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- Author or Editor: William Schabas x
African states that are members of the African Union and that are also States Parties to the Rome Statute are confronted with conflicting obligations. These cannot be resolved by principles of interpretation. The impasse requires a political solution.
On the Genocide Convention
Many African states, including some directly involved in issues concerning enforcement of the Al Bashir arrest warrants, are not contracting parties to the Genocide Convention. For those that are, a distinction must be made between States Parties and nonparty states to the Rome Statute. The legal regime applicable to States Parties is slightly enhanced by the possibility of recourse to the International Court of Justice in accordance with Article ix of the Genocide Convention. This conclusion results from the Bosnia v. Serbia ruling of the International Court of Justice. For nonparty states, there does not seem to be any particular impact of the Genocide Convention, as they have not accepted the International Criminal Court, something required by Article vi of the Genocide Convention. In any event, no obligation to prosecute under the Genocide Convention arises if genocide has not in fact been established. The insistence of the Prosecutor and the holding by Pre-Trial Chamber i that there are “reasonable grounds to believe” genocide has been committed must be weighed against much authority to the contrary.
On the African Union
States Parties to the Rome Statute are under an obligation to cooperate with the International Criminal Court in the enforcement of the Al Bashir arrest warrants. However, two decisions of the African Union, which are binding upon member states, require that the arrest warrants not be enforced. Thus, African states that are members of the African Union and that are also States Parties to the Rome Statute are confronted with conflicting obligations. These cannot be resolved by principles of interpretation. The impasse requires a political solution.
