Yesterday, a Pre-Trial Chamber of the International Criminal Court issued a second warrant of arrest against President Al-Bashir of Sudan adding charges of genocide. These had earlier been rejected in a 4 March 2009 ruling, but the decision was overturned in January by the Appeals Chamber which found the standard set by the Pre-Trial Chamber to be excessive. I have always thought that the Pre-Trial Chamber was doing the Prosecutor a big favour, by narrowing the arrest warrant to charges that he had a realistic chance of proving.
The reasoning in yesterday’s decision is quite simple, really. The Pre-Trial Chamber had said that the finding that Bashir had acted with genocidal intent was not the only reasonable conclusion, and therefore rejected the arrest warrant on that ground. Later, the Appeals Chamber said that this was too high a standard, and that as long as genocidal intent was a reasonable conclusion (rather than the only reasonable conclusion), the warrant should be issued. Yesterday, a differently constituted Pre-Trial Chamber said that since the first Pre-Trial Chamber had already concluded genocidal intent was a reasonable conclusion, albeit not the only reasonable conclusion, that therefore the warrant should be issued.
The Pre-Trial Chamber goes on to examine whether various material elements of genocide, such as killing and so on, are also present. This was never really much of an issue and the discussion here is relatively brief.
The consequence of this decision should not be exaggerated. The Prosecutor must still prove genocide beyond a reasonable doubt. At the International Criminal Tribunal for the former Yugoslavia, the Prosecutor obtained indictments against many suspects on charges of genocide but only succeeded in proving a few of them. Indeed, only last month, in Popovic et al. a Trial Chamber of the Yugoslavia Tribunal registered three convictions for genocide; the only two previous convictions for genocide were reversed on appeal. Trial Chambers have also dismissed many charges of genocide at trial.
Applying the ‘reasonable grounds’ standard at the International Criminal Court in the manner indicated by the Appeals Chamber, it should be possible to obtain an arrest warrant on genocide charges in most cases involving ethnic violence. That doesn’t mean the cases will stand up at trial, as the Prosecutor at the Yugoslavia Tribunal well knows.
There is a certain magic or mystique about the word 'genocide'. Charges of crimes against humanity are often regarded as being almost banal, alongside the 'crime of crimes'. This is not legally accurate, of course. Crimes against humanity are among 'the most serious crimes of concern to the international community as a whole'. There are what the Nazis were convicted of at Nuremberg. But for many, absent charges of genocide it is as if the violence and suffering are being downgraded unacceptably. The corrollary of this is that labelling something genocide creates enormous political momentum. The Pre-Trial Chamber's ruling, however modest the grounds on which it is based and however unlikely the chances of success of the genocide counts at trial, may nevertheless have a dramatic political effect.