The Prosecutor has applied for leave to appeal the decision of the Pre-Trial Chamber that issued an arrest warrant for crimes against humanity and war crimes against President Bashir of Sudan because it rejected the charge of genocide: http://www.icc-cpi.int/NR/exeres/CC751CCC-B58D-49A8-8073-83E0D06D3717.htm
In order to obtain leave to appeal, in accordance with article 82, he must demonstrate that the decision 'involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial' and for which 'an immediate resolution by the Appeals Chamber may materially advance the proceedings'. It is really hard to see how these conditions can be met. The evidence to prove crimes against humanity and genocide will be essentially the same, and therefore this should not affect the proceedings in a significant way. The Trial Chamber can always conclude that there is enough evidence to sustain a charge of genocide, and then amend the charges, bearing in mind the need to give fair warning to the defence. In other words, there is no need to resolve this issue now. It can easily be fixed at trial, if indeed a mistake has been made.
The Prosecutor's arguments in his application for leave to appeal are not very convincing. Essentially, they amount to saying that any time a Pre-Trial Chamber denies certain charges in an arrest warrant, this raises issues of fairness and requires immediate determination. He is claiming, I think, that a decision of the sort should automatically be subject to an appeal.
This is surely not what was intended by the drafters of the Rome Statute, it is not what the Statute says, and it doesn't make sense. The whole purpose of limiting the right of interlocutory appeal is to expedite the proceedings. It is generally framed within concern about dilatory motions by the defence. One would not expect it to be the Prosecutor who is delaying proceedings.
One of the arguments in the application for leave to appeal that I found particularly intriguing is the claim that the Pre-Trial Chamber decision creates unfairness for the defense. This is very creative. I doubt that the defense agrees, however, that the Prosecutor should be able to appeal in order to add a charge of genocide!
The application says that the Prosecutor also intends to apply for a new arrest warrant, with new material. Aren't there more important things for the Prosecutor to be doing? After all, he obtained a warrant for crimes against humanity. Why not concentrate on proving that one, rather than quibble about whether the charge should also be one of genocide?