I. Contracting Parties to the Genocide Convention have a binding obligation to arrest Bashir and prosecute him or surrender him to the ICC

In establishing the Genocide Convention, the Contracting Parties to the Genocide Convention agreed that persons responsible for genocide in any of its forms should be punished.2 They agreed that this obligation applies irrespective of the status of the person responsible, even if they are a serving Head of State.3

Although no international penal tribunal with jurisdiction to hear genocide cases existed at the time the Genocide Convention entered into force, the States Parties anticipated the possibility of prosecutions by such a tribunal. In fact, some States Parties, most notably France, felt that an international penal tribunal would be the most appropriate forum for genocide prosecutions in order to avoid the likely bias and political interference of national proceedings for this type of crime.4 Accordingly, Article VI of the Genocide Convention provides:

“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.” (emphasis added)

In the Bosnia Genocide Case, the ICJ held that Article VI contains an implicit obligation to cooperate with an international penal tribunal prosecuting a person or persons alleged to be responsible for genocide, stating:

“For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory even if the crime of which they are accused was committed outside it and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal.”5

The ICC is clearly an international penal tribunal as envisaged by the Genocide Convention.6 Accordingly, the question narrows down to whether Contracting Parties to the Genocide Convention have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir for the atrocities in Darfur. Simply being a Contracting Party to the Genocide Convention is not sufficient in and of itself to demonstrate such acceptance. Instead, acceptance of the jurisdiction of the ICC with respect to Bashir must be established on the basis of an independent provision or principle of international law that binds the relevant Contracting Party to the Genocide Convention.

A. Contracting Parties to the Genocide Convention that are also Parties to the Rome Statute and/or member States of the United Nations have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir

1. Under the Rome Statute for States Parties:

States Parties to the Rome Statute have accepted the ICC’s jurisdiction through their ratification of the Rome Statute. On this basis, States that are party to both the Rome Statute and the Genocide Convention have an obligation under Article VI of the Genocide Convention to cooperate with the ICC with respect to the prosecution of Bashir for genocide.

2. Under Security Council Resolution 1593 for UN member states which are Contracting Parties to the Genocide Convention:

With respect to States not party to the Rome Statute, but party to the Genocide Convention, the position is less straightforward.7 A literal application of the ICJ’s holding in the Bosnia Genocide case indicates that these States have an obligation under Article VI of the Genocide Convention. Although not parties to the Rome Statute, these States can be deemed to have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir on the basis of Security Council Resolution 1593.8

Security Council Resolution 1593 referred the situation in Darfur since 1 July 2002 to the ICC. The United Nations thereby accepted the ICC’s jurisdiction with respect to that situation, which encompasses the arrest warrants and proceedings against Bashir for genocide. The UNSC referral by way of Resolution 1593 constitutes a collective acceptance on the part of all UN members States of the ICC’s jurisdiction over the Darfur situation. It extends to UN member States who were not on the Security Council when the resolution was passed. This is made clear by Article 25 of the UN Charter, by which UN members pledge to accept the decisions of the UNSC on matters of international peace and security. No UN member State is able to deny that the ICC has jurisdiction over the Darfur situation, even if they have an obligation under international law which appears to conflict with the attendant duty to cooperate in arresting and transferring Bashir.9

The acceptance of the jurisdiction of an international penal tribunal for the purposes of Article VI of the Genocide Convention by way of UN obligations is not novel. In the Bosnia Genocide case, the ICJ stated that Serbia had an obligation to cooperate with the ICTY on the basis of its membership of the UN. This was an additional basis for the obligation under Article VI of the Genocide Convention, separate from Serbia’s obligations under the Dayton Agreement. In the specific circumstances of that case, the ICJ relied primarily on Serbia’s obligation springing from the Dayton Agreement because it covered the critical period of December 1995 to 2000.10 However, this does not undermine its holding that Serbia’s membership of the UN was sufficient to constitute its acceptance of the ICTY’s jurisdiction.

In the Bosnia Genocide judgement, the ICJ analysed whether Serbia had “accepted the jurisdiction” of the ICTY, thus activating the obligation under Article VI of the Genocide Convention. It did not insert into Article VI of the Genocide Convention an additional requirement of showing an obligation to cooperate with the international tribunal located in an instrument other than the Genocide Convention.11 Instead, it held that one manner of fulfilling the acceptance requirement was by showing that Serbia had an obligation to cooperate with the ICTY. Serbia had an obligation to cooperate with the ICTY under the Dayton Agreement and later as a member of the UN, and thereby was deemed to have accepted the ICTY’s jurisdiction. In other words, Serbia’s obligations arising under the Dayton Agreement and as a result of its UN membership jointly and severally demonstrated that Serbia had accepted the jurisdiction of the ICTY; they were not requirements in themselves for the activation of Article VI of the Genocide Convention. This is consistent with the plain terms of Article VI, which contain one requirement—showing that the State in question has “accepted the jurisdiction” of the international penal tribunal. As stated by the ICJ, “Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it.”12

The fact that Security Council Resolution 1593 recognized that “States not party to the Rome Statute have no obligation under the Statute” does not affect the preceding analysis. The obligations, including the obligation to arrest and surrender Bashir to the ICC, arise from Article VI of the Genocide Convention, which is a separate and distinct instrument from the Rome Statute.

B. The implications of the obligations under the Genocide Convention: No immunity for Heads of State

The Genocide Convention provides that persons responsible for various forms of genocide shall be punished, irrespective of whether they are serving Heads of State. Consequently, Bashir’s status is irrelevant with respect to the obligation arising under the Genocide Convention.

Article VI of the Genocide Convention requires that Sudan, as a Contracting Party to the Genocide Convention and a State in the territory of which the alleged crimes were committed, either prosecute Bashir or surrender him to the ICC. Article VI obliges other Contracting Parties to the Genocide Convention to surrender Bashir to the ICC for prosecution for genocide. Additionally, the ICJ’s statement in the Bosnia Genocide case indicates that Contracting Parties to the Genocide Convention that obtained custody over Bashir may prosecute him in their own courts.

Because the obligation arises from the Genocide Convention, Article 98 of Rome Statute does not directly impact on that obligation. The impact of Article 98 and other instruments of international law and customary international law are assessed below.

Additionally, under Article IX of the Genocide Convention, the ICJ acquires compulsory jurisdiction over disputes concerning violations of the obligations under the Genocide Convention. This may prove to be a useful tool to induce compliance with the obligation under Article VI, should another State decide to invoke the ICJ’s jurisdiction in case of a Contracting Party’s failure to arrest or transfer Bashir to the ICC.

II. States Parties to the Rome Statute have a binding obligation to arrest Bashir and try him or surrender him to the ICC

A. The basis of the obligations on State Parties

States Parties to the Rome Statute have accepted obligations to assist the ICC.13 However, Article 98 of the Rome Statute provides:

“[the] Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

This provision is a clear recognition of the customary law on immunities that would normally work to prevent States from arresting or subjecting to legal action State officials, in particular, Heads of State.

1. Implicit waiver:

The waiver requirement has been identified as a potentially major obstacle to the ICC ever being able to prosecute a Head of State.14 For this reason, it has been argued that States that have ratified the ICC may have also waived all immunities regarding the arrest and transfer of persons to the ICC.15 This would mean that the reference to “third State” in Article 98(1) refers to non-party States only.16 The argument finds little textual support, but it does comport with the principle of effectiveness as an interpretative device, allowing Article 27 to have some meaning.

2. Evolving Rule of Customary International Law to lift Head of State Immunity:

The position is further supported by evidence of a customary rule to lift Head of State immunity, in cases of international crimes, at least insofar as the jurisdiction of international courts and tribunals is concerned. Head of State immunity was first lifted as a bar to prosecution before an international court in the Treaty of Versailles which sought to prosecute German Emperor Wilhelm II for “a supreme offence against the international morality and the sanctity of treaties”.17 A provision lifting personal immunity was explicitly included in the ICC Statute and UNTAET Regulation 2000/15 setting up the Special Panels for Serious Crimes in East Timor. In addition, Article 7 of the IMT Charter has also been interpreted as rejecting personal immunities.18 Given that all States are bound to cooperate with the ICTY and ICTR, one could equally imply an exception to procedural immunity inherent in Articles 7(2) and 6(2) respectively.19 While the SCSL did not enjoy the same benefit, it has noted that that “[t]he nature of the offences for which jurisdiction was vested in these various [international] tribunals is instructive as to the circumstances in which immunity is withheld.”20 The trend of these instruments is undeniably the rejection of procedural immunity over international crimes.

It is arguable that the ICJ implicitly recognised the customary law nature of the obligation to lift Head of State immunity in its Advisory Opinion on Reservations to the Convention on Genocide by holding that “the principles underlying the Convention are principles which are recognised by civilized nations as binding on States, even without any conventional obligation.”21 This signals that Article IV, which provides that “Persons committing genocide … shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”, is a customary rule of international law.

In the Sharon case, the Belgium Court of Cassation held that Article 27(2) of the ICC Statute does not affect or prevent the application of the customary rule on immunities when a court is exercising “universal jurisdiction by default”.22 However, this is distinguishable from the exercise of jurisdiction either by the territorial State or an international penal tribunal, both of which are specifically foreseen as potential forums in the Genocide Convention. Similarly, while the ICJ found the personal immunity of a Congolese incumbent minister of foreign affairs to be absolute in respect of a Belgian arrest warrant pertaining to alleged international crimes in the Democratic Republic of Congo, the basis for jurisdiction again was universal jurisdiction.23 Moreover, the finding of the Court regarding the scope of the immunity appeared strictly related to the functions of a foreign minister.24 Little State practice or opinio juris was relied on, arguably leaving the question of the customary status of the rule requiring the respect of personal immunity in cases of international crimes open to interpretation.25 Significantly, the Court held that an exception to absolute personal immunity under international law was the exercise of jurisdiction by “certain international courts”, citing as examples the ICTY, ICTR and the ICC.26 On this basis, the Special Court for Sierra Leone held that Charles Taylor—the incumbent President of Liberia when the indictment was issued by the Court—could be subject to its jurisdiction as an international court.27 Whether the ICJ’s obiter on this “exception” to absolute personal immunity may be relied on by national authorities as a legal basis to arrest and transfer a head of State to the ICC remains unclear, but it is undeniable that this concession by the Court may provide some further justification for interpreting Article 98 of the ICC Statute in this manner.

3. Sudan is estopped from asserting Head of State Immunity:

In the case at hand, Security Council Resolution 1593 and the UN Charter may be dispositive of the issue of reconciling inconsistent obligations under Article 98. In Resolution 1593, the UNSC decided that “the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.” Under Articles 25 and 103 of the UN Charter, the UNSC’s decision prevails over any inconsistent obligations under international law that UN member States may have, including customary law so long as it does not have a jus cogens character.28 Since immunities may be waived by the relevant State, Head of State immunity is clearly not an obligation of jus cogens. 29 Accordingly, Sudan could be argued to be estopped from asserting Head of State immunity. Indeed, to assert Head of State immunity would be the antithesis of cooperation with the ICC and thus directly inconsistent with Security Council Resolution 1593. Because Head of State immunity attaches to Sudan as a State it may only be asserted by Sudan and may not be asserted by Bashir as an individual. If Sudan is precluded from asserting Head of State Immunity, there is no counter-veiling obligation under international law preventing States Parties to the Rome Statute from arresting Bashir.

B. There are no obligations under the Rome Statute on States not party to the Rome Statute

States not party to the Rome Statute have not accepted obligations under the Rome Statute (with the exception of Sudan, as explained above). Moreover, Security Council Resolution 1593 unequivocally provides that “States not party to the Rome Statute have no obligation under the Statute.” Therefore, those States have no obligation under the Rome Statute.

C. The implications of the obligations on State Parties to the Rome Statute

State Parties to the Rome Statute must implement the arrest warrants issued by the ICC and adhere to all other obligations to cooperate with the Court.

III. States not party to the Genocide Convention or the Rome Statute have no binding obligation to arrest

As for States that are party to neither the Genocide Convention nor the Rome Statute, they do not have obligations under either of those instruments as a matter of conventional law. Security Council Resolution 1593 urges them to cooperate with the ICC in proceedings against Bashir but does not create any binding obligations in that respect.

Conclusion

Under international law, UN member States which are party to the Genocide Convention have an obligation to arrest Bashir and transfer him to the ICC for trial. Sudan is under a binding obligation pursuant to Security Council Resolution 1593 to transfer Bashir to the ICC or try him in Sudan. The plain terms of Security Council Resolution 1593 along with the provisions of the UN Charter preclude Sudan from asserting Head of State immunity to try to prevent other States implementing the ICC arrest warrant. States Parties to the Rome Statute must implement the arrest warrants issued by the ICC. In any of these proceedings, Head of State immunity would not provide a defence to the genocide charges.

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

1. 1.

   The ICC Pre-Trial Chamber issued a second warrant of arrest in July 2010. The decision followed the Appeals Chamber decision of February 3, 2010 reversing the Pre-Trial Chamber’s March 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. ↩

2. 2.

   Genocide Convention, Articles I, III. ↩

3. 3.

   Genocide Convention, Article IV. ↩

4. 4.

   W. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), at 368. ↩

5. 5.

   Application of the Convention on the Prevention and Punishment of Genocide (Bosnia Herzegovina v. Serbia & Montenegro), I.C.J. Reports, 2007, (“Bosnia Genocide Case”), para. 443. ↩

6. 6.

   See Bosnia Genocide Case para. 445. ↩

7. 7.

   At the time of writing, there are over 50 States falling into this category: Bringing Power to Justice, Absence of Immunity for Heads of State before the International Criminal Court, Amnesty International, 2010, p.50. ↩

8. 8.

   This argument also applies to States Parties to the Rome Statute can be deemed to have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir for the alleged genocide in Darfur on the basis of Security Council Resolution 1593. ↩

9. 9.

   UN Charter, Article 103. See also discussion below, noting that Sudan may be estopped from asserting Head of State immunity as that would be inconsistent with its obligations under Security Council Resolution 1593. ↩

10. 10.

    Bosnia Genocide Case, para. 447. See also para. 449, where the ICJ noted that Serbia’s failure to punish perpetrators of the Srebrenica genocide “constitutes a violation by the Respondent of its duties as a party to the Dayton Agreement, and as a Member of the United Nations, and accordingly a violation of its obligations under Article VI of the Genocide Convention.” (emphasis added.) ↩

11. 11.

    For a contrary position see the discussion by Dapo Akande in his contribution to this forum, referring to Bosnia Genocide Case, para. 446. ↩

12. 12.

    Bosnia Genocide Case, para. 443. ↩

13. 13.

    Rome Statute, Article 86. ↩

14. 14.

    Otto Triffterer, “Article 27: Irrelevance of official capacity,” in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Otto Triffterer (ed.) (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 513. ↩

15. 15.

    See, e.g., the UK’s International Criminal Court Act 2001, s23(1): ‘Any state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this part in relation to that person.’ Sub-paragraph (6)(c) makes it clear that State or diplomatic immunity includes ‘any rule of law derived from customary international law’. The same provision appears in the Commonwealth Model Law on implementing the Rome Statute, as well as in the implementing legislation of Malta, Samoa and Ireland. ↩

16. 16.

    Paola Gaeta, “Official Capacity and Immunities,” in The Rome Statute of the International Criminal Court: A Commentary, Volume I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds) (Oxford: OUP, 2002), 994. ↩

17. 17.

    Art. 227 Treaty of Versailles. However, the trial never took place. ↩

18. 18.

    Arguably, Admiral Doenitz, who succeeded Hitler as Head of State on 1 May 1945 following the latter’s suicide, was tried and convicted (to 10 years imprisonment) on the basis that Art. 7 IMT Charter rejected personal immunity. ↩

19. 19.

    Personal or procedural immunity refers to the comprehensive immunity from the jurisdiction of foreign national courts enjoyed by a limited group of State officials during their tenure. This immunity relates to procedural law, meaning that the person enjoys inviolability from civil or criminal jurisdiction. By contrast, functional immunity is a substantive defence to a violation of a national or international rule since responsibility for an internationally unlawful act is deemed to be imputable to the State and not to the individual. ↩

20. 20.

    Prosecutor v. Taylor, Case SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004, para. 49. ↩

21. 21.

    Reservations to the Convention on Genocide (Advisory Opinion), 1951 ICJ Reports 15 (1951), para. 24. ↩

22. 22.

    Sharon Ariel and others, Belgium, Court of Cassation, Judgment of 12 February 2003, available online. See also Antonio Cassese, “The Belgium Court of Cassation v. the International Court of Justice: the Sharon and others Case,” J. Int’l Crim. Just. 1 (2003), 437. ↩

23. 23.

    Arrest Warrant of April 11th 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Merits, 41 ILM 536 (2002). ↩

24. 24.

    Ibid., paras. 53-54. ↩

25. 25.

    See, e.g., Ibid., Dissenting Opinion of Judge Van den Wyngaert, p.143, para. 11 and para. 12. See also Article III(1) of the Institut de Droit International, Resolution on International Crimes and Immunities from Jurisdiction of States and their Agents, adopted 10 September 2009, at Naples. ↩

26. 26.

    Ibid., para. 61. ↩

27. 27.

    Prosecutor v. Taylor, Case SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004. ↩

28. 28.

    The Vienna Convention on the Law of Treaties of 1969 lays down the principle that any treaty that conflicts with a peremptory norm of general international law is void. Art. 53 VCLT (1969). It is not clear how this provision would apply to the UN Charter, given that Article 103 of the Charter provides that obligations under the Charter override obligations under other treaties, which would include the Vienna Convention on the Law of Treaties. ↩

29. 29.

    In the Arrest Warrant case, the Congo argued that immunity of a serving State representative could indeed be waived by the represented State. Mr. D’Argent, CR 2001/5, 15 October 2001, at 22-23, uncorrected verbatim record. See also the dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić in the European Court of Human Rights in the Al-Adsani v. United Kingdom judgement (21 November 2001), para. 2. ↩