Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?

Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?

The Pre-Trial Chamber of the ICC issued an arrest warrant for Sudanese President Omar Bashir only with respect to war crimes and crimes against humanity and rejected the Prosecutor’s request for a charge of genocide. Marko (and Kevin Jon Heller at Opinio Juris) have (rightly, in my view) criticized the reasoning by which the majority of the Chamber held that the materials provided by the prosecution failed to provide reasonable grounds to believe that Bashir and the Government of Sudan acted with the special intent to destroy the groups being targeted in Darfur. The Prosecutor has now appealed the decision of the PTC to reject the genocide charge. If the Appeals Chamber were to add the genocide charge to the arrest warrant, the decision would have an impact on whether other States may arrest Bashir. This is because it could then be argued that the genocide charge creates an obligation arising under the Genocide Convention 1948 for parties to that treaty to cooperate with the ICC, including an obligation of arrest.

 In the 2007 merits judgment in the Bosnian Genocide Convention Case, the International Court of Justice held (paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. In that case, the ICJ found that Serbia had violated this obligation by failing to arrest and surrender, to the ICTY, persons wanted by that tribunal in connection with the genocide in Srebrenica. The ICJ relied on Article VI of the Convention which provides that

 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.

 The court implied an obligation on States to cooperate with such competent international tribunals and to arrest persons wanted by the tribunal when the State on whose territory the person is found has accepted the jurisdiction of that tribunal.

 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. (Para 443)

 Unfortunately, the Court does not make clear on what basis it implies this obligation of cooperation and there is nothing in the text or drafting history of Article VI that gives an indication of this obligation to cooperate. Presumably, the Court reads this obligation to follow from the obligation in Art. 1 of the Genocide Convention to punish genocide. I think this is a fair reading which gives some effect to the reference to an international tribunal in Art. VI.

 This leads to the question of which tribunals are competent international tribunals and who is obliged to cooperate? According to the Court:

The notion of 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 (at which date no such court existed) of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III.

Clearly this must apply to the ICC. The ICTY was held to be a competent international tribunal given that it was created by the UN Security Council acting under Chapter VII. A similar argument should apply to the ICC when it is acting by Security Council referral. Thus, there is an obligation under the Genocide Convention to cooperate with the ICC when it indicts for genocide.

But who is obliged to cooperate? Are non-parties to the ICC Statute who are parties to the Genocide Convention under this obligation? Alas no! Under the ICJ’s decision, it turns out that this obligation of cooperation only exists under the Genocide Convention if the obligation to cooperate otherwise exists under some other instrument. This follows from the ICJ’s statement that:

the question whether the Respondent must be regarded as having ‘accepted the jurisdiction’ of the ICTY within the meaning of Article VI must consequently be formulated as follows: is the Respondent obliged to accept the jurisdiction of the ICTY, and to co-operate with the Tribunal by virtue of the Security Council resolution which established it, or of some other rule of international law? (para. 446)

In the case of the ICC, application of this rule would mean that parties to the ICC Statute, who already have an obligation to cooperate with the ICC have an additional obligation to cooperate under the Genocide Convention where genocide is alleged. Non-parties still have no obligation to cooperate unless the Security Council creates such an obligation.

Therefore, for non-parties to the ICC Statute little is gained by reliance on the Genocide Convention.

However, for ICC parties, the existence of an obligation to cooperate and arrest under the Genocide Convention opens up a different argument with regard to Bashir’s immunity. Under Article IV of the Convention, “Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” This statement appears to be directed primarily at removing a substantive defence based on official capacity. However, the provision must also be taken as removing any procedural immunities as the availability of any such immunities would be mean that the persons mentioned in Art. IV are not punished. Immunities are removed before the two types of courts provided for in Article VI in the Genocide Convention: the courts of the territory where the genocide occurred and a competent international penal tribunal whose jurisdiction is accepted the State in question.

Since, according to the ICJ’s logic, States parties to the ICC have an obligation to cooperate with the ICC when persons wanted for genocide are on their territory, and since Art. IV provides that even heads of State and public officials are to be punished, it could be argued the Genocide obligation imposes an obligation on ICC States arrest those wanted for genocide, even if they are the head of State. This argument bypasses  the application of Article 27 of the ICC Statute and the question whether Sudan is to be regarded as in the position of a party to the ICC Statute. Here the obligation of ICC parties to arrest is based on the acceptance of the ICC’s jurisdiction by that party and the imposition of ICC jurisdiction on Sudan. Furthermore, the removal of immunity is based on the acceptance of the Genocide Convention by the arresting party and by Sudan.