Tomorrow (Wednesday February 3rd) the Appeals Chamber of the International Criminal Court (ICC) will determine whether the standard of proof used by Pre-Trial Chamber I to examine the Prosecutor’s evidence on genocide was correct in the case of Sudan’s President, Omar al Bashir. 

On March 31st, 2005, the United Nations Security Council referred the situation in Darfur to the Prosecutor of the ICC. On July 14th, 2008, the prosecution filed an application for an arrest warrant for Bashir.  The prosecution, based on the evidence collected, alleged that three types of crimes had been committed: genocide, crimes against humanity or war crimes.  

On March 4th, 2009, Pre-Trial Chamber I decided that the material provided by the Prosecutor failed to provide reasonable grounds to believe that Bashir had the specific intent to commit genocide. Consequently, the crime of genocide was not included in the warrant issued.  Pre-Trial Chamber I issued an arrest warrant for Bashir on five count of crimes against humanity and two counts of war crimes, including murder, extermination and rape. Judge Ušacka, one of the three judges, dissented, saying that it is only at the trial phase that it is necessary to present evidence that allows the Court to reach a conclusion beyond a reasonable doubt.  She argued, additionally, that genocide should have been among the charges included.

On July 6th, 2009, the Prosecutor appealed the decision, submitting that, according to article 58 of the Rome Statute, judges are only required to affirm that there is “reasonable evidence” that an individual committed a certain crime for the issuance of an arrest warrant.  

Check back on this blog tomorrow for a summary of the decision.

Throughout the proceedings Sudan has refuses to cooperate with the ICC and has stated that it will not hand Bashir over to the Court.

At a Washington Foreign Press Center briefing in January 2010, U.S. Special Envoy to Sudan, Scott Gration stated:
“[W]e believe that any solution in Sudan, especially in Darfur, where there were mass atrocities and people need to have restitution and justice, we believe that any long-term solution will have to have accountability and will have to have a component of justice. The details are still being worked out. President Mbeki and the high-level panel have proposed some options of courts and hybrid courts, and we support the ICC and have urged the Sudanese to put forth the information that the ICC is requesting....”

CLICK HERE for a broadcast of the judgment on the ICC website: