December 01, 2008
The following op-ed written by HLS Professors Martha Minow and Philip Heymann, “Genocide in Darfur? Let the court decide,” was published in the Nov. 28, 2008, edition of The Boston Globe .
IS THERE a legal basis for the International Criminal Court to issue an arrest warrant for President Omar al-Bashir of Sudan for genocide?
The crime of genocide has been widely accepted as the most heinous offense against human dignity. Although the term can sometimes be used loosely in political debates, it has a very precise and narrow legal definition. And rightly so.
According to the Genocide Convention of 1948, the crime of genocide is “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.”
These definitional requirements are more than mere legal formalities. If the crime of genocide is deemed to occur, the Convention triggers mandatory prosecution requirements. The particular opprobrium that is attached to genocide should be reserved for those who have unquestionably violated its terms. Meanwhile, mass atrocities that do not satisfy the precise definition of genocide can still be prosecuted as crimes against humanity or war crimes.
A public dispute exists over whether the situation in Darfur meets the legal definition of genocide. In 2005, a Commission of Inquiry established by the Security Council concluded that while mass crimes had been committed against protected groups, there was insufficient evidence that the intent of the perpetrators was to destroy that group - as opposed to driving them from the territory in question.
But then, earlier this year, the prosecutor of the International Criminal Court announced that he would seek an arrest warrant for Bashir for, among other crimes, genocide. How can the apparent contradiction between the two determinations be explained?
The answer lies in the law and facts considered by each body and the different standards applied. The Commission of Inquiry found that it could not conclude that there was genocidal intent in part because the perpetrators did not kill all the members of the targeted groups they attacked. Instead, in some cases, they drove survivors to camps for internally displaced persons where they received humanitarian relief. However, as the Commission acknowledges, the selective killing of certain members of a protected group may be consistent with genocidal intent.
Moreover, in his application for a warrant the prosecutor emphasizes that the perpetrators also subjected the targeted groups to systematic rape, torture, the destruction of their basic means of life, and mass displacement. Taken together, these acts justify an inference of genocidal intent.
The prosecutor has since gathered evidence of the horrendous conditions of life in the camps, as well as the Sudanese government's obstruction of humanitarian relief aimed at the camps. This is fully consistent with the conclusion that the Sudanese government, acting together with the Janjaweed, sought to destroy the targeted groups in whole or in part.
The prosecutor also has a different standard of proof at this stage. The Commission of Inquiry acted as a "fact-finding body" and sought to reach conclusions of fact and law based on the available evidence. To obtain an arrest warrant under the criminal court statute, the prosecutor is obliged only to establish that "reasonable grounds" exist to believe that the perpetrators have committed the crime of genocide.
This standard, which is comparable to a probable cause showing in the United States, requires inferences to be drawn in favor of the prosecutor and is satisfied if the supporting evidence is consistent with the alleged crime. Only at trial, the prosecutor would have to prove beyond reasonable doubt that Bashir committed the crime of genocide - that the only reasonable inference to be drawn from the evidence is that Bashir intended to destroy the targeted groups in whole or in part.
So do the findings of the commission undermine the prosecutor's request for an arrest warrant for Bashir for genocide? No. The factual allegations in the prosecutor's request are, if supported by the evidence provided confidentially to the court, sufficient for a warrant of arrest to issue.
Through its referral of the Sudan case, the Security Council placed its confidence in the prosecutor of a court that has been joined by 108 countries around the world. Whether the International Criminal Court will find Bashir's liability for genocide beyond a reasonable doubt is an open question.
To answer it, the prosecutor, like Bashir himself, should be given his day in court.