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Part IV The ICC and its Applicable Law, 27 The ICC’s First Encounter with the Crime of Genocide: The Case against Al Bashir

Claus Kreß

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 02 June 2023

Genocide — Elements of crimes — Customary international law — Travaux préparatoires — Ethnic cleansing

The ICC’s first substantial encounter with the crime of genocide was triggered by the prosecution’s application for a warrant of arrest against Omar Al Bashir on 14 July 2008. This chapter addresses the emerging ICC jurisprudence on the crime of genocide, including Pre-Trial Chamber I’s ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’ of 4 March 2009, which constitutes the most important engagement of an ICC Chamber with the definition of the crime of genocide to date. The chapter discusses the nature of genocide and its material and mental elements, including the controversy over the purpose versus the knowledge-based approach and whether the crime of genocide requires an objective point of reference for the perpetrator’s intent, namely, the existence of a realistic collective goal to destroy the target group in whole or in part.

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