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Treaties & Instrumentalities
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Constitutive Act of the African Union, O.A.U. Doc. No. CAB/LEG/23.15, ( July 11, 2000). Available online. Archived.
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Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.
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Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S. 261.
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Convention on the Prevention and Punishment of the Crime of Genocide (The Genocide Convention), August 12, 1949, 75 U.N.T.S. 31.
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Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. عربي, 中文, English, Français, Ελληνικά, Русский, Español
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Genocide Convention
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, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. Int’l Crim. Just. 365 (May 2010). Journal paywall.
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, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. Just. 333 (May 2009). Journal paywall.
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, Reining in Non-State Actors: State Responsibility and Attribution in Cases of Genocide, 84 N.Y.U. L. Rev. 1623 (December 2009). Available online. Archived.
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, 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 (2008). Available online. Archived.
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and , What the ICJ did not say about the Duty to Punish Genocide, 5 J. Int’l Crim. Just. 859 (September 2007). Journal paywall.
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Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 1 (February 26, 2007). Available online. Archived.
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, The Law of State Immunity, (Oxford University Press, 2nd Edition, October 2008). Catalog Description.
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Immunity
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, Comment, Holding an Arsonist’s Feet to the Fire?—The Legality and Enforceability of the ICC’s Arrest Warrant for Sudanese President Omar Al-Bashir, 24 Am. U. Int’l L. Rev. 897 (2009). Available online. Archived.
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& , The Arrest Warrant for President Al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court, 14 J. Conflict & Security L. 71 (2009). Journal paywall.
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, The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits, 1 J. Int’l Crim. Just. 618 (December 2003). Available online. Archived.
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, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407 (July 2004). Available, in part, online. JSTOR paywall.
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, The International Criminal Court: Seeking Global Justice, 40 Case W. Res. J. Int’l L. 215 (2008). Available online. Also available here.
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, It’s Still Good to be the King: An Argument for Maintaining the Status Quo in Foreign Head of State Immunity, 21 Emory Int’l L. Rev. 413 (2007). Available online. Archived.
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, Does President Al-Bashir Enjoy Immunity from Arrest?, 7 J. Int’l Crim. Just. 315 (May 2009). Journal paywall.
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, Diplomats or Defendants? Defining the Future of Head-of-State Immunity, 52 Duke L.J. 651 (December 2002). Available online. Archived.
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, Certain Criminal Proceedings in France (Republic of Congo v. France) and Head of State Immunity: How Impenetrable Should the Immunity Veil Remain?, 26 B.U. Int’l L.J. 375 (2008). Available online. Archived.
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Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), 2002 I.C.J. 3 (February 14, 2002). Available online. Archived. Also see links to all the files in the case.
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Case Concerning Certain Criminal Proceedings in France (Democratic Republic of Congo v. France), 2003 I.C.J. 102 (June 17, 2003). Available online. Archived.
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Press Release, Liberia’s Application Instituting Proceedings against Sierra Leone in Respect of the Indictment by the Special Court for Sierra Leone of the Liberian Head of State, I.C.J., (August 5, 2003). Available online.
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African Union
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Press Release, On the Decision of the Pre-Trial Chamber of the ICC Informing the UN Security Council and the Assembly of the State Parties to the Rome Statute About the Presence of President Omar Hassan Al-Bashir of the Sudan Territories in the Republic of Chad and the Republic of Kenya, AU, (August 29, 2010). Available online.
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Decisions and Declarations, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) (July 1–3, 2009). Available online.
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Communique, African Union, Communique on the 3 February 2010 Judgment of the International Criminal Court Appeals Chamber on Darfur, (February 4, 2010). Available online.
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African Move on Bashir Dismissed, BBC News, July 5, 2009. Available online. Archived.
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United Nations Security Council Resolution 1593, U.N. Doc. S/RES/1593 (March 31, 2005).
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Constitutive Act of the African Union, O.A.U. Doc. No. CAB/LEG/23.15, ( July 11, 2000). Available online. Archived.
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Decisions and Declarations, Assembly of the African Union, Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.296(XV) (July 25–27, 2010). Available online. Archived.
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International Criminal Law Forum
International Criminal Court
The Human Rights and International Criminal Law Forum
The Sanela Diana Jenkins Foundation at UCLA School of Law
Luis Moreno-Ocampo ICC Prosecutor
Topic for January 2011 – May 2011
Darfur Question What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?
This debate addresses three key legal issues raised by the arrest warrant issued by the ICC Pre-Trial Chamber on 12 July 2010 against Sudanese President Omar Al Bashir for genocide. The Pre-Trial Chamber found that there are reasonable grounds to believe that President Al Bashir was responsible for three counts of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups in Darfur: genocide by killing, genocide by causing serious bodily or mental harm, and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.
The first set of issues relates to obligations arising from the Genocide Convention. In terms of Article I of the Genocide Convention, Contracting Parties undertake to prevent and punish genocide. Article VI 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 argument has thus been made that in the absence of national proceedings by a competent tribunal in the territorial State, Contracting Parties to the Genocide Convention, including those not parties to the Rome Statute of the ICC (ICC Statute), have an obligation to implement arrest warrants for genocide issued by the ICC. This proposition raises a number of questions. What are the obligations, if any, of Contracting Parties to the Genocide Convention, to implement arrest warrants on genocide counts issued by the ICC, irrespective of whether they are States Parties to the ICC Statute? Does the ICC qualify as an “international penal tribunal”? Under what conditions may States be deemed to “have accepted the jurisdiction” of the ICC? Does becoming a subject of an arrest warrant qualify as being “charged”?
A second issue relates to whether Contracting Parties may refuse to cooperate with arrest efforts on grounds of immunity?
A third set of issues relates to obligations of States Parties that are also African Union (AU) Member States. Part 9 of the ICC Statute obligates States parties to cooperate with and provide judicial assistance to the ICC, and Article 89 obligates States Parties to surrender to the Court persons subject to an ICC arrest warrant. At the same time, the AU has issued press statements and communiques warning that efforts to arrest President Al Bashir could destabilize certain African countries and interfere with diplomatic efforts to bring about peace, and has taken a decision that the AU Member States “shall not cooperate pursuant to the provisions of Article 98 of the ICC Statute relating to immunities, for the arrest and surrender” of President Al Bashir. Some have argued or suggested that AU members are therefore not obligated to arrest President Al Bashir. Others have countered that obligations pursuant to the ICC Statute may not be suspended by a decision of the AU and that only the Security Council could defer the investigation or prosecution in accordance with Article 16 of the ICC Statute. To what extent are ICC State Parties that are also AU Member States obligated to cooperate with the Court in the arrest of President Al Bashir?