The Genocide Convention provides an alternative basis on which to ground the obligation to execute arrest warrants issued by the International Criminal Court.
Relying on the Genocide Convention as a basis for a cooperation would open up alternative arguments allowing ICC parties (and non-parties if the teleological interpretation were adopted) to bypass immunities otherwise provided for in international law.
Summary
The International Court of Justice (ICJ) has held that Article VI of the Genocide Convention imposes an implicit obligation on Contracting Parties to cooperate with an “international penal tribunal” that has jurisdiction over persons charged with genocide. Although it was envisaged in the drafting of the Convention that acceptance of such jurisdiction would occur by treaty, the ICC is to be regarded as a competent international penal tribunal under the Genocide Convention even in cases where the ICC exercises jurisdiction on the basis of a Security Council referral. This creates an obligation on parties to cooperate with the ICC where an accused person is charged with genocide. However, under the jurisprudence of the ICJ this obligation of cooperation only arises where the contracting party in question has not only accepted the jurisdiction of the tribunal but also has a pre-existing obligation to cooperate. Applying this precedent would mean that in the Bashir case, only those States that are parties to the ICC Statute have an obligation of cooperation under the Genocide Convention. However, a teleological interpretation of the Convention would permit use of the Genocide Convention as a basis for creating an obligation of cooperation for non-parties since they must be deemed to have accepted the jurisdiction of the ICC over the case by virtue of a binding Security Council resolution conferring such jurisdiction.
Relying on the Genocide Convention as a basis for a cooperation would open up alternative arguments allowing ICC parties (and non-parties if the teleological interpretation were adopted) to bypass immunities otherwise provided for in international law.
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).
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1.
Application of the Convention on the Prevention and Punishment of Genocide (Bosnia Herzegovina v. Serbia & Montenegro), ICJ Reports, 2007 ↩
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6.
See , Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case (2010) 8 J. Int’l Crim. Just. 365, 371. ↩
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7.
For a fuller discussion of this point, see 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 ↩
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11.
Article IX of the Genocide Convention allows for reference of disputes concerning the interpretation or application of the Convention to the ICJ. ↩
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Suggested Citation for this Comment:
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.