pause to consider how else the world could use the ICC to improve the lot of Africans on whose continent the Court’s first review conference is being held.

There is no shortage of declarations of good intentions—backed up by evident good faith—on the part of the international community to focus attention on the need to improve the lot of Africans on their own continent. The UN's Millennium Development Goals project is but one notable example of this show of good faith. Such gestures deserve appreciation. Yet, anyone who has helplessly observed the local subversion of quality-of-life-improving efforts in Africa is naturally concerned that whatever it is that the international community aims to do in aid of Africa may not go the wasted ways of many other fine initiatives of foreign friends of Africa and of Africans themselves.

In this connection, one thinks of kleptocracy; of violation of human rights; and, of how these misconducts subvert quality-of-life-improving efforts in economically developing countries, especially those in Africa. And one wonders what to do about them, in order that efforts like the MDGs will yield the intended results—with Africans enjoying a better life, like their fellow human beings elsewhere.

One thing that the international community must seriously consider in this regard is the recognition of kleptocracy as an international crime and which every country must be empowered to prosecute—regardless of who committed the crime and where it was committed.

Kleptocracy: the Root of Much Evil

There is little doubt that kleptocracy ranks on top of any list of the most dire social problems facing economically developing countries—especially those in Africa. When one thinks of social problems in Africa, one thinks of genocide against another ethnic (or religious) group, extermination of political opponents, extra-judicial executions, torture, persecution, arbitrary arrests and detentions, enforced disappearances, wars of aggression and the variety of war crimes that go with them, and other human rights violations of the violent kind. All these have certainly become more engaging of the immediate attention of the international community. In the very nature of things, this should be so.

But, one needs to look only a little closer to see just how equally ruinous—perhaps even more ruinous—kleptocracy is in its social consequences in Africa. The apparent social costs include those revealed in the direct link often made between the enduring scourge of fatal diseases (such as the AIDS epidemic, malaria and tuberculosis) and kleptocracy in the economically developing world. Beyond this obvious recognition of the social costs of kleptocracy, there is a need also to appreciate fully the link between kleptocracy and the violent sorts of human rights violations that readily come to mind when one thinks of serious violations of international humanitarian law.

Kleptocracy affords both motive and opportunity to violate human rights violently—and to continue to do so. When a kleptocrat misappropriates public wealth, he has a reason to suppress such public exposure and criticism as may come from current or former colleagues and aides, opposition politicians, independent media, social interest groups, and citizens. Suppression of criticisms may take the form of extermination of political opponents and critics, extra-judicial executions, torture, persecution, arbitrary arrests and detentions, enforced disappearances, and so on.

Similarly, the kleptocrat, fearing post-incumbency prosecution or loss of the venal privileges of office to which he has grown accustomed, resolves to remain in office forever, regardless of any rule of law militating against him. Any popular movement to remove him from office—even by constitutional means—may result in further violent violations of human rights. In this connection, no tactic may be seen as too depraved to consider, if it will only divert attention from the need for political change. To this end, resort may be had to such diversionary tactics as the foment of international wars of aggression or civil wars; or to the incitement of inter-racial, inter-ethnic, or sectarian conflicts—even resulting in genocide.

Freedom from want—a human right in need of invigoration

In addition to the foregoing considerations, there is the humbler case that kleptocracy is a direct violation of human rights, under the more traditional reasoning. The point of departure here is to recall the legal tributaries of the modern stream of international law of human rights. These may be taken to be freedom of speech, freedom of belief, freedom from fear, and more relevantly—freedom from want. While the first three freedoms have received commendable emphasis under the new order of international law, freedom from want, as a concept of international law, appears often to be ignored as the poorer cousin. Yet, the right to freedom from want is very much a fundamental human right; for it has received that recognition in all the leading international instruments on human rights beginning with the Universal Declaration on Human Rights. Regrettably, Western States view with disquiet the fundamental right to freedom from want and its progenetive rights as listed above. They fear boosting these rights may result in a state of affairs in which they may be viewed as having an obligation to afford those rights to citizens of developing countries. But this concern need not impede, as a bare minimum, an incremental approach to the right to freedom from want. This could begin with an incremental approach to the right to freedom from want.

This, in turn, will necessarily begin with the minimal legal requirement view that public officials who grossly violate that right by stealing the wealth of their nations may be punished as international criminals (in a manner agreed upon by the international community). Indeed, one should reasonably expect that the reduction or elimination of kleptocracy in developing countries, as would result from this criminal proscription, would yield direct dividends to Western States. There will be a diminution or termination of the cycle of dependence of developing countries on Western foreign aid (in which event, the West may need no longer to worry about a moral or legal expectation to ensure freedom from want to citizens of developing countries). There will also be a reduction of economic immigration (and its attendant headaches) from developing countries to the West.

Kleptocracy as a Subject of International Criminal Law

Kleptocracy has, so far, remained beyond the cognisance of international law. It is certainly not a subject of international criminal law. Yet the need to make kleptocracy a subject of international criminal law rests in the same realms of common sense and legal analogies that inspire the rule of law in general, and specific legal norms in particular.

There is no need to debate here the merits of the various views of St Thomas Aquinas, St Augustine of Hippo, John Austin, Thomas Hobbes, David Hume, Ovid and Seneca for the genesis of law. For there is no room to dispute the point that laws (and sanctions for their breach) have become part of the realities of modern life. Laws have come to be viewed as the best guarantees of protection that modern civilization could devise for the values that society holds most dear, and sanctions offer a warranty of deterrence for their violation. The same guarantees and warranty of law and sanctions are just as good for society, in order to deter peculating public officers from filching the public wealth that should be used to improve the lives of citizens whose lives it is the chief duty of public office to improve with the public wealth.

And by way of appreciable legal analogy, there should be little difficulty in conceiving of the elevation of kleptocracy to the rank of subjects of international criminal law, for some of the same sources of international law (custom, conventions and general principles of law) may be relied on to produce this result in the usual fashion. All that is needed is a conscious effort to mobilise the trend.

One point of this analogy is necessarily a reference to evolutions in custom and usages, by which rules of international law and practice tend to emerge.

The Universal Declaration of Human Rights is a most venerable fountain of customary international law of human rights. Part of its value, in this connection, is its aspiration for an international order in which fundamental human rights can be fully realised. Now, after numerous conventions, UN resolutions and hortatory declarations of general principles, vainly urging states to do their best to promote human rights—while leaving it entirely up to them to do so, upon the premise that the principle of sovereignty of nations forbids outside intervention for inside respect for human rights—the international community appears now to have found the courage to visit with criminal sanctions individuals who grossly violate the fundamental human rights of others. But this resolve appears thus far to focus exclusively on gross violations of human rights—violent type.

Given, however, the equally dire consequences of gross violations of human rights in the venal order of kleptocracy, the inclusion of kleptocracy in the class of violations which ought to be punished by criminal sanctions would seem but a natural extension of the current resolve to subject to criminal punishment gross violations of human rights. Thus, it seems that this current trend in customary international law to meet violent violations of human rights with international criminal law, should afford an impetus for similar treatment of kleptocracy since it produces similar results for the citizens victimised, albeit in a less precipitous manner.

Similarly, all conventional conceptions of crimes against humanity eschew ‘other inhumane acts’, beyond the usual enumeration of specific types of crimes qualifying as crimes against humanity. Clearly, kleptocracy is a most inhumane act when it results in dehumanising misery, ignorance and disease to helpless citizens whose lot would have been improved by the stolen resources.

The final point of analogy to be drawn here will be to general principles of law recognised by modern nations. Two points may briefly be made here. First, there is hardly any nation where the offence of theft, fraud or breach of fiduciary duty by public officials is not a crime. That being the case, there is nothing radical at all in making kleptocracy a crime under international law. And, second, in most jurisdictions, especially under the common law model, it is a crime to omit to provide the necessaries of life to those under one’s custody and care. Undoubtedly, the crime of failure to provide will be aggravated where the custodian would have self-appropriated, beyond his or her own basic needs, any available resources needed to provide the necessaries of life for those under his or her care.

The Need for Universal Jurisdiction over Kleptocracy

For gross, violent violations of human rights international law now recognises the power of a power in every state to prosecute offenders in its own courts. This same power should be given to states to enable them prosecute kleptocrats. The same justifications that warrant this power over the more readily recognisable international crimes also recommend themselves in the case of kleptocracy. (1) It is a crime that often shocks the conscience of humanity. That victims of Aids, malaria or hepatitis-B are dying without medical care in an African country, while their heads of state keep siphoning off public funds to their own Swiss bank accounts is a conduct that shocks the conscience. (2) That such a head of state may resort to a gross, violent violation of human rights, such as torture, in order to suppress exposure or criticism for the theft, or avoid constitutional removal from office, has certainly been accepted as a crime against humanity, warranting universal jurisdiction. (3) More immediately, the kleptocrat may flee his country or shroud himself with a self-designed and self-serving amnesty law, in order to avoid prosecution at home, while he retains his ill-gotten wealth in the face of the continuing suffering of his people. (4) And, these victims of kleptocracy are usually powerless to prosecute the culprits at home, even in the absence of amnesty.

Conclusion

There is a grave need then for the international community to recognise kleptocracy as an international crime, which every country should have the power to prosecute—regardless of who committed the crime and where it was committed. One hopes—and expects—that members of the Assembly of States Parties to the ICC would lend their significant weight towards achieving this desirable state of international affairs, as they did with the establishment of the permanent International Criminal Court.

Not only will the international criminal proscription of kleptocracy assist in the true realisation and consolidation of the other efforts such as the MDGs and many other inititives, but such proscription will be, in itself and above all, a lasting gift of justice to the ordinary citizens of Africa and the developing world in dire need of it.

The Correct Standard of Persuasion for an Arrest Warrant at the International Criminal Court

On 3 February 2010, the Appeals Chamber of the ICC overturned the decision of the Pre-Trial Chamber in the case of The Prosecutor v Omar Bashir, relating to the count of genocide: Prosecutor v Omar Hassan Ahmad Al Bashir (Judgment on the Appeal of the Prosecutor against the “Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”) Doc No ICC-02/05-01/09-OA dated 3 February 2010 [ICC Appeals Chamber], hereafter referred to as the ‘Appeals Chamber’s Decision’].

The Pre-Trial Chamber had dismissed the count of genocide in the Bashir indictment, on grounds that the Prosecution had not discharged the burden of persuasion regarding the existence of specific intent on the part of Mr Bashir for the crime of genocide.

The prosecution case for genocidal intent was not direct. Rather, it hinged upon inferences urged by the Prosecution to be drawn from ‘a comprehensive consideration of [a number of] factors’: see Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir) Doc No ICC-02/05-01/09 dated 4 March 2090 [ICC Pre-Trial Chamber I], hereafter referred to as the ‘Pre-Trial Chamber’s Decision’, para 162.

At issue in the appeal was how to interpret the standard stipulated in article 58(1)(a) of the ICC Statute. According to that provision, the Pre-Trial Chamber shall issue a warrant of arrest if it is satisfied that there are 'reasonable grounds to believe' that a crime within the jurisdiction of the Court has been committed.

According to the Pre-Trial Chamber, the manner of application of this standard, in cases where the Prosecution relies upon inferences to prove an essential element of the crime, is by showing that the urged inference is the only reasonable one that may be drawn in the prevailing circumstances. In the view of the Pre-Trial Chamber, the Prosecution had not shown this to be the case in respect of Mr Bashir's genocidal intent. Therefore, the genocide count was quashed.

The Prosecution appealed. They complained that requiring a showing of only-reasonable-inference-to-be-drawn is tantamount to imposing a standard of proof beyond a reasonable doubt - a higher standard that is only engaged as a matter of finding of guilty or not guilty. According to them, the standard of persuasion for the issuance of an arrest warrant should be much less onerous.

The Appeals Chamber agreed with the Prosecution: ‘In the view of the Appeals Chamber, requiring 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. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”’: Appeals Chamber’s Decision, para 33.

Consequently, the Appeals Chamber reversed the Pre-Trial Chamber's decision and remanded the matter to the Pre-Trial Chamber: ibid, paras 41 and 42.

Oddly, though, the Appeals Chamber declined to give guidance to the Pre-Trial Chamber as to the correct applicable standard for the issuance of a warrant of arrest: ibid, para 42. Rather, the Appeals Chamber left it up to the Pre-Trial Chamber to devise the correct standard, as they reconsidered the case. In this regard, the Appeals Chamber could have been more helpful with the needed guidance.

The needed guidance should not be a very difficult one to give. The concept of 'reasonable grounds to believe' should be a rather straight-forward matter of asking the following questions:

(i) Are there grounds to believe? If yes,

(ii) Are those grounds reasonable?

The warrant should not issue if any of these questions lends itself to a negative answer. But the warrant should issue if those two questions are answered in the affirmative.

As the crucial test is one of reasonableness, it should not matter that there may be an alternative reasonable inference that also may be drawn in the circumstances, which inference is inconsistent with that urged by the Prosecution. This is for the simple reason that perfectly reasonable persons may differ in their views as to what is reasonable.

As casual takes might suggest: the ICC Appeals Chamber has now cleared the way for the genocide trial of Mr Bashir. Indeed, some early media reports hastily suggested so. But this is far from correct. All that the Appeals Chamber has done are: (a) disagreed with the basis upon which the Pre-Trial Chamber had earlier rejected the genocide count—the disagreement was notably indicated by the Appeals Chamber to be only ‘to that extent’ [ibid, para 41]; and (b) sent the case back to the Pre-Trial Chamber for reconsideration.

Hence, the Appeals Chamber's decision does not prevent the Pre-Trial Chamber from rejecting, once more, the genocide count: if the Pre-Trial Chamber finds either that (a) there is no ground to believe that there existed a genocidal intent, or (b) that such a ground to believe (even if it exists) is not reasonable. And this is a question on which the jury remains out, for the following reasons: (i) the majority of the Pre-Trial Chamber (in their first decision) appeared quite skeptical of the Prosecution's urging that the inferences of genocidal intent were reasonable [see Pre-Trial Chamber’s Decision, para 163 et seq]—quite apart from the Pre-Trial Chamber's impugned only-reasonable-inference-to-be-drawn reasoning; and, (ii) the International Commission of Inquiry (led by Prof Antonio Cassese as he then was) had ‘concluded that the Government of the Sudan has not pursued a policy of genocide’ [see United Nations, Report of the International Commission of Inquiry on Darfur to the Secretary-General, Doc No S/2005/60, of 1 February 2005, paras 518, 522, 640—642, especially at para 640], although there were reasonable grounds to believe that other international crimes (such as war crimes and crimes against humanity) had been committed: ibid, para 521, 522, 630—639.

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