My posting on the ICC Prosecutor’s application for leave to appeal against the Pre-Trial Chamber’s decision to reject the genocide charge drew some fierce criticism from some quarters (notably Kevin Heller of www.opiniojuris.org). So I paused to consider.

Article 58 of the Rome Statute provides that the Pre-Trial Chamber shall, on the application of the Prosecutor, issue an arrest warrant if “˜there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.’

Two of the three judges of the PTC decided that in the case of the application for an arrest warrant against President Bashir, the Prosecutor had not met the standard. One judge dissented, and the Prosecutor sought leave to appeal. The most significant part of the request is the claim that the judges were not applying the right standard of proof: they were seeking a substantially higher level of proof rather than “˜reasonable grounds to believe.’

My own view is that the Public Application contained plentiful evidence that specific criminal acts had been committed during 2003 and 2004 that might constitute the actus reus of genocide, but that acts committed since January 2005 were most unlikely to fit that requirement. The prosecution’s case rests on demonstrating intent and mode of perpetration. Let us focus on intent. The way the Prosecutor constructs the case is an argument that genocidal intent is the only reasonable inference from the facts of the case. This implies that he is trying to prove the case beyond all reasonable doubt“”as he would during a trial. He clearly doesn’t succeed because there are other reasonable inferences from the facts.

But that is not the test that the Pre-Trial Judges should apply. They need to be satisfied only that there are reasonable grounds to believe there was genocide””in both act and intent.

Was I right? I asked three lawyers who are familiar with the issue to comment, independently and anonymously. I didn’t ask anyone who has taken a clear stand on the issue one way or the other. The question broke into two parts.

First, did the PTC apply the correct standard of proof? Reviewer one gave the judges a poor grade. “I think the PTC got it wrong on the standard of proof and did so at a pretty basic level and I would be relatively surprised if the OTP is denied leave to appeal and equally if it were to lose the appeal on that point.” Reviewer two thought that the judges were right to reject the charge. “Whereas “˜reasonable grounds to believe’ is not absolute, the factor “˜only’ (in reasonable inference) is absolute. The question is, which one “˜wins’: should one lower the standards of “˜only’ because it is a pre-trial stage? I wouldn’t say so. If it is evident at this stage already that all the evidence produced leaves open other interpretations, then there are no reasonable grounds to believe…. The philosophy of this stage of the proceedings is to avoid unreasonable charges. If the Prosecutor does not have the right evidence now, will he have later? He should not rely on insufficient material.” But reviewer three asked: “Did the judges err in their application of the evidentiary standard? Probably, yes. … They state several times that genocidal intent must be the only reasonable inference from the actions of GoS in order for the threshold to be met. This is probably untrue, and it is certainly new law.”

So, in deference to a majority of two-to-one, I concede that the Prosecution is right to consider that the PTC got it wrong. Round one to Heller.

Reviewers number one and three (my critics) also considered the wider question: if the judges applied the correct standard, would the prosecution’s case pass the bar?

Number one continued his assessment of the PTC: “There were a million other ways they could have rejected the genocide case but the reasoning they chose was in my view simply an error in law. I think there is a good argument to say that at the very least the public application did not demonstrate even on the lower standard that Al Bashir was involved in the commission of genocide which would have required more showing how he participated in a genocidal plan””about which there is really nothing more than suspicion in my view.”

Reviewer three agreed that the judges had erred unnecessarily, and went on to write, “The reason I say this is unnecessary is that, in the decision as a whole, I think the evidence does not even support reasonable grounds to believe there was a genocidal intent. It just isn’t there. … In fact they are all arguing over the wrong issue””the evidence doesn’t come close to satisfying even Judge Usacka’s diluted “˜reasonable grounds’ test.”

So, on the quality of the Prosecutor’s case, there was a three-to-nothing majority in my favour. Round two to de Waal. A tie. (Albeit not a strictly fair contest, as I got to choose the panel. Kevin: treat this as an invitation to appeal the decision!)

My reviewers also reflected on some other dimensions of the case. Number three suggested that I should have argued against the appeal on the basis of “the test for allowing an appeal to proceed” which is Article 82(1)d, which requires “there to be a real issue, the resolution of which will impact the fairness and expeditiousness of the proceedings and the resolution of which is necessary at the present stage.” This reviewer went on, “in the context where a warrant has been issued and where charges can be amended later there is no real-world impact of a reversal of the decision on genocide in terms of fairness, expeditiousness etc. This is where the application for leave to appeal really flounders. There is a warrant out there, and adding genocide matters not one jot to its enforcement.” In short, if evidence arises in the course of further investigations, the Prosecutor always has the right to introduce any additional charges””or re-introduce the genocide charge””at a later stage. In the meantime, the only impacts of adding the charge of genocide would be symbolic and political, which should not influence the Court.

The final conclusion is sad and ironic. The tussle weakens an already weak court. My instant reaction to the PTC decision was that the ICC as an institution had been vindicated””its judges had shown independence and rigour. The Prosecutor’s loss was the Court’s gain. As a supporter of the Court on principle I was happy about this. But, it seems, my confidence was misplaced. This was summed up by one of my reviewers: “A bad decision all round””a bad bench and a bad prosecutor. Mon Dieu!”