Does the Genocide Convention Provide an Obligation to Arrest?

This essay examines the argument suggested by some scholars and the minority judge in the recent South African decision that the 1948 Genocide Convention could provide an obligation to arrest Al-Bashir. It argues that this seemingly right argument is not watertight.

It is suggested that Art. IV and VI of the 1948 Genocide Convention could imply that Sudan abrogated immunity which would otherwise be benefited by Al-Bashir by ratifying the Genocide Convention.[1] This approach is inspired by the reasoning of the ICJ in the 2007 Genocide case which states that it is implied from Art. VI of the 1948 Genocide convention that state parties to the Convention are obliged to cooperate with the ICTY by surrendering the accused requested by the court and a failure of which would constitute violation of the obligation to prevent genocide under the Genocide convention.[2]

Art. VI of the Genocide Convention states:

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.

This article requires that persons charged with genocide shall be prosecuted by an 『international penal tribunal』 and the ICJ interprets this requirement as:

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.[3]

It is argued that since an obligation to cooperate with the ICTY could be inferred from Art. VI, a similar approach could also be applied to the ICC which also constitutes an 『international penal tribunal』 that Contracting Parties 『have accepted its jurisdiction』.[4]Thus as far as member states to the ICC are concerned, since they have accepted jurisdiction of the ICC, Art. VI of the Genocide Convention imposes an additional obligation on them to cooperate with the ICC beyond what is required by the Rome Statute.[5] If this approach is adopted, the difficulties with regard to Art. 27(2) of the Rome Statute would be evaded, as the 1948 Genocide Convention could become the legal basis of obligations to arrest and surrender Al-Bashir.

This approach, however, could meet with a difficulty, as the ICJ does not make it clear on what basis it implies this obligation of cooperation. As a response, Dapo Akande then argued that Art. IV reading together with Art. VI of the Genocide Convention could provide a basis for such implication.

Art. IV of the Genocide Convention stipulates:

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.

Dapo argues that although this provision aims at removing a substantive defense based on official capacity, it should still be read as also removing any procedural immunity otherwise the persons mentioned in Art. IV could not be punished.[6]

His argument is unconvincing to the Pre-Trial Chamber in the decision regarding to non-compliance of South Africa. In the recent case, the Pre-trial Chamber cited the ICJ Arrest Warrant case[7] which correctly distinguished between 「immunity」 as a procedural matter and 「impunity」 as a substantive matter[8] thus a substantive rule removing official position as a defence (Art. IV) is not necessarily conflicting with immunity.

In this regard, the approach taken by the ICC in its recent case, however, is somewhat conflicting with that of the ICJ in the Genocide case. The latter implies an obligation to cooperate with an international criminal tribunal by surrendering those accused of genocide, while the former could not find such an implication affirmatively. In this sense, the South Africa decision represents a case where the ICC deviated from the reasoning of the ICJ without providing enough reasoning to differentiate the cases, which risks causing fragmentation of international legal system as there exists no formal mechanism under international law to reconcile conflicting jurisprudence among different international courts and tribunal.

It seems to be underlying the reasoning of the Pre-trial Chamber in South African Decision that in order to read such an implication (that immunities are abrogated) out of a treaty, there should exist similar rules like Art. 27(2) of the Rome Statute which specifically mentions immunity.[9] However, this cautious approach is opposed by the minority judge Marc Perrin de Brichambaut. He examines Art. IV and VI of the 1948 Convention more closely by referring to their ordinary meaning, systematic interpretation and teleological interpretation.[10]

Judge Marc Perrin de Brichambaut accepted that in general an abrogation of immunity could not be deduced from rules denying defence of official capacities, such as Art. 7(2) of ICTY Statute, Art. 6(2) of ICTR Statute and Art. 27(1) of the ICC Statute. However, Art. IV of the 1948 Genocide is not only a provision in relation to defence of official capacity.[11] It is framed more broadly. He finds that:

「First and foremost, it establishes individual criminal responsibility for the crime of genocide. It essentially denies impunity to perpetrators of genocide, 「whether there are constitutionally responsible rulers, public officials or private individuals」, thus closing any possible impunity gap. Secondly, it imposes an obligation on States to punish all persons committing genocide, including 「constitutionally responsible rulers」. Thirdly, it precludes the defence of official capacity. 」[12]

It is the second point that is most relevant here. Also considering that Art IV is framed in present tense (whether they are constitutionally responsible rulers) it therefore requires states to punish incumbent heads of states who commit genocide.[13] Reading together with Art VI of the Genocide convention, he argues that 「it follows that, by consenting to such exercise of jurisdiction by a foreign State over their 『constitutionally responsible rulers』 committing genocide, the Contracting Parties have implicitly waived their personal immunities. 」[14] This approach is supported by the purpose of the Genocide Convention not only to 『punish』 but also to 『prevent』 genocide. Although the purpose to punish head of state for genocide could be realized after he or she steps down, the obligation to 『prevent』, however, means that states also have an obligation to put a stop to ongoing genocide, thus if an incumbent head of state is immune from exercise of jurisdiction by a foreign or international court, such a purpose of preventing genocide could not be realized.[15]

Indeed, the minority judge』s approach is not something that is unheard of. It is possible to deduce from treaty provisions obliging states to punish certain international crimes that immunities are abrogated when the state acceded to the treaty concerned, but this does not mean that this approach could be applicable everywhere.

Admittedly, previous jurisprudence of some ICTs sometimes deduced abrogation of immunity from a provision regarding denial of defence of official capacities (eg. Art. 7(2) of the ICTY Statute and Art. 6(2) of the ICTR Statute). However, it is internationally lawful for the ICTY and the ICTR to disregard the international rules of immunity as the UN Charter allows the UN not to act in conformity with the principles of international law when taking 『effective collective measures for the prevention and removal of threats to the peace』 such as by establishing international criminal courts.[16] In light of this point, it is not necessarily right for an international court other than those established under the UN Charter to make similar deduction from rules prohibiting defence of official capacity that immunities are not available.

The minority judge』s approach is also similar to the approach adopted by Pinochet (No. 3). In that case, the court found that the Torture Convention』s definition of torture combined with the mandatory universal jurisdiction and the obligation aut dedere aut judicare that the Convention must be taken to mean that immunity (ratione materiae) cannot be given to torture in the sense of the Torture Convention.[17] Although the two cases dealt with different treaty crimes and different kinds of immunity, both the minority judge in South African Decision and the judgment at Pinochet (No. 3) adopted a 「logic of inconsistency-cum-ineffectiveness」[18]. Namely, both of them consider attaching immunity to the crimes concerned would necessarily render the obligation imposed by the treaties ineffective.

Pinochet (No. 3) is considered as one of the best argument against immunity ratione materiae regarding to criminal matters, it is nonetheless not watertight. Some comments raised by some scholars in relation to the problem of Pinochet (no. 3)[19] sound insightful here. To the extent that states have an obligation to prosecute or extradite those committed international crimes under certain treaties, and given the international unlawfulness of prosecuting official of another state who benefit from immunity, the state which has the suspect in power is therefore bound to extradite rather than to prosecute him or her. In other words, the state of which the suspect is a national is treaty-bound to prosecute him or her and existence of immunity just prohibits other states to prosecute rather than necessarily render him or her impunity. In this sense, considering that it is presumed that contracting states will act in good faith to fulfill its obligation to prosecute their own official suspected of committing international crimes, existence of immunity does not necessarily go against the purpose to punish the incumbent head of state who committed international crimes.[20] The above comment made for Pinochet (no. 3) demonstrated the approach to infer abrogation immunity from certain treaty provisions is not necessarily watertight, a similar criticism is possibly applicable in relation to the Genocide Convention.

Noteworthy, there is one important difference between Torture Convention and Genocide Convention. Torture Convention explicitly imposes the obligation to prosecute or to extradite, while Art. IX of the Genocide Convention does not mention such obligation based on universal jurisdiction, it only mentions jurisdiction of territorial states and that of international criminal courts. Thus, even if the approach taken by Pinochet (no. 3) is right for Torture Convention, it is still questionable whether a similar approach could be rightly adapted to Genocide Convention.

In light of above analysis, I did not see that there exists enough basis in Genocide Convention to deduce that immunity is abrogated. Although ICTY, ICTR and Pinochet (No. 3) adopted a similar approach but what is right for them might not be right for the ICC in relation to Genocide Convention.

To conclude, the minority judge』s approach is inspiring in that it demonstrates that Art IV of Genocide Convention might not be the same as those provisions on defence of official position in many other instruments. However, it is questionable whether the three distinctive character of Article IV as identified by the minority judge is sufficient to make the inference that by ratifying the Genocide Convention, immunity is abroaged. In light of this, the cautious approach taken by the majority decision would be preferred.

[1] Dapo Akande, 『The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashirs Immunities』 (2009) 7 Journal of International Criminal Justice 333, 348-351; Dapo Akande, 『Would the addition of a Genocide Charge to the Bashir Arrest Warrant Change the Position on Immunity?』, EJIL:Talk <https://www.ejiltalk.org/would-the-addition-of-a-genocide-charge-to-the-bashir-arrest-warrant-change-the-position-on-immunity/> See one opposing argument: William Schabas, 『Genocide Convention and the International Criminal Court』, Phd Studies in Human Rights<http://humanrightsdoctorate.blogspot.co.uk/2011/01/genocide-convention-and-international.html> and response of Dapo Akande, 『The Genocide Convention and the Arrest Warrants Issued by the ICC』, EJIL:Talk! <https://www.ejiltalk.org/the-genocide-convention-and-the-arrest-warrants-issued-by-the-icc/>

[2] Application of the Convention on the Prevention and Punishment of Genocide (Bosnia Herzegovina v. Serbia & Montenegro) 2007 ICJ Reports. ?

[3] ibid, para. 443.

[4] Akande (n 1).

[5] ibid.

[6] ibid.

[7] International Court of Justice, 「Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)」, Merits, Judgment of 14 February 2002, [2002] ICJ Reports 3, paras 60 and 61.?

[8] Prosecutor v. Omar Al-Bashir (Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir) ICC-02/05-01/09, P T Ch (6 July 2017) para 109. (Hereinafter 『South African Decision』)

[9] South Africa Decision (n 8) para 109.

[10] Prosecutor v. Omar Al-Bashir (Minority Opinion Of Judge Marc Perrin De Brichambaut) ICC-02/05-01/09, P T Ch (6 July 2017) paras 20-38.

[11] ibid, para 22.

[12] ibid, para 23.

[13] ibid, para 21.

[14] ibid, para 30.

[15] ibid, paras 31-37.

[16] Roger O』Keefe, International Criminal Law (OUP 2015) 498

[17] O』Keefe (n 9) 440

[18] ibid 452.

[19] ibid.

[20] ibid.

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