Grading the Prosecutor–And the Bench
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!”
A fourth reviewer argues that the main weakness of the application lies in going for President Bashir alone. Many who have supported the Darfur referral, and worked on the case both inside and outside the Court, have been concerned by the prosecutorâ€™s simplistic presentation of the conflict and his failure to grasp the fact that much of what has happened in Darfur since 2005 is the bitter but not necessarily criminal fruit of war. As Moreno Ocampo talks of an ongoing government plan to â€˜exterminateâ€™ Darfurâ€™s displaced — an assertion that has deepened the anger currently directed against foreigners in Darfur, making life even harder for the relief workers who remain there — seeking a warrant for the president alone plays straight into the hands of those who seek to defend the Sudan government by arguing that the Prosecutor is making a poorly-disguised attempt at regime change by judicial means.
It is no secret that some of the best legal minds in the ICC have quit, the vast majority of them in disagreement with Moreno Ocampo. They feel the Darfur investigation has been characterized by a series of disastrously bad strategic decisions, each one compounded by the next. The first was the decision, by the Prosecutor, to issue a summons for Ahmad Haroun, who was in Jordan at the time–his readiness to travel abroad indicating that he could have been arrested with a sealed warrant. Moreno Ocampo justified his decision on the ground that a summons was the only way to have an impact on the ongoing crimes. The greatest impact, surely, would have been to arrest Haroun. But in 2006 Moreno Ocampo had been severely criticized in two amicus curiae briefs — by Prof. Antonio Cassese and Louise Arbour — and was set on proving them wrong. This demanded headlines. Never mind whether he got results or not. And he did not: neither Haroun nor Ali Kushayb has been arrested three years on, and Khartoum has not been cowed into cooperation with the Court. Quite the opposite: Haroun makes daily headlines as minister of state for humanitarian affairs, Ali Kushayb has reportedly been recruiting near the Chad border, and President Bashir is thumbing his nose at the ICC, jumping on planes at the drop of a hat while the displaced begin to feel the pinch of the arrest warrant against him.
After the first warrants, against Haroun and Ali Kushayb, the Prosecutor had a range of options. A strong feeling inside the Court was that the best move — politically, legally and strategically — would have been to charge a number of senior ranking military and militia figures, insisting on a critical review of evidence in all its shades. The worst possible second step, many insiders felt, was to go for Bashir alone — risking the repercussions against humanitarians that Alex and I warned of (to cries of â€˜doom and gloomâ€™ and â€˜chicken littleâ€™, and assertions that our fears were â€˜overblownâ€™). In ignoring his colleaguesâ€™ advice and targeting the president in isolation from other ranking figures, Moreno Ocampo has strengthened the perception that he seeks regime change as the ultimate justice. The immediate result is twofold: a rallying of political and popular opinion around President Bashir, which has strengthened his position at least in the short term, and renewed criticism of the already-beleaguered ICC.
I have just spent two weeks in Darfur and do not recognize the place depicted either by the Prosecutor or a substantial part of the media. (More of that in a later posting.) It is true that the war-affected in the camps want Bashir indicted, and want him indicted for genocide — the buzz word of the last five years, which has reached every corner of the camps, and the cornerstone of a multi-million-dollar activist movement. But it is equally true that every other Sudanese I spoke to has profound misgivings about the arrest warrant — ranging from fears of uncontrollable instability if this government falls apart to â€˜genocide against the Zaghawaâ€™ tribe of Minni Minawi. In the words of one astute Darfurian: â€˜The real genocide will happen if Bashir is removed. Zaghawa, and to a lesser extent Fur, will face a very critical position if Bashir is removed.â€™
Dear Alex and Julie, brilliant, superb commentary, thanks. I have just published it at my blog Sudan Watch (Friday, 27 March) with the following note in response to Alex’s commentary:
This part got me thinking: “There is a warrant out there, and adding genocide matters not one jot to its enforcement. […] the only impacts of adding the charge of genocide would be symbolic and political, which should not influence the Court.”
After the miles of reports on Sudan that I have read over the past five years, I have a recollection of reading about compensation for war affected individuals. Now I am wondering if rates of compensation differ for survivors of genocide. I Google searched “compensation for genocide survivors” and found the following article at the top of the search result. The article gives clues to the scope of the issue: survivors of the Rwanda genocide are still awaiting reparations.
From Human Rights Tribune (www.humanrights-geneva.info)
Genocide survivors tired of promises
Aimable Twahirwa – IPS
20 April 2006 – KIGALI – More than a decade after the 1994 genocide in Rwanda, the need for compensation to victims of this tragedy continues to present difficulties for government and genocide survivors alike.
Upwards of 800,000 minority Tutsis and moderate Hutus lost their lives in the killing spree, which began after a plane carrying Rwandan President Juvenal Habyarimana and his Burundian counterpart, Cyprien Ntaryamira, was shot down over Rwandaâ€™s capital – Kigali – on Apr. 6 1994.
Since then, a court – the International Criminal Tribunal for Rwanda (ICTR) – has been set up in the northern Tanzanian town of Arusha to bring the alleged masterminds of the genocide to book, while Rwandan courts have struggled to try the huge number of persons accused of carrying out the killings.
Hutu militants and members of the Rwandan army are held largely responsible for conducting the massacres.
Those who survived the genocide are still awaiting reparations, however, says FranÃ§ois Ngarambe, president of Ibuka (“Remember”, in English) – one of the main non-governmental organisations for genocide survivors.
This is despite numerous promises of help from government regarding school fees for orphans, medical assistance and accommodation for poor survivors.
“We are sick of continuing to hear unrealistic promises made by politicians who have little sense of our suffering,” said Marie Claire Murorunkwere, a Tutsi genocide widow from Ngoma, a district in the east of the country.
Adds Jean Glaubert Burasa â€” director of publication for â€™Rushyashyaâ€™, a bi-weekly newspaper published in Kigali â€” “This refusal to compensate the survivors is another way of humiliating victims, and supporting those responsible for the genocide.”
Rwandaâ€™s authorities admit that the need for reparations has confronted them with a dilemma.
“The Rwandan government is not in a position today to promise what it will never have the means to deliver,” Edda Mukabagwiza, minister of justice and institutional relations, told IPS.
Simply listing the victims, and damages sustained in terms of physical and psychological injuries, as well as goods destroyed â€” is a huge task that the Rwandan government cannot take on alone, notes Mukabagwiza.
Faced with governmentâ€™s limitations in the matter of compensation, certain associations for genocide victims have started income-generating activities. These include the Association of Genocide Widows of April 1994 (lâ€™Association des veuves du gÃ©nocide dâ€™avril 1994, AVEGA) which last year began making small baskets for decoration â€” and export to the American market.
Named â€™Basket of Peace, the project has received support from Canada. At present some 200 women are participating in the initiative, including genocide widows and women whose husbands are in prison on genocide charges â€” AVEGA president Bellancille Umukobwa told IPS.
JosÃ©phine Nyirantwali is one of those who has benefited from â€™Basket of Peaceâ€™. Previously, she depended entirely on aid of 60 dollars a month provided by the Assistance Fund for Genocide Survivors, set up by government in 1998.
Husbands in detention
Today, however, Nyirantwali is able to support herself. “Itâ€™s the sad experience of the past that gave me the courage to stand in solidarity with my other colleagues,” she said.
Donatille Mukagakwaya, a Hutu woman whose jailed husband stands accused of helping to carry out the genocide, voices similar sentiments.
“We are not responsible for what happened in Rwanda. Our husbands are in detention, and we cannot predict what will happen tomorrow. We therefore need to join forces to meet the needs of our families.”
According to Mandiaye Niang â€” special councilor at the ICTR â€” the United Nations Security Council has discussed setting up a special fund to compensate genocide victims, on the basis of individual or collective demands.
“The ICTR could eventually be given a new responsibilityâ€¦to co-ordinate compensation to victims who have appeared before it, as witnesses,” he explained.
The tribunal has already launched a programme of assistance for witnesses, in Rwanda.
The first phase of this initiative, which began in September 2000, included legal advice, psychological counseling and physical rehabilitation.
A second phase involved financial aid for a resettlement programme.
According to ICTR spokesman Tim Gallimore, the tribunal has contributed 15 percent of financing (about 52,000 dollars) towards the initial cost of construction for 23 houses in the “Village of Peace” in Kamonyi – a district in central Rwanda. [End of article]
The standard on what constitutes actus reus for genocide is maturing slowly but surely in international law. If you followed the original cases against those accused of genocide in Rwanda, you will see that very little substantial evidence existed, and certainly not the kind of evidence demanded to indict the president of Sudan, and yet, the judges voted unanimously in favor of genocide with very little deliberation.
Hearsay evidence was deemed admissible (see the ICTR Rules and Procedures of Evidence) and used to bolster the depositions of the survivors of crimes qualified as genocidal. In the courtroom, witnesses changed their stories regularly (often becoming eyewitnesses to events to which they had earlier deposed as hearsay witnesses or merely ballooning the number of victims compared to their original deposition), refused to respond to questions from the defense, and claiming to be able to identify individuals and eyewitness events over a kilometer away. The fluctuations in the testimonies were understandable. Most had never left their rural region, let alone board a plane and then appear in a very foreign court of law. Many direct or indirect witnesses testified to find retribution for what happened to them and their kin and risked their own lives in doing so. I do not make these statements to ridicule or criticize them. But the fact remains that there was a strong atmosphere of victor’s justice in the courtroom and the office of the prosecutor — based in the Rwandan capital of Kigali – was under strong political pressure to either fold or come up with prosecutions.
I will not say to what degree the judges themselves were under pressure to render a favorable verdict, but it is on public record that the OTP was reminded of these expectations on a daily basis on Radio Rwanda, in local newspapers, and in periodic demonstrations at the gates of the OTP’s offices.
It is evident even from the reading of the first genocide indictment that it would not hold up to the kind of scrutiny and rigor of the legal system that has since emerged with the customary practices of the ICTY, ICTR, and the ICC. Other criminal prosecutions in international humanitarian law in Sierra Leone, Congo, Chad, and elsewhere in the world are contributing to this standard as well and will place any legal action taken to address tragedies like the ones that occurred in Darfur on a more solid foundation.