ICC Prosecutor Seeks Arrest of Sudanese President Al-Bashir for Genocide and Violations of International Law

Today, International Criminal Court Prosecutor Luis Moreno-Ocampo provided evidence to establish “reasonable grounds” for the issuance of an arrest warrant or summons for current Sudanese President al-Bashir based on violations of international law. Specifically, the ICC Prosecutor detailed 10 counts of genocide, crimes against humanity, and war crimes in Darfur since March 2003. The allegations of genocidal attacks and acts focus solely on the Fur, Masalit and Zaghawa ethnic groups, comprising the Black Muslims of Darfur, because there is “insufficient evidence at this time to substantiate a charge of genocide” with respect to other ethnic groups in Darfur. The Pre-Trial Chamber now reviews the request from the Office of the Prosecutor and, upon a finding of sufficient evidence, likely will honor the request for the arrest warrant.

Once an arrest warrant is approved by the Pre-Trial Chamber, the parties to the Rome Statute and members of the UN Security Council will be notified of the arrest warrant. The Security Council then could adopt a resolution urging all states, including non-party states, to enforce the arrest warrant. Non-party states have no legal obligation to enforce the arrest warrant. If arrested and delivered to the ICC, the Pre-Trial Chamber will conduct a hearing to advise President al-Bashir of his rights, the charges against him, and any right to request interim release before trial.

Potential Penalty If Convicted
A conviction by the ICC could result in imprisonment of up to 30 years or, in exceptional circumstances, life imprisonment. The ICC does not have the authority to impose the death penalty.

Other ICC Arrest Warrants for Darfur
The arrest warrant for President Omar Hassan al-Bashir would become the third arrest warrant issued by the ICC for breaches of international criminal law in Darfur. The ICC issued arrest warrants in May 2007 for:

• Ahmad Muhammad Harun, current Sudanese Minister of State for Humanitarian Affairs and former Minister of State for the Interior of the Government of Sudan
  • 20 counts of crimes against humanity
  • 22 counts of war crime
• Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), a leader of the Militia/Janjaweed
  • 22 counts of crimes against humanity
  • 28 counts of war crime

Proving Genocide Under the Rome Statute
“Genocide,” as a term and as a crime, dates back to Raphael Lemkin and the Genocide Convention of 1948. Lemkin invented the word and described the origins of the word “genocide” as being a hybrid between the Greek word “genos” for race, nation, or tribe, and the Latin suffix “-cide” meaning killing. Lemkin took a more expansive vision of genocide than what states eventually codified in the Genocide Convention. Lemkin would have included social and cultural genocide, generally discussed with respect to Tibet. A notable feature of genocide is that it is a crime regardless of whether it was committed during wartime, armed conflict, or peacetime.

Although the definition of genocide under Genocide Convention was adopted by the ad hoc international criminal courts, it is important to recognize that the Rome Statute of the ICC is structured differently than the authorizing mandates for the International Criminal Tribunals of Yugoslavia (ICTY) and Rwanda (ICTR). Moreover, the prior case law prosecuting Slobodan Milosevic, Radislav Krstic, Taba Jean-Paul Akeyesu, and others serves as persuasive authority and is not legally binding upon the ICC. The difference between the legal instruments and the non-binding nature of prior genocidal prosecutions creates some legal uncertainty and ambiguity as to whether, or to what extent, the ICC will follow genocidal precedent. Moreover, the state parties to the Rome Statute specifically considered correcting and narrowing the interpretation of genocide under the Rome Statute in response to some decisions by the international tribunals. Notably, Article 22 of the Rome Statute requires a strict interpretation of the definition of each genocidal act and prohibits extension by analogy.

Proving genocide under Article 6 of the Rome Statute is similar to other crimes in that genocide requires an act, known as actus reus, and a mental element, known as mens rea. Both constitutive elements were taken verbatim from the Genocide Convention of 1948.

Mens Rea of Genocide
The mental element, or mens rea, is the crucial companion to the actus reus in defining genocide and encompasses both a general and special intent requirement. Article 30 of the Rome Statute, unlike the authorizing mandates for the ICTY and ICTR, establishes a general mens rea provision to determine when to confer criminal liability.

The general provision applies to all crimes “unless otherwise provided.” Under Article 30, criminal liability for genocide attaches “only if the material elements are committed with intent and knowledge.” Intent is found “[i]n relation to conduct, that person means to engage in the conduct,” and “[i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” Intent then requires both volitional conduct and knowledge that a result will follow. Criminal responsibility would not be conferred for accidental, negligent, and, most likely, reckless conduct.

Dolus Specialis of Genocide
The special intent, or dolus specialis, requirement in the chapeau of Article 6 contains genocide’s distinguishing feature, as compared to other crimes under the ICC’s jurisdiction. Genocide imposes a heightened intent requirement beyond the mens rea requirement for crimes under Article 30. Genocide’s special intent requires the commission of a genocidal act with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The “intent to destroy” does not necessarily require actual physical destruction of the group. This element can be satisfied by showing the accused intended or desired the protected group’s gradual destruction.

Thus, to prove genocide, the accused must commit the genocidal act with the intent to destroy a protected group. Actual destruction of the group is not required.

Elements of Crimes – Supplement to the Rome Statute
The Statute’s supplementary text, known as the Elements of Crimes, provides additional guidance and specificity to facilitate the interpretation and application of Article 6 by the Court. Significantly, the Elements of Crimes provides non-exhaustive lists of examples for the following three of the five acts under Article 6: (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (e) forcibly transferring children of the group to another group. The lists of examples for these three acts suggest that the ICC could interpret the Rome Statute broadly for these three acts of genocide. For the other two acts without non-exhaustive lists of examples, the Elements of Crimes neither provides exhaustive lists of examples nor imposes prohibitions or limitations to constrain the statutory text.

Inferring Genocidal Intent from the Circumstances
Assuming that the perpetrator of genocide does not confess to his knowledge and intent, the intent to destroy a protected group must be gleaned from inference. The Elements of Crimes provides an identically worded contextual element as the last element for each genocidal crime to provide greater clarity on how intent can be inferred: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” Thus, intent can be inferred from a pattern of purposeful action.

The ICTY and ICTR struggled with how to infer genocidal intent from circumstances, particularly when genocide requires a high degree of proof of intent based on the perpetrator’s subjective state of mind. To help overcome the probative difficulties, the tribunals relied on “presumptions of fact” and “patterns of conduct” to infer the genocidal intent. In Akayesu, the ICTR held that “it is possible to deduce the genocidal intent . . . from the general context of the perpetration of other culpable acts systematically directed against that same group, whether . . . committed by the same offender or by others.” The tribunal gave a non-exhaustive list of factors, including: (a) “the scale of the atrocities committed,” (b) the “general nature” of the atrocities, (c) “the fact of deliberate and systematic targeting of victims based on membership in a group, while excluding the member of other groups,” (d) the “general political doctrine” underlying the acts; and (e) “the repetition of destructive and discriminator acts.” In Kayishema and Ruzindana, the Trial Chamber found that the pattern of conduct was facilitated by “(i) the number of victims that were killed; (ii) the manner in which the killings were carried out (the methodology); and (iii) Kayishema’s utterances during and after the massacres.”