Argument

The ICC and the Genocide Convention

In July 2010, the Pre-Trial Chamber of the ICC issued a second warrant of arrest for Sudanese President Omar Al Bashir, relating to allegations that he was responsible for the commission of genocide in Darfur (Sudan). The decision followed the Appeals Chamber decision of February 3, 2010 reversing the Pre-Trial Chamber’s March 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. One question that arises from the addition of the genocide charge is whether it creates an obligation for parties to the Genocide Convention of 1948 to implement the arrest warrants issued by the ICC with respect to President Bashir. The question arises because in the Bosnian Genocide Convention Case, the ICJ held that the Genocide Convention contains an implicit obligation on parties to cooperate with competent international courts, including an obligation to arrest persons charged with genocide.1 In that case, the ICJ found that Serbia had violated its obligation to punish genocide, contained in Article I of the Genocide Convention, by failing to arrest and surrender to the International Criminal Tribunal for the former Yugoslavia (ICTY) persons wanted by that tribunal in connection with the genocide in Srebrenica.2 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 held that the ICTY was a competent international penal tribunal for the purposes of this provision. According to the Court, though the drafters of the Convention probably envisaged that such a tribunal would be created by treaty “it would be contrary to the object of the provision to interpret the notion of ‘international penal tribunal’ restrictively in order to exclude from it a court which, as in the case of the ICTY, was created pursuant to a United Nations Security Council resolution adopted under Chapter VII of the Charter.“3

The ICC is precisely the type of international court, one created by treaty, which was envisaged by the drafters of the Genocide Convention. However, since Sudan is not a party to the ICC Statute, the jurisdiction of the ICC in the Bashir case is not based on obligations accepted by Sudan under the treaty. Rather the jurisdiction of the ICC is based on obligations under the UN Charter as the situation in Darfur was referred to the ICC by the UN Security Council. So although the Court was not created by Security Council resolution, for the purposes of the Darfur situation the basis of its jurisdiction is like the ICTY’s in that it derives from Security Council imposed obligations. Therefore, the argument of the ICJ that the notion of “international penal tribunal” in Article VI of the Genocide Convention includes tribunals created by the United Security Council would also apply to the ICC when it is acting by virtue of a Security Council referral. Furthermore, the literal wording of Article VI of Genocide Convention covers the ICC when it acts with respect to the Bashir case in particular and the Darfur situation in general. First of all the ICC is an “international penal tribunal”. Secondly it has jurisdiction over the situation and the case under its Statute (though conferred directly by the Security Council). Thirdly, since the basis of that jurisdiction is to be found in Sudan’s membership of the United Nations and the obligations it has undertaken under the UN Charter, that jurisdiction has been “accepted” by Sudan.

The Obligation of Cooperation in the Genocide Convention

In the Bosnia Genocide Convention case, the ICJ implied an obligation on States parties to the Genocide Convention 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.

“For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory — even if the crime of which they are accused was committed outside it — and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal.”

The Court does not say on what basis it implies this obligation of cooperation4 and there is nothing in the text or the drafting history of the Genocide Convention that gives an indication of this obligation to cooperate. However, this obligation to cooperation can be said to be an elaboration of the general obligation of parties to punish acts of genocide, which is contained in Article I of the Genoicde Convention. Article VI of the Convention provides two fora where the parties agree that such punishment is to take place: national courts of the territorial State and international criminal courts. Clearly, Art VI imposes an obligation on parties to prosecute in their own courts where genocide occurs in their territory. Where a prosecution takes place in an international criminal court, the obligation of parties to punish is not exhausted. The obligation to cooperate represents the minimum application of the duty to punish in that context.

However, according to the ICJ, this obligation of cooperation only exists under the Genocide Convention if the obligation otherwise exists under some other instrument. This follows from the ICJ’s statement that:

“the question whether the Respondent must be regarded as having ‘accepted the jurisdiction’ of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law?”5

Thus, the reasoning of the ICJ with regard to this obligation to cooperate arising under the Genocide Convention is circular. Parties to the Genocide Convention are obliged to cooperate with competent international tribunals, including an obligation of arrest. The obligation to cooperate only exists if the parties have accepted the jurisdiction of the international tribunal. But they are only to be deemed to have accepted that jurisdiction where they already have an obligation to cooperate with the tribunal. So the obligation to cooperate under the Genocide Convention follows from an obligation to cooperate under another international law rule. In the case of the ICC, application of this rule would mean that parties to the ICC Statute, who already have an obligation to cooperate with the ICC have an additional obligation to cooperate under the Genocide Convention where genocide is alleged. However, States that are parties to the Genocide Convention but which are not party to the ICC Statute would have no obligation to cooperate unless the Security Council creates such an obligation. However, Security Council Resolution 1593, by which the Security Council referred the Darfur situation to the ICC does not contain obligations on non-parties to the ICC Statute to cooperate with the ICC with respect to the Court’s investigation and prosecution of cases arising from Darfur. Indeed paragraph 2 of that resolution notes that non-parties have no obligation under the Rome Statute to cooperate with the Court but goes on to urge cooperation by all States whether party or not. Therefore, an application of the ICJ’s decision would mean that with respect to non-parties to the ICC Statute little is gained by reliance on the Genocide Convention.

It has been argued that the ICJ’s decision stating that a contracting party’s obligation under the Genocide Convention, to cooperate with an international penal tribunal derives from other obligations of cooperation under international law, are unduly restrictive and contrary to the object and purpose of the Genocide Convention.6 According to this view, all that should be required is that the State concerned has accepted the jurisdiction of the international court. Once it has done so, obligations to cooperate can be then be implied under Article VI of the Convention and it is that latter Convention that provides the cooperation regime. I agree that in the case of Security Council referrals to the ICC, all UN members (including States not party to the Rome Statute must be taken as accepting the jurisdiction of the Court in the sense that they must accept that the Court has jurisdiction of over the Issue. This is because the Security Council resolution conferring jurisdiction is binding on all Member States.7 In the Namibia Advisory Opinion, the ICJ has “confirmed that the Security Council is entitled to make decisions which are legally operative (in other words, they define a legal situation) with regard to one state but which also become binding on all states in so far as they are obliged to accept that the legal situation is as defined by the Security Council.”8

However, to impose obligations of cooperation on States in circumstances where there was no prior obligation would appear to stretch the history of the drafting of the text after one has already stretched the text to impose an obligation of cooperation under the Genocide Convention. This is because it would mean that the reference to the competent international tribunal in Article VI did impose obligations on contracting parties which did not hitherto exist. This would go beyond what the drafters contemplated as there was a clear view in the drafting of the Convention that the provision referring to an international tribunal was not one which created that tribunal but was simply a place holder for a tribunal that may be established in future. In other words, the intent was not to create new obligations by that provision. However, it may be that with a human rights treaty like the Genocide Convention one ought not to be stuck to intention of the parties. Also, Article VI only refers to the fact that contracting parties have accepted the jurisdiction of the international penal tribunal. As pointed out above, all members of the UN (including States not party to the Rome Statute) should be regarded as having accepted that the Court has jurisdiction of the commission of international crimes in Darfur since they are bound by the decision of the Security Council to that effect.

Consequences of Implying an Obligation of Cooperation from the Genocide Convention

For ICC parties, the existence of an obligation to cooperate and arrest under the Genocide Convention opens up a different argument with regard to Bashir’s immunity. Under Article IV of the Convention, “Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” This statement appears to be directed primarily at removing a substantive defence based on official capacity. However, the provision must also be taken as removing any procedural immunities as the availability of any such immunities would be mean that the persons mentioned in Art. IV are not punished. Immunities are removed before the two types of courts provided for in Article VI of the Genocide Convention: the courts of the territory where the genocide occurred and a competent international penal tribunal whose jurisdiction is accepted the State in question.

Since, according to the ICJ’s logic, States parties to the ICC have an obligation to cooperate with the ICC when persons wanted for genocide are on their territory, and since Article IV provides that even heads of State and public officials are to be punished, it could be argued the Genocide obligation imposes an obligation on ICC States arrest those wanted for genocide, even if they are the head of State. This argument bypasses somewhat the application of Article 27 of the ICC Statute and the question whether Sudan is to be regarded as in the position of a party to the ICC Statute.

This author has argued elsewhere that as a result of the referral by the Security Council, Sudan is to be treated as a party to the Statute and is bound by Article 27 of the Statute removing immunities of officials of States parties.9 On that argument, parties to the ICC Statute have an obligation to arrest persons wanted by the ICC even if those persons would otherwise be entitled to international law immunities. Also the removal of immunity in the Statute which is binding on Sudan by the Security Council resolution and which defines the legal situation for all States would give non-parties the right (but not the obligation) to bypass immunities that would otherwise exist.

However, relying on the removal of immunity implicit in the Genocide Convention with respect to prosecutions in competent international penal tribunals and the implied obligation to cooperate would create a different basis for executing an arrest warrant that would otherwise be constrained by immunity. Here the obligation of ICC parties to arrest is based on the acceptance of the ICC’s jurisdiction (and cooperation obligations) by the arresting State and the imposition of ICC jurisdiction on Sudan. Furthermore, the removal of immunity is based on the acceptance of the Genocide Convention the arresting party and by Sudan.

If one were to depart somewhat from the intention of the drafters (which the duty to cooperate already does) and adopt a more teleological interpretation which requires only that the State concerned have accepted the jurisdiction of the Court but does not require a pre-existing obligation, then the Genocide Convention would impose an obligations on non-parties to cooperate. This would go beyond the right to arrest which follows from the Security Council resolution.10

The other thing to be gained by finding an obligation to cooperate within the Genocide Convention is to allow the International Court of Justice to exercise jurisdiction over a dispute about non-cooperation.11

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Application of the Convention on the Prevention and Punishment of Genocide (Bosnia Herzegovina v. Serbia & Montenegro), ICJ Reports, 2007 ↩

2. 2.

   Id. at ¶¶ 439–450. ↩

3. 3.

   Id. at ¶ 445. ↩

4. 4.

   Id. at ¶ 443. ↩

5. 5.

   Id. at ¶ 446. ↩

6. 6.

   See Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case (2010) 8 J. Int’l Crim. Just. 365, 371. ↩

7. 7.

   For a fuller discussion of this point, see Akande The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities (2009) 7 J. Int’l Crim. Just. 333–352 ↩

8. 8.

   See Akande, id. at 346–7. ↩

9. 9.

   See Akande, id. ↩

10. 10.

    See Akande, id. at 344–6. ↩

11. 11.

    Article IX of the Genocide Convention allows for reference of disputes concerning the interpretation or application of the Convention to the ICJ. ↩

12. Suggested Citation for this Comment:

    Dapo Akande, The Genocide Convention Provides an Alternative Basis on Which to Ground the Obligation to Execute Arrest Warrants Issued by the International Criminal Court, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur#Akande.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do About the Darfur Situation?, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur.

Argument

Introduction

The Rome Statute of the International Criminal Court was adopted in 1998 to establish the first permanent tribunal to combat war crimes, crimes against humanity, genocide, and crimes of aggression.1 These are the most heinous crimes known to man. The purpose of the ICC is simple and clear—to combat impunity in those states that are unwilling or unable to hold the most powerful and egregious perpetrators to account. The ICC was inaugurated in 2003 after the Rome Statute came into force the previous year. Today, the Rome Statute has been ratified by 114 states drawn from all the regions of the world. The role of the ICC is to assist states foster a culture for the respect of the rule of law. The hope is that national executive and judicial arms of the state will obey and apply the law equally, especially against powerful figures. But the ICC cannot—nor is it intended—to end impunity by itself. It is meant to complement domestic legal systems by helping them incubate accountability.

The ICC in Africa

The ICC is a novel experiment. The Court has not concluded a single case since it was established. It is currently hearing its first cases, all from four African states—Uganda, the Central African Republic (CAR), the Democratic Republic of the Congo (DRC), and Sudan. On December 15, 2010, the ICC Prosecutor, Luis Moreno-Ocampo, presented two cases against six prominent Kenyans before the ICC for crimes against humanity.2 The Prosecutor asked the ICC to issue summonses to appear against the six Kenyans for crimes committed during the 2008 post election violence. The Prosecutor has also warned that he might consider opening an investigation if crimes under his jurisdiction are committed following the disputed election in the Ivory Coast on November 28, 2010.3 There is no doubt that Moreno-Ocampo is very active on the African continent. Even so, this is arguably a modest beginning for a tribunal on which a large number of victims have staked their hopes. But it is a historic achievement as the first global attempt to tackle the phenomenon of impunity on a permanent basis. By the ICC is beset with many challenges. For one, it still has to secure a single conviction to convince skeptical victims that it can deliver justice. The next several years will be pivotal. The cases before the ICC now could make or break it.

The ICC applies the principle of universality to exercise jurisdiction over the most egregious offenders. The slow pace at which the court works has been a huge disappointment to victims who initially greeted the Court with a lot enthusiasm. Perhaps more importantly, the Court has faced obstruction and subterfuge in a number of target states. In Kenya, a number of senior officials have sent mixed signals about their willingness to cooperate with the Court. For example, the Kenya Parliament voted almost unanimously on December 22, 2010 to withdraw Kenya out of the Rome Statute.4 The good news is that Parliament is powerless to enforce the resolution because only the executive can withdraw Kenya from a treaty. The better news is that Prime Minister Raila Odinga has rejected the motion to pull Kenya out of the ICC.5 In Sudan, the ICC has faced outright hostility. But the DRC, Uganda, and the CAR have been more forthcoming. These states present different challenges for the ICC, including how it relates and interfaces with their respective internal processes, and raises hard questions about the role of external players and partners such as states, intergovernmental organizations, and other stakeholders.

Only a legitimate judicial process can be viable and effective. Which begs the question—how legitimate is the ICC in Africa? Does the Court have legitimacy with the core domestic protagonists—senior officials, suspects, police and security organs, victims, and civil society—to accomplish its goals? Is the impact of the work of the ICC effective in building, and keeping, the peace? Is the ICC an inducement for rival factions to come to the table, or is it an accelerant of conflicts? In Kenya, the ICC enjoys wide public support, but some senior officials view it with trepidation. Its work could cause further polarization because of demagogic ethnic barons. In Uganda, there was hope that the ICC would beckon the perpetrators to a political settlement, but that has not happened. In Sudan, the ICC has been rebuffed, particularly after it issued warrants of arrest for President Omar al-Bashir for war crimes, crimes against humanity, and genocide.

Thus the work of the ICC in Africa raises challenging questions. What are the political implications of its work? What impact, if any, has it had on conflict resolution, peace building, the rule of law, and the quest to close the “impunity gap?” Is the Court’s pursuit of retributive and punitive justice an obstacle to peace making and reconciliation efforts, or should it adopt a more nuanced approach?6 Can the ICC complicate deadly situations, such as Sudan where it was feared that Bashir could sabotage or complicate the January 2011 referendum on whether South Sudan should secede? Has the ICC politically lost its moral standing because of “selectivity,” the targeting of poor African states? Why has the ICC not gone after Iraq, Afghanistan, Israel-Palestine, Mexico, Colombia, and other states troubled states outside Africa? Are some Africans correct to read a racist slant in the ICC’s work? Kiraitu Murungi, Kenya’s energy minister recently charged that the ICC is a “return to colonialism.”7

There is no mystery why the ICC is involved in five African countries, and may soon target the Ivory Coast. Uganda, the CAR, the DRC, and Sudan have long and troubled histories marked by civil conflicts and the most egregious atrocities. They have weak states with thin or no civil society. In three of them—Uganda, the CAR, and DRC—governments made self-referrals to the ICC. In other words, the three states, all States Parties to the Rome Statute, voluntarily invited the ICC to conduct investigations. Sudan, which is not a party to the Rome Statute, is different because the UN Security Council voted to refer the issue of Darfur to the ICC. Kenya is a party to the Rome Statute, and has agreed to cooperate with the Court. However, Kenya did not refer itself to the ICC. The Prosecutor moved in proprio motu—of his own volition—for the ICC to authorize investigations into Kenya.

It is clear that, with the exception of Sudan, and possibly the Ivory Coast, the ICC has not imposed itself on African states. The Court has acted at the invitation and cooperation of the states in question. But this fact does not answer the critique of “selective” application of the Rome Statute to Africa. The fact that no state outside Africa is subject to an ICC investigation is a blow to the credibility of the Court which opens it to charges of the uneven and skewed application of its mandate. The Court is vulnerable to attack by critics who see it as disrespectful of the sovereignty of African states. This argument has gained some traction with sections of the public on the African continent. In the long run, accusations of bias against the Court can only hurt its legitimacy and diminish its ability to combat impunity. This would be tragic since Africa could use the Court to signal its march towards a culture of the rule of law.

The ICC is caught in a paradox in its work on Africa. The fight to close the impunity gap is easier said than done. States Parties to the Rome Statute are obligated, as a matter of law, to fully cooperate with the investigators and prosecutors of the ICC. In specific terms, States Parties must arrest the individuals wanted by the Court, locate and provide evidence needed for use by the Court, relocate and protect witnesses, and enforce the Court’s decisions, including sentences. These obligations are binding, even if the target is a sitting head of state such as al-Bashir. But they pose a conundrum. Would pressing fully for justice hinder the ends of peace and reconciliation? Sudan could offer a stark choice. The African Union thought that going after al-Bashir would complicate peace efforts in Darfur and disrupt the January 2011 referendum or its results on South Sudan. As a result, the AU has asked the UN to suspend arrest warrants against al-Bashir.8 In Kenya, fear that indictments of senior officials implicated in post election violence could exacerbate ethnic tensions has turned out to be unfounded. Is it plausible to trade “peace” for impunity? Should fear of retaliation by suspects stop prosecutions? Human rights groups believe that justice is necessary for peace.9

There is fear that elites could politicize the ICC prosecutions to settle scores with opponents and curry favor with diverse groups and stakeholders. In Kenya, for example, there is perception that some candidates may want to use the ICC to get their challengers out of the way ahead of the 2012 presidential elections. If so, the ICC would become an unwitting hammer in partisan domestic politics. Even so, this concern is not enough to stop the ICC from going after key suspects. In Uganda, President Yoweri Museveni is thought to be using the ICC prosecutions of the leaders of the Lord’s Resistance Army to endear himself to the West and justify his stranglehold on power. In power since 1986, Museveni has removed term limits and is expected to seek another term. Both the CAR and DRC have collaborated with the ICC to remove Jean-Pierre Bemba, the Congolese warlord who is a common enemy, from the political scene. Mr. Bemba is on trial by the ICC at The Hague for war crimes and crimes against humanity in the CAR. He is also an opponent of President Joseph Kabila of the DRC. Whether the ICC is soiled by these murky political entanglements—and suffers a credibility gap—remains to be seen.

The ICC in Specific African States

Uganda

The ICC is involved in Uganda because of the atrocities committed by the Lord’s Resistance Army under the direction of Joseph Kony, its main leader. The LRA continues to commit the most abominable atrocities against civilians in northern Uganda and eastern DRC.10 Unable to contain or stop the LRA, Uganda self-referred the situation to the ICC which returned indictments and issued arrest warrants for war crimes and crimes against humanity against five of the top LRA leaders—Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya.11 Proceedings against Lukwiya were terminated after his death, but the case against the other four, who remain at large, is being heard by the Court.12 Kony and the LRA have refused to negotiate a peace deal with the government of President Yoweri Museveni unless the indictments are quashed and the case dropped. The ICC and human rights groups, such as Amnesty International, have opposed any offers of amnesty to Kony and the LRA even if they were to sign a peace accord with the government. Amnesty for such atrocities would negate the meaning of the rule and the quest for a just society.

The tension between justice and peace has been brought into sharp relief by the LRA. Opinion is divided on what should be done. According to Richard Dicker of Human Rights Watch, Kony agreed to “take part in peace talks” because he was “prodded in part by arrest warrants issued by the ICC for him and his senior commanders.”13 However, it appears that Kony feigned good faith but never intended to sign the peace deal. He used the talks as bait to re-arm. Still, the larger question remains unanswered—would it have served the dual purposes of justice and peace if Kony had signed the peace accord and silenced the guns? Article 16 and 53 of the Rome Statute seem to open the door to amnesty where either a “prosecution would not serve the interest of justice”14 or where the UN Security Council can request a deferral of an investigation or prosecution for a renewable 12 months pursuant to a resolution adopted under Chapter VII of the UN Charter.15 This suggests that the Court can suspend action on a case on the grounds of international peace and security. There is a risk that both clauses can be used as a political subterfuge against the judicial process. That is why in 2007 the Prosecutor of the ICC took a strict and narrow interpretation of Article 53 of the Rome Statute.16 There is support for either position in Uganda, and it is unclear whether the government is fully committed to any particular option. Equally unclear is whether the proceedings against Kony and his aides—in absentia, or even in person—would have any appreciable effect on impunity and the atrocities. A prosecution in absentia is likely to be no more than a public relations exercise. A trial in person would arguably be more effective, but there is no guarantee that Kony would not simply be replaced by others who would continue the senseless conflict.

Sudan

Sudan, until the January 9, 2010 referendum Africa’s largest country by land mass, has been a troubled state since its creation by the British. A deep divide between the Arabized north and the black African south, religious and racial conflicts, a fight over scarce resources, and dictatorship by a violent but weak state have combined to create one of the most horrible humanitarian crises in the world today. The long running conflict between the north and the south has abated for now, but the government of President Omar al-Bashir has been credibly accused of war crimes, crimes against humanity, and genocide in Darfur, the western region that is home to black African Muslims.17 The UN estimates that 300,000 Darfurians have been killed and about 3 million displaced in the last five years alone.18 Government security forces working with the Janjaweed, an Arab militia, are responsible for the atrocities.19 The Darfur conflict pits the fundamentalist Islamic regime against fellow Muslims. The conflict seems to be highly racialized—Darfurians are black—and driven by a struggle over resources.20

In 2005, the UN Security Council voted to refer the issue of Darfur to the ICC which commenced pre-trial investigations. In 2009, the ICC issued a warrant of arrest for Bashir for war crimes and crimes against humanity.21 On July 12, 2010, the ICC issued a second warrant of arrest for Bashir on three counts of genocide in Darfur.22 In addition to Bashir, five other Sudanese officials have been charged with war crimes and crimes against humanity. One of the accused, Bahr Abu Garda, has appeared voluntarily before the ICC. The others, including Bashir, are still at large. Their cases are currently being heard by the ICC. Since the warrants of arrest, Bashir’s movements have been restricted. He has been denied invitations to several international meetings and several states, including South Africa, have vowed to arrest and turn him over to the ICC should he step foot on their soil.23 But Bashir has retaliated by expelling humanitarian agencies and escalating atrocities in Darfur.24 Regrettably, Bashir has received strong defense and vocal public support from the Arab League.25 Shockingly, in 2009 the African Union passed a resolution—despite Botswana’s strong objections—to reject the ICC’s arrest warrants against Bashir.26 Nigeria, the continent’s most populous states, openly supported the AU resolution.27 Bashir was easily re-elected in April 2010 in a vote boycotted by the opposition and marred by widespread fraud and intimidation.28 The ICC has vowed to pursue him until he is tried.

Central African Republic

CAR is one of poorest countries in the world with a history of instability and dictatorship. In 2003, President Ange-Felix Pattase was overthrown by French-backed General Francois Bozize who won a democratic election in 2005. In 2002, Patasse invited Jon Pierre Bemba, the Congolese warlord and head of the Movement for the Liberation of Congo to help put down a coup attempt. Bemba, a former DRC vice president, was indicted and arrested by Belgium police while there and turned over to the ICC on charges of war crimes and crimes against humanity in CAR. Bozize had self-referred Bemba’s case to the ICC. Bemba is now on trial at The Hague.29 Although the CAR state and judiciary have been cooperative with the ICC, the case has political overtones. Some analysts suspect that CAR and DRC are in cahoots to remove Bemba from the scene. It is curious that CAR has not referred Patasse’s case to the ICC. Bemba’s supporters in the DRC and Belgium, where he has a large following, have denounced the ICC in demonstrations.

Kenya

Kenya is the most disappointing of the four countries under review because it was for long touted as a beacon of hope in a sea of chaos. But a long history of an overbearing state, deep-seated ethnic animosities, corruption, and the failure of democratic reform exploded in genocidal violence in 2008 after contested polls.30 Over 1000 people were killed and many more injured while thousands were displaced.31 Security forces and ethnic militias supported by senior figures were responsible for most of the carnage. The violence ended after the international community led by former UN Secretary General Kofi Annan brokered a power sharing arrangement in which the two protagonists, Mwai Kibaki and Raila Odinga, became President and Prime Minister, respectively.32

Attempts to establish a local tribunal to try suspects of the violence were blocked by an elite that thrives on impunity. Since Kenya would not refer the situation to the ICC, the Prosecutor proceeded in propio motu and the ICC authorized him to open an investigation into Kenya. On December 15, 2010, the Prosecutor charged six prominent Kenyans—Deputy Prime Minister Uhuru Kenyatta, Head of the Civil Service Francis Muthaura, former Police Commissioner Hussein Ali, Industrialization Minister Henry Kosgey, Eldoret North legislator William Ruto, and Radio journalist Joshua arap Sang—with crimes against humanity.33 The first three suspects are from the Party of National Unity (PNU), which President Kibaki heads, and the latter three are from the Orange Democratic Movement (ODM), the party headed by Prime Minister Odinga. Perhaps this is an indication that both political sides were equally responsible for the mayhem.

Public opinion polls show overwhelming support for the trial of the six by the ICC. In one poll, 85% of the public supported the ICC.34 Ordinary Kenyans have generally applauded the ICC’s actions, although powerful ethnic barons have attacked it bitterly.35 The public, which wants The Hague trials to go ahead, has been extremely upset about the Parliament’s motion to withdraw Kenya from the Rome Statute.36 European Union envoys in Kenya have also expressed great dismay and opposition to the Parliament’s motion against the ICC.37 Kenya’s judiciary is notoriously corrupt and has never successfully prosecuted a single high ranking official for human rights violations or economic crimes. Most Kenyans view the ICC as a chance to deal a blow to the culture of impunity. Many Kenyans hope that the removal of the six suspects, several of whom have presidential ambitions, from the political landscape will lead to cleaner election in 2012.

The Role of IGOs

The ICC cannot be the labor of any one single state, or the project of one intergovernmental organization (IGO). For the Court to be successful, and to meet its objectives, it must of necessity receive the support of a wide array of actors and key stakeholders. The ICC will fail in its work in Africa if it does not receive the political, moral, diplomatic, material and logistical support from the leading IGOs—the United Nations, the European Union, and the African Union. The UN has enormous significance in Africa which can be used as a hook to support the ICC. In 2004, the UN signed a cooperation agreement with the ICC. Neither Ban Ki-moon, the Secretary General of the UN, nor individual UN bodies, have used their considerable influence to support the ICC in Africa. The UN Security Council assumed a passive role once it authorized investigations on Sudan. In August 2010, the UN failed to sanction Kenya for inviting, and failing to arrest, al-Bashir when he was in Kenya for the promulgation of its new constitution. The UN Security Council should have taken a strong position against Kenya for the blatant violation of the Rome Statute.

Of all IGOs, the EU has taken the most encouraging position on the work of the ICC. However, the EU has done little to actually support the ICC on the ground. Empty rhetoric and public statements are not enough. It is true that the EU and the ICC signed a cooperation-assistance agreement in 2006, but the letter of that agreement has not been backed by concrete action. The EU has significant economic, diplomatic, political, security, and other interests in Africa. The EU’s “partnerships” with African countries are deep and abiding. Yet they have not been exploited for the ICC’s benefit. Moreover, the EU could do more to capacitate civil society organizations that are working with the ICC. Significantly, the EU could use other levers against African states to induce compliance with the Rome Statute. These could include visa bans to Europe for African officials who obstruct the ICC, or the seizure of their funds and other assets located in Europe.

Of all the INGOs, the AU is the most baffling. The successor to the Organization of African Unity, which Africans regarded as a “club of dictators,” the AU vowed to turn a new chapter on the continent. It has committed itself—on paper—to a democratic, rule-of-law culture based on peer review and pressure. This is both noble and high sounding. But the work of the AU has not matched its high rhetoric. The AU has been an unabashed apologist for al-Bashir. In July 2010, at the AU summit in Kampala, Uganda, the organization attacked Moreno-Ocampo for securing an arrest warrant against al-Bashir for genocide. The AU then made its reprehensible request to the UN to suspend the arrest warrants against al-Bashir. The ostensible reason for the odd request was that the arrest warrants would interfere with peace efforts in Sudan. In reality, the AU, which is steeped in a culture of impunity, was simply protecting one of its own. To their credit, South Africa, Uganda and Botswana opposed the AU’s position. But a larger cabal, led by Libya and supported by Nigeria, won out.

The Role of Individual Western States

It goes without saying that States Parties to the Rome Statute must practice an unwavering commitment—rhetorically and practically—to the principle of universal jurisdiction for war crimes, crimes against humanity, genocide, and the crime of aggression. Even though the United States is not party to the Rome Statute, it was deeply involved in the treaty’s negotiations. Many concessions were made to accommodate American objections. The US even signed the treaty before “unsigning” it under former President George W. Bush. President Barack Obama has shown tentative support for the ICC, although he has not pushed for its ratification. After the ICC issued its second arrest warrant for al-Bashir in July 2010, Obama said that he was “fully supportive” of the Court.38 But General J. Scott Gration, his special envoy to Sudan, said that the Court’s decision “will make my mission more difficult and challenging, especially if we realize that resolving the crisis in Darfur and [the] south, issues of oil, and combating terrorism 100%, we need Bashir.”39

General Gration gave the wrong message to Sudan and the world by, in effect, declaring that the United States needs Bashir, a fugitive from justice, to pursue objectives such as the “war on terror.” Obama should repudiate the general and immediately replace him with someone who believes that genocide cannot be traded for geopolitical interests. The US would do well to follow the lead of some Western countries, such as Norway, that have been supportive of the work of the ICC in Africa. With huge leverage internationally, the US can put pressure on Sudan by freezing the assets of senior leaders, including Bashir, and imposing sanctions on the state. The US and European countries should work to put pressure on China, the most powerful apologist and supporter of the Bashir regime.

Conclusion

Each Africa country targeted by the ICC has its own unique internal political questions that drive its stance towards the court. While deference should be paid to these internal differences, they alone cannot trump the interests of justice or peace, and the larger international consensus on how to address the question of impunity. Country specific elites—especially in states which have a large democratic deficit, should not be left alone by the international community to craft responses to barbaric atrocities. Too often, the pressure to appease warlords and “protect” fellow elites has left victims without recourse. That is why the ICC was established—to depoliticize the struggle against impunity in states where governments cannot—or lack the political will—to hold accountable those responsible for egregious atrocities.

The ICC faces serious challenges in Africa. But there is no doubt that it is a much needed institution to help break the cycle of impunity in a number of states. That is why it must receive the support of the international community. But what is required is a holistic understanding of the root causes of the culture of impunity and the seemingly intractable ethnic, social, and political problems. Such analysis would put stakeholders in a better position to decide the most effective and practical areas of “intervention” and partnership with local actors such as civil society. The objective is to capacitate local actors and create an environment in which the ICC’s work can help reduce impunity and foster a culture of accountability and the rule of law.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

2. 2.

   Kenya’s Post Election Violence: ICC Prosecutor Presents Cases Against Six Individuals for Crimes Against Humanity, ICC, December 12, 2010, available online, last visited on December 30, 2010. ↩

3. 3.

   Statement by ICC Prosecutor Luis Moreno-Ocampo on the Situation in Cote d’Ivore, ICC, December 21, 2010, available online, last visited on December 30, 2010. ↩

4. 4.

   Parliament Pulls Kenya from ICC Treaty, Daily Nation, December 22, 2010, available online, last visited on December 30, 2010. ↩

5. 5.

   PM Dismisses Lawmakers’ Bid to Leave ICC, AllAfrica.com, December 23, 2010, available online, last visited on December 30, 2010. ↩

6. 6.

   Issaka K. Souare, The International Criminal Court and African Countries: the Case of Uganda, Review of African Political Economy, vol. 36, no. 121, 2009, pp. 369–388. ↩

7. 7.

   Parliament Pulls Kenya from ICC Treaty, Daily Nation, December 22, 2010. ↩

8. 8.

   Fred Ojambo, African Union Asks United Nations to Suspend Warrants for al-Bashir, Bloomberg News, July 27, 2010 available online, last visited on October 6, 2010. ↩

9. 9.

   Richard Dicker, When Peace Talks undermine Justice, available online, accessed October 6, 2010. ↩

10. 10.

    Human Rights Watch, Trail of Death, New York, March 28, 2010. ↩

11. 11.

    See Situation in Uganda, available online, accessed June 25, 2010.. ↩

12. 12.

    Situations and Cases, available online, accessed June 25, 2010. ↩

13. 13.

    Richard Dicker, When Peace Talks undermine Justice, available online, accessed June 25, 2010. ↩

14. 14.

    Art. 53 (1)(c), Rome Statute. ↩

15. 15.

    Art. 16, Rome Statute. ↩

16. 16.

    Office of the Prosecutor [ICC], The Interests of Justice, available online, accessed June 25, 2010. ↩

17. 17.

    Gerald Prunier, Darfur: A 21st Century Genocide, Ithaca, Cornell University Press, 2008. ↩

18. 18.

    Marlise Simons, Sudan’s Leader May be accused of Genocide, New York Times, February 3, 2010. ↩

19. 19.

    Ann McFerran, The Curse of the Janjaweed, Sunday Times [London], September 23, 2007. ↩

20. 20.

    Makau Mutua, Racism at the Root of Darfur’s Crisis, Christian Science Monitor, July 14, 2004. ↩

21. 21.

    Marlise Simons and Neil MacFarquhar, Court Issues Arrest Warrant for Sudan’s Leader, New York Times, March 4, 2009. ↩

22. 22.

    Marlise Simons, International Court Genocide to Charges Against Sudan Leader, New York Times, July 12, 2010. ↩

23. 23.

    SA to Arrest Bashir if he Attends World Cup, Daily Nation, May 30, 2010. ↩

24. 24.

    Sudan: 2 Foreign Workers Expelled, New York Times, July 15, 2010; Nicholas Kristof, Has Obama Forgotten Darfur?, New York Times, June 11, 2010. ↩

25. 25.

    Arab Leaders Back ‘Wanted’ Bashir, BBC, available online, last visited on July 20, 2010. ↩

26. 26.

    Botswana Rejects AU ICC Resolution, BBC, available online, last visited on July 20, 2010. ↩

27. 27.

    Sudan: Nigeria Supports AU’s Position on Al-Bashir’s Arrest Warrant, AllAfrica.com, available online, last visited on July 12, 2010. ↩

28. 28.

    Marlise Simons, International Court Genocide to Charges Against Sudan Leader, New York Times, July 12, 2010. ↩

29. 29.

    Marlise Simons, Congolese Politician Goes before the ICC, New York Times, July 5, 2008. ↩

30. 30.

    Makau Mutua, Kenya’s Quest for Democracy: Taming Leviathan, Boulder, Lynne Rienner Publishers, 2008; Michela Wrong, It’s Our Turn to Eat: The Story of a Kenyan Whistle-Blower, London/New York, HarperCollins, 2010. ↩

31. 31.

    Raila to Rally Support for Alston in Geneva, Daily Nation, June 15, 2009. ↩

32. 32.

    Kenya Rivals Agree to Share Power, BBC, available online, accessed June 26, 2010. ↩

33. 33.

    Background Information on the Chamber’s Process of Ruling on Summons to Appear or Warrants of Arrest, ICC, December 16, 2010, available online, last visited on December 30, 2010. The two cases presented by the ICC Prosecutor were: Prosecutor’s Application Pursuant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang , available online, and Prosecutor’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali , available online. ↩

34. 34.

    Kenyans Want Suspects of Poll Chaos Tried at The Hague, Daily Nation, December 14, 2010, available online, last visited on December 30, 2010. ↩

35. 35.

    Former MP Pleads Innocence Against War Crimes, Daily Nation, December 4, 2009; Mau Evictions and Trial for Chaos Suspects Tests for Raila, Daily Nation, July 17, 2009. ↩

36. 36.

    Kenyans Want Ocampo Six Tried at The Hague, Daily Nation, December 24, 2010, available online, last visited on December 30, 2010. ↩

37. 37.

    13 Envoys Oppose Plan to Ditch ICC, Daily Nation, December 24, 2010, available online, last visited on December 30, 2010. ↩

38. 38.

    US Envoy to Sudan says Bashir indictment will make his job Harder, Washington Post, July 22, 2010, available online, last visited on October 6, 2010. ↩

39. 39.

    Id. ↩

40. Suggested Citation for this Comment:

    Makau W. Mutua, The International Criminal Court is an Essential Instrument to Combat Impunity. But its Seemingly Selective Targeting of Only African States has Raised Credibility Questions. Even So, the ICC Must Be Supported to Help Foster a Culture of the Rule of Law and Reduce the “Impunity Gap”, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur#Mutua.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do About the Darfur Situation?, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur.

Argument

Obligations of Contracting Parties to the Genocide Convention to implement arrest warrants issued by the International Criminal Court.

A discussion of the obligations of States Parties to the Genocide Convention to implement arrest warrants issued by the International Criminal Court can usefully begin by recalling the low rate of ratification of the Convention by African States. Of the fifty-four members of the African Union, only thirty-one are parties to the Genocide Convention. For example, some of the countries that have failed to respect their obligation to enforce arrest warrants of the International Criminal Court, such as Chad, Kenya and the Central African Republic, have not ratified or acceded to the Genocide Convention.

The low ratification rate in Africa is a puzzling phenomenon. Of the fifty-one United Nations Member States that have not ratified or acceded to the Convention, approximately half are in Africa. This is all the more striking given that the most important violations of the Genocide Convention in recent decades have taken place in Africa. The failure of so many African states to ratify the Convention probably does not indicate any particular disagreement with the substance of the instrument. Rather, it may simply result from the fact that the Convention was adopted prior to decolonization, and newly independent African States willingly ratified human rights treaties that were adopted subsequently, such as the International Covenants, but did not necessarily review all of the already existing instruments and ratify them. Article XII of the Convention allows States parties to extend the application of the Convention to sovereign territories for which they are responsible. The only relevant application of this provision to Africa is the 1952 declaration by Belgium declaring the Convention applicable to the Belgian Congo and to the Trust Territory of Rwanda-Urundi. Arguably, the Convention remained in force for these countries following decolonisation. In any event, the Democratic Republic of the Congo made a declaration of succession on May 31, 1962; Rwanda and Burundi acceded to the Convention on April 15, 1975 and January 6, 1997 respectively.

Two provisions of the Convention are especially relevant in addressing the obligations imposed upon Contracting States to the Genocide Convention as regards arrest warrants issued by the International Criminal Court.

Article 1

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article 6

Persons charged with genocide or any of the other acts enumerated in article 3 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 International Court of Justice addressed the issue of the obligations of States Parties to the Genocide Convention to cooperate with international criminal tribunals in the Bosnia v. Serbia case. There, the Court held that Serbia had violated its obligations under the Genocide Convention by having failed to transfer Ratko Mladić to the International Criminal Tribunal for the former Yugoslavia, where he was charged with genocide, thereby failing fully to co-operate with the Tribunal. The Court treated the issue under the heading ‘the obligation to punish genocide’. The Court recalled that article VI obliges the Contracting Parties to cooperate with an ‘international penal tribunal’ to the extent that they ‘shall have accepted its jurisdiction’ According to the Court, this ‘implies that they will arrest persons accused of genocide who are in their territory—even if the crime of which they are accused was committed outside it—and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal’.1 The Court observed that the drafters of the Convention had contemplated an international criminal tribunal established by treaty rather than by resolution of the Security Council, but said it would be contrary to the object of the Convention to exclude a tribunal created in such a manner.2 This issue does not even arise with respect to the International Criminal Court because it is indeed established by treaty.

The Court then turned to the question of whether Serbia had ‘accepted the jurisdiction of the Court’, concluding this to be the case. Serbia had not, of course, actually ratified the Statue of the International Criminal Tribunal. This is not legally possible given that the founding instrument of the Tribunal is a Security Council resolution. Nevertheless, Serbia had assumed an obligation to cooperate when it accepted the Dayton Agreement, which explicitly requires cooperation with the International Tribunal.3 The Court said that ‘the admission of the [Federal Republic of Yugoslavia] to the United Nations in 2000 provided a further basis for its obligation to co-operate’.4

It is tempting to draw upon this as support for an obligation imposed upon Contracting Parties to the Genocide Convention who are not States parties to the Rome Statute to cooperate with the International Criminal Court in enforcing the arrest warrants, given that the jurisdiction of the Court over The Sudan was established by Security Council resolution rather than by consent. The Sudan is not a State Party to the Rome Statute. Therefore, the situation is not identical to what was considered by the International Court of Justice in the Bosnia case. In particular, there is no comparable act of commitment to the institution analogous to the acceptance of the Dayton Agreement by Serbia. Nevertheless, there is the suggestion that the obligation flows from the Charter of the United Nations. While this is not further explained, it may well be that the Court considered that Serbia had ‘accepted’ the International Criminal Tribunal for the former Yugoslavia by virtue of its membership in the United Nations.

In the Darfur case, the extent of Security Council involvement is the referral of the situation in accordance with article 13(b). Basically, there are two approaches to assessing the scope of the referral. There is a large view, by which the referral has some special additional implications, such as the removal of Head of State immunity that would normally exist under customary international law. The more narrow approach derives support from the drafting history of the Rome Statute, which indicates an intent to restrict the authority of the Security Council, and certainly does not point to additional implications of such referral. Furthermore, operative paragraph 2 of the Security Council resolution referring the situation in Darfur, Sudan to the International Criminal Court ‘recogniz[es] that States not party to the Rome Statute have no obligation under the Statute’.5 These words seem inconsistent with the idea that there is an implied duty to cooperate with the Court flowing either from the Genocide Convention, which has, after all, been ratified by the permanent members of the Security Council, or from customary international law.

When all of these elements are taken into account, the argument that Contracting Parties to the Genocide Convention that have not ratified the Rome Statute are nevertheless under some obligation to cooperate with the International Criminal Court seems difficult to sustain. The only States that are not parties to the Rome Statute but that are Contracting States to the Genocide Convention and that are required to cooperate with the Court are ‘the Government of Sudan and all other parties to the conflict in Darfur’, but this obligation arises from operative paragraph 2 of Security Council Resolution 1593 (2005) rather than from the Genocide Convention itself.

With regard to Contracting Parties to the Genocide Convention that are also States Parties to the Rome Statute, the International Criminal Court is indeed the tribunal contemplated by Article VI of the Convention. As a result, such States are obliged to cooperate with the Court by virtue not only of the Rome Statute itself but also article I of the Genocide Convention, in accordance with the pronouncement of the International Court of Justice. The major consequence of this is to confer jurisdiction upon the International Court of Justice, pursuant to Article XI of the Convention, enabling it to consider applications alleging that a Contracting State has indeed breached article I by failing to cooperate with the International Criminal Court. The only exception here would be if the State had formulated a reservation to Article IX. Since the withdrawal of Rwanda’s reservation to article IX, there do not appear to be any operative reservations by African states, so this is not in practice an issue of any substance.

Even if such obligations do in fact exist under the Genocide Convention, it cannot be said that a State has violated the provisions of the treaty because it fails to enforce an arrest warrant that charges genocide. There can only be a violation of the Genocide Convention if genocide is actually established. The fact that the Prosecutor of the International Criminal Court has insisted upon charging the President of Sudan with genocide, and the fact that three judges of a Pre-Trial Chamber have agreed that there are ‘reasonable grounds to believe’ that genocide was committed,6 does not mean that the charge is proven in a satisfactory manner. It is worth recalling that the Commission of Inquiry established pursuant to a request from the Security Council did not conclude, in its January 2005 report, that genocide had been committed.7 Nor did the Prosecutor of the International Criminal Court, in his first applications for arrest warrants in the Situation in Darfur, Sudan, allege that genocide had been committed in Darfur.8 The approach of the Prosecutor himself is therefore characterized by ambivalence. Even the Pre-Trial Chamber, in its initial decision on the application for an arrest warrant against President El Bashir, of March 4, 2009, communicated its own serious doubts about the validity of a genocide charge.9 The charge that genocide was committed in Darfur and that Sudan’s President is personally responsible remains tenuous. It cannot be said that a State has violated its obligations to punish the crime of genocide if in fact genocide has not been committed. Only if and when this is established can there be a breach of the Convention.

Obligations of African Union Member States to Implement ICC arrest warrants generally

The Assembly of Heads of State and Government of the Union of the African Union has decided that ‘AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan’.10 This Decision, adopted in Kampala in July 2010, affirms a Decision adopted the previous year but couched in slightly different terms: ‘Decides that in view of the fact that the request by the African Union has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.’11

The Assembly is empowered to determine the common policies of the Union, and to receive, consider and take decisions on reports and recommendations from the other organs of the Union.12 Although there is no explicit statement to this effect, decisions of the Assembly appear to be intended to have a binding effect, because article 23 of the Constitutive Act of the African Union provides that sanctions may be imposed upon ‘any Member State that fails to comply with the decisions and policies of the Union’. When Pre-Trial Chamber I informed the Security Council that ‘the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest’,13 and did likewise using slightly different terms with respect to Chad,14 the Commission of the African Union issued a press release stating that ‘[t]he decisions adopted by the AU policy organs are binding on Chad and Kenya…’15

Therefore, with respect to Member States of the African Union that are also States Parties to the Rome Statute, there would appear to be a conflict between the binding obligations imposed by the Rome Statute and the binding obligations imposed by the Decisions of the African Union. Conflicts in international norms can be resolved in a number of ways. For example, one norm may be hierarchically superior to the other, in which case the former will prevail. This is the case, for example, with norms that are in conflict with the Charter of the United Nations. However, the arrest warrant debate does not involve the Charter of the United Nations. It is also the case if one of the norms can be described as jus cogens. Although the Rome Statute of the International Criminal Court deals with crimes that have often been characterized in this manner, it is highly doubtful that the essentially procedural obligation to enforce an arrest warrant can be so described.

Otherwise, apparent conflicts in norms may be resolved by techniques of interpretation that, in effect, deliver an analysis by which there is in fact no actual conflict. This is the approach taken by Amnesty International in a recent report.16 Amnesty International’s reasoning seems quite contrived, however, and is very difficult to reconcile with the very clear wording of the African Union Decisions. According to Amnesty International, it was the intent of the African Union that its Decisions be consistent with the Rome Statute. Apparently, this is explained by its reference to article 98 of the Statute in the first of the two Decisions. But, says Amnesty International, the African Union’s ‘provisional interpretation’ of article 98 is not correct. It seems far-fetched to conclude that the African Union intended that its Decision ordering States not to enforce the arrest warrants be consistent with the Rome Statute, and at the same time to declare the interpretation of a provision of the Rome Statute upon which the Decision of the African Union is based to be erroneous.

The heart of Amnesty International’s critique of the African Union decisions, and indeed its entire analysis of the issue, is predicated on its rejection17 of the decision of the 2002 International Court of Justice in this area.18 However, in preparing an academic legal opinion addressing the obligations of African Union Member States, a distinction must be made between what Amnesty International (and others) would like the law to become, and what it actually is.

There has been much debate in the academic literature about the role of immunities in the case of President Al Bashir.19 Article 98(1) declares:

Article 98. Cooperation with respect to waiver of immunity and consent to surrender

1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

Under customary law, it seems unchallengeable that the Head of State of Sudan benefits from immunity with regard to national justice systems except those of his own State. Not only does article 98(1) acknowledge the right of a State to invoke such immunities, it is even worded in such a way as to imply that this is mandatory. The report of Amnesty International suggests that there are no such immunities under international law. But if this were the case, then article 98(1) would be futile. In the Congo v. Belgium case, the International Court of Justice recognized that immunities of Heads of State and senior officials, such as ministers of foreign affairs, remain effective under international law even with respect to prosecutions for genocide and crimes against humanity.

Article 27 of the Rome Statute is also relevant:

Article 27. Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Principles of interpretation require that articles 27 and 98 be read together in such a way as to make them both effective. Article 27(2) suggests there are no immunities before the Court, yet article 98(1) requires the Court to observe them. The solution is really quite simple: in ratifying the Rome Statute, States Parties agree that the immunities to which they are entitled in accordance with customary international do not apply before the International Criminal Court. This is the effect of article 27(2). Non-party States have not abandoned such immunity because they have not accepted the Rome Statute. If the Prosecutor contemplates prosecuting the Head of State of a non-party State, article 98(2) instructs the Court not to proceed because this would require the requested State to act in a manner inconsistent with its obligations under international law. This is an interpretation that disappoints those who would prefer that there be no immunity, of course. But immunity is a fact of international law, and the Rome Statute confirms this.

Pre-Trial Chamber I, in Bashir, held that the position of the accused person as head of State of a non-party State ‘has no effect on the Court’s jurisdiction over the present case’.20 It said this conclusion was based upon four considerations. The first is a rather gratuitous and unhelpful reference in the preamble to the core goals of the Statute, which are ‘to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, which “must not go unpunished”’.21 The second consists of an equally gratuitous and unhelpful recital of the terms of article 27.22 The third is more compelling: a reference to article 21 of the Statute, and the observation that unless there is a lacuna in the Statute the Court is not to apply other sources of law.23 The message is that even if general public international law provides for Head of State immunity, it is not formally contemplated by article 27 and therefore cannot be invoked in proceedings before the Court. But the Pre-Trial Chamber did not reference article 98(1). Finally, the Pre-Trial Chamber said that by referring the Darfur situation to the Court in accordance with article 13(b) of the Statute, the Security Council ‘accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole’.24 The reasoning of the Pre-Trial Chamber rests upon an interpretation of article 27(2) by which it applies to Heads of State of non-party States because the provision does not say the contrary. But a construction by which article 27(2) only applies to States Parties is certainly equally plausible, if not more so. To start with, the Chamber might have considered article 34 of the Vienna Convention on the Law of Treaties: ‘A treaty does not create either obligations or rights for a third State without its consent.’25 Moreover, as we have already mentioned, if article 27(2) applies to Heads of State of non-party States, then what is the purpose of article 98(1)? Surely it is also reasonable to presume that the Security Council took all of these elements into account and did not consider that the referral of the Situation in Darfur, Sudan to the Court encroached upon existing immunities of Heads of State of non-party States. The consequence of the Pre-Trial Chamber’s reasoning is that the Security Council also intended to strip the presidents of the United States, Russia and China of their immunity before the International Criminal Court. I really doubt that this is what it intended, and suspect that a quick verification with senior legal officers of the concerned governments would confirm this.

Pre-Trial Chamber I might also have considered the Relationship Agreement between the International Criminal Court and the United Nations, which is instructive for the interpretation of article 27(2) of the Rome Statute. During the negotiations of the Relationship Agreement, in 2001, the Government of Belgium, which for many years adopted a rather extreme position on immunities, reflected in the dissenting opinion of ad hoc judge Van den Wyngaert in the Arrest Warrant case,26 proposed the following provision: ‘Paragraph 1 of this article shall be without prejudice to the relevant norms of international law, particularly article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide and article 27 of the Statute, in respect of the crimes that come under the jurisdiction of the Court.’ In other words, Belgium’s position was that United Nations officials did not benefit from immunity with respect to genocide, crimes against humanity and war crimes. When the text of the Relationship Agreement was being prepared, Belgium was embroiled in its litigation with the Democratic Republic of the Congo before the International Court of Justice, and obviously understood that recognition of immunity for United Nations officials in that text would seem incompatible with its claim that there was no immunity at all for the core crimes of international law. But Belgium’s provision was rejected by negotiators for the United Nations, whose objections were sustained by the representatives of the Court. The final version of the Agreement confirms the immunities to which officials of the United Nations are entitled. According to article 19 of the Relationship Agreement, the United Nations agrees to waive these immunities. But if article 27(2) removed such immunity, there would be no need for any such provision, and this was precisely the point that Belgium had unsuccessfully tried to confirm.

For these reasons, and contrary to the arguments submitted by Amnesty International, the obligations imposed by the African Union Decisions concerning non-enforcement of arrest warrants of the International Criminal Court and those imposed by the Rome Statute upon States Parties to the Rome Statute cannot be reconciled. Nor is there any apparent rule or formula establishing a hierarchy by which one prevails over the other. This conflict of legal norms requires a political solution.

When African States questioned the wisdom of issuance of the arrest warrant against an African head of State involved in a delicate peace process, they were met with rather abrupt references to article 16 of the Rome Statute. But article 16, which authorises the Security Council to suspend prosecutions, was inserted in the Statute as a compromise in order to win support from some permanent members of the Council as the negotiations progressed. Most States participating in the Rome Conference would have preferred to see article 16 removed entirely. The suggestion that article 16 provides a unique mechanism to block prosecution where there may be dramatic and unpredictable consequences for ongoing conflicts should not be sustained. Remonstrating with African States that are parties to the Rome Statute about their obligations to enforce arrest warrants is unlikely to provide a productive result and a way out of the impasse. It only contributes to the festering malaise in Africa’s relationship with the International Criminal Court. Rather, due account must be taken of the concerns reflected in the African Union decisions.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]), Feb. 26, 2007, ¶ 443. ↩

2. 2.

   Id. at ¶ 445. ↩

3. 3.

   Id. at ¶ 447. ↩

4. 4.

   Id. at ¶ 447. ↩

5. 5.

   UN Doc S/RES/1593 (2005), ¶ 2. ↩

6. 6.

   Prosecutor v. Al Bashir, ICC-02/05-01/09, Second Decision on the Prosecution’s Application for a Warrant of Arrest (Jul. 12, 2010). ↩

7. 7.

   Report of the International Commission of Inquiry on Darfur to the Secretary-General, Pursuant to Security Council resolution 1564 (2004) of 18 September 2004, UN Doc. S/2005/60, annex. ↩

8. 8.

   Prosecutor v. Harun, ICC-02/05-01/07, Warrant of Arrest for Ahmad Harun (Apr. 17, 2007); Prosecutor v. Kushayb, ICC-02/05-01/07, Warrant of Arrest for Ali Kushayb (Apr. 27, 2007), ↩

9. 9.

   Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision on the Prosecution’s Application for a Warrant of Arrest (Mar. 4, 2009). ↩

10. 10.

    Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/DEC.270(XIV) on the Second Ministerial meeting on the Rome Statute of the International Criminal Court, ¶ 5. ↩

11. 11.

    Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc Assembly/AU/13(XIII), ¶ 10. ↩

12. 12.

    Constitutive Act of the African Union, art. 9(a) and (b). ↩

13. 13.

    Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of the Republic of Kenya (Aug. 27, 2010). ↩

14. 14.

    Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territory of Chad (Aug. 27, 2010). ↩

15. 15.

    African Union Commission, Press release No. 119/2010 on the Decision of the Pre-Trial Chamber of the ICC informing the UN Security Council and the Assembly of the States Parties to the Rome Statute about the presence of President Omar Hassan al-Bashir of the Sudan in the territories of the Republic of Chad and the Republic of Kenya, Aug. 29, 2010. ↩

16. 16.

    Amnesty International, Bringing Power to Justice, Absence of Immunity for Heads of State Before the International Criminal Court, December 2010, pp. 31–37. ↩

17. 17.

    Id. at 25: Amnesty International disagrees with these narrow findings. ↩

18. 18.

    Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, [2002] ICJ Reports 3, ¶ 58. ↩

19. 19.

    See, e.g., Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits (2008) 6 J. Int’l Crim. Just. 618; Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest? (2009) 7 J. Int’l Crim. Just. 315. ↩

20. 20.

    Prosecutor v. Bashir, ICC-02/05-01/09, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), ¶ 41. ↩

21. 21.

    Id. at ¶ 42. ↩

22. 22.

    Id. at ¶ 43. ↩

23. 23.

    Id. at ¶ 44. ↩

24. 24.

    Id. at ¶ 45. ↩

25. 25.

    Vienna Convention on the Law of Treaties (1980) 1155 UNTS 331, art. 34. ↩

26. 26.

    Proposal submitted by Belgium concerning document PCNICC/2000/WGICC-UN/L.1, PCNICC/2000/WGICC-UN/DP.18. ↩

27. Suggested Citation for this Comment:

    William A. Schabas, The Genocide Convention Does Not Assist the Prosecutor with Respect to Non-party States to the Rome Statute. No Legal Rule Resolves the Conflict Between Decisions of the African Union and Obligations Resulting from the Rome Statute, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur#Schabas.

    Suggested Citation for this Issue Generally:

    What Should the ICC Do About the Darfur Situation?, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur.

Argument

This opinion focuses on three aspects of ‘cooperation issues’ triggered by the Al Bashir arrest warrant. First, the question is answered whether the Genocide Convention can be used as a basis for cooperation obligations of States parties to that treaty. Second, it will be examined whether Head of State immunities applicable to Al Bashir constitute an impediment to his arrest by ICC States parties. Third, this opinion concentrates on certain issues related to non-cooperation by the African Union (AU). Finally, I will offer a few concluding observations on procedures dealing with non—cooperation.

Cooperation under the Genocide Convention

Article VI of the Genocide Convention says that persons charged with genocide 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 question is whether this provision can be used as a basis for the duty to cooperate with the ICC in the arrest and surrender of Al Bashir, in case a State does not prosecute him nationally. Although other international criminal tribunals have indicted persons for genocide, notably the ICTR and the ICTY, before the ICC, these tribunals were never in much need of the Genocide Convention for obtaining cooperation. They could rely on the UN Charter and, as a result, the Genocide Convention as an additional source of cooperation duties was never seriously explored. This may be different for the ICC, which a. has to live with the reality that a significant number of States are not parties to the Statute and have no cooperation duties under that instrument, and b. in the Darfur situation is facing challenges that a non-party State, Sudan, is imposed cooperation duties it has never consented to. Thus, the use of the Genocide Convention may have the twofold advantage that it broadens the group of subjects of cooperation duties, including important States such as the US and China, and that it confronts Sudan with its own consent in respect of its cooperation duties. The latter is not required legally, in light of the obligations set out in Resolution 1593, but the importance of consent cannot be underestimated in international relations.

Article VI of the Genocide Convention raises a number of interpretative questions. We have the benefit that the International Court of Justice applied this provision, along with other provisions in the Convention, in the recent dispute between Bosnia and Yugoslavia. In that case Yugoslavia was held to have acted in violation of Article VI, because it was established to have failed to cooperate with the ICTY in the arrest of Mladić. It follows from this judgement that Article VI imposes a duty upon States parties to the Genocide Convention to cooperate with international criminal tribunals with jurisdiction. The required cooperation first and foremost concerns the arrest and surrender of persons charged with genocide and certainly extends to the ICC. There can be no doubt that at present Al Bashir must be regarded as charged with genocide by a penal international tribunal, in the sense of Article VI of the Genocide Convention.

The central difficulty in the interpretation of Article VI is what is meant by the condition that States must have accepted the jurisdiction of the penal international tribunal. Although drafted a bit unclear, the cooperation duty in that provision is only meant to apply to contracting parties to the Genocide Convention which also have accepted the jurisdiction of a penal international tribunal. The ICJ on this vital aspect of Article VI resorted to a puzzling interpretation, in which a State is deemed to have accepted the jurisdiction of an international criminal tribunal when it has a cooperation duty under a source of international law. If we accept this interpretation, it implies that at least Sudan is included in this approach, and would be within the reach of Article VI, because it is already obliged to cooperate with the ICC under Resolution 1593. But States like the US and China would not be included.

The problem in the interpretation by the ICJ is that acceptance of jurisdiction and cooperation duties are two separate aspects of the relationship between a State and a tribunal. But the ICJ seems to conflate the two notions in a manner which by no means confirms to the rules of proper treaty interpretation. It is perfectly imaginable that a State accepts the jurisdiction of a tribunal but has no cooperation relations with that institution. In the context of UN Security Council Resolution 1593, referring the Darfur situation to the ICC, this is exactly what happened. I agree with Akande who wrote that Resolution 1593 embodies at the least a decision conferring jurisdiction on the ICC; pursuant to Article 25 of the Charter that decision must be accepted by the members.1 The Resolution does not provide for conditions to the acceptance of jurisdiction, except for the clause in operative paragraph 6 (the ‘US immunity clause’, if I may say so). I therefore conclude that acceptance of jurisdiction by all UN Members of the ICC’s Darfur case has taken place. It is not necessary that this acceptance is followed by a duty to cooperate in the same Security Council Resolution; Article VI demands no such thing. One should also consider the possible implications if one were to say that UN members should be regarded as not having accepted the jurisdiction of the ICC over ‘Darfur’. This would seriously challenge the authority of Resolution 1593 and the powers of the UN Security Council under Chapter VII more generally.

The practical advantage of the above position may not seem directly evident, because what matters most now does not seem to be the existence of additional duties but effective compliance. Yet, the appeal of the Genocide Convention should not be underestimated; it is an instrument outside the ICC that enjoys widespread support, including States that have not ratified the Statute. Furthermore, it is the particular gravity of genocide that entails these cooperation obligations; it might very well be the starting point in (unexpected) cooperation relations between the ICC and contracting parties to the Genocide Convention. Ideally, it should be more and more embarrassing for States to receive Al Bashir on their territory.

Also in the area of enforcement, the Genocide Convention opens up possibilities. Just as was the case with Bosnia, contracting parties could initiate proceedings against Sudan for violation of Article VI of the Convention. Article IX of the Genocide provides the basis for it and involves acceptance of the jurisdiction of the ICJ.

Surprisingly, the Genocide Convention does not yet seem to have been ‘discovered’ by the Judges of the ICC. They have now engaged repeatedly in reminding States of their duties to cooperate in the arrest and surrender of Al Bashir and have even informed the Security Council of the lack of cooperation from certain States. However, in none of these decisions reference is made to a State’s obligations under Article VI of the Genocide Convention. The Prosecutor, however, has referred to obligations under the Genocide Convention in a letter reminding States parties of their duty to arrest and surrender Al Bashir.

Immunities

A seemingly complex obstacle in securing arrest and surrender of Al Bashir is the issue of immunities. The African Union—or its members—has at several occasions invoked the immunities of Al Bashir, as acting Head of State, as a ground for refusing cooperation. To the extent that this would be a valid ground under Article 98 of the Statute, to which often reference is made, one important thing is often overlooked. Immunities as a ground for refusal can never be invoked by the AU as a whole, because one of its members, Sudan, can not benefit from Article 98. Immunities, under public international law, concern foreign Head of States and not a State’s own leader; simply, Al Bashir enjoys no immunities under international law when in Sudan.

Leaving this aside, the substantive discussion on the applicability of immunities has been conducted in the literature and—unfortunately—not yet at the ICC. Surprisingly, when sending out arrest warrants to other States than Sudan the ICC Chamber did not address the question whether this would be in compliance with Article 98. Article 98 is drafted in such a manner that the Court should itself examine whether a request for cooperation would require a State to act inconsistently with its obligations under international law and not leave it for States to raise as an impediment to the execution of requests. Rule 195(1) of the Court’s Rules of Procedure and Evidence (RPE) seems to mitigate somewhat the duty on the part of the Court under Article 98, by providing for a procedure in which a State has to notify the Court of a ‘98-problem’. This may very well be, but Rule 195 does not relieve the Court from its duty proprio motu to deal with Article 98 issues which can be reasonably anticipated. In its Decision of March 2009, the Pre-Trial Chamber discussed immunities of Al Bashir, but only in relation to the Court’s jurisdiction. In the disposition, the Pre-Trial Chamber decided that a request for cooperation in the arrest and surrender of Al Bashir was sent to all States-Parties to the ICC, thereby creating duties for these States under Articles 86 and 89, without paying any attention to Article 98. By having failed to deal with this issue proprio motu, the ICC Judges have committed a serious error, which they repeated in the arrest warrant decision of July 2010. The matter was so obviously raising a potential Article 98-issue that lack of information to that effect from a State-party, as envisaged by Rule 195(1), does not relieve the Judges from their duty to deal with this proprio motu before sending out the request for cooperation to States-Parties. In the literature there is at least one seriously argued position that Article 98 is applicable and that the Al Bashir arrest warrant is inconsistent with States-parties’ obligations under international law.2

Coming to the heart of the matter, there are two good articles on immunities of Al Bashir, one by Gaeta and one by Akande, which deal in detail with this issue.3 The authors come to opposing views. To put it very simply, and this is my interpretation of the respective positions, Akande underlines the object and purpose of Resolution 1593. This implies that Sudan must, in the interests of effective investigation and prosecution of ‘Darfur’, be equated with a State party. The result is that the mechanism of Article 98, which does not apply between ICC states-parties, does also not apply in relation to Sudan. Gaeta, on the other hand, proceeds to a more strict interpretation of both the ICC Statute and SC Resolution 1593; she concludes that Sudan is still a State non-party and that no special regime is in place to treat it differently for the purposes of immunity.

I agree with Akande, but with some hesitation. I have already argued elsewhere that the law on cooperation in case of SC referrals in general, and in respect of SC Resolution 1593 in particular, is flawed in many ways.4 As in many areas of international criminal justice, there seems no other way than resorting to a purposeful interpretation, to correct errors and to fill gaps. It is my concern that resorting to strict interpretation, as Gaeta did, will make the entire ‘Darfur’ investigation impossible. Emphasizing the position of Sudan as a State non-party will bring the cooperation in a complete legal vacuum. There are no detailed provisions on cooperation in the SC Resolution; the Statute would almost in its entirety be rendered inapplicable, because of all the references to States-parties in numerous relevant provisions. Therefore, the applicability of the Statute to Sudan, as if it were a state party, must be presumed in the referring SC Resolution. Sudan should be considered a State-party for the purpose of giving content to the SC Resolution’s element that Sudan must cooperate fully. It is not the most satisfactory solution to this issue—and there are certainly better ways of doing this in the future—but the alternative, as we see it in Gaeta’s approach, is even less desirable.

There are two additional remarks to be made on the discussion on immunities.

First, even if one would follow Gaeta in her approach, this still raises the question whether States such as Kenya or Chad can simply ignore the arrest warrant. Gaeta submits that the Pre-Trial Chamber has acted ultra vires in respect of Article 98 (1) of the Statute. Let’s suppose it did—I think they acted ultra vires procedurally by not exploring this, but in the end not substantively-.Gaeta then concludes that States can lawfully decide not to comply with ultra vires requests for assistance. This part bothers me very much. It introduces a dangerous element in the ICC’s law on cooperation, namely that—perceived—ultra vires conduct on the part of the ICC would in and of itself justify refusal of cooperation. This is inconsistent with the vertical approach to cooperation, as embodied in Part 9 of the Statute. To start with, Article 98 does, in principle, not create a ground to refuse cooperation but a duty on the part of the Court. Clearly, errors by the Court in the application of Article 98 may put a State between a rock and a hard place. Even then, refusal is not an option. The mechanism of Article 97 has in particular been designed for these types of problems, and Rule 195(1) even offers a special provision in respect of ‘Article 98-problems’. States should consult with the Court with a view to discuss impediments in executing requests for assistance. To my knowledge none of the States which could have made use of Article 98 have done so and have already on that basis violated their cooperation obligations, irrespective of the question whether or not Article 98(1) is substantively applicable. While this is a legitimate reproach to these States, the Court is, of course, to blame for the fact that this issue, along with many other cooperation problems in the Darfur situation, has still not been settled in case law. There have been, and still are, many opportunities where the Court could have resolved this, thereby ending the discussion, not the academic debate of course, but the practical question whether this is a legitimate ground not to arrest Al Bashir.

The second point I wish to make in respect of the immunities discussion relates—again—to the Genocide Convention. In my view the question of State immunities for Al Bashir bears no longer relevance, when the arrest is also grounded in treaty relations between the arresting State and Sudan, namely Article VI of the Genocide Convention. As we saw above, that particular provision obliges a State party to that Convention to ensure a trial at the ICC of a person charged with genocide. There is no exception of immunity set out in the Genocide Convention; Article VI, it can be said, applies to all persons charged with genocide. This interpretation also logically follows from Article IV of the Genocide Convention:

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Similar language can also be found in Article 27 of the Statute, but Article IV offers the benefit of Sudan’s—and other contracting parties’ to the Genocide Convention-explicit consent to be bound by that provision.

It is worth mentioning that in its recent interpretation of Article VI, the ICJ never addressed any issue of immunity as being relevant in parties reciprocal obligations under Article VI. The problem of third-party effect does not arise in the application of Article VI to the Al Bashir case, because Sudan is a party to the Genocide Convention as well. Bearing in mind that the Genocide Convention intends punishment of all perpetrators of genocide, no individual is exempt from the scope of application of Article VI. As a result, a State-party to the Genocide Convention arresting Al Bashir and surrendering him to the ICC, in compliance with Article VI, violates no rule of international law in relation to Sudan. On the contrary, that State complies with its obligations under the Genocide Convention.

‘Other essential interests’: peace and security

The relationship between peace and justice is a recurring theme in international criminal law. In respect of the arrest and surrender of Al Bashir the African Union has claimed his arrest would jeopardise peace and stability and the region. It has, among other things, been said that efforts to arrest Al Bashir could destabilize certain African countries and frustrate diplomatic efforts to bring about peace. Leaving aside the merits of such claims, it will be examined whether a. risks of destabilization, jeopardizing peace or other perceived essential interests could justify refusal to arrest Al Bashir, and b. a decision by the AU, obliging its members not to arrest Al Bashir, could be a lawful ground to refuse compliance with the arrest warrant.

As to the first matter, the starting point must be that the ICC Statute does not explicitly recognize the risk of destabilisation, or any other essential State interest, as a ground of refusal. Of course, if this would be part of the Statute one can easily imagine the enormous potential for abuse. National security is part of the Statute, Article 93(3), but only as a ground of refusal in respect of forms of assistance other than arrest and surrender. In this respect, it must be mentioned that Article 72 only protects national security information. Mention must be made of the possibility for the Security Council to make use of Article 16 of the Statute when destabilization threatens international peace and security. This provision allows the Council to prevent the ICC to proceed with the Al Bashir case—for a period of 12 months, renewable—with a Resolution adopted under Chapter VII of the UN Charter. In the case at hand, the use of Article 16 may not even be necessary, because jurisdiction in the Darfur situation is the result of a Security Council referral, which the Council can end or modify, whenever the interests of international peace and security would require it to do so.

Leaving aside the unique framework of Article 16, the starting point is that the concerns of the African Union are not explicitly recognized in the Statute as reasons justifying refusal—or rather postponement of arrest and surrender of Al Bashir. Still, I would be in favour of embracing the ICTY’s Blaskic legacy. In the Blaskic decision, of 1997, the ICTY Appeals Chamber developed the essential features of the vertical cooperation regime, an effective system of cooperation as it should apply to international criminal tribunals.5 But the ICTY Appeals Chamber also explicitly said that it should not be unmindful to legitimate State interests. I think that has been wise; a system of cooperation, be it applicable to the ICTY or ICC, can only survive in the long run when the concerns of subjects concerned, States, are treated seriously and fairly. The practical consequence of this idea is that the grounds of refusal set out in Part 9 need not be necessarily exhaustive. A State may face problems in the execution of requests for assistance that have not been anticipated on by the drafters and which may nevertheless be legitimate. Article 97 appears to embody the impossibility of regulating all scenarios of legitimate non-cooperation. As a result, that provision refers to problems impeding or preventing the execution of requests for assistance in general, and then sets out three examples, clearly allowing for the possibility that States advance other problems than these examples. The purpose of Article 97 is ‘to resolve the matter’; ideally, such resolution would still bring about execution of the request, but it cannot be excluded that the Court adjusts or even withdraws the request for assistance. In case there is no resolution—i.e. the Court maintains its request and a State persists in its refusal to comply-, the State will be in breach of its obligations to cooperate.

I acknowledge that there is a risk that States would regard Article 97 as a residual clause which allows them to raise all types of grounds of refusal. To accommodate that concern, I propose that the use of Article 97 is subject to two conditions. First, the state party concerned must act in good faith; this means that in order to stand the chance to be accepted as legitimate grounds, a State must consult with the Court without delay in respect of all instances of non-cooperation, as is already foreseen in Article 97. As far as I can see, although I must admit I am unaware of the communications between AU members and the ICC, it seems there is no compliance with this obligation. However, as will be further explored below, the present use of Article 97 by the Pre-Trial Chamber in recent communications with Kenya and Chad may also create the impression that the initiative for invoking Article 97 lies with the Court, which will—when no cooperation is forthcoming—ask for explanations, using Article 97. Second, only legitimate State concerns can be raised in the context of Article 97. ‘Legitimate’ means that there must be important interests at stake. It also implies in my view that grounds of refusal that have been clearly rejected in the course of negotiating Part 9, such as the double criminality requirement or the political offence exception, are ab initio excluded from the category of legitimate State concerns. One might go far as saying that a State withholding cooperation on such grounds would make improper use of Article 97 and apply it in bad faith. As far as the Al Bashir arrest warrant is concerned, I cannot exclude that legitimate State concerns are at stake. A real and foreseeable risk of destabilization is a matter worth for consultation and consideration by the Court, and—on the basis of the views submitted by relevant States—a decision can be taken (or rather ‘the matter shall be resolved’). The problem is that all AU Members which are parties to the ICC must have been aware of these risks and concerns the moment they received the Al Bashir arrest warrant, and Article 97 requires them to consult with the Court where they receive a request for cooperation and when they identify problems in respect of execution of that request. Again, this is not indicative of loyal and good faith fulfillment of a State party’s obligations under the Statute.

The question also arises whether AU decisions not to arrest Al Bashir binding on AU members could be a legitimate ground of refusal under the ICC Statute. The latter takes into account competing obligations under international law in three different ways. First, as was already explored, there is the obligation on the Court not to proceed with a request for arrest and surrender when it would require a State to act in violation of its ‘immunity obligations’ (Article 98). An AU decision prohibiting the arrest of Al Bashir would not fall within the scope of Article 98, because it does not represent one of the types of (immunity) obligations in the sense of that provision. Second, under Article 90 a State party may, subject to a number of procedural conditions, give priority to a competing extradition obligation. Again, this is of no relevance to the AU-situation. Third and finally, Article 97 makes explicit mention of breach of a pre-existing treaty obligation in case of execution of a request for assistance, as a problem impeding compliance with the request. Although Article 97 does not contain grounds for refusal—it is a consultation mechanism—the explicit mention of this particular problem of conflicting obligations gives it a certain status. Arguably, like the other two examples that were mentioned, it was something the drafters considered a possibly valid problem in executing requests for assistance. It thus might be a semi—or pseudo-ground of refusal, which would also be in line with the object and purpose of, for example, Article 98. In case AU members would get stuck between the obligations under the Rome Statute to arrest Al Bashir and obligations towards the AU not to arrest Al Bashir, they can in consultations with the Court refer to the example of Article 97(c). The problem of competing obligations under international law brings a fundamental issue to the mechanism of Article 97, which makes that this provision does much more than deal with ‘practical problems’, as is suggested in certain commentaries.

From the above follows that a competing obligation, as mentioned in Article 97(c), could be a good starting point in consulting with the Court to a favourable resolution—for the requested State this would be that it would not have to violate any obligation under international law-.In relation to the arrest of Al Bashir, however, I believe there is little reason for the Court to adjust or withdraw its arrest warrant in respect of AU-members. It is true that AU obligations can be traced back to the AU Charter, which is a pre-existing treaty, and thus could fall within the reach of Article 97(c). However, the obligation not to arrest Al Bashir is the result of decisions that have been taken long after entry into force of the ICC Statute with the deliberate aim of making the functioning of the Court impossible. As such, this is not an obligation pre-existing to the ICC. The decisions are the result of a voting process in which also States parties to the ICC have participated. States parties that have voted in favour of such AU decisions can never advance in good faith this as a legitimate problem in their execution of the arrest warrant. The conflicting obligation is only there as a result of their own actions. The matter is clearly more complex in case an ICC-party has voted against the AU-resolution, but is nevertheless bound by it on account of majority decision-making. In such a situation a bona fide ICC-party may indeed face a very difficult situation when Al Bashir would visit that State. It requires immediate consultation with the Court, and it cannot be excluded that in respect of that particular bona fide State the resolution would be that obligations towards the AU might be respected. But such determination will depend on many factors, including the answer to the question, exceeding by far the scope of this opinion, whether AU resolutions prohibiting the arrest of Al Bashir are consistent with obligations of UN Members not to frustrate the effects of Resolution 1593 and whether obligations towards the AU are not for all AU members set aside by the mechanism of Article 103 of the UN Charter. It is one thing that Resolution 1593 does not oblige, with the exception of Sudan, States non-parties to the ICC to cooperate with the Court, but it is something else when individual UN Members start—acting through the AU—creating obligations for ICC-parties not to cooperate, thereby preventing the ICC to exercise its jurisdiction in the Darfur situation.

Defective procedures

Although slightly exceeding the scope of this opinion—which is to focus on the substance of cooperation duties—I feel nevertheless compelled to offer a few remarks on the procedural side of cooperation in the Al Bashir case. Probably as important as determining the content of cooperation obligations is the use of proper procedures in case of non-compliance. Until this day, the practice of the ICC has been utterly disappointing in this respect. The following problems are worth mentioning.

First, the Court, meaning all relevant organs, the Prosecutor and Chambers, has reacted too late in respect of instances of non-compliance. It is worth reminding that Sudan is not only failing to cooperate in the arrest and surrender of Al Bashir, but also in the arrest and surrender of Harun and Al Kushayb, as well as many other forms of cooperation (collection of evidence). Simply, since the adoption of Resolution 1593 in 2005 Sudan has never effectively cooperated with the Court. However, it took the judges until May 2010, so five years, to formally conclude that Sudan had violated its obligations towards the ICC and to inform the Security Council thereof. This is rather late and raises serious enforcement issues. What is the message here? That States have about five years of violating obligations before the Judges finally wake up and get into action?

Second, it is not only that it takes the Court too long to react to instances of non-cooperation, it has not applied the proper procedures. As a result, they have only aggravated the cooperation problems, instead of clarifying certain issues. In its decision of May 25, 2010, informing the Security Council of lack of cooperation by Sudan, the Pre-Trial Chamber used inherent powers to conclude that Sudan had violated its obligations under international law and to inform the Security Council thereof. It did not use the procedures provided for in Article 87(7) of the Statute and Regulation 109 of the Court. This is unfortunate, because these procedures serve important purposes. It would be wrong to ignore them for the reason that Sudan is not a state party; as was already mentioned above, effective cooperation would be in big trouble if Sudan could not be equated with a state party, in order to give full effect to SC Resolution 1593.

Third, of the vital aspects of the procedure of Regulation 109, the most important is that the requested State, Sudan, shall be heard. Even if Regulation 109 were not applicable it is an essential element of a procedure determining whether a State has violated its cooperation obligations to hear that particular State. I find it hard to believe that the Pre-Trial Chamber made no effort whatsoever to hear Sudan. This is not only inconsistent with basic procedural fairness—audi alteram partem—but also strengthens Sudan—and supportive States—in their position that their views and opinions are not taken seriously. Moreover, requesting Sudan to submit its views would have the advantage that Sudan can no longer hide, but must speak out, and that it offers the opportunity to resolve a number of legal questions. It is true that organizing such a procedure would take more time, but that is a price worth paying. At present, we are faced with a determination from the Chamber that Sudan has violated its obligations, without involving Sudan in that procedure. It is an unforgiveable error. The Prosecutor has tried to obtain application of Regulation 109 in certain submissions, but yet to no avail. It is to be hoped that in the future a Chamber is wise enough to involve Sudan in cooperation proceedings.

Fourth, I am worried about how the Pre-Trial Chamber is currently monitoring cooperation problems. It seems that they want to be on top of things by issuing short orders/decisions providing information or asking for information. The Pre-Trial Chamber, for example, informed the Security Council of the fact that Al Bashir visited Chad and Kenya and was not arrested there. I do seriously not know what purpose this ‘information’ serves. It is probably not a new fact to the Security Council that this happened, and the Council is always in the position to take the necessary steps. If the Pre-Trial Chamber wished to really inform the Council, it should have made a judicial finding of non-compliance, pursuant to Article 87(7). But such finding is nowhere explicitly made in the ‘information’ provided. This type of decisions is thus neither flesh nor foil, is only confusing, is not based on any Statutory provision and should be avoided. The same applies, in my view, to decisions in which the Pre-Trial Chamber requests information from States explaining why they have not arrested Al Bashir, or will not do so in the future. Kenya has received a decision in which it is reminded of its obligations to arrest Al Bashir and requested to provide information, pursuant to Article 97 of the Statute, why it could not do so. This approach turns the system of cooperation on its head and significantly weakens it. The moment the Al Bashir arrest warrant was issued there is a very simple obligation for States parties: to arrest him when they are in a position to do so, or to immediately inform the Court of any problems, pursuant to Article 97. When the Court has information that either of these obligations has not been fulfilled it is not the task of the Court to ask for explanations, unless in the framework of the enforcement procedure of Article 87(7) and Regulation 109; the non-cooperative State should have provided explanations on its own accord. That they have failed to do so can only result in one conclusion: that particular State has violated its obligations under the Statute. To have States take these obligations seriously requires moving immediately to the next step, namely the procedure set out in Article 87(7) and Regulation 109, a judicial finding of non-compliance. It is in the framework of this procedure that non-cooperative States can defend their lack of cooperation on the basis of legal arguments. There is a significant risk in not moving automatically from instances of non-cooperation, via Regulation 109, to judicial findings of non-compliance: it creates—even reinforces—the impression that States can get away with non-compliance. This is problematic from several perspectives. To start with, I wonder if the Court has any idea as to what would be the follow-up-procedure in respect of information provided. Suppose it is claimed by Chad that Article 98 is applicable and justifies refusal to cooperate. What is the next step? Clearly, the Court cannot leave such view without a reaction, but on what basis to react and involve the views of parties to the proceedings? There is thus no proper procedural framework to govern this; such framework would have been provided by Article 87(7) and Regulation. Second, with a view to possible later enforcement actions by the Assembly of States Parties or the Security Council it is crucial to have an accurate and comprehensive record as possible of instances of non-cooperation. The Prosecutor can—and does—provide useful information in this respect. Yet, only findings by a Chamber may carry the necessary authority to move States into enforcement action. As we never know how much it takes to trigger enforcement action, the Court must prepare for making repeated judicial findings of non-compliance. This thus requires a series of procedures which may produce a series of judicial findings of non-compliance. This may indeed burden the Court significantly, but the importance of the matter justifies it. Furthermore, procedures in case of non-cooperation can be far better organized than is currently the case. To start with, such procedures would benefit from a specialized Chamber, that ideally deals with a number of instances of non-cooperation simultaneously. For example, in respect of Sudan it is quite bizar that a finding of non-compliance was made in the Al Kushayb and Harun cases and not (yet) in the Al Bashir case. Clearly, these—and other instances of non-cooperation by Sudan, merit joint treatment.

I am aware that immediate and frequent holding States-parties in violation of their obligations towards the Court may create certain discomfort within the ASP, but this should not matter. The Judges must record violation of cooperation duties and must do so equally and effectively for all States that have done so.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. (2009), p. 341. ↩

2. 2.

   Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 J. Int’l Crim. Just. (2009), pp. 315–332. ↩

3. 3.

   Id. and Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. (2009), pp. 333–352. ↩

4. 4.

   Göran Sluiter, Obtaining Cooperation from Sudan—Where Is the Law?, 6 J. Int’l Crim. Just. (2008), pp. 871–884. ↩

5. 5.

   Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, A. Ch., 29 October 1997. ↩

6. Suggested Citation for this Comment:

   Göran Sluiter, There is a Duty to Cooperate for States in the Arrest and Surrender of Al Bashir, Under the Genocide Convention and/or the ICC Statute and/or UN Security Council Resolution 1593, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur#Sluiter.

   Suggested Citation for this Issue Generally:

   What Should the ICC Do About the Darfur Situation?, ICC Forum (Jan. 26, 2011), available at https://iccforum.com/darfur.