The Pre-Trial Chamber I of the International Criminal Court declined to confirm charges of War Crimes against Abu Garda today, less than a week after the Appeals Chamber reversed the decision to exclude the charge of Genocide against Omar Al-Bashir. The Court stressed that the incident related to the charges – an attack on African Union personnel that killed a dozen peacekeepers – was of a sufficiently grave nature to be considered by the Court, but that there was not sufficient evidence of Abu Garda’s involvement. Abu Garda is the former commander of the Justice and Equality Movement in Darfur. Abu Garda surrendered himself voluntarily last May, making him the only accused party of the Situation in Darfur to face the Court.
The Al Bashir reversal last week was based on a procedural issue and will send the case to a new Pre-Trial Chamber to assess the charges with an updated standard of proof:
In its 4 March, 2009, decision, Pre-Trial Chamber I rejected the Prosecutor’s application in respect of genocide stating that it would issue an arrest warrant for genocide only if the only reasonable conclusion to be drawn from the Prosecutor’s evidence, based on “proof by inference”, was that there were reasonable grounds to believe in the existence of genocidal intent. The Appeals Chamber found that demanding 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. The Appeals Chamber found this standard of proof to be too demanding at the arrest warrant stage, which is governed by article 58 of the Rome Statute. This amounted to an error of law.
