Genocide

Before genocide was made a crime against national law, it was considered a sovereign right.[29] When Lemkin asked about a way to punish the perpetrators of the Armenian Genocide, a law professor told him: "Consider the case of a farmer who owns a flock of chickens. He kills them and this is his business. If you interfere, you are trespassing."[30] As late as 1959, many world leaders still "believed states had a right to commit genocide against people within their borders", according to political scientist Douglas Irvin-Erickson.[29]

Members of the Sonderkommando burn corpses of Jews in pits at Auschwitz II-Birkenau, an extermination camp

After the Holocaust, which had been perpetrated by Nazi Germany prior to and during World War II, Lemkin successfully campaigned for the universal acceptance of international laws defining and forbidding genocides. In 1946, the first session of the United Nations General Assembly adopted a resolution that "affirmed" that genocide was a crime under international law and enumerated examples of such events (but did not provide a full legal definition of the crime). In 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) which defined the crime of genocide for the first time.[31]

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.

— UN Resolution 96(1), 11 December 1946

The CPPCG was adopted by the UN General Assembly on 9 December 1948[4] and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally-recognized definition of genocide which has been incorporated into the national criminal legislation of many countries and was also adopted by the Rome Statute of the International Criminal Court, which established the International Criminal Court (ICC). Article II of the Convention defines genocide as:

... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• (a) Killing members of the group;
• (b) Causing serious bodily or mental harm to members of the group;
• (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• (d) Imposing measures intended to prevent births within the group;
• (e) Forcibly transferring children of the group to another group.

The first draft of the convention included political killings, but these provisions were removed in a political and diplomatic compromise following objections from some countries, including the USSR, a permanent United Nations Security Council member.[32][33] The USSR argued that the convention's definition should follow the etymology of the term,[33] and may have feared greater international scrutiny of its own mass killings.[32][34] Other nations feared that including political groups in the definition would invite international intervention in domestic politics.[33] However leading genocide scholar William Schabas states: "Rigorous examination of the travaux fails to confirm a popular impression in the literature that the opposition to inclusion of political genocide was some Soviet machination. The Soviet views were also shared by a number of other States for whom it is difficult to establish any geographic or social common denominator: Lebanon, Sweden, Brazil, Peru, Venezuela, the Philippines, the Dominican Republic, Iran, Egypt, Belgium, and Uruguay. The exclusion of political groups was in fact originally promoted by a non-governmental organization, the World Jewish Congress, and it corresponded to Raphael Lemkin's vision of the nature of the crime of genocide."[35]

Incitement to genocide is recognized as a separate crime under international law and an inchoate crime which does not require genocide to have taken place to be prosecutable.[36]

Under international law, genocide has two mental (or mens rea) elements – the general mental element and the element of specific intent (dolus specialis). The general element refers to whether the prohibited acts were committed with intent, knowledge, recklessness, or negligence. For most serious international crimes, including genocide, the requirement is that the perpetrator act with intent. The Rome Statute defines intent as meaning to engage in the conduct and, in relation to consequences, as meaning to cause that consequence or being "aware that it will occur in the ordinary course of events".[37]

The specific intent element defines the purpose of committing the acts: "to destroy in whole or in part, a national, ethnical, racial or religious group, as such". The specific intent is a core factor distinguishing genocide from other international crimes, such as war crimes or crimes against humanity.

In 2007, the European Court of Human Rights (ECHR) noted in its judgement on Jorgic v. Germany case that, in 1992, the majority of legal scholars took the narrow view that "intent to destroy" in the CPPCG meant the intended physical-biological destruction of the protected group, and that this was still the majority opinion. But the ECHR also noted that a minority took a broader view, and did not consider biological-physical destruction to be necessary, as the intent to destroy a national, racial, religious or ethnic group was enough to qualify as genocide.[38]

In the same judgement, the ECHR reviewed the judgements of several international and municipal courts. It noted that the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice had agreed with the narrow interpretation (that biological-physical destruction was necessary for an act to qualify as genocide). The ECHR also noted that at the time of its judgement, apart from courts in Germany (which had taken a broad view), that there had been few cases of genocide under other Convention states' municipal laws, and that "There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide."[39]

In the case of "Onesphore Rwabukombe", the German Supreme Court adhered to its previous judgement, and did not follow the narrow interpretation of the ICTY and the ICJ.[40]

Armenian Genocide victims

The phrase "in whole or in part" has been subject to much discussion by scholars of international humanitarian law.[41] The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic – Trial Chamber I – Judgment – IT-98-33 (2001) ICTY8 (2 August 2001)[42] that Genocide had been committed. In Prosecutor v. Radislav Krstic – Appeals Chamber – Judgment – IT-98-33 (2004) ICTY 7 (19 April 2004)[43] paragraphs 8, 9, 10, and 11 addressed the issue of in part and found that "the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole." The Appeals Chamber goes into details of other cases and the opinions of respected commentators on the Genocide Convention to explain how they came to this conclusion.

The judges continue in paragraph 12, "The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Tribunal's Statute]."[44][45]

In paragraph 13 the judges raise the issue of the perpetrators' access to the victims: "The historical examples of genocide also suggest that the area of the perpetrators' activity and control, as well as the possible extent of their reach, should be considered. [...] The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can—in combination with other factors—inform the analysis."[43]

The drafters of the CPPCG chose not to include political or social groups among the protected groups. Instead, they opted to focus on "stable" identities, attributes that are historically understood as being born into and unable or unlikely to change over time. This definition conflicts with modern conceptions of race as a social construct rather than innate fact and the practice of changing religion, etc.[46]

International criminal courts have typically applied a mix of objective and subjective markers for determining whether or not a targeted population is a distinct group. Differences in language, physical appearance, religion, and cultural practices are objective criteria that may show that the groups are distinct. However, in circumstances such as the Rwandan genocide, Hutus and Tutsis were often physically indistinguishable.[47]

In such a situation where a definitive answer based on objective markers is not clear, courts have turned to the subjective standard that "if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group".[48] Stigmatization of the group by the perpetrators through legal measures, such as withholding citizenship, requiring the group to be identified, or isolating them from the whole could show that the perpetrators viewed the victims as a protected group.

The Genocide Convention establishes five prohibited acts that, when committed with the requisite intent, amount to genocide. Although massacre-style killings are the most commonly identified and punished as genocide, the range of violence that is contemplated by the law is significantly broader.[49]

While mass killing is not necessary for genocide to have been committed, it has been present in every recognized genocide. A near-uniform pattern has emerged throughout history in which men and adolescent boys are singled out for murder in the early stages, such as in the genocide of the Yazidis by Daesh,[50] the Ottoman Turks' attack on the Armenians,[51] and the Burmese security forces' attacks on the Rohingya.[52] Men and boys are typically subject to "fast" killings, such as by gunshot.[53] Women and girls are more likely to die slower deaths by slashing, burning, or as a result of sexual violence.[54] The jurisprudence of the International Criminal Tribunal for Rwanda (ICTR), among others, shows that both the initial executions and those that quickly follow other acts of extreme violence, such as rape and torture, are recognized as falling under the first prohibited act.[55]

A less settled discussion is whether deaths that are further removed from the initial acts of violence can be addressed under this provision of the Genocide Convention. Legal scholars have posited, for example, that deaths resulting from other genocidal acts including causing serious bodily or mental harm or the successful deliberate infliction of conditions of life calculated to bring about physical destruction should be considered genocidal killings.[49]

This second prohibited act can encompass a wide range of non-fatal genocidal acts.[56] The ICTR and International Criminal Tribunal for the Former Yugoslavia (ICTY) have held that rape and sexual violence may constitute the second prohibited act of genocide by causing both physical and mental harm. In its landmark Akayesu decision, the ICTR held that rapes and sexual violence resulted in "physical and psychological destruction".[57] Sexual violence is a hallmark of genocidal violence, with most genocidal campaigns explicitly or implicitly sanctioning it.[49] It is estimated that 250,000 to 500,000 women were raped in the three months of the Rwandan genocide, many of whom were subjected to multiple rapes or gang rape.[58] In Darfur, a systemic campaign of rape and often sexual mutilation was carried out[59] and in Burma public mass rapes and gang rapes were inflicted on the Rohingya by Burmese security forces.[60] Sexual slavery was documented in the Armenian Genocide by the Ottoman Turks and Daesh's genocide of the Yazidi.[61] These acts are ordinarily, but not exclusively committed against women.

Torture and other cruel, inhuman, or degrading treatment or punishment, when committed with the requisite intent, are also genocide by causing serious bodily or mental harm to members of the group. The ICTY found that both experiencing a failed execution and watching the murder of one's family members may constitute torture.[62] The Syrian Commission of Inquiry (COI) also found that enslavement, removal of one's children into indoctrination or sexual slavery, and acts of physical and sexual violence rise to the level of torture, as well. While it was subject to some debate, the ICTY and, later, the Syrian COI held that under some circumstances deportation and forcible transfer may also cause serious bodily or mental harm.[63]

The third prohibited act is distinguished from the genocidal act of killing because the deaths are not immediate (or may not even come to pass), but rather create circumstances that do not support prolonged life.[3] Due to the longer period of time before the actual destruction would be achieved, the ICTR held that courts must consider the duration of time the conditions are imposed as an element of the act.[64] The drafters incorporated the act to account for the horrors of the Nazi concentration camps and to ensure that similar conditions never be imposed again. However, it could also apply to the Armenian death marches, the siege of Mount Sinjar by Daesh, the deprivation of water and forcible deportation against ethnic groups in Darfur, and the destruction and razing of communities in Burma.

The ICTR provided guidance into what constitutes a violation of the third act. In Akayesu, it identified "subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement"[65] as rising to genocide. In Kayishema and Ruzindana, it extended the list to include: "lack of proper housing, clothing, hygiene and medical care or excessive work or physical exertion" among the conditions.[64] It further noted that, in addition to deprivation of necessary resources, rape could also fit within this prohibited act.

The fourth prohibited act is aimed at preventing the protected group from regenerating through reproduction. It encompasses acts with the single intent of affecting reproduction and intimate relationships, such as involuntary sterilization, forced abortion, the prohibition of marriage, and long-term separation of men and women intended to prevent procreation.[3] Rape has been found to violate the fourth prohibited act on two bases: where the rape was committed with the intent to impregnate her and thereby forcing her to carry a child of another group (in societies where group identity is determined by patrilineal identity) and where the person raped subsequently refuses to procreate as a result of the trauma.[66] Accordingly, it can take into account both physical and mental measures imposed by the perpetrators.

The final prohibited act is the only prohibited act that does not lead to physical or biological destruction, but rather to destruction of the group as a cultural and social unit.[49] It occurs when children of the protected group are transferred to the perpetrator group. Boys are typically taken into the group by changing their names to those common of the perpetrator group, converting their religion, and using them for labor or as soldiers.[67] Girls who are transferred are not generally converted to the perpetrator group, but instead treated as chattel, as played out in both the Yazidi and Armenian genocides.[49] The measures used to forcibly transfer children may be imposed by direct force or psychological coercion, such as threats, duress, or detention.[3]

The convention came into force as international law on 12 January 1951 after the minimum 20 countries became parties. At that time however, only two of the five permanent members of the UN Security Council were parties to the treaty: France and the Republic of China. The Soviet Union ratified in 1954, the United Kingdom in 1970, the People's Republic of China in 1983 (having replaced the Taiwan-based Republic of China on the UNSC in 1971), and the United States in 1988. This long delay in support for the convention by the world's most powerful nations caused the convention to languish for over four decades. Only in the 1990s did the international law on the crime of genocide begin to be enforced.

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity".[68] The resolution committed the council to action to protect civilians in armed conflict.[69]

In 2008 the UN Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".[70]

Since the Convention came into effect in January 1951 about 80 United Nations member states have passed legislation that incorporates the provisions of CPPCG into their municipal law.[71]

Nuon Chea, the Khmer Rouge's chief ideologist, before the Cambodian Genocide Tribunal on 5 December 2011.

All signatories to the CPPCG are required to prevent and punish acts of genocide, both in peace and wartime, though some barriers make this enforcement difficult. In particular, some of the signatories—namely, Bahrain, Bangladesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and former Yugoslavia—signed with the proviso that no claim of genocide could be brought against them at the International Court of Justice without their consent.[88] Despite official protests from other signatories (notably Cyprus and Norway) on the ethics and legal standing of these reservations, the immunity from prosecution they grant has been invoked from time to time, as when the United States refused to allow a charge of genocide brought against it by former Yugoslavia following the 1999 Kosovo War.[89]

It is commonly accepted that, at least since World War II, genocide has been illegal under customary international law as a peremptory norm, as well as under conventional international law. Acts of genocide are generally difficult to establish for prosecution because a chain of accountability must be established. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.

The Nazi leaders at the Palace of Justice, Nuremberg

The Nazi leaders who were prosecuted shortly after World War II for taking part in the Holocaust, and other mass murders, were charged under existing international laws, such as crimes against humanity, as the crime of "genocide' was not formally defined until the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). Nevertheless, the recently coined term[90] appeared in the indictment of the Nazi leaders, Count 3, which stated that those charged had "conducted deliberate and systematic genocide—namely, the extermination of racial and national groups—against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, Gypsies and others."[91]

The cemetery at the Srebrenica-Potočari Memorial and Cemetery to Genocide Victims

The term Bosnian genocide is used to refer either to the killings committed by Serb forces in Srebrenica in 1995,[92] or to ethnic cleansing that took place elsewhere during the 1992–1995 Bosnian War.[93]

In 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.[94] On 26 February 2007, the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the massacre in Srebrenica and Zepa constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.[95]

On 12 July 2007, European Court of Human Rights when dismissing the appeal by Nikola Jorgić against his conviction for genocide by a German court (Jorgic v. Germany) noted that the German courts wider interpretation of genocide has since been rejected by international courts considering similar cases.[96][97][98] The ECHR also noted that in the 21st century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide, and the ICTY has found in the Momcilo Krajisnik case that the actus reus of genocide was met in Prijedor "With regard to the charge of genocide, the Chamber found that in spite of evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide".[99]

About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date, after several plea bargains and some convictions that were successfully challenged on appeal two men, Vujadin Popović and Ljubiša Beara, have been found guilty of committing genocide, Zdravko Tolimir has been found guilty of committing genocide and conspiracy to commit genocide, and two others, Radislav Krstić and Drago Nikolić, have been found guilty of aiding and abetting genocide. Three others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgić lost an appeal against his conviction in the European Court of Human Rights. A further eight men, former members of the Bosnian Serb security forces were found guilty of genocide by the State Court of Bosnia and Herzegovina (See List of Bosnian genocide prosecutions).

Slobodan Milošević, as the former President of Serbia and of Yugoslavia, was the most senior political figure to stand trial at the ICTY. He died on 11 March 2006 during his trial where he was accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina, so no verdict was returned. In 1995, the ICTY issued a warrant for the arrest of Bosnian Serbs Radovan Karadžić and Ratko Mladić on several charges including genocide. On 21 July 2008, Karadžić was arrested in Belgrade, and later tried in The Hague accused of genocide among other crimes.[100] On 24 March 2016, Karadžić was found guilty of genocide in Srebrenica, war crimes and crimes against humanity, 10 of the 11 charges in total, and sentenced to 40 years' imprisonment.[101][102] Mladić was arrested on 26 May 2011 in Lazarevo, Serbia,[103] and was tried in The Hague. The verdict, delivered on 22 November 2017 found Mladić guilty of 10 of the 11 charges, including genocide and he was sentenced to life imprisonment.[104]

Victims of the 1994 Rwandan genocide

The International Criminal Tribunal for Rwanda (ICTR) is a court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide which occurred there during April 1994, commencing on 6 April. The ICTR was created on 8 November 1994 by the Security Council of the United Nations in order to judge those people responsible for the acts of genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.

So far, the ICTR has finished nineteen trials and convicted twenty-seven accused persons. On 14 December 2009, two more men were accused and convicted for their crimes. Another twenty-five persons are still on trial. Twenty-one are awaiting trial in detention, two more added on 14 December 2009. Ten are still at large.[105] The first trial, of Jean-Paul Akayesu, began in 1997. In October 1998, Akayesu was sentenced to life imprisonment. Jean Kambanda, interim Prime Minister, pleaded guilty.

Rooms of the Tuol Sleng Genocide Museum contain thousands of photos taken by the Khmer Rouge of their victims.

Skulls in the Choeung Ek.

The Khmer Rouge, led by Pol Pot, Ta Mok and other leaders, organized the mass killing of ideologically suspect groups. The total number of victims is estimated at approximately 1.7 million Cambodians between 1975–1979, including deaths from slave labour.[106]

On 6 June 2003 the Cambodian government and the United Nations reached an agreement to set up the Extraordinary Chambers in the Courts of Cambodia (ECCC) which would focus exclusively on crimes committed by the most senior Khmer Rouge officials during the period of Khmer Rouge rule of 1975–1979.[107] The judges were sworn in early July 2006.[108][109][110]

The genocide charges related to killings of Cambodia's Vietnamese and Cham minorities, which is estimated to make up tens of thousand killings and possibly more[111][112]

The investigating judges were presented with the names of five possible suspects by the prosecution on 18 July 2007.[108][113]

• Kang Kek Iew was formally charged with a war crime and crimes against humanity and detained by the Tribunal on 31 July 2007. He was indicted on charges of war crimes and crimes against humanity on 12 August 2008.[114] His appeal against his conviction for war crimes and crimes against humanity was rejected on 3 February 2012, and he is serving a sentence of life imprisonment.[115]
• Nuon Chea, a former prime minister, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. He was transferred into the custody of the ECCC on 19 September 2007. His trial started on 27 June 2011[111][116] and ended on 7 August 2014, with a life sentence imposed for crimes against humanity.[117]
• Khieu Samphan, a former head of state, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. He was transferred into the custody of the ECCC on 19 September 2007. His trial began on 27 June 2011.[111][116] and also ended on 7 August 2014, with a life sentence imposed for crimes against humanity.[117]
• Ieng Sary, a former foreign minister, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. He was transferred into the custody of the ECCC on 12 November 2007. His trial started on 27 June 2011, and ended with his death on 14 March 2013. He was never convicted.[111][116]
• Ieng Thirith, a former minister for social affairs and wife of Ieng Sary, who was indicted on charges of genocide, war crimes, crimes against humanity and several other crimes under Cambodian law on 15 September 2010. She was transferred into the custody of the ECCC on 12 November 2007. Proceedings against her have been suspended pending a health evaluation.[116][118]

There has been disagreement between some of the international jurists and the Cambodian government over whether any other people should be tried by the Tribunal.[113]

Since 2002, the International Criminal Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states. Due to the United States concerns over the ICC, the United States prefers to continue to use specially convened international tribunals for such investigations and potential prosecutions.[119]

A mother with her sick baby at Abu Shouk IDP camp in North Darfur

There has been much debate over categorizing the situation in Darfur as genocide.[120] The ongoing conflict in Darfur, Sudan, which started in 2003, was declared a "genocide" by United States Secretary of State Colin Powell on 9 September 2004 in testimony before the Senate Foreign Relations Committee.[121] Since that time however, no other permanent member of the UN Security Council has done so. In fact, in January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of Sudan has not pursued a policy of genocide."[122] Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide."[122]

In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the Commission report but without mentioning any specific crimes.[123] Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution.[124] As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.[125]

In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes.[126]

On 14 July 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir: three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors claimed that al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity.

On 4 March 2009, the ICC issued a warrant of arrest for Omar Al Bashir, President of Sudan as the ICC Pre-Trial Chamber I concluded that his position as head of state does not grant him immunity against prosecution before the ICC. The warrant was for war crimes and crimes against humanity. It did not include the crime of genocide because the majority of the Chamber did not find that the prosecutors had provided enough evidence to include such a charge.[127] Later the decision was changed by the Appeals Panel and after issuing the second decision, charges against Omar al-Bashir include three counts of genocide.[128]

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