Yesterday, the New York Times reported that judges of the International Criminal Court had decided to issue a warrant of arrest for President Omar Hassan Ahmad al-Bashir (right) of Sudan. Today, the Court issued a statement indicating that "[n]o decision has yet been taken by the judges." Despite the confusion, it appears that the Court is likely to make a decision on the ICC Prosecutor’s application for the issuance of an arrest warrant some time this month. (Prior IntLawGrrls posts.)The application made by Chief Prosecutor Luis Moreno-Ocampo (below left) contains 10 counts:
► 3 of genocide,
► 5 of crimes against humanity, and
► 2 of war crimes.
Even if the Court issues the arrest warrant, it is not clear whether the warrant will include all 10 counts. The counts of genocide, in particular, have been the subject of much debate. Indeed, several commentators have questioned whether the application presents sufficient evidence to support the legal characterization of the crimes committed in Darfur as genocide (see, for instance, the recent article by Alex de Waal).
Genocide is notoriously difficult to prove. Proving genocidal intent demands a showing that perpetrators not only targeted members of a protected group, but also that they did so specifically seeking to destroy the group, in whole or in part. It is generally not enough to show that an accused is aware that his acts will result in the destruction of the group; the accused must seek to achieve the destruction, in whole or in part, of the protected group. Recognizing the difficulty of proving genocidal intent, the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have determined that, in the absence of a confession, genocidal intent can be inferred from other facts and circumstances, such as speeches or statements against the targeted group, acts of violence against cultural symbols associated with the group, other policies of discrimination against members of the group, and the brutality, scale and/or systematic nature of the atrocities against the particular group. Of course, when inferential evidence is relied upon to prove genocidal intent, the tribunals have cautioned that the
inference must be the only reasonable inference available on the evidence.
Although there may be disagreement as to what inferences can be drawn from the evidence presented by the Prosecutor in support of the arrest warrant application, one of the remarkable aspects about the application is that -- unlike the analysis of genocidal intent conducted in 2005 by the United Nations Commission of Inquiry (COI) tasked with investigating violations of international human rights and humanitarian law in Darfur -- it explicitly makes reference to pattern evidence of sexual violence as one of several factors that the Court should look to in assessing whether genocidal intent can be inferred. Indeed, in his submissions to the Court, the Prosecutor clearly stated that
the magnitude of the rapes and sexual assaults carried out by forces and agents under the control of Al-Bashir during attacks on villages and around IDP settlements and camps . . . indicates an intent to destroy the target group as such.
Although the COI had suggested an inference of genocidal intent was not warranted because, among other things, persons forcibly dislodged from their villages were not exterminated but rather "collected" in camps for internally displaced persons and allowed to receive humanitarian assistance, the Prosecutor has indicated that the attacks against the targeted group —particularly the widespread rapes — have continued in the camps, and that this suggests an intent not just to forcibly displace the targeted groups but, in fact, to destroy them. As he noted,
In view of the social stigma associated with rape and other forms of sexual violence among the [targeted groups], these acts [have] caused significant and irreversible harm, [not only] to individual women, [but] also to their communities.
Additionally, while the COI also supported its conclusion that genocidal intent was lacking by pointing to the fact that not everyone who was targeted was killed, the Prosecutor has argued —and the jurisprudence of the ICTY supports his position — that the failure to kill every member of the group does not necessarily negate other evidence of genocidal intent. To the contrary, the Prosecutor has argued, attacking the surviving members of the targeted group via, among other means, the infliction of sexual violence, is actually an efficient strategy to achieve the eventual destruction of the group, given that the "slow death" and disintegration of the group via these means has given rise to more muted international outrage than outright killings of members of the group might have engendered.
Although it is ultimately up to the Pre-Trial Chamber of the Court to determine whether the evidence is sufficient to support the issuance of an arrest warrant for genocide, the Prosecutor’s consideration of pattern evidence of sexual violence as potential evidence of intent should be commended. Indeed, although sexual violence has been recognized as a means by which to destroy a particular group (see landmark ICTR case of Prosecutor v. Akayesu), it has rarely been recognized as one of the factors that should be considered in assessing whether genocidal intent can be inferred. For instance, as alluded to above, despite finding that rapes had been used to terrorize, demoralize, and humiliate the targeted population in Darfur, the COI essentially ignored this evi
dence when making its assessment as to whether the facts supported an inference of genocidal intent. In light of how difficult genocidal intent is to prove, ignoring potentially valuable evidence of intent does a disservice to all who suffered under the perpetrators' genocidal scheme, including, of course, the victims of sexual violence themselves.
Although it is ultimately up to the Pre-Trial Chamber of the Court to determine whether the evidence is sufficient to support the issuance of an arrest warrant for genocide, the Prosecutor’s consideration of pattern evidence of sexual violence as potential evidence of intent should be commended. Indeed, although sexual violence has been recognized as a means by which to destroy a particular group (see landmark ICTR case of Prosecutor v. Akayesu), it has rarely been recognized as one of the factors that should be considered in assessing whether genocidal intent can be inferred. For instance, as alluded to above, despite finding that rapes had been used to terrorize, demoralize, and humiliate the targeted population in Darfur, the COI essentially ignored this evi
dence when making its assessment as to whether the facts supported an inference of genocidal intent. In light of how difficult genocidal intent is to prove, ignoring potentially valuable evidence of intent does a disservice to all who suffered under the perpetrators' genocidal scheme, including, of course, the victims of sexual violence themselves. 
