Charges of Genocide against Bashir: Those Who Enable Him Are at Risk

Earlier this week the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Hassan al-Bashir, adding three counts of genocide to the warrant issued last year. In addition to furthering the interests of justice and accountability for the victims of the bloody campaign in Darfur, the ICC pre-trial chamber’s decision to issue charges of genocide against al-Bashir has significant implications for those nations with close economic, social, and political ties to Sudan. Countries that continue to flout international law by knowingly violating the U.N. arms embargo—aimed at stemming the flow of weapons into Darfur—will now find themselves further out of step with their international legal obligations.

Not only are States obligated under international law to refrain from committing or being complicit in genocide, but they are also obligated to prevent it. In its 2007 Bosnia v. Serbia decision, also known as the Genocide Case, the International Court of Justice decided that under the 1948 Genocide Convention an affirmative duty to prevent genocide attaches when a State learns of, or should reasonably have learned of, the existence of a serious risk that genocide will be committed. The duty to prevent requires States to take all reasonable measures to prevent genocide to the greatest extent possible.

Those nations that continue to shirk their obligations under the Genocide Convention by engaging in “cavalier violations” of the U.N. arms embargo now put themselves at greater risk of being found to have violated their duty to prevent genocide by the Bashir government. For instance, according to a 2009 report by a U.N. expert panel, China remains a hub for the manufacture and sale of arms and ammunition used in Darfur and the United Arab Emirates continues to be the primary source of “technicals” used in the region – armed vehicles that enable belligerents to commit atrocities across the vast expanse of Darfur. The new arrest warrant can leave no shred of doubt among suppliers of Bashir that their goods and services may have been sustaining the commission of genocide—and therefore that they risk failing to prevent such atrocities if they continue enabling Bashir. Given the on-going violence in Darfur and the potential for mass atrocities in Southern Sudan, the ICC’s new warrant gives the United States government a particularly compelling opportunity to press members of the U.N. Security Council to enforce its arms embargo more effectively.

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Published on July 16, 2010

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