of Zeitgeist and Law: The ICC Bashir Decision as an excuse to actually rant about Genocide...

Yesterday, the ICC Appeals Chamber issued its long-awaited Judgment on the Prosecutor's appeal against Pre-Trial Chamber I's refusal to allow the arrest warrant issued against President Bashir to cover Genocide charges. According to the Appelate judges, PTC I mis-applied the standard of proof at this stage of the proceedings by requiring that the genocidal intent be the only reasonable conclusion to be drawn from the evidence. The key argumentation by the Appeals Chamber is paragraph 33 where it states that:

"In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely "reasonable grounds to believe". Rather, it establishes genocidal intent "beyond reasonable doubt"."

Given this erroneous application of the standard of proof, the Chamber remands the matter to PTC I for a new decision, applying the right standard.

This case has created a lot of heated debate because it slots into a general debate about Genocide in Darfur. Scholars, practictioners, politicians have all contributed to the international cacophony surrounding this issue and it seems increasingly complicated to have any kind of clear discussion on the various components of the situation, given the array of political, moral and legal dimensions involved.

First things first, let's start with the decision itself. The Judgment does not express an opinion on the substance of the evidence, and does not re-include genocide in the charges at this point. It merely considers the legal question of the correct standard of proof. And I find the argumentation quite convincing. PTC I had indeed, in my opinion, imposed too high a threshold on the Prosecutor for the issuance of an arrest warrant, which is a considerably early stage of the proceedings. Taken from a purely legal perspective, there is therefore nothing shocking about the decision.
Expanding our analysis to the general ICC framework, I agree with Professor Schabas that the Appeals Chamber is decidedly slow in its decision-making. I would also like to add that I am sometimes a little puzzled by its methodology. It often seems to be doing half the work, although not so much in this case, even if it could have been a little clearer on the actual content of the test to be applied by the Pre-Trial Chamber to establish the "reasonable grounds to believe". One can recall its complete destruction of the gravity test proposed by the Pre-Trial Chamber in the early Lubanga/Ntaganda arrest warrant decisions, without giving any hint about what the appropriate test might be, with the consequence that the Article 17 gravity threshold has been completely stripped of any content, and has not been used by judges since.
However, I disagree that the issue should have been dropped at this stage, because the Prosecutor could have always added the charge later on in the proceedings in the event of Bashir's arrest, as suggested by Alex De Waal, or because judges would have discretion to add a conviction for Genocide at the conclusion of the trial, evidence was brought forward to prove it, as suggested by Professor Schabas. Independently from the merits of the case, the Appeals Chamber pronounced itself on the applicable burden of proof under Article 58(1) of the ICC Statute which will hold for all cases at the ICC, not just the Bashir case. Also, I'm not sure about the possibility for judges at trial to add new charges, or convict someone for crimes that were not accepted at the confirmation of charges phase.
On the procedural aspect of the case, it does seem that the ICC framework, initially built to speed things up, is actually revealing itself to be extremely cumbersome. By multiplying the phases (pre-investigative, pre-trial, confirmation of charge, trial...) and the institutions (pre-trial chamber, trial chamber...) the drafters have multiplied the procedural hurdles and the risks of the whole process being bogged down. This is made more acute with the inclusion of victim participation with an increase in litigation to establish the exact nature of their contribution to the proceedings, although it can be expected that the case-law will settle at some point and the wheel won't need to be reinvented every time a new case starts.

Finally, because a post of mine with no rant would not really be complete, I'd like to say a word about a word which for me is polluting discussions on Sudan: genocide. And this simple (ah ah) question: why is it so important to label as "genocide" what is happening in Darfur? There are several ways to approach the issue. From a legal perspective, there are various crimes under international criminal law and, whatever the proximity between them, more specifically in our case between genocide and crimes against humanity, it is only normal that the institutions dealing with these crimes call the actions by their right names. But the debate doesn't stop here, of course. There is a moral stigma attached to genocide, which, for various reasons, is not attached to crimes against humanity. Why is that so? Kevin John Heller argues that:

"First, it is difficult to seriously maintain that there is no difference between charging someone with crimes against humanity and genocide.  There may be no difference in terms of the maximum  possible sentence, but it clear that genocide is viewed as far more serious than even the crime against humanity of extermination.  That’s why Raphael Lemkin coined the term “genocide.”  That’s why we have a Genocide Convention.  That’s why activists and scholars and governments put so much energy into ensuring that various situations — Saddam’s gassing of the Kurds, the Khmer Rouge’s “auto-genocide,” China’s treatment of Tibet, Australia’s treatment of aboriginals, etc. — are (or are not) labeled genocide instead of “mere” crimes against humanity."

This is beside the point. For one, KJH is mixing two aspects of the question, that the crimes are different and that there is a hierarchy between the crimes. Of course the crimes have different elements. The question is why there is a hierarchy? And this is the second problem I have with KJH's argumentation. He basically says that there is a hierarchy, because people think there is. That is not an answer. That a word enters the zeitgest for various socio-politico-moral reasons is not a objective explanation of why this is so. It's like child soldiers which was the talk of the day for a while, now being replaced by forced marriage. The fact that the focus of activists and world opinion is on one of them rather than the other does not mean that there is an objective reason to have a hierarchy between the two. The same is generally true about any topic taken over by world opinion, whether a particular illness (why so much more money given for Aids than malaria, despite the heavier yearly death toll for the second?) or event (two similar natural catastrophes will often get varying media attention for no objective reason). As academics, we have to see beyond "world opinion" to look for reasons to explain how things are. Not doing so, is either naive or unprofessional.

Which brings me to my last comments. I personnally have always been weary of the crime of genocide. For one, in response to the hierarchy, I'm not convinced. I don't see how it is worse to kill 1 million people indiscriminately (litterally denying them their humanity) or 1 million people because they are from a particular ethnic group. Who are we to judge on the loss of "diversity" that results from that? There is an unquestioned bias that is it worse to target a group, rather than individuals. I've never actually been convinced that my intent to kill is worse if I don't like the person for a specific reason rather than no reason at all. I'd actually think that from a philosophical point of view, crimes against humanity would be more an affront to the rational cartesian mind because there would be no reason for the killing (i'm speaking in theory of course), whereas a genocide, however abhorrent, has some rationality behind it.
In fact, I think that what KJH and others are doing is mixing up sociology, which is essentially descriptive, and law, which is goal-oriented towards normativity, being the process through which moral conviction becomes obligatory conduct for all. For me, genocide needs a specific existence as a methodological tool to describe a social conduct and social reality that are different than other ones. It's descriptive. Without the concept of genocide, you can't understand the socio-historical aspects of some of the most brutal mass killings in history.
But should it be law, especially criminal law? The shock of the Shoah led world leaders to recognise the specificity of genocide. Their outrage was of course legitimate, but it maybe led them to adopting solutions the flaws of which are still burdening us today and are unlikely to disappear given the difficulty in changing such morally grounded opinions. But, I would nonetheless argue that genocide has, on balance, in fact very little place as a crime carrying individual criminal responsibility. For me, motive, as opposed to intent, is irrelevant for the purposes of criminal liability. It's the same if I kill someone because he's black, wearing green trousers, or just because I was in a bad mood. at best, it can come into play as aggravating circumstances, but not an element of the crime. More importantly, we are trying to "fit" what is fundamentally a collective socio-political endeavour into the criminal liability of one man.
It is bound to make everybody unsatisfied. Lawyers might feel that it is contrary to the rights of the defense, anthropologists suggest that the actual definition doesn't take into account the social reality of genocide, activists try to "fit" situations in the definition of genocide to push for international intervention. But we all have to stop trying to fit everything into one accepted definition of the word. To anthropologists and sociologists, I would suggest that a criminal trial is never going to cover the social reality surrounding a genocide. It's not its role, in the same way that a national criminal judge is not there to assess the 40 years of neglect from the State that created the context for this particular young individual from a difficult neighborhood to push the old lady under a bus. To Human Rights activists I would suggest that they are unnecessarily making their work harder by trying to apply  to collective situations of mass atrocities a definition that 1) is made for individuals and 2) the purpose of which is to be applied ex post facto in a court of law.
Of course, my solution to just scrap genocide as an international individual crime is totally unrealistic, but in the meantime I would suggest that the specifically criminal law aspect of genocide be kept to a minimum. And that sociologists, historians, activists, politicians stop locking themselves up in the legal debate and adopt the definition that fits their disciplines. Why is it so hard to accept that genocide can mean different things depending on the context? It is the case for so many words (causation, rationality, intent... all those words will have different meaning when you consider them in law or philosophy for example), why do we allow the debate on genocide to get floored by this illusionary search for a single cross-disciplinary definition?