International criminal law - genocide - mens rea - standard of proof - superior responsibility

摘要

In March 2009, a pretrial chamber of the International Criminal Court (ICC) issued a warrant for the arrest of Sudanese President Omar Hassan Ahmed Al Bashir to stand trial in the ICC for crimes against humanity (murder, extermination, rape, torture, and forcible transfer) and war crimes (intentionally directing attacks against the civilian population or individual civilians, and pillage). The pretrial chamber, in a 2-1 decision, declined to include the crime of genocide in the arrest warrant because the prosecutor had not submitted sufficient evidence concerning genocidal intent on the part of the accused; in particular, the existence of such intent was not the only reasonable conclusion that could be drawn from the evidence and other information submitted. In a separate and partly dissenting opinion, Judge Anita Uacka argued that at the arrest warrant stage, the inference of mens rea was not required to be the only reasonable conclusion that could be drawn from the facts presented; instead, all that is required was that the evidence provide reasonable grounds to believe that the crimes were committed with genocidal intent.