When mass rape turns into genocide

People hear the word "genocide" and think of 6 million Jews killed by the Nazis during the Holocaust or the estimated 800,000 mostly Tutsis slaughtered in Rwanda. They do not imagine that rape can be so well planned and done on such a mass scale as to wipe out much of an ethnic group just as thoroughly, if more slowly, than large-scale murder.

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.