The Darfur Question — Comments
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- danterzian: The Peace and Justice Initiative argues that customary international law lifts Head of State immunity in cases of international crimes before international tribunals. I disagree. I do not believe they make a persuasive argument for the existence of this customary international law. Establishing a customary international law requires a widespread state practice that is undertaken out of a sense of legal obligation. Thus, since customary international law is based on state practice, the... (more)
- Scott McDonald: I agree with the argument that the nexus between U.N.S.C. 1593 and membership in the Genocide Convention means that Sudan and other Contracting Parties have accepted the jurisdiction of the ICC in this instance. However, this argument only utilizes half of the rationale present in the Bosnia Genocide case. By focusing solely on the obligation to punish created by the Convention, you are ignoring the obligation to prevent genocide that was also highlighted by the ICJ. While there are... (more)
- Peace and Justice... Introduction The current Sudanese President, Omar Al-Bashir, is subject to two outstanding arrest warrants issued by the ICC. The first warrant includes charges of war crimes and crimes against humanity, arising from the atrocities that have occurred in Darfur over recent years. The second warrant includes charges of genocide, also in relation to Darfur.1 The issuance of these warrants raises the question of whether States are obliged to arrest... (more)
- Cecilia: Although Ivory Coast is not a state party to the Rome Statute, the ICC may establish its jurisdiction to investigate the alleged human rights violation that occurred after the 2010 presidential election. Article 12.3 of the Rome Statute provides in relevant part: “If the acceptance of a State in which is not a Party to this Statute is required under paragraph the State may, by declaration lodged with the Registrar, accept the exercise of... (more)
- Cardon: Without grappling with the whole of your comment, I’ll just address your contention that the Prosecutor must maintain a presumption of innocence pursuant to Article 66 (not Article 64) of the ICC Statute. That’s a novel idea! Prosecutors are tasked with building a case against a suspect/defendant. A prosecutor has the burden of proving the guilt of the accused. It’s hard to see how they could do so while maintaining a presumption of innocence.... (more)
- alk1668: Important facts about the situation in Cote D’ Ivoire. “Some lawyers close to the International Criminal Court (ICC) rebelled against the words of the Prosecutor at the ICC.” We are a group of lawyers near the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania, and also near the International Criminal Court based in The Hague in the Netherlands... (more)
- davidlee211: The AU decision to not arrest or surrender Al Bashir in accordance with an ICC order does not override or suspend existing obligations of ICC States Parties under the Rome Statute. Therefore, ICC States Parties are obligated to cooperate with the ICC. The African Union (“AU”) has the legal competence to require AU members to not cooperate with the International Criminal Court (“ICC... (more)
- JJ Paust: With respect to non-immunity of sitting or former heads of state or officials under international law, our casebook notes the prosecution of Conradin von Hohenstafen in 1268, Peter von Hagenbach in 1474, the “trial” by an int’l congress of Napoleon in 1818 (punishment = exile), the indictment in absentia of Kaiser Wilhelm in the 1919 Treaty of Versailles, the 1919 Responsibilities Commission Report recognizing head of state responsibility, the dicta in the U.S.... (more)
- G. L.: I. Introduction: Currently, the International Criminal Court (ICC) case against President Omar Al Bashir faces the reality that no incumbent head of state has ever been arrested and prosecuted by an international tribunal, at least in part due to the well-established principle of head of state immunity. In analyzing the justifications and development of immunities under international law, I will argue that immunity does not protect Al Bashir... (more)
- JJ Paust: Under Article IV of the Genocide Convention, there is absolutely no immunity for any person of any present or past status—especially a sitting ruler or official—and the same holds true with respect to any other international criminal instrument. For example, there is absolutely no immunity for a head of state or official under Article 27 of the Rome Statute of the ICC. Clearly, the preamble to the Rome Statute is also relevant when it... (more)
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?”
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.
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.