This article explores the legal obligations incumbent on states to execute the International Criminal Court arrest warrants against the Sudanese President, Omar Hassan Ahmad Al Bashir. It focuses on obligations arising under the Genocide Convention of 1948. In assessing these obligations, the analysis takes into account the Rome Statute, United Nations Security Council Resolution 1593, and the Judgement of the International Court of Justice in the Bosnian Genocide case. The analysis concludes that there is an inherent obligation in the Genocide Convention to cooperate with international proceedings on genocide charges and that this obligation has been activated by Resolution 1593. Accordingly, United Nations Member States that are parties to the Genocide Convention are under a duty to arrest Bashir and surrender him to the ICC, irrespective of whether they are States Parties to the Rome Statute. The analysis further shows that, because of the terms of Resolution 1593, Sudan is estopped from asserting Head of State immunity, leaving no legal impediment to the surrender of Bashir to the Court.
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Matthew Gillett is a Legal Officer in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY). The views expressed in this article are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations in general [email@example.com]. The author would like to thank Roger Clark and Hannah Tonkin for their insightful comments. All errors remain those of the author. An earlier paper containing some of the ideas that are developed in this article was written by the current author together with Yasmin Naqvi on behalf of the Peace and Justice Initiative and posted on the UCLA Online Forum “What Should the ICC do about the Darfur Situation?”, available at http://uclalawforum.com/forum/permalink/61/908 (last accessed 24 February 2012).
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Gillett, M. The Call of Justice: Obligations Under the Genocide Convention to Cooperate with the International Criminal Court. Crim Law Forum 23, 63–96 (2012). https://doi.org/10.1007/s10609-012-9175-3