II. The Obligation to Prevent Genocide Created by the Genocide Convention Means that Contracting Parties have a Duty to Implement ICC Arrest Warrant For Genocide

In the Genocide Case, the ICJ held that “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the state learns of….the existence of a serious risk that genocide will be committed.”6 Once on notice of such a risk, state parties to the Genocide Convention must utilize “all means reasonably available” in order to prevent genocide from occurring.7 Under these parameters set out by the ICJ, to determine whether the Genocide Convention creates an obligation for state parties to implement the ICC arrest warrants, we must answer two questions: 1) Have state parties been made aware of a serious risk that genocide is being or will be committed in Darfur? and 2) Does implementing the ICC arrest warrants qualify as a means “reasonably available” to state parties? The answer to both questions is a resounding yes.

The analytic framework utilized by the ICJ in the Genocide Case requires a case by case, fact intensive analysis to determine what means were reasonably available to state parties.8 The court laid out one primary parameter in ascertaining whether a state party utilized all such means: The capacity to effectively influence the actions of the person/s who are committing genocide or are likely to do so. This parameter is in turn affected by several factors, including geographic distance between the state party and the perpetrator state, and the strength of their political, social, and economic links.9 Thus, a state party that is a neighbor to the perpetrator, and has strong ties to that perpetrator, would have a larger array of reasonably available means to prevent genocide than a distant state party with no ties. The holding also made it clear that the obligation is “one of conduct and not one of result”, meaning that state parties cannot shirk their obligation by arguing that even if they had utilized all reasonably available means, they could not have prevented genocide.10

A. State Parties to the Genocide Convention have Been Made Aware of a Serious Risk that Genocide Will be Committed

Contracting parties have been put on notice regarding the risk and/or commission of genocide in Darfur through the actions of the United Nations, the ICC, and various non-governmental organizations. The first primary form of international notice came on March 3, 2005, when the United Nations Security Council referred the situation in Darfur to the ICC prosecutor via Resolution 1593.11 The resolution began with the Security Council taking note of a report produced by the International Commission of Inquiry that detailed widespread human rights violations occurring in Darfur.12 While the Commission report and accompanying Resolution did not declare the events in Darfur up to that point to be a genocide, that is not the standard required for the creation of a duty to act according to the holding of the Genocide Case. Instead, the ICJ held that the “serious risk” that genocide will be committed is sufficient to create the duty.13 It is hard to imagine a stronger indication of such a serious risk (besides evidence that genocide is already underway) than widespread human rights violations of the nature referenced by the Commission’s report. This basis for the resolution, along with the fact that the Council was referring the situation to the ICC, signified a serious risk that genocide would be committed in Darfur. The fact that this first notice came from the UNSC, the strongest voice in the international system, means that no state can plead ignorance.

Another form of notice regarding the risk of genocide in Darfur came with the warrants issued by the ICC. The first arrest warrant, issued on March 4, 2009, indicted al-Bashir on charges of war crimes and crimes against humanity.14 Though al-Bashir was not indicted for genocide at this point, the argument in the paragraph above details why this is irrelevant. The warrant was based on the pre-trial chamber’s decision there were reasonable grounds to believe that al-Bashir was involved in the commission of systematic violence, including murder and extermination, against three specific ethnic groups in Darfur.15 That this warrant was issued by a court of law after a hearing in which extensive evidence was produced is significant; these procedural checks ensured that there was substance to the allegations against al-Bashir, which in turn strengthened the notice given to contracting parties of the Genocide Convention that there was a serious risk that genocide would be committed in Darfur.

This first arrest warrant has been rendered largely irrelevant however, following the issuance of a second arrest warrant, complete with the charge of genocide, on July 12, 2010.16 By analyzing the evidence against al-Bashir and finding it sufficient to issue an arrest warrant for al-Bashir, the ICC made it effectively impossible for states to ignore the possibility that genocide was being committed in Darfur or that it might be committed in the near future.

Further evidence of the possibility of genocide occurring in Darfur has been provided by numerous NGO reports and briefs. A briefing paper from Save Darfur published in 2008 summarizes some of the relevant facts: 1) At least three hundred thousand dead since the crisis began. 2) As many as 2.5 million displaced. 3) Constant attacks by government backed militia on humanitarian aid efforts.17 This data, compiled from U.N. reports, certainly highlights the possibility that genocide is occurring or may occur in Darfur.

Two Human Rights Watch reports provided additional evidence of the risk of genocide in Darfur to the international community. In May of 2004, the group released the report entitled “Darfur Destroyed” that laid bare the campaign of ethnic cleansing perpetrated by the government and government backed militias that had already claimed thousands of lives.18 While the report did not call the events at that point genocide, an organized campaign of ethnic violence like the one underway in Darfur by May of 2004 undoubtedly contained a risk of genocide. This threat of genocide has not disappeared in the years since this report, though it has changed somewhat due to the arrival of UNAMID and the displacement of the population. In “Chaos by Design”, a report published in 2007, HRW detailed how the ongoing campaign of ethnic cleansing had evolved, incorporating the disruption of humanitarian aid and organized rape, and was still supported by the Sudanese government.19 According to the report, this campaign has been designed to keep the Darfur region in a chaotic, unstable state, so that the Sudanese government can maintain dominance over the region.20

Even if state parties to the Genocide Convention, after examining UNSCR 1593, the ICC arrest warrants, and relevant U.N./NGO reports, find that they do not believe that genocide has been committed in Darfur, they have still been put on notice according to the rule established by the ICJ. This is because the Genocide Case ruling only requires that state parties be made aware of a “serious risk that genocide will be committed.”21 The compelling evidence of al-Bashir’s government utilizing systemic violence against specific ethnic groups in Darfur was enough to convince major international institutions to act; it is also sufficient to show that such a risk exists in Darfur.

B. Implementing Arrest Warrants is A “Reasonably Available Means” for Preventing Genocide in Darfur

The second element of determining whether state parties to the Genocide Convention have a duty to implement the ICC arrest warrants based on their obligation to prevent genocide hinges on whether such implementation qualifies as a “reasonably available means” as defined by the ICJ. If implementing the arrest warrants falls under the framework created in the Genocide Case for determining the obligations of contracting parties, then such implementation is a reasonably available means and state parties have a duty. To complete this analysis, two foundational questions must be addressed. First, what does implementing the arrest warrants entail? Second, will such implementation contribute to preventing and/or ending genocide in Darfur?

Before we can determine if implementation of the ICC arrest warrants qualifies as an obligation for state parties under this framework, we must address the foundational questions highlighted above. Admittedly, implementation of the arrest warrants may seem to be a vague request. An extreme interpretation could lead to scenarios where governments are mandated to utilize covert action to nab al-Bashir or even invade Sudan. However, it is doubtful that this what the ICC had in mind and a much more limited interpretation is all that is needed for our purposes. Implementing the arrest warrants simply means that a state party pledges to arrest al-Bashir if he enters their sovereign territory, and that they will surrender him to the court in a timely manner.22 It certainly means that a state party does not welcome al-Bashir with open arms, as Ethiopia and Zimbabwe did.

After addressing what implementation entails, the question then becomes: Will implementing the arrest warrants contribute to preventing genocide or stop genocide already occurring in Darfur? To answer this in the affirmative, we can look to two hypothetical situations, both predicated on state parties to the Genocide Convention and state parties to the Rome Statute honoring the arrest warrants. The first hypothetical is simple: al-Bashir visits a contracting party to the Genocide Convention, and is arrested and surrendered to the ICC. Though this would likely infuriate the remaining Sudanese government, it would still place enormous pressure on them to end their activities in Darfur. This pressure comes from two sources. First, by ending the impunity for individual leaders, even heads of state, the ICC will have sent a strong message to the new leadership in Sudan that will have them think twice about continuing their actions. Second, the new administration would be encouraged to improve its behavior in regards to Darfur in order to facilitate a possible negotiation for the release of al-Bashir.

However, the more likely hypothetical to occur if all contracting parties to the Genocide Convention decide to implement the arrest warrants is that al-Bashir will be effectively locked within Sudanese territory. This would make the Sudanese government an isolated, outcast regime, and is an example of coercive pressure that the ICJ had in mind when it created its framework for determining reasonably available means. The state’s that have the greatest capacity to influence al-Bashir are his African neighbors and China, with whom Sudan has strong political and economic ties. In terms of Sudan’s neighbors, Ethiopia, Uganda, Democratic Republic of the Congo, and Egypt are all contracting parties to the Genocide Convention, while Chad and the Central African Republic are state parties to the Rome Statute.23 If this group of nations was to honor its treaty obligations and implement the arrest warrants, it would create a powerful regional condemnation that could force the Sudanese administration’s behavior in Darfur to change. Similarly, if China, a contracting party to the Genocide Convention,24 were to implement the arrest warrants as per its duty, it would be another effective means of coercive diplomatic power that could prevent genocide from occurring in Darfur.

It is difficult to argue that the limited action required of states in implementing the arrest warrants is anything other than a reasonably available means. Implementation of the warrants does not require military force, clandestine action, or any other active use of resources. Essentially, all a nation needs to do is to tell al-Bashir that if he steps foot in their borders, he will be arrested. Coercive diplomatic pressure like this, while a small step, is still a step towards correcting the behavior of the Sudanese government.

III. Conclusion

The ICJ opinion was unequivocal in its ruling; once made aware of a serious risk that genocide will be committed, state parties to the Genocide Convention must employ all reasonably available means to prevent genocide.25 Notice that genocide was occurring in Darfur, or that there was a serious chance that it would occur, was broadcasted throughout the international system on several different occasions by several different sources. Following this notice, implementation of the subsequent ICC arrest warrants represents a relatively easy step that would contribute to the prevention or end of genocide in Darfur. For these reasons, state parties to the Genocide Convention have an obligation to implement the ICC warrants.

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

1. 1.

   Sudan’s Bashir in Zimbabwe visit, BBC (June 7, 2009, 11:21 AM), available online; see also Chad refuses to arrest Sudan’s al-Bashir, CBC (July 21, 2010 1:55 PM), available online. ↩

2. 2.

   Ethiopia was actually the first nation to ratify the convention on July 1, 1949 and Zimbabwe acceded to the Convention on May 13, 1991, see Status of Treaties, Chapter IV: Human Rights Treaties, Convention on the Prevention and Punishment of the Crime of Genocide, State Parties, available online ↩

3. 3.

   Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [hereinafter Genocide Case], Judgment, I.C.J. 2007. available online. See also Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 U.N.T.S. 277. (genocide is a crime under international law that contracting parties must “undertake to prevent and to punish.”) [hereinafter Genocide Convention]. ↩

4. 4.

   Genocide Case, Para. 426. ↩

5. 5.

   See Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. Int’l Crim. Just. 365, (2010) (arguing that the issuance of an arrest warrant on the charge of genocide means that state parties to the Genocide Convention must cooperate with ICC efforts to arrest al-Bashir based on their obligation to punish genocide. This argument relies on Article VI of the Genocide Convention, which references person charged with genocide being tried by “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” Even if we assume that the ICC qualifies as this “international penal tribunal”, it is a tenuous assertion that Contracting Parties to the Genocide Convention that are not parties to the Rome Statute have thereby accepted the jurisdiction of the ICC.) See also Genocide Convention, art. VI. ↩

6. 6.

   Id., Para. 431, p. 155. ↩

7. 7.

   Id., Para. 430, 154 ↩

8. 8.

   Id., Para 430. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

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

12. 12.

    Id. See International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General (Jan. 25, 2005) available online (Arguably another form of notice regarding the risk of genocide in Darfur; detailed serious violations of human rights law on the perpetrated by the Sudanese Government and Janjaweed militias, including the killing of civilians, rape, and destruction of villages) ↩

13. 13.

    Genocide Case, Para. 431. ↩

14. 14.

    International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (March 4, 2009), ICC-02/05-01/09. available online. ↩

15. 15.

    Id. ↩

16. 16.

    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. ↩

17. 17.

    “The Genocide in Darfur-Briefing Paper”, Save Darfur, June 2008, available online ↩

18. 18.

    “Darfur Destroyed”, Human Rights Watch, May 6, 2004, available online ↩

19. 19.

    “Chaos by Design”, Human Rights Watch, September 19, 2007, available online ↩

20. 20.

    Id. ↩

21. 21.

    Genocide Case, Para. 431. ↩

22. 22.

    See International Criminal Court, Pre-Trial Chamber I, Decision requesting observations from the Republic of Kenya, (October 25, 2010), available online. (request that Kenya explain why it has refused to arrest al-Bashir during his visit.) See also Supplementary Request to all State Parties to the Rome Statute for the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, (July 21, 2010), available online. (Request to all state parties of the Rome Statute that they honor their obligations, most notably under Article 89 of the Statute, to arrest al-Bashir if he is on their territory. No reason to assume that a different standard would be expected of state parties to the Genocide Convention.) See also Rome Statute art. 89, July 17, 1998, 2187 U.N.T.S. 90. (Section 1: “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.”) ↩

23. 23.

    Contracting Parties to the Genocide Convention, available online; State Parties to the Rome Statute, available online. ↩

24. 24.

    Contracting Parties to the Genocide Convention, available online ↩

25. 25.

    Genocide Case, Para. 430. ↩