Bashir and Genocide in Sudan: Second time lucky for the OTP

Yesterday, Pre-Trial Chamber I issued a second decision on the prosecution’s application for an arrest warrant against Omar Al Bashir for charges of genocide. This decision follows the March 2009 decision by PTC I, which had initially rejected the genocide charges, and the February 2010 Appeals Chamber judgment overturning the decision, because the wrong standard of proof had been applied. In effect, the first PTC I decision had considered that genocidal intent had to be the only reasonable conclusion. The AC held that this was too stringent a standard at this stage of the proceedings, and that the OTP only needs to show that genocidal intent is one reasonable conclusion.

Given this state of affairs, it is not surprising that PTC I amended its original decision to include three charges of genocide, which are to be the subject of a separate warrant of arrest. As I had argued back in February, I think that this is the correct standard to be applied at this stage of the proceedings, so there is nothing much to add on the decision itself. I would nonetheless like to raise one point before I consider other issues: the binding effect of Appeal Chamber decisions. Indeed, the PTC considers that:

1. It must be established at the outset that the key findings of the Appeals Decision [sic] are binding on the Chamber in this case and determine the scope of the present decision.

Stare decisis makes sense as a rule of thumb, but I couldn’t find it anywhere in the Statute or the RPE (it was a cursory reading, so please correct me if I missed it). Also, the PTC gives no source for its statement, when it is usual for it to refer to the relevant provisions of the Statute. So I wonder whether there is in fact a rule of binding precedent at the ICC and what would be the consequences of its absence if a PTC were to systematically decide not to follow a debatable AC interpretation of the Statute.

Beyond this, the decision touches upon some other broader considerations, which have been raised elsewhere. 
For one I agree with William Schabas, that the Prosecutor will still need to prove genocide during trial (if it ever takes place) and the case-law of the ICTY shows how hard that can turn out to be. More generally, this over-reliance on genocide as a political tool is problematic, and in my view also counter-productive. Regular readers of this blog will already know my criticism of the haphazard use of the “genocide label” and the fact that I actually call (with little chance of success) for the removal of genocide as an international crime.
I also agree with Dapo Akande, that the Court is systematically not dealing with the issue of Head of State immunity, given the fact that Sudan is not a State party. His way to deal with that is to apply the reading of the Genocide Convention done by the ICJ in the Genocide Case, according to which a party to the Convention would have an obligation which would call for State Parties of the ICC to cooperate with the ICC in Bashir’s arrest, as an international court dealing with Genocide the jurisdiction of which they have accepted, as provided by Article VI of the Convention, and this would apply irrespective of immunities which are explicitly removed by article IV of the Convention. 
I’m personally a little weary of all those “new” elements being read into the genocide convention over the years (like the claim that it gives rise to State responsibility for genocide…). More specifically, I would say that given that the Convention does not enact universal jurisdiction, the obligation to cooperate with an international tribunal can only rest on a State which actually has a duty to prosecute under the Convention, i.e, the territorial State. In any case, I think this reasoning cannot be applied to non-State parties to the ICC, given that they won’t have accepted the jurisdiction of the Court. 
The question of immunity is just one of many that arise from the application of the Security Council referral to a non-State party. I remain convinced that the whole mechanism, which basically gives power to the Security Council to make a treaty binding on a State which is not a party to it, is contrary to international law… but I fear that in this case, just as when I argue for the end of genocide as an international crime, I am fighting a already lost war…

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