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Criminal Law Forum (2011) 22:445451 Springer 2011
DOI 10.1007/s10609-011-9147-z
ROGER S. CLARK*
DARFUR: IS IT GENOCIDE?
Reviewing:
John Hagan & Wenona Rymond-Richmond, Darfur and the Crime of Genocide. (Cambridge: Cambridge University Press, 2009), 269 pp., ISBN: 9780521731355.
There is no question that terrible, criminal, events took place, and are continuing to take place in Darfur, but how are those events to be characterized in legal categories and how is a prosecutor to prove the elements of the crimes chosen as the most accurate characterization? Most of the readers of Criminal Law Forum will be familiar with the debate in the warrant proceedings in the International Criminal Court (ICC) against President Al Bashir of the Sudan. That debate, before it went on appeal, pitted the majority of the Pre-Trial Chamber (not enough evidence of genocide) against Judge Usacka (sucient evidence of genocide, at least for the issue of a warrant of arrest).1 On appeal, the Appeals Chamber concluded that the pre-trial majority had adopted an erroneous standard of proof. It had held that it () cannot but conclude that the existence of reasonable grounds to believe that the [Government of Sudan] acted with
* Of the Board of Editors.
1 Prosecutor v. Omar Hassan Ahmad Al Bashir, (Decision on the Prosecutions Application for a Warrant of Arrest against Omar Hassan Al Bashir) ICC-02/05-01/ 09 (4 March 2009). Article 58(1)(a) of the Rome Statute of the International Criminal Court sets the evidentiary standard for the issue of a warrant or a summons as whether [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court. At the nal stage of trial and appeal, all the elements of the crime (guilt) must be proved beyond a reasonable doubt (article 66(3)). In the middle, at the conrmation stage, the issue is whether there is sucient evidence to establish substantial grounds to believe that the person committed each of the crimes charged (article 61(7)).
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ROGER S. CLARK
[genocidal] intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups is not the only reasonable conclusion that can be drawn therefrom.2 The Appeals Chamber responded that:
In the view of the Appeals Chamber, requiring that the existence of genocidal...