Part 1 of a 2-part contribution.

If Luis Moreno Ocampo, the Chief Prosecutor of the International Criminal Court (ICC), were to indict Sudan’s President Omar al Bashir on charges relating to Darfur, he would be faced with a slew of challenges. Aside from the obvious political challenges, he and the Office of the Prosecutor would have to get the law right.

If an indictment were to materialize, President Bashir would likely be charged for a series of war crimes, crimes against humanity as well as acts of genocide. In what follows, I shall limit my comments to the promise””and limits””of holding the President of Sudan individually responsible for genocide.

Some observers have suggested that President Bashir could be charged for “conspiracy to commit genocide.” This is a plausible charge, especially seeing that a Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) on September 4, 1998, convicted Jean Kambanda, the former Prime Minister of Rwanda, for “conspiracy to commit genocide” on account of his acts and omissions during the 1994 genocide. However, the Kambanda case is a misleading guide for our purposes, for international law pertaining to the notion of a “conspiracy to commit genocide” has since changed significantly.

In the late 1940s, the drafters of the Genocide Convention established “conspiracy to commit genocide” as an “inchoate crime.” Enshrined as a punishable act of genocide in Article III(b) of said Convention, all that was required for a conviction was that two or more persons had agreed upon a common plan to perpetrate genocide. It was not necessary for a prosecutor to show that any crimes had actually been committed. This is what made “conspiracy to commit genocide” an inchoate crime: its successful completion was not required for a conviction””a mere agreement to carry out the crime(s) sufficed.

According to the case law of the ICTR, the prosecution had to demonstrate, however, that an agreement had actually materialized. It was not enough that discussions or negotiations had taken place. Inasmuch as the ICTR chambers took into account circumstantial evidence to demonstrate the existence of an agreement, they implored prosecutors to furnish names, documents, and other specific information about the nature of the alleged conspiracy. In the case of Rwanda, several defendants were prosecuted for conspiracy to commit genocide. In the case of Darfur, the legal challenges will be of a different nature, however.

It is frequently assumed that the conceptualization of “conspiracy to commit genocide” sketched above still obtains today. This is not so. The common law understanding of conspiracy (with origins in Anglo- American law) that has been operational at the ICTR (and at the International Criminal Tribunal for the Former Yugoslavia, or ICTY) was replaced in the Rome Statute with a civil law understanding of conspiracy (with origins in Romano-Germanic law). Nowadays conspiracy does not amount to much more than to complicity in international law. As such, it is very much a redundant notion. It is telling that the Rome Statute makes no mention of a “conspiracy to commit genocide.” In other words, we are faced with a major””and often overlooked””discrepancy between the 1948 Genocide Convention and the 1998 Rome Statute as far as “the crime of crimes” is concerned.

In practice, this means that “conspiracy to commit genocide” can no longer be charged as a distinct and separate crime, at least not before the ICC. For in civil law systems””such as those in France and Germany”” conspiracy does not connote an inchoate crime””as it does in the United States or the United Kingdom””but only a particular form of participation. Consequently, ever since the establishment of the ICC, genocide has to have actually been committed, in Darfur and elsewhere, before a conviction for “conspiracy to commit genocide” can be entered. This, of course, is not quite as straightforward as activists make it out to be, as the controversial 2005 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General attests.

Significantly, as we have seen, it has become far more difficult to prosecute heads of state for their participation in a “conspiracy to commit genocide.” If Moreno Ocampo nevertheless wanted to pursue a conviction of President Bashir, he would have to demonstrate that one or more of the five genocidal acts enumerated in Article 6(a)-(e) of the Rome Statute were perpetrated””whether by omission or commission””in Darfur (keeping in mind, as activists infrequently do, that both the requisite actus reus and mens rea for each of the international crimes have to have been present), and, furthermore, that President Bashir was an accomplice to any of these crimes. This would be a tall order, even for someone as innovative as Moreno Ocampo.

But other, slightly less onerous avenues exist as well. For example, the Prosecutor of the ICC could””alternatively””indict President Bashir for membership in what has become known in recent years as a “joint criminal enterprise” (JCE). Judging by the language employed in Moreno Ocampo’s briefing of the UN Security Council on June 5, 2008 as well as in previous pronouncements and court documents, this is by far the most likely””and promising””strategy to be pursued by the ICC’s Office of the Prosecutor. However, the doctrine of JCE, invented, incidentally, by Antonio Cassese in the ICTY’s Tadić Appeal Judgment, is not without problems. In the interests of space, I will contemplate these problems in a separate submission.

Jens Meierhenrich is Assistant Professor in the Department of Government, Harvard University.