The Genocide Convention and the Arrest Warrants Issued by the ICC

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The Human Rights and International Criminal Law Online Forum of the  Sanela Diana Jenkins Human Rights Project at UCLA Law School is hosting an online debate on (i) the obligations of Contracting parties to the Genocide Convention to implement arrest warrants for genocide issued by the International Criminal Court and (ii) the obligations of African Union States Parties to implement ICC arrest warrants. The debate is, of course, inspired by the arrest warrant issued by the ICC for Sudanese President Omar Al Bashir, which has been discussed on this blog on many occasions (see post by Marko here, and by me and others here, herehere and here, here).  The UCLA Forum is supported by the Office of the Prosecutor of the ICC and I think the questions being debated have been posed by the ICC Prosecutor.

The “debate” on the Forum is initiated by opinion pieces written by five “invited experts”: Paola Gaeta (University of Geneva); Makau Mutua (Buffalo Law School); Bill Schabas (National University of Ireland, Galway); Goran Sluiter (Amsterdam Law Faculty) and me.  Most of us accept (following the decision of the International Court of Justice in the Bosnian Genocide Convention Case) that, in principle, the Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court. I first discussed this possibility nearly two years ago in a post on this blog and also in a piece in the May 2009 issue of the Journal of International Criminal Justice. The point now seems to be accepted by others. However, there are still three points of contention relating to obligations under the Genocide Convention:

First of all, does the obligation to cooperate with the ICC which derives from the genocide convention apply only to States parties to the ICC or does it extend also to non-parties to the Rome Statute who are however parties to the Genocide Convention. A strict reading of the ICJ decision in the Bosnian Genocide case would yield a negative answer but Goran Sluiter and I argue that a teleological interpretation may yield a positive answer (though I am more tentative than Professor Sluiter).

The second issue point of contention is whether the immunity which sitting heads of states ordinarily possess continues to apply with respect to President Bashir. Paola Gaeta argues that it does and that the ICC acts ultra vires and contrary to Art. 98(1) of its Statute by seeking to compel parties to arrest President Bashir. On this blog and in my 2009 article in the Journal of International Criminal Justice  I have taken a different view. Prof. Sluiter argues that even if the ICC is wrong on the immunity issues it is not for individual States to determine this matter unilaterally.

The third question regarding the relevant obligations under the Genocide Convention is at what point do they kick in. Prof. Schabas argues that no obligation to cooperate arises under the Genocide Convention unless it is established that genocide has in fact occured. In other words, where there is in fact no genocide, parties to the convention do not have the obligations that the Convention imposes to cooperation with relevant international criminal tribunals and in particular no obligation to arrest (see also discussion on his blog).  Professor Schabas is of course the leading authority on the crime of genocide so it is with much hesitancy that I would myself disagree with his view on this point. However, Art. VI of the Convention states that “persons charged with genocide” shall be tried (by an international tribunal or by the courts of the territorial state). If this obligation does not arise until it is established that genocide has occured it begs the question how is it to be determined whether genocide has occured. Presumably, this issue is only definitely determined when prosecutions take place for genocide. Professor Schabas’ view may also result in the situation where a State will simply refuse to prosecute for genocide because it has not been established to its satisfaction that genocide has occured, instead of letting this matter be determined by relevant judicial processes.

A fourth issue discussed in the forum is the relationship between the obligations under the ICC Statute, of those African States parties to the ICC Statute , and their obligations to the African Union. This question arises because of the decisions of the AU organs that AU members States should not cooperate with the ICC with regard to the Bashir case. Of the five of us, it is Professor Schabas that deals with this question in the greatest depth. I agree with him that if the AU decisions are binding on the AU Constitutive Act then there is nothing in international law that would suggest that obligations under the ICC Statute prevail over obligations under the AU Constitutive Act. All that would happen is that these countries would have conflicting obligations and they would have to violate one of the two. However, before one gets to that situation one needs to address the following points

  • Are AU Assembly decisions binding?
  • Was it intended that these particular decisions impose binding obligations of non-cooperation and do they have that effect (afterall the 2009 AU decision refers to non-cooperation pursuant to Art. 98 of the ICC Statute suggesting that it only mandates non-cooperation where Art. 98 would – see here)
  • Are the relevant obligations for ICC parties, obligations arising under the Rome Statute only or do they arise under the UN Charter as well. This would be significant because under Art. 103 of the UN Charter, obligations under the Charter prevail over obligations under other treaties. The possibility that the relevant obligations are Charter obligations arises because the Darfur situation was referred to the ICC by Security Council resolution.

All in all, I think the debate raises some very interesting questions that are worth reflecting on. Richard Steinberg at UCLA is to be congratulated on putting all of this together.

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Mihai Martoiu Ticu says

February 8, 2011

I wonder what would ICJ decide, if someone sued the African states and demanded they arrested Bashir. The Rome statute, Article 119(2) states that: “Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.”