Can rape, on a mass scale, be thought of as genocide?

People hear the word "genocide" and think of 6 million Jews killed by the Nazis during the Holocaust or the estimated 800,000 people, most of them 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 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 might 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.

The evidence presented by Moreno-Ocampo appears compelling. The prosecutor's investigation reveals that, since 2003, Bashir's forces and agents have driven about 2.5 million Sudanese, including substantial numbers of the Fur, Massalit and Zaghawa ethnic groups, into camps of internally displaced persons. They then raped and inflicted other forms of severe sexual violence on thousands and continue to do so. A common tactic is for the janjaweed militia and Sudan's armed forces and security agents to lie in wait outside the camps to rape -- or often gang-rape -- the women and girls who come out to collect firewood, grass or water in order to survive.

"Maybe around 20 men rape one woman," one victim said in a report cited by the prosecutor. "These things are normal for us here in Darfur. ... They rape women in front of their mothers and fathers."

Imagine the collective horror if men and boys in these ethnic groups were raped and then castrated. Would anyone doubt that genocidal impulses were at work by depriving men of their ability to father children? In Darfur, raped women and girls are similarly crippled.

Genocide cases prosecuted before other war-crimes tribunals have found that specific intent can be inferred from the factual circumstances of the crime. In Darfur, clearly, there is no shortage of actions, including repeated mass rapes, that point to Bashir's aim to destroy substantial parts of the Fur, Massalit and Zaghawa ethnic groups.

The wild card remains the U.N. Security Council. Under the treaty that governs the International Criminal Court, the council can suspend any prosecution for a year. China, Russia and even the African Union are pressuring the council to invoke that right. They claim that Bashir will unleash hell on U.N. peacekeepers in Darfur if he is charged and destroy hope for any peace settlement in Sudan. So far, the United States has signaled it will oppose any such efforts to stall the case -- as well it should.

The judges of the International Criminal Court must be afforded the opportunity to continue reviewing the evidence without interference by the Security Council. If they find reasonable grounds to charge Bashir with rape as genocide, thousands of women and girls attacked by rapists as a means of destroying their ethnic groups will share a small measure of justice and peace.