The Appeals Chamber of the International Criminal Court recently ruled against Pre-Trial Chamber I's March 2009 decision granting granting an arrest warrant against Sudanese President Omar al-Bashir (below left) only on charges of crimes against humanity and war crimes, but not for genocide charges. (photo credit) (Prior IntLawGrrls post) The Appeals Chamber's ruling has alternately been:► Hailed as a momentous development in the ICC’s attempts to pursue Bashir; and
► Dismissed as a meaningless procedural move that could have been accomplished without an appeal—and without the seven months it took the five-member panel to reach a decision.
As I explain in my ASIL Insight on the decision, perhaps it is neither one. But it is important nonetheless.
The Appeals Chamber’s decision centered on the proper interpretation of Article 58(1)(a) of the Rome Statute, which requires the Pre-Trial Chamber to grant the Prosecutor’s request for an arrest warrant if
[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.The Appeals Chamber held that by requiring that genocidal intent be the only reasonable inference available from the evidence, rather than only one of the reasonable inferences available, the Pre-Trial Chamber had constructed too rigorous a standard for determining what constitutes “reasonable grounds to believe.”
The Appeals Chamber, however, left it at that, and it did not define a standard for evaluating whether “reasonable grounds to believe” exist; that determination is left up to the Pre-Trial Chamber. Nor did the Appeals Chamber use its power under the ICC’s Rules of Procedure to decide on its own to issue the warrant for Bashir on the genocide charges. That,
too, is up to the Pre-Trial Chamber. Given the divergence of views about whether the violence in Darfur—which according to UN officials has caused some 300,000 deaths and forced more than 2.7 million people from their homes—constitutes genocide, a decision by the Pre-Trial Chamber to issue the warrant on genocide charges is not a sure thing. And with Bashir still in power—Bashir recently received the official nomination of his party to run again for the presidency in Sudan’s April elections—the Appeals Chamber’s decision looks even less like a development of much import in the fight for accountability in Darfur.Perhaps that is a fair assessment of the decision.
But even if it results in the ICC eventually holding a sitting head of state criminally responsible for genocide, the Appeals Chamber’s decision is also significant, right now, for what it tells us about international criminal law and about the internal dynamics of the Court:
► As a preliminary matter, the Appeals Chamber corrected an error in the Pre-Trial Chamber’s interpretation of the “reasonable grounds to believe” standard, an error which, had the Prosecutor chosen not to appeal, would have impacted future cases dealing not only with genocide charges, but also with any other crimes under the ICC’s jurisdiction.
► Moreover, beyond this important advance in interpretation and application of the Rome Statute, the decision provides a fascinating glimpse into the Appeals Chamber’s vision of its own powers relative to the Pre-Trial Chamber, and of the Pre-Trial Chamber’s powers relative to the Office of the Prosecutor. In finding error in the decision of the Pre-Trial Chamber, but reserving for that body for the ultimate determination about the standard for issuance of a warrant and the grounds for the warrant itself, the Appeals Chamber is protecting the Pre-Trial Chamber’s role as the gatekeeper for investigations, as the check on the Office of the Prosecutor, while at the same time it is preventing the Pre-Trial Chamber from too strictly performing these necessary functions.
In short, the Appeals Chamber has defined for itself a limited role in interlocutory appeals—a role that holds great power despite its limits.
