ICC News – OTP to charge Sudanese President with Genocide

By Björn Elberling

The Press Advisory on the ICC website reads somewhat unspectacularly, "ICC Prosecutor to present second case to the Judges in the Darfur situation on 14 July." Today, the Prosecutor has announced that the person he will be charging is Sudanese President Omar Hassan al-Bashir, and that the charges will include genocide (see MSNBC article). Certainly an interesting development on the eve of the 10 th Anniversary of the Rome Statute. More as things develop further. H/T: Kevin Jon Heller at Opinio Juris.

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One thought on “ICC News – OTP to charge Sudanese President with Genocide

  1. Hello Bjorn,
    indeed an modest statement for a rather controversial action. Personally I am in favor of increasing the pressure on Al-Bashir, although this may also increase the danger on the ground. It’s my estimation that the ICC has got little options but to indict one of the alleged main culprits of the conflict, as its credibility may suffer more from resigning to a seemingly hopeless situation, then from clearly stating its intentions as regards fighting impunity in large-scale conflicts.
    I was a bit surprised though that the charge of genocide was inserted, despite the findings of the Cassese commision. It is mere speculation of course, but perhaps it serves more of a political purpose, than a legal one. The additional stigma may raise the pressure even further and deter States from blocking sanctions or supporting the regime, although China’s attitude certainly doesn’t provide any proof of this.
    But in the hypothetical, and assuming that genocide can be proved, it may entail additional legal consequences in the field of State responsibility of China. By now, it seems difficult to deny that there is a ‘serious danger’ of genocide, while China fails to refrain from adopting measures to prevent it. On the contrary, it is still supplying weapons. The ridiculous condition of China that the weapons are not to be used in Darfur will not provide a very convincing defence at this point. And although they may be geographically remote from the actual scene, in its capacity of a close trading partner, it can be said to be in a certain position of influence, if only on the supply of weapons itself.
    However, the thorny issue would emerge of how to get this issue adjudicated and what remedies could be requested. If I am correct, China made a reservation on article IX of the Genocide Convention, which in light of the Congo-Rwanda case means that one should be very pessimistic on the chances of the ICJ reviewing the case on the contents. And even if jurisdiction could be established (leaving the question aside, which State could bring a claim), and genocide could be proved, financial compensation would be very unlikely. The Court would require a causal nexus between the genocide and China’s violation of its obligation to prevent, which the Court in the Genocide case phrased in an absolutely impossibly strict way: the genocide would have to have been averted if China acted in conformity with its legal obligations. What would remain would be a declaration of a failure to compy with the obligation to prevent by China, scarely the ‘satisfaction’ the Court makes it out to be.
    So, on the one hand, it is more than a pity that international law can combat genocidal individuals under the coercive regime of international criminal law, while States can still hide behind their sovereignty in the more ‘consensual’ regime of State responsibility. But on the other hand, due to the judgment in the Genocide case and the clarification of the obligation to prevent, States like China finally enter the scope of the Genocide Convention.

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