Sudan's president, Omar Hassan Ahmed Bashir, stands accused of -- among other horrible crimes -- masterminding the use of rape as a form of genocide against several ethnic groups in Darfur. In the coming weeks, three judges of the International Criminal Court in The Hague will decide whether that controversial charge will be included in the likely arrest warrant against him. Hanging in the balance is whether the heinous modern warfare strategy of mass rape will be condemned and prosecuted for what it truly is: genocide.
The court's prosecutor, Luis Moreno-Ocampo, has filed other charges as well, including war crimes, crimes against humanity and "mass murder as genocide." But the groundbreaking charge is rape as genocide, which relies on two lesser-known ways of destroying a people: "causing serious bodily or mental harm to members of the group" or "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."
Prosecuting the crime of rape under these particular formulations is unprecedented for the International Criminal Court. There were mass rapes in Rwanda in 1994, for instance, but many of the victims were quickly killed as part of the overall genocide. In Darfur, many rape victims survive, but they suffer grievous harm to their bodies, minds and ethnic identities that can lead to a genocidal result.
Despite rulings from earlier Rwanda and Bosnia war crimes tribunals that offer guidance, the relative novelty and complexity of rape-as-genocide cases may impel the judges to stick to more familiar war crimes terrain. But the judges only have to find reasonable grounds to include the rape-as-genocide charges on the Bashir warrant. They need not establish proof beyond a reasonable doubt, the standard applied at trial.
The evidence presented by Moreno-Ocampo appears compelling. The prosecutor's investigation reveals that, since 2003, Bashir's forces and agents have driven about 2.5 million Sudanese, including substantial numbers of the Fur, Massalit and Zaghawa ethnic groups, into camps of internally displaced persons. They then raped and inflicted other forms of severe sexual violence on thousands, and continue to do so. A common tactic is for the janjaweed militia and Sudan's armed forces and security agents to lie in wait outside the camps to rape -- or often gang-rape -- the women and girls who come out to collect firewood, grass or water in order to survive.
"Maybe around 20 men rape one woman," said one victim in a report cited by the prosecutor. "These things are normal for us here in Darfur. ... They rape women in front of their mothers and fathers."
"Janjaweed babies" born of the rapes rarely have a future in the mother's ethnic group. Infanticide and abandonment are common. Another victim explained: "They kill our males and dilute our blood with rape. [They] ... want to finish us as a people, end our history."
Imagine the collective horror if men and boys in these ethnic groups were raped and then castrated. Would anyone doubt that genocidal impulses were at work by depriving men of their ability to father children? In Darfur, raped women and girls are similarly crippled.
In the 1990s, when I was the U.S. ambassador at large for war crimes issues, I met scores of women who had been raped during the atrocities in the Balkans, Sierra Leone, Uganda and the eastern Congo. In most cases, the experience was devastating to their character, their ethnic bonds and often to their physical health. Even if they were still physically able to bear children, these women typically were ostracized from their communities and could not marry their ethnic men. Confronted with these stories, I recognized that mass rape can destroy a substantial part of a group and thus constitute genocide.
Prosecuting the rapes in Darfur as a crime against humanity would get at the crime's seriousness. But genocide is another order of destruction altogether. Elevating the mass-rape charges to that level indicates that Bashir intended not only to terrorize women or force a population out of a particular region but to end -- or substantially imperil -- the very existence of the three ethnic groups that dared to challenge his power.
Between September 2003 and January 2005, Sudanese military and janjaweed militia slaughtered an estimated 35,000 civilians in Darfur. Since the onset of the violence, an additional 265,000 civilians have suffered slow deaths caused by injury, starvation, lack of water or other conditions of deprivation in the camps. The evidence shows a highly sophisticated strategy at work: scorched-earth assaults on ethnic villages followed by isolation in displacement camps where starvation, illness and rape take a gruesome toll.
Indeed, it would be easier for the court to focus on these almost undeniable crimes against humanity. But here the judges confront a harder task: to find reasonable grounds that Bashir had the "specific criminal intent" to use rape as a genocidal tool.
Genocide cases prosecuted before other war crimes tribunals have found that specific intent can be inferred from the factual circumstances of the crime. In Darfur, clearly, there is no shortage of actions, including repeated mass rapes, that point to Bashir's aim to destroy substantial parts of the Fur, Massalit and Zaghawa ethnic groups.
The wild card remains the U.N. Security Council. Under the treaty that governs the International Criminal Court, the council can suspend any prosecution for a year. China, Russia and even the African Union are pressuring the council to invoke that right. They claim that Bashir will unleash hell on U.N. peacekeepers in Darfur if he is charged and destroy hope for any peace settlement in Sudan. So far, the United States has signaled it will oppose any such efforts to stall the case -- as well it should.
The judges of the International Criminal Court must be afforded the opportunity to continue reviewing the evidence without interference by the Security Council. If they find reasonable grounds to charge Bashir with rape as genocide, thousands of women and girls attacked by rapists as a means of destroying their ethnic groups will share a small measure of justice and peace.
David Scheffer, the U.S. ambassador at large for war crimes issues from 1997 to 2001, is a law professor and director of the Center for International Human Rights at Northwestern University School of Law.