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The Darfur Question — Comments

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Comment on the Darfur Question: “What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?”

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Dear Dantzerian,

You are quite right to say that the obligation to prevent genocide means that obligations under the Convention arise before genocide is actually committed. We don’t disagree on this.

In my article, I was addressing the obligations that arise from article VI of the Convention. Its main purpose is to govern the jurisdiction of criminal courts with responsibility for prosecuting genocide. Some of the other experts seem to have extrapolated from this provision the existence of a duty to cooperate with the International Criminal Court.

Assuming, arguendo, that there is indeed such an implied duty in article VI of the Genocide Convention, the question that I am asking is whether such an obligation arises simply because the Prosecutor and the Pre-Trial Chamber allege that genocide may have been committed. That is not the same thing as saying that there is a duty to prevent genocide prior to its commission.

Suppose a State party to the Genocide Convention (but not to the Rome Statute), and not subject to the cooperation requirement imposed by the Security Council resolution, refuses to cooperate with the International Criminal Court in the Bashir arrest warrant. Then, another State party to the Genocide Convention decides to sue it before the International Criminal Court in accordance with article XI of the Convention for violating article VI of the Convention. In the meantime, the Pre-Trial Chamber holds a confirmation hearing and decides to throw out the genocide charge. A careful reading of the two Pre-Trial Chamber arrest warrant decisions (not to mention the abundant UN materials, including the 2005 report and the more recent documentation) suggests this would be a likely outcome. Is it really plausible that the International Court of Justice would find that a State party to the Genocide Convention was in breach of article VI after the International Criminal Court had ruled that there were not ‘substantial grounds’ (the text for the confirmation hearing) to consider that Bashir had committed genocide?

There seems to be something wrong with claiming there is a violation of the Genocide Convention simply because the Prosecutor has managed to establish a relatively low evidentiary standard for issuance of an arrest warrant.

Dear Danterzian,

Thanks for your reply. But I think it is probably not wise to rely upon the words “persons charged with genocide” in Article VI of the Genocide Convention in order to bolster the argument that States Parties to the Genocide Convention are obliged to cooperate with the ICC once someone is “charged with genocide.” That is the pitfall of trying to convert a provision in the Convention whose purpose is to define jurisdiction into one imposing an obligation of cooperation.

Clearly, the drafters of the Convention meant to deal with cooperation in article VII of the Convention, and not article VI. Using the words “persons charged with genocide,” however helpful it may be to the result you want to achieve, is taking them out of context.