This is the first time the ICC has issued an arrest warrant for the crime of genocide. The warrant is for al-Bashir's alleged role as an indirect perpetrator or indirect co-perpetrator of genocide in Darfur through killing, causing bodily or mental harm, and deliberately inflicting conditions of life calculated to bring physical destruction.
"President al-Bashir's stonewalling on the initial ICC warrant against him appears only more outrageous now that he's also being sought for genocide," said Elise Keppler, senior counsel with the International Justice Program at Human Rights Watch. "Security Council members and other concerned governments should actively press Sudan to stop its blatant obstruction of the ICC and to see to it that al-Bashir appears at the court."
The ICC has jurisdiction over international crimes committed in Darfur, even though Sudan is not a party to the court, under Security Council Resolution 1593, which referred Darfur to the ICC and, according to Human Rights Watch, obligates Sudan to cooperate with the ICC.
The ICC pre-trial chamber declined to include genocide charges when it issued the first warrant for al-Bashir. The prosecutor's office appealed the decision on the basis that the chamber had used an inappropriate standard of proof in declining to include the genocide charges. In a March 2010 ruling, the appeals chamber agreed and instructed the pre-trial chamber to reassess genocide charges on the basis that genocide could be one reasonable conclusion to be drawn from the material submitted, while not necessarily the only reasonable conclusion. On July 12, the pre-trial chamber issued a ruling that resulted in the second warrant on genocide charges.
Human Rights Watch has found in its research on Darfur that the highest levels of the Sudanese leadership, including al-Bashir, are responsible for creating and coordinating the government's counterinsurgency policy in Darfur, which deliberately and systematically targeted civilians in violation of international law. Human Rights Watch has described the crimes in Darfur as "ethnic cleansing," war crimes, and crimes against humanity. However, Human Rights Watch has not taken a position on whether the crimes constitute genocide due to insufficient information in its research on whether the actions were carried out with the "intent to destroy in whole or in part an ethnic group," an element of the crime of genocide.
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