Some have suggested that the issuance of a second arrest warrant in the Bashir case before the International Criminal Court changes the legal situation because the Genocide Convention adds to the obligations on states and strengthens what the Prosecutor can demand of them in terms of cooperation. The views on the subject of several academics, including myself, appear on the UCLA Law Forum. It is labelled a debate, although I didn't see the other contributions before they were published and the five of us don't engage directly with the positions taken by the others. I don't mean this comment to detract from the quality of the contributions, however, and the usefulness of the materials.
I seem to have been the only one to take the view that we can only speak of an obligation to arrest, etc.under the Genocide Covnention if there is in fact genocide taking place. The fact that the Prosecutor describes Bashir's acts as genocide and the fact that the Pre-Trial Chamber has said there is a reasonable basis to issue an arrest warrant - after the Appeals Chamber had told the Pre-Trial Chamber not to be so rigorous at the arrest warrant stage - certainly doesn't mean that genocide has been committed. If the Convention imposes an obligation simply because an arrest warrant has been issued, perhaps we should change its name to the Convention for the Prevention and Punishment of Situations Where Genocide Might Have Taken Place. I doubt that if that were really the scope of the Convention, we would have as many ratifications as we have.
In any case, lots of informed specialists, including the UN Commission in 2005 that was chaired by Professor Cassese, think that genocide is not the correct term to be used for the events in Darfur. As I point out in my article, even the Prosecutor didn't charge genocide in the first two arrest warrants concerning Darfur.
Can it really be the case that the obligations under the Rome Statute are enhanced merely because the Prosecutor adds the term genocide to the charges? If that's how it works, I suppose he'll be tempted to charge everyone with genocide, even if he can't make the charge stick at trial. I'd certainly be curious to see the reaction of the others who contributed to the UCLA Law Forum, and to readers of this blog generally, on that point.