The definitions of international crimes in the Al Bashir arrest warrant decision

Abstract

This piece concentrates on the way in which the Pre-Trial Chamber in the Al Bashir Arrest Warrant Decision approached the definitions of international crimes. It is critical of the way in which the Pre-Trial Chamber appears to have attempted to practically introduce a requirement that rebels hold territory into the definition of non-international armed conflicts in Article 8(2)(f) of the Rome Statute. It also expresses concern about the way in which the Chamber phrased itself with respect to the interplay of humanitarian law and the law of crimes against humanity, but provides a way of reading the Decision in a manner that renders the two bodies of law coherent. This contribution to the debate then turns to the way in which the Chamber approached the crime of genocide, and expresses some concern about the relationship the Chamber asserted between the Elements of Crimes and the Rome Statute, as well as the way they (mis)interpreted the contextual element of genocide. It also laments that the Chamber did not discuss more completely the vexed matter of group membership in Darfur, and whilst supporting the Majority's approach to the mental element of genocide, regrets that the Chamber did not do enough to promote a coherent law on genocide applicable both within the Rome Statute and beyond. © Oxford University Press, 2009, All rights reserved.