The Prosecutor raised three issues, but leave was only granted for one of them. It concerns whether the Pre-Trial Chamber erred in requiring that genocidal intent be the only reasonable inference from the facts as submitted in support of the application.
The Prosecutor admitted that he did not have any direct evidence of genocidal intent, but requested that the Chamber draw the conclusion that there are reasonable grounds to believe that genocidal intent existed from a joint analysis of those facts for which sufficient evidence to meet the evidentiary standard required for issuance of an arrest warrant was available.
Here is the relevant part of the decision:
CONSIDERING further that the Majority explained in the Decision that, under these circumstances, the law on proof by inference became applicable; and that according to this law, an inference can only be drawn if it is the only reasonable conclusion from the joint analysis of the facts proven by the Prosecutor;
CONSIDERING that the Majority did not suggest that, in order to establish the existence of reasonable grounds in relation to genocidal intent, the Prosecutor must show that the only reasonable conclusion from the facts proven by the Prosecutor is the existence of genocidal intent beyond reasonable doubt (article 66 of the Statute evidentiary standard);
CONSIDERING that, quite the contrary, the Majority only required the Prosecutor to demonstrate that the only reasonable conclusion from the facts proven by the Prosecutor is that there are "reasonable grounds to believe" in the existence of genocidal intent (article 58 of the Statute evidentiary standard);'
CONSIDERING that, nevertheless, the First Issue constitutes an issut' arising out of the decision if interpreted in the sense that the Majority -in applying the law on proof by inference due to the Prosecutor's exclusive reliance thereon -erred in requiring that the only reasonable conclusion from the facts proven by the Prosecutor be that there are "reasonable grounds to believe" in the existence of genocidal intent;
CONSIDERING that, in the Chamber's view, this issue affects the fairness of the proceedings insofar as, had the Majority erred in its determination, it "would have a direct and detrimental impact on the Chamber's ability to correctly assess the evidence;