This comment will address the obligation to punish genocide since the requisite elements to prevent genocide have not been established against any contracting party to the Genocide Convention other than Sudan.7 The ICJ makes a distinction between the obligation to prevent genocide and the obligation to punish genocide in Bosnia v. Serbia.8 Because “a state’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed,” it is imperative to establish when the contracting state had this knowledge before charging it with a violation to prevent genocide.9 In order to establish the requisite foreknowledge in Bosnia v. Serbia, the ICJ cited to evidence that General Wesley Clark had pointedly asked President Milošević why he allowed General Mladić to perpetrate the massacre at Srebrenica for which Milošević’s response was that “[Mladić] didn’t listen to me.”10 In holding that Serbia violated its obligation to prevent the Srebrenica genocide, the ICJ relied on Milošević’s own observations to Mladić and the international concern about what would likely happen at Srebrenica.11

In Sudan’s case, international concern can arguably be said to have been sparked when United Nations Coordinator for Sudan, Mukesh Kapila, said “the conflict had created the worst humanitarian situation in the world.”12 However, the influence exerted by Serbia over those who devised and implemented the genocide in Srebrenica and the foreknowledge exhibited by Milošević has not been established against any contracting party to the Genocide Convention in the Sudan situation. Consequently, this comment will only address the obligation to punish genocide to establish that contracting parties are required to implement the arrest warrants issued by the International Criminal Court.

II. Contracting Parties to the Genocide Convention have an Obligation to Implement the Arrest Warrants Issued by the ICC Even Though They are Not Parties to the Rome Statute

Article VI of the Genocide Convention is instrumental in establishing the basis for cooperation with the ICC among parties to the Genocide Convention. Article VI of the Genocide Convention provides in relevant part:

“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.”13 (Emphasis Added)

As a threshold matter for its applicability, Article VI requires that a person be charged with genocide. In Bosnia v. Serbia, the ICJ did not provide an interpretation for this element of Article VI, however, “it can be concluded from its findings that an indictment by the ICTY for genocide clearly suffices as a charge to genocide.”14 Similarly, an indictment by the ICC for genocide against Al Bashir would be sufficient to satisfy this element of Article VI.

A. The ICC Qualifies as an International Penal Tribunal within the Meaning of Article VI of the Genocide Convention

In applying Article VI to the situation in Darfur, the first element that must be established is that the ICC qualifies as an international penal tribunal. The ICC is the closest model of an international penal tribunal envisaged by the drafters of Article VI of the Genocide Convention.15 At the time of the adoption of the Genocide Convention there was not an international penal court in existence, nevertheless under Article VI the ICC should be regarded as an international penal tribunal. In interpreting the term “international penal tribunal” the ICJ declared that an “international penal tribunal within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III.”16

The ICC qualifies as an international penal tribunal since it came into being after the adoption of the Genocide Convention when the Rome Statute of the International Criminal Court entered into force on July 1, 2002.17 The drafters of the Genocide Convention probably thought the court would be created by treaty, which is supported by the language in Article VI: “those Contracting Parties which shall have accepted [the] jurisdiction of the international penal tribunal.”18 Unlike the ICTY which was created pursuant to a United Nations Security Council Resolution, the ICC more closely fits the model of the international penal tribunal because it was created by treaty.19

Moreover, the ICJ failed to interpret how the ICTY is “of [potential] universal scope.”20 The ICJ is silent on how the ICTY met the universal scope standard but if applied in terms of jurisdiction the ICC strongly meets this element.21 The ICC exercises it jurisdiction where the crime has been committed by a national of a state party to the Rome Statute or on the territory of a state party, though jurisdiction can also be triggered by a Security Council Resolution, as in the present case.22 When jurisdiction is triggered by the Security Council, “any territory or national limitation disappears,” and the ICC can be said to have universal jurisdiction.23

Finally, the ICC is competent to try the perpetrators of genocide, including President Al Bashir. The ICC has jurisdiction over the crime of genocide under Articles 5 and 6 of the Rome Statute.24 Article 5 clearly establishes the Court’s jurisdiction with respect to genocide.25 Article 5 of the Rome Statute states “[t]he Court has jurisdiction in accordance with this Statute with respect to… the crime of genocide.”26 Article 6 of the Rome Statute defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group condition of life calculated to bring about its physical destruction in whole or in part….”27 The arrest warrant issued by the ICC on July 12, 2010 found that there were reasonable grounds to believe that Al Bashir was criminally responsible for the charges of genocide under article 6(a), 6(b) and 6(c) of the Statute.28 The arrest warrant demonstrates that the ICC is appropriately exercising its jurisdiction over the crime of genocide with respect to the situation in Sudan. Thus, the ICC is competent to try Al Bashir for genocide and is an international penal tribunal within the meaning of Article VI.

B. The Obligation to Implement the Arrest Warrants Issued by the ICC Stems from Acceptance of the ICC’s Jurisdiction by Contracting Parties to the Genocide Convention

In order to establish that contracting parties to the Genocide Convention have an obligation to cooperate with the ICC, the second element that must be established is that those states have accepted the jurisdiction of the ICC. States that are parties to the Genocide Convention have an obligation to cooperate with an international penal tribunal (i.e., the ICC) only where the parties have accepted the jurisdiction of that international penal tribunal.29

Parties to the Genocide Convention have accepted the jurisdiction of the ICC irrespective of whether they are state parties to the Rome Statute. The ICC’s jurisdictional authority stems from Article 13(b) of the Rome Statute as a result of Security Council Resolution 1593.30 Article 13(b) states that the ICC may exercise its jurisdiction with respect to genocide, crimes against humanity, war crimes, or the crime of aggression if “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”31 In referring the matter to the ICC, the Security Council granted jurisdictional authority to the ICC concerning the situation in Sudan. Under Article 25 of the U.N. Charter, all Members of the United Nations “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”32 Security Council Resolution 1593 established a duty for cooperation with the International Criminal Court on all parties to the Genocide Convention since they are members of the United Nations.33

Consequently, contracting parties to the Genocide Convention have accepted the ICC’s jurisdiction over the situation in Darfur. Additionally, the Genocide Convention comes into effect when the arrest warrant issued by the ICC includes the charge of genocide, which would necessarily bring it under the realm of Article VI.34 Because all of the parties to the Genocide Convention are U.N. members, which have accepted the ICC’s jurisdiction, the contracting parties to the Genocide Convention have an obligation to cooperate with the ICC in arresting President Al Bashir.

Since the arrest warrant for President Al Bashir for crimes against humanity (murder, extermination, deportation, torture and rape) and war crimes (planning attacks on civilians and looting) was issued by the ICC on March 4, 2009, Al Bashir has visited five countries that are contracting parties to the Genocide Convention.35 More importantly, Al Bashir has visited three countries that are contracting parties to the Genocide Convention since the ICC added the crime of genocide to the arrest warrant issued on July 12, 2010, which consequently requires those states to carry out their obligations under Article VI.36

The countries that are in violation of their obligation to implement the arrest warrant for genocide are Ethiopia, Libya and Saudi Arabia.37 Al Bashir visited Ethiopia on November 22, 2010, for the Inter Governmental Authority for Development (IGAD) Summit where he was welcomed by high ranking government officials.38 Similarly, on August 6, 2010, Al Bashir returned to Sudan after a two-day visit in Libya where he met with Libyan leader Al Gaddafi.39 In November 2010, Bashir traveled to Saudi Arabia on a Muslim pilgrimage where he was again not arrested.40 As contracting parties to the Genocide Convention, Ethiopia, Libya and Saudi Arabia have violated their obligation under Article I of the Genocide Convention to punish genocide.41 These states were obligated to arrest Al Bashir while he was present in those countries and turn him over to the ICC.42 The Ethiopian and Libyan government should have effectuated the arrest of Al Bashir when he met with high ranking officials in both countries. Additionally, Saudi Arabia should have reasonably determined his whereabouts and arrested him.43 Because Ethiopia, Libya, and Saudi Arabia are contracting parties to the Genocide Convention and have accepted the jurisdiction of the ICC, they were under a duty to cooperate with the ICC in arresting Al Bashir but failed in that duty.

It is beyond the scope of this paper to determine what damages are appropriate for those parties in breach of their duties under the Genocide Convention. Nevertheless, in deterring other states from violating their obligations under the Genocide Convention, the international community should impose monetary sanctions or economic sanctions on those states in violation of their obligation to prevent and punish genocide.

III. Conclusion

Under Article VI of the Genocide Convention, contracting states are obligated to cooperate with the ICC because Al Bashir has been charged with the crime of genocide, and the ICC is an international penal tribunal to which acceptance of its jurisdiction has been established. The Genocide Convention and the Security Council referral created an obligation for contracting parties to the Genocide Convention to fully cooperate with the ICC in effectuating the arrest of President Al Bashir.

Bosnia v. Serbia provides us with the framework for analyzing the obligations of contracting states to prevent and punish genocide under the Genocide Convention.44 In light of the judgment in Bosnia v. Serbia, contracting parties to the Genocide Convention have an obligation to implement the arrest warrant for genocide issued by the International Criminal Court against President Al Bashir.

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

1. 1.

   Rome Statute of the International Criminal Court art. 13(b), July 17, 1998 [hereinafter Rome Statute], also available here. See also Salvatore Zappala, International Criminal Jurisdiction Over Genocide, 275-276 (Paola Gaeta ed., Oxford University Press 2009). ↩

2. 2.

   S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31 2005). ↩

3. 3.

   U.N. Charter art. 25, available online. ↩

4. 4.

   Convention on the Prevention and Punishment of the Crime of Genocide art. Article 13(b), Dec. 9, 1948 [hereinafter Genocide Convention]. See also Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. Int’l Crim. Just. 365, 372 (2010). ↩

5. 5.

   Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [hereinafter Bosnia v. Serbia], Judgment, 2007 I.C.J. (February 26), available online. See also William A. Schabas, Genocide in International Law 520-525 (2d ed. 2009). ↩

6. 6.

   Zappala, supra note 1, at 276. ↩

7. 7.

   Roger S. Clark, State Obligations Under the Genocide Convention in Light of the ICJ’s Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 61 Rutgers L. Rev. 75, 106 (2008). See also International Criminal Court, Pre-Trial Chamber I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (July 12, 2010), ICC-02/05-01/09. Available online. See also Genocide Convention, supra note 4, State Parties, available online. (As a party to the Genocide Convention, Sudan is in violation of the Genocide Convention; however this comment will address contracting parties other than Sudan). ↩

8. 8.

   Bosnia v. Serbia (2007), supra note 5, at para. 425. ↩

9. 9.

   Id., para. 431. ↩

10. 10.

    Id., para. 437. ↩

11. 11.

    Id., para. 438. ↩

12. 12.

    Mass rape atrocity in West Sudan, BBC, Mar. 19, 2004, available online (last visited Jan. 2, 2011). ↩

13. 13.

    Genocide Convention, supra note 4, art. Article VI. ↩

14. 14.

    Sluiter, supra note 4, at 373. ↩

15. 15.

    Zappala, supra note 1, at 275. ↩

16. 16.

    Bosnia v. Serbia (2007), supra note 5, at para. 445. ↩

17. 17.

    About the Court, available online (last visited Jan. 3, 2011). ↩

18. 18.

    Bosnia v. Serbia (2007), supra note 5, at para. 445. ↩

19. 19.

    See Schabas, supra note 5, at 114. See also Zappala, supra note 1, at 275. See also Rome Statute, supra note 1. ↩

20. 20.

    Bosnia v. Serbia (2007), supra note 5, at para. 445. ↩

21. 21.

    Id. ↩

22. 22.

    Zappala, supra note 1, at 275. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    See Rome Statute, supra note 1, art. 5 (Crimes within the jurisdiction of the Court provides: “1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide….”). ↩

26. 26.

    Id. ↩

27. 27.

    Id., art. 6. ↩

28. 28.

    Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, supra note 11, at 4. ↩

29. 29.

    Bosnia v. Serbia (2007), supra note 5, at para. 447. ↩

30. 30.

    Rome Statue, Article 13 Exercise of Jurisdiction provides: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if…(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations….” ↩

31. 31.

    See Rome Statute, supra note 1, art. 13(b). See also U.N. Charter, supra note 3, art. 39. ↩

32. 32.

    U.N. Charter, supra note 3, art. 25. ↩

33. 33.

    Sluiter, supra note 4, at 372. ↩

34. 34.

    Id. at 372. ↩

35. 35.

    European Parliament resolution of 9 September 2010 on Kenya: failure to arrest President Omar al-Bashir, at 2, P7_TA-PROV(2010)0315, available online. (President Bashir has visited the following contracting parties to the Genocide Convention: Ethiopia, Egypt, Libya, Saudi Arabia, and Zimbabwe). See also Genocide Convention, supra note 4, State Parties, available online. ↩

36. 36.

    Sluiter, supra note 4, at 372. ↩

37. 37.

    Sudan’s Bashir arrives in Ethiopia for IGAD Summit, Sudan Tribune, Nov. 22, 2010, available online (last visited Jan. 3, 2011). See also President Al-Bashir returns home after visit to Libya, Sudan Radio, Aug. 6, 2010, available online (last visited Jan. 3, 2011). See also Sudanese president in Saudi Arabia to perform pilgrimage, Sudan Tribune, Nov. 14, 2010, available online (last visited Jan. 3, 2011). ↩

38. 38.

    Sudan’s Bashir arrives in Ethiopia for IGAD Summit, Sudan Tribune, Nov. 22, 2010, available online (last visited Jan. 3, 2011). ↩

39. 39.

    President Al-Bashir returns home after visit to Libya, Sudan Radio, Aug. 6, 2010, available online (last visited Jan. 3, 2011). ↩

40. 40.

    Sudanese president in Saudi Arabia to perform pilgrimage, Sudan Tribune, Nov. 14, 2010, available online (last visited Jan. 3, 2011). ↩

41. 41.

    Genocide Convention, supra note 4, art. I. ↩

42. 42.

    Bosnia v. Serbia (2007), supra note 5, at para. 446. ↩

43. 43.

    See Id. at para. 448. ↩

44. 44.

    Bosnia v. Serbia (2007), supra note 5, at para. 425-450. ↩