Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 71
The ICTR’s legacy may be demonstrated in the first ICC genocide
case, brought against President Omar Al Bashir of Sudan. 33 The ICC
Prosecutor, in differing from the conclusion of the UN International
Commission of Inquiry on Darfur 34 that there was insufficient evidence to
conclude the existence of a state policy to commit genocide, is indicting
Omar Al Bashir with genocide, among other crimes. In establishing that
there is reasonable ground to believe that the defendant acted with
genocidal intent, the Prosecutor presented evidence attesting, inter alia, to
the scale and manner in which the attacks have been perpetrated, and the
staggering proof of sexual violence against the targeted group. 35 The
Appeals Chamber of the ICC overturned a Pre-Trial Chamber’s decision 36
that the Prosecutor had not established reasonable grounds to believe that
Omar Al Bashir committed genocide as required under article 58 of the
ICC Statute. 37 The effect of this judgment is that the Pre-Trial Chamber of
the ICC had to reconsider the Prosecutor’s application on the issue of
genocide. As a result, on 12 July 2010, Pre-Trial Chamber I rendered a
decision authorising a charge of genocide and the issuance of an arrest
warrant for Omar Al Bashir in respect of genocide, in addition to crimes
against humanity and war crimes. 38
4 The elements of the crime of rape in international
law
The ICTR has elucidated the elements defining rape in international law.
Its approach enriches the understanding of the crime of rape in
international law and is pivotal in the fight against rape and sexual
violence. Compared with the approach to defining rape pursued in many
national legal systems, which over-emphasises somewhat mechanist and
restrictive details (for instance, that the non-consensual sexual intercourse
must involve only a specific private body part of the perpetrator which
must physically penetrate the victim’s private organ) the ICTR’s approach
advances international jurisprudence which may also inform national legal
systems.
33 Situation in Darfur, The Sudan (Case ICC-02/05) Summary of Prosecutor’s Application
34
Under Article 58, July 14, 2008 (Prosecutor’s Darfur Application).
Report of the International Commission of Inquiry into Darfur to the United Nations Secretary-
General, 25 January 2005, http://www.un.org/news/dh/sudan/com_inq_darfur.pdf
35
36
(accessed on 15 June 2010).
Prosecutor’s Darfur Application (n 34 above) paras 21-23 & 45-60.
Prosecutor v Al Bashir Warrant of Arrest for Omar Hassan Ahmed Al Bashir, 4 March
37
38
2009.
The Prosecutor v Al Bashir (Case ICC-02/05-01/09-OA) Judgment on the Appeal of the
Prosecutor Against the Decision on the Prosecutor’s Application for a Warrant of
Arrest Against Omar Hassan Ahmad Al Bashir, 3 February 2010.
Prosecutor v Al Bashir (Case ICC-02/05-01/09) Second Decision on the Prosecution’s
Application for a Warrant of Arrest (Public) 12 July 2010 paras 1- 44.