Genocide Charges at the International Criminal Court?

Will the Prosecutor of the International Criminal Court seek arrest warrants against Sudanese President Bashir and other leaders for the charge of genocide? Rumours have been rife for several days that he plans to apply to the Pre-Trial Chamber for arrest warrants. They have been nourished by the Prosecutor himself, in a variety of informal comments, statements and innuendo.
There are already two Darfur arrest warrants outstanding, issued more than a year ago, and still unenforced. They charge crimes against humanity and war crimes, but not genocide. At a conference in Montreal last October, I asked the Prosecutor if he could clarify his views on whether or not genocide charges should be laid, but he provided only a perfunctory and incomplete answer.
The debate about whether to characterise the atrocities in Darfur as genocide has been raging since 2004, when the Bush administration and its allies in Congress used the term. But a United Nations Commission of Inquiry, chaired by the distinguished academic Antonio Cassese, concluded that there was insufficient evidence of genocide, and that it was better to use the term crimes against humanity: http://daccessdds.un.org/doc/UNDOC/GEN/N05/225/36/PDF/N0522536.pdf?OpenElement. See also my article on the Darfur report: http://www.mediafire.com/?tznmtj0zmmt. The relatively conservative approach to the definition of genocide reflected in the Cassese report also underpins other recent pronouncements on the scope of the crime of genocide, notably the February 2007 judgment of the International Court of Justice in the Bosnia v. Serbia case: http://www.icj-cij.org/docket/files/91/13685.pdf.
Charging Bashir with genocide will sell well on the American street. The Prosecutor will no doubt be congratulated by neo-con journalists, the religious right and the Israel lobby for daring to use the g-word..
But legally, this would not be a correct move. It flies in the face of recent authority. The charges may well be confirmed by a Pre-Trial Chamber, for the purposes of launching the proceedings, but serious jurists familiar with contemporary jurisprudence will expect genocide charges to result in acquittals. We have seen this before. An overly ambitious approach to genocide by the Bosnian government led to a humiliating defeat in the International Court of Justice, and arguably only poured salt in their wounds. All but one of the genocide prosecutions at the International Criminal Tribunal for the former Yugoslavia has ended in acquittal. The same fate probably awaits the Darfur charges, should the Prosecutor opt for the more spectacular charge of genocide. Overcharging only results in frustration and anger for the victims.
If the rumours are true, there is a whiff of grandstanding about this. It smells like a somewhat desperate move driven by recent setbacks in other cases. Already, the first trial at the International Criminal Court has been aborted, at least temporarily, because of imprudent tactical decisions by the Office of the Prosecutor. The Office took rafts of evidence from the United Nations and other bodies when it should have made it clear to the providers that such material was subject to disclosure to the defence. Now, the Appeals Chamber is debating whether to cancel everything. Even if the Appeals Chamber eventually finds a way forward, somebody needs to take responsibility for the mess.
See today’s Observer for an op-ed arguing that the Prosecutor should back off because of the humanitarian consequences: http://www.guardian.co.uk/world/2008/jul/13/sudan.humanrights.