CommentaryBetsy Apple and Nicolas Burniat [Director and Pennoyer Fellow, Crimes Against Humanity Program, Human Rights First]: "Efforts by the Prosecutor of the International Criminal Courts (ICC) to obtain an arrest warrant against the president of Sudan, Omar el-Bashir, for charges of war crimes, crimes against humanity and genocide generated unprecedented uproar. In contrast, the tenth anniversary of the Rome Statute – the treaty that created the ICC – three days later, went unnoticed by the press.
While Sudan watchers debated the impact of the Prosecutor's action on justice versus accountability for Darfur – assuming, by and large, that those two goals were mutually exclusive – they ignored the legal implications of the charges sought by the Prosecutor. That genocide is included among those charges has potentially serious legal consequences for States engaged in relations with Sudan.
While the United States has called the situation in Darfur genocide, others, including the U.N. Security Council, have been silent on the question. In its report [PDF] of January 2005, the panel authorized by the Security Council to investigate the crimes in Darfur, the Commission of Inquiry, declined to call them genocide. The Commission did not, however, exclude the possibility that single individuals, including members of the Sudanese governments, might have harbored genocidal intent.
Today, after three years of additional investigations initiated at the request of the Security Council acting under Chapter VII of the U.N. Charter, the Prosecutor of the ICC has indicated that he had sufficient evidence to believe that genocide indeed is occurring in Darfur. The Prosecutor's conclusions are not legally authoritative, and only the judges of the International Criminal Court will be in a position to decide the issue once and for all. Nonetheless, his public statements that he believes genocide is occurring are meaningful because they put to rest the idea that some country – any country – in the world might possibly claim they are unaware of the risk of genocide in Darfur.
Genocide, while a high profile cause for activists and the subject of much public discussion, has not been addressed substantially by international legal institutions. The International Court of Justice, in February 2007, determined for the first time that the 1948 Genocide Convention creates an obligation for all States to act to prevent genocide no matter where the genocide is occurring. In its judgment in the case Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (hereinafter the Genocide case), the Court specified that this obligation arises as soon as a State learns or should normally have learned of the existence of a serious risk of genocide.
By publicly seeking genocide charges against Bashir, the ICC Prosecutor clearly has put governments on notice of the existence of a serious risk that genocide is occurring in Darfur. Whatever their previous stance or alleged state of awareness about the situation in Darfur, States can no longer claim that they are unaware that the crimes in Darfur might amount to genocide. This knowledge is sufficient to trigger for every State the legal obligation to act to prevent that genocide. The obligation persists until the risk of genocide in Darfur is averted or stopped.
In order to have content, obligations require actions. What, then, must a State do to comply with its legal obligation to act to prevent genocide in Darfur?
According to the International Court of Justice (ICJ), States must employ all means reasonably available to them so as to prevent the genocide to the extent possible. A State would violate the Genocide Convention if it had "manifestly failed to take all measures which were within its power, and which might have contributed to preventing the genocide." It explained that any determination as to whether a State had taken all measures in its power had to be made on a case-by-case basis, taking into account, among other things, "the capacity to influence effectively the actions of persons likely to commit, or already committing genocide, the geographical distance from the scene of the events, and the strength of the political links, as well as links of all other kinds between the authorities of that State and the main actors in the events."
In the case of Darfur, States engaged in any kind of relationship with the government in Khartoum should examine the "means reasonably available to them" to ascertain if they are complying with their duty to prevent genocide. Recently, several published reports have indicated that a number of States, most notably China and Russia, are providing significant arms and other military support to Sudan. Those States should immediately stop transferring arms to the government of Sudan. States selling arms to a government suspected of genocide are failing to take all measures in their power to prevent that genocide from happening. To the contrary, their actions fuel the capacity of such a State to commit genocide.
What else must States do? It is clear that the international community has failed so far to put sufficient and credible pressure on the government of Sudan. This lack of resolve has enabled the authorities in Khartoum to stall the deployment of UNAMID, to protect war criminals, and to continue its campaign of violence against not only civilians but also aid workers and peacekeepers. Several countries in the U.N. Security Council have been particularly active in their efforts to protect the government of Sudan from censure or negative consequences for its bad acts. Are these countries undertaking all possible efforts to prevent or forestall the possible genocide in Darfur?
As a legal matter, the ICJ case clearly articulates a duty to prevent genocide, and indicates that this duty is one of conduct rather than of result. This means that the effort is required regardless of the outcome of such effort. Legally, one can imagine a debate about the scope of such a duty. Politically, it is hard to argue that States are failing the people of Darfur, and that every effort to protect civilians has not been exhausted. Should not States provide the logistical support to the peacekeeping force that is so badly needed to protect civilians and help end the violence in Darfur? And should not States cease to provide arms to a potential genocidaire? We believe the Genocide Convention would say yes to both questions. But must we wait for a court of law to decide the fate of the Darfuri people?"
