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.