It is by any standards a landmark decision. On 4 March 2009, three judges of the International Criminal Court (ICC) chose to uphold the indictment of the president of Sudan, Omar al-Bashir, for alleged war crimes and crimes against humanity committed by Sudanese government forces in the country's Darfur region. This represents the latest stage of a process begun when the prosecutor of the court, Luis Moreno-Ocampo, made the indictment on 14 July 2008; and as in the wake of that earlier announcement, the judges' decision has provoked both support and criticism. Martin Shaw is a historical sociologist of war and global politics, and professor of international relations and politics at the University of Sussex. His books include War and Genocide (Polity, 2003), The New Western Way of War (Polity, 2005), and What is Genocide? (Polity, 2007). His website is here

Also by Martin Shaw in openDemocracy:

"The myth of progressive war" (11 October 2006)

"Genocide: rethinking the concept" (1 February 2007)

"The International Court of Justice: Serbia, Bosnia, and genocide" (28 February 2007)

"The genocide file: reply to Anthony Dworkin"  (6 March 2007)

"My Lai to Haditha: war, massacre and justice" (16 March 2008)

"After the Georgia war: the challenge to citizen action" (22 September 2008)

"Israel's politics of war" (19 January 2009)

"Uses of genocide: Kenya, Georgia, Israel, Sri Lanka" (9 February 2009)

Human Rights Watch has welcomed the prosecution of a sitting head of state for serious international crimes as "a victory for the victims". By contrast, some Sudan experts have warned that the indictment poses risks to these very victims (see Julie Flint & Alex de Waal, "To put justice before peace spells disaster for Sudan", Guardian, 6 March 2009). They call in evidence the fact that the Sudanese regime has backed its vociferous reaction to the decision by expelling thirteen international NGOs, essential parts of the United Nations effort to provide food, shelter and medicine. As a result, 2 million displaced people in camps in Darfur may now lose the life-support provided by international aid.

An assessment of the indictment's background can help clarify these issues, in relation both to Sudan itself and to how international justice is dealing with the question of "genocide".

The dilemmas of justice

Omar al-Bashir has without doubt presided over one of the most ruthless counter-insurgency campaigns of recent years. The report of the International Commission of Inquiry on Darfur, delivered to the then United Nations secretary-general Kofi Annan in February 2005, showed that the Sudanese armed forces in conjunction with the janjaweed militia were prime agents of the catastrophe that has befallen Darfur's non-Arab peoples, especially the Fur, Masalit and Zaghawa; this indeed led to the referral of Sudanese leaders to the ICC.

More than 2 million people have been displaced and hundreds of thousands have died (many killed by the janjaweed and Sudanese forces, but even more dying from living conditions and disease in the resulting camps). In 2004, Colin Powell, then United States secretary of state, alleged that the Sudanese regime had committed "genocide" in Darfur; and this was part of the indictment made by Luis Moreno-Ocampo against al-Bashir in 2008. 

The International Criminal Court judges have allowed the indictment for war crimes and crimes against humanity to proceed - but have rejected the genocide charge. They declare that there are reasonable grounds to believe that Sudanese and allied forces have "committed crimes against humanity of murder, extermination, forcible transfer, torture and rape ... throughout the Darfur region, pursuant to the GoS [Government of Sudan] policy to unlawfully attack, as a core component of its counter-insurgency campaign, that part of the civilian population of Darfur - belonging to a large extent to the Fur, Masalit and Zaghawa groups - perceived by the GoS as being close to the SLM/A, the JEM and the other armed groups opposing the GoS in the ongoing armed conflict in Darfur." 

In principle it is an important step that the world's first permanent international criminal court has charged a sitting head of state (Slobodan Milosevic of Serbia and Charles Taylor of Liberia were charged by ad hoc international tribunals, Augusto Pinochet of Chile by national courts, and Hissène Habré of Chad has been or is being subject to both). However the critics are right to point out the risks for the displaced in Darfur. Since al-Bashir's forces control access and mostly prevail on the ground, Sudanese government reprisals could have disastrous effects; these are even more likely in a situation where United Nations protests have not been backed up with meaningful counter-sanctions.

This is the dilemma of international justice without international order. There are precedents in other conflicts where international interventions against oppressors have left their victims exposed; among them Nato's bombing of Serbia in 1999, which in the absence of support from ground-forces left Kosovo Albanians at the mercy of Milosevic's forces. In the case of Darfur, the small contingents of African Union peacekeepers lack both the capacity to fully protect civilians and a mandate to contest the Sudanese government's control. 

The critics of the ICC decision also argue that in the end an accommodation will have to be reached between the Sudanese regime and the Darfuri rebel groups, and that the international-justice process weakens the prospects of this (see Jonathan Steele, "The ICC should not indict Omar al-Bashir", Guardian, 11 July 2008). In addition, it could threaten the fragile agreement to end the decades-long civil war in south Sudan. The hardening of the Sudanese government's position in the wake of the indictment can be cited in support of this view, though over a longer period the fallout could include a weakening of the international support (from China and others) on which the Khartoum regime depends.  Also in openDemocracy on the ICC, Sudan and international justice:

Eóin Murray, "'Tear down that wall!' The world court and Israel" (29 July 2004)

Anthony Dworkin, "The Hague tribunal after Milosevic" (14 March 2006)

William Schabas, "The enigma of the International Criminal Court's success" (17 February 2006)

Nick Grono & David Mozersky, Sudan and the ICC: a question of accountability" (31 January 2007)

Anthony Dworkin, "The law and genocide: Bosnia, Serbia, and justice" (2 March 2007)

Ben Kiernan, "Blood and soil: the global history of genocide" (11 October 2007)

Nick Grono, "The International Criminal Court: success or failure?" (9 June 2008)

Gérard Prunier, "Sudan in a fix" (26 June 2008)

Alex de Waal, "Sudan and the International Criminal Court: a guide to the controversy" (14 July 2008)

Victor Peskin, "The Omar al-Bashir indictment: the ICC and the Darfur crisis (15 July 2008)

Marlies Glasius, "What is global justice and who is it for? The ICC's first five years" (21 July 2008)

Gérard Prunier, "Sudan's Omar al-Bashir: a useful war criminal" (15 October 2008)

The terms of rejection

The indictment also needs to be seen in a global perspective. In the aftermath of the Gaza war of 2008-09, many have called for Israel's war crimes to be investigated (see Conor Gearty, "Israel, Gaza, and international law", 21 January 2009). The ICC's prosecution of Omar al-Bashir could send a sobering message to some of Israel's political leaders, including the likely next prime minister Binyamin Netanyahu. It may also cause an anxious moment among members of Sri Lanka's government, which is waging a brutal campaign to suppress the remnants of the Tamil Tigers' insurgency with little regard for civilians (see "Uses of genocide: Kenya, Georgia, Israel, Sri Lanka", 9 February 2009). 

At the same time, the judges' rejection of the genocide charge is troubling. Here the critics - some of whom have accused Luis Moreno-Ocampo of pursuing this with "fantastic" claims - are on less sure ground; for there is much substance to the allegation. What is more troubling here is that the judges' rejection builds on earlier distortions in verdicts over genocide, which at root reflect a definitional sleight-of-hand that denies that "ethnic cleansing" constitutes genocide.

The judges cite the decision of the International Court of Justice (ICJ) on 26 February 2007 in the case of Bosnia versus Serbia: "the intent that characterises genocide is ‘to destroy in whole or in part' a particular group, and deportation and displacement of a group, even if effected by force, is not necessarily equivalent to destruction of that group."

The problem is that this is hardly satisfactory for cases like Darfur, where the government and its allies clearly both aimed at and achieved the destruction of Fur, Masalit and Zaghawa society, forcing the survivors into camps. The killings, woundings, rapes, torture and displacement that the pro-Sudanese forces carried out on a large scale - and these allegations are accepted by the judges - were part of this destructive campaign against these non-Arab peoples (see MW Daly, Darfur's Sorrow: A History of Destruction and Genocide [Cambridge University Press, 2007]). 

The ICC judges also quote the ruling of the International Criminal Tribunal for former Yugoslavia (ICTY) in the case of Radislav Krstic, the deputy commander of Serbian forces at Srebrenica: that "there are obvious similarities between a genocidal policy and the policy commonly known as 'ethnic cleansing'", though a "clear distinction must be drawn between physical destruction and mere dissolution of a group."

Such a distinction, however, is not clearly drawn in the United Nations genocide convention of 1948, on which the ICC's own definition of genocide is based - and which does list "mental" as well as "physical" harm as one of the means of genocide. As the ICTY has itself found, "ethnic cleansing" can be genocidal because it involves the intentional "mental" harm caused when families and communities are brutally uprooted, as has happened in Darfur.

The ground of contradiction

Moreover, there is a contradiction between the judges' allowing of the charge of "extermination" (as a "crime against humanity") against Sudanese government forces and their rejection of the genocide charge. If there is reasonable evidence to suggest that Sudanese forces pursued a policy of extermination against some Fur, Masalit and Zaghawa, then this is surely prima facie support - even on a narrow "physical" definition of group destruction - for the charge of genocide against these groups "in part" (as the convention puts it). 

In the end, however, the judges' key argument centres on the same point that the ICJ used to reject (with the exception of Srebrenica) the claim that Serbian forces had committed genocide in Bosnia: the existence of a "special intention" for genocide (see

"The International Court of Justice: Serbia, Bosnia, and genocide", 28 February 2007) . This rarefied legal concept of intention means that courts feel able to reject genocide claims even when the perpetrators manifestly intended to destroy the "enemy" society in whole or part, and even when they have attempted to physically exterminate some of its people.

The ICC judges reinforce their rejection with the argument that since the prosecution's claim is built primarily on the inference of genocide from the pattern of actions by the government of Sudan, this inference has to be the only one that could reasonably be drawn. In self-contradictory mode, they also believe that the inference of a brutal counter-insurgency policy is possible, concluding that by definition the genocide charge will be unsustainable.

A major legal authority has once more used tortuous and unsatisfactory reasoning to rule out genocide, and has charged crimes against humanity and war crimes instead. The latter charges are grave enough, but the logic of what the International Criminal Court has decided in the case of Omar al-Bashir is to reinforce a trend in which genocide is becoming ever less  cogent as a legal category.