In an article in the Guardian Newspaper last Friday, the ICC Prosecutor, Luis Moreno-Ocampo has called on the world to take action to arrest Sudanese President Bashir following the recent decision of the Pre-Trial Chamber (PTC) of the ICC to issue arrest warrants for him on charges of genocide (see earlier post). However, in his piece, the Prosecutor makes statements about the findings of the PTC which are not only inaccurate but are shocking in their inaccuracy. Read the rest of this entry…
The Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.
Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:
Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.
Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. Read the rest of this entry…
Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?
The Pre-Trial Chamber of the ICC issued an arrest warrant for Sudanese President Omar Bashir only with respect to war crimes and crimes against humanity and rejected the Prosecutor’s request for a charge of genocide. Marko (and Kevin Jon Heller at Opinio Juris) have (rightly, in my view) criticized the reasoning by which the majority of the Chamber held that the materials provided by the prosecution failed to provide reasonable grounds to believe that Bashir and the Government of Sudan acted with the special intent to destroy the groups being targeted in Darfur. The Prosecutor has now appealed the decision of the PTC to reject the genocide charge. If the Appeals Chamber were to add the genocide charge to the arrest warrant, the decision would have an impact on whether other States may arrest Bashir. This is because it could then be argued that the genocide charge creates an obligation arising under the Genocide Convention 1948 for parties to that treaty to cooperate with the ICC, including an obligation of arrest.
In the 2007 merits judgment in the Bosnian Genocide Convention Case, the International Court of Justice held (paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. In that case, the ICJ found that Serbia had violated this obligation by failing to arrest and surrender, to the ICTY, persons wanted by that tribunal in connection with the genocide in Srebrenica. The ICJ relied on Article VI of the Convention which provides that
Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
The court implied an obligation on States to cooperate with such competent international tribunals and to arrest persons wanted by the tribunal when the State on whose territory the person is found has accepted the jurisdiction of that tribunal. Read the rest of this entry…
… this time from the department of shameless self-promotion: I’ve just posted on SSRN a draft chapter on the territorial application of the Genocide Convention and state succession in the forthcoming Commentary to the Convention edited by Paola Gaeta and published by OUP. Some of my blogging here was based on that piece, so maybe some of the readers would be interested in it. Comments are welcome.
In the Bosnian Genocide case, Bosnia alleged that the Federal Republic of Yugoslavia (FRY, Serbia) was responsible for, inter alia, committing genocide and failing to prevent genocide on Bosnian territory. This argument, of course, immediately raised the question whether the FRY had any obligations under the Genocide Convention regarding its actions outside its own territory.
To answer this question, it is first necessary to recall that the Court interpreted the Convention so as to contain three distinct sets of obligations of state parties:
(1) The obligation to criminalize the crime of genocide and its ancillary crimes in their domestic law, and to prosecute the perpetrators of these crimes;
(2) The (positive) obligation to prevent genocide;
(3) The (negative) obligation not to commit genocide through their own organs or agents.
This expansive interpretation of the Convention is not uncontroversial. It is entirely possible to read the Convention as solely requiring (1) criminalization, that the (2) obligation to prevent genocide is merely hortatory, and that (3) is found nowhere in the treaty (see, for example, this article by P. Gaeta in the EJIL). For what it’s worth, I am entirely in agreement with the Court. But when do states actually have these various obligations, and is there is a single territorial scope of application of the Convention?
According to the Court, the territorial scope of the Convention varies with the particular set of obligations in question.
In keeping with Christmas spirit, here’s my next post on the Genocide Convention.
Can a state be responsible for genocide? What does that even mean? Aren’t international crimes, in the sage words of the Nuremberg Tribunal, committed by men, not by abstract entities?Can a state even possess genocidal intent, a basic requirement for the crime of genocide?
A full answer to this question requires revisiting many old debates, particularly those during the drafting of the Genocide Convention and on then Draft Article 19 on state crimes of the International Law Commission’s project on state responsibility, that was removed from the final ILC Articles.
If there is one thing is made clear from an examination of the Convention’s travaux, as well as state practice, that is that states have excluded any form of state criminal responsibility for the crime of genocide or any other international crime. That does not mean, however, that no state responsibility exists. In my EJIL article on state responsibility for genocide, I’ve argued that the attribution model developed by the ILC, coupled with the fundamental distinction between primary and secondary rules of state responsibility, provides a simple answer to the conundrum of state responsibility for international crimes. If an individual commits an international crime such as genocide, and if the acts of this individual are attributable to a state, pursuant to the generally applicable secondary rules of attribution (if, for example, the individual is a state organ), than the state is responsible for the crime committed by that individual as an internationally wrongful act.
This responsibility is again not criminal, but the regular state responsibility recognized in international law, that carries with itobligations of cessation and reparation. It rests on a primary obligation of states not to have individuals whose acts are attributable to them to commit international crimes. Genocide is thus at the same time both an international crime, for which individuals are criminally responsible, and an internationally wrongful act, for which states to which the acts are attributable bear their own responsibility. That does not mean there is a ‘tort’ of genocide or ‘civil’ genocide in international law – genocide still, at all times, remains an international crime, and its elements must be proven to the exacting standards demanded by the relevant body of primary rules. Thus, for example, though a state – an abstract entity – cannot have genocidal intent, such intent of the individuals whose acts are being attributed to the state must be conclusively established.
The next question is whether this type of responsibility, that in my view undoubtedly exists in customary international law, also exists within the (jurisdictional) confines of the Genocide Convention. The ICJ gave an answer to this question in the Bosnian Genocide case.
Both at the preliminary objections and at the merits stage of the case the FRY/Serbia disputed the existence of a separate obligation of a state under the Convention not to commit genocide, asserting that the Convention was a classical international criminal law treaty, dealing with crimes committed by individuals, not states. All the Convention does is to require states parties to criminalize in their domestic law the crimes that it defines, and then prosecute the perpetrators of these crimes. Though Article IX of the Convention confers jurisdiction upon the Court to resolve disputes between contracting states ‘relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III’, this was, in Serbia’s argument, merely a compromisory clause which did not create substantive rights and obligations.
The Court disagreed. It held that ‘Article I [of the Convention], in particular its undertaking to prevent, creates obligations distinct from those which appear in the subsequent Articles [of the Convention]’ so that the ‘the Contracting Parties have a direct obligation to prevent genocide.’ Moreover, according to the Court, even though
Article [I] does not expressis verbis require States to refrain from themselves committing genocide …[i]t would be paradoxical if States were thus under an obligation to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, but were not forbidden to commit such acts through their own organs, or persons over whom they have such firm control that their conduct is attributable to the State concerned under international law. In short, the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.
(Genocide judgment, paras. 162, 165 & 166)
Though Serbia was on the facts not found responsible for the commission of genocide in Bosnia, the Court’s judgment affirmed the attribution model developed by the ILC and the distinction between primary and secondary rules. States can thus be brought before the ICJ under Article IX of the Convention not merely for failing to criminalize or prosecute genocide, but also for committing it through their organs or failing to prevent it.
In my next post I will deal with the territorial scope of state obligations under the Convention.
Many thanks to Dapo for inviting me to blog here at EJIL: Talk! – hopefully the blog will turn out to be as successful in the blawgosphere as the EJIL is in print. In the next couple of weeks I intend to write on various topics, first about certain issues regarding the the Genocide Convention, which has had its sixtieth anniversary last week, on December 9th.
On any account, the Convention is an extraordinary treaty, a historic pronouncement by states that the practice of exterminating human groups merely on account of their nation, race, religion or ethnicity, is something that can never condoned or resorted to. At the same time, the Convention is in many ways a deeply disappointing instrument.
One, rather obvious item of disappointment would be its record of compliance. How many genocides, exactly, has the Convention on the Prevention and Punishment of the Crime of Genocide actually prevented or punished? In the face of, say, Darfur, it is hard to escape the impression that the Convention has hardly been a success. Some authors have even conducted empirical studies suggesting that the Convention has contributed little or nothing to the actual compliance with the norms that it enshrines (see here, at 1981-1982).
For what it’s worth, I believe that this initial reflex of disappointment should be resisted. Before we ask ourselves whether the Convention does what it was supposed to do, we need to look at what it actually says. And it says very, very little. The definition of the crime of genocide requires the specific intent to (physically or biologically) destroy a national, ethnic, racial, or religious group, this enumeration of protected groups being exhaustive. The narrowness of this definition is such that it excludes the vast majority of acts that most lawyers, and by far the majority of the general public, think of as genocide.