Early last year I wrote a post about the standards for establishing intent where genocide may be in progress or have been committed. I commented on this with respect both to the punishment and the prevention of genocide. A piece from The Boston Globe has a bearing on the issues I raised. In connection with the prosecution of Sudanese president Omar al-Bashir, Philip B. Heymann and Martha Minow, both professors of law at Harvard Law School, write:
The [ICC] prosecutor... has a different standard of proof at this stage. The Commission of Inquiry acted as a "fact-finding body" and sought to reach conclusions of fact and law based on the available evidence. To obtain an arrest warrant under the criminal court statute, the prosecutor is obliged only to establish that "reasonable grounds" exist to believe that the perpetrators have committed the crime of genocide.
This standard, which is comparable to a probable cause showing in the United States, requires inferences to be drawn in favor of the prosecutor and is satisfied if the supporting evidence is consistent with the alleged crime. Only at trial, the prosecutor would have to prove beyond reasonable doubt that Bashir committed the crime of genocide - that the only reasonable inference to be drawn from the evidence is that Bashir intended to destroy the targeted groups in whole or in part.
These thoughts would seem to me to strengthen the suggestion I made last year: namely, that if the prevention of genocide is ever to count as a serious aim of the UN Genocide Convention, international action to stop it has to be possible before rock-solid proof of intent, as required in a court of law, becomes available.