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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