André de Hoogh (pictured left) is a Senior Lecturer in International Law in the Faculty of Law of the University of Groningen. Abel S. Knottnerus (pictured right) is a PhD Researcher at the Legal Theory Department of the University of Groningen.
Last week Pre-Trial Chamber II (PTC) issued a new decision on the obligation of ICC States Parties to arrest President Omar Al-Bashir irrespective of his immunities as Head of State (here). The PTC found that the Democratic Republic of the Congo (DRC) failed to cooperate with the Court by not arresting the Sudanese President during his visit to the country earlier this year and decided to refer the matter to the Assembly of States Parties and the Security Council.
This finding does not come as surprise. The PTC established in previous decisions that all States Parties have an obligation to arrest Al-Bashir and found that Chad and Malawi failed to comply with this obligation by welcoming Al-Bashir on their territory in 2011. However, the motivation underlying the Court’s latest decision is novel. In contrast to the much debated rulings on the non-cooperation of Malawi (here) and Chad (here), the PTC did not base its new decision on an exception existing under customary international law to the personal immunities of Heads of State when they face prosecution before an international criminal tribunal. Instead, the PTC held that Security Council Resolution 1593, which referred the situation in Darfur to the Court, “implicitly waived the immunities granted to Omar Al-Bashir under international law and attached to his position as a Head of State” (para. 29).
As readers might recall from previous posts (here), Dapo Akande has advised the PTC to follow a similar “route” on this issue. In his posts and publications (here, for other commentators see here and here), he has maintained that the Court could decide:
“[that the Security Council’s referral] has the consequence that Sudan (or Libya) is bound by the Statute (including Article 27)… [T]his would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute” (here).
In this post, we want to make a number of provisional – but already quite critical – observations on the Chamber’s new decision. Most importantly, this post is meant to give a kick-start to the discussion on the Court’s remarkable change of heart. Read the rest of this entry…