In any event, under the UN Privileges and Immunities Convention, it is the Secretary General and not the Security Council that is competent to waive immunities of UN officials and experts and missions (see Sections 14 and 23 of the Convention). The Securit Council is only competent to waive the immunity of the Secretary General himself.

“If the Court seeks to exercise its jurisdiction over a person who is alleged to be criminally responsible for a crime within the jurisdiction of the Court and if, in the circumstances, such person enjoys, according to the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law, any privileges and immunities as are necessary for the independent exercise of his or her work for the United Nations, the United Nations undertakes to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities in accordance with the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law”.

In light of this provision a SC resolution explicitly permitting Bashir’s arrest could be interpreted as a waiver of his immunity. In this respect, I consider that Denmark could legally arrest Bashir.

However, if this does not happen (or if the UN does not waive Bashir’s immunity in another way), then I totally agree with you that the enforcement of the arrest warrant by Denmark will be contrary to the Charter.

thanks for clarifying the point. I think I took your “Sudan is to be treated as if it were a party to the Statute” too literally, overlooking the differences that nonetheless remain between a real party to the Statute and States like Sudan. You convinced me that it makes sense that the Security Council can delete “normal” immunities, but has to respect the Charter-based ones. Thanks again.

Thanks for your comments. You are right that the immunities accorded to State Representatives by the Convention on Privileges and Immunities of the UN belong to the State concerned. You are also right that this immunity can be waived by the State in the same way as State immunity can be waived. As a general matter, I would also agree that Article 27 can be seen as a removal of an immunity that would otherwise exist. However, in the case of Sudan, Article 27 cannot be regarded as a waiver of immunity by Sudan. Sudan is not a party to the ICC Statute and it has not accepted Art. 27. That provision is only binding on it because a Security Council (the resolution that refers the Darfur situation to the ICC) has the effect of imposing it on Sudan. However, the question is whether the Security Council can remove a right that the UN Charter confers – the right being the immunity of representatives to UN conferences. I say the Council can’t remove rights that are conferred by the Charter as the Council is bound by the Charter and the Charter acts as a limitation on the powers of the Council.

Or one can look at it from another angle. It could be argued that because the Darfur situation is before the ICC by virtue of a Security Council resolution, the obligation to cooperate with the ICC derives from the Security Council resolution. Denmark seems to consider this to be the case when they say they have an obligation to arrest following from a Security Council resolution. But they also have an obligation to accord immunity which derives from the Charter. That latter obligation should be regarded as prevailing over any inconsistent obligation arising from an SC resolution.

thanks for your interesting post. While I think you raise an interesting and important point, I would like to offer some divergent thoughts.

I find your argument compelling that by virtue of the Security Council referral Sudan “is to be treated as if it were a party to the ICC Statute and is thus bound by Article 27 of the ICC Statute which removes immunity.” In my understanding Article 27 enshrines a general waiver by the state of the immunity of its officials for the purpose of criminal prosecution. Here it is important to keep in mind that a State can waive the immunity of its officials because the immunity is a right that belongs to the State, not the official. In other words, the obligation to accord immunity is owed to the State of the official, not the official himself.

The point I want to make is this: the immunity of State representatives to UN organs or conferences convened by the UN is likewise owned by the sending State, not the representative. This is made clear by Section 14 of the Convention on the Privileges and Immunities of the UN, which reads:

“Privileges and immunities are accorded to the representatives of Members not for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations. Consequently a Member not only has the right but is under a duty to waive the immunity of its representative in any case where in the opinion of the Member the immunity would impede the course of justice, and it can be waived without prejudice to the purpose for which the immunity is accorded.”

Now, if the immunity under this Convention is similar to the “normal” immunity of State officials, in the sense that the right is owned by the State, I see no reason why the waiver of immunity enshrined in Article 27 of the ICC Statute should not cover this immunity as well. Article 27 makes no difference regarding the origin of the immunity that is waived. If anything it appears to be broad in scope, dealing with immunities “under national or international law”. Thus I would assume that immunities under the UN Convention are included in the waiver.

Furthermore, if the position is accepted that Sudan is to be treated as if it were a party to the ICC Statute, Article 98 would not apply since Sudan would not be a “third State” in the sense of this provision.

In conclusion, I don’t see any reason why the immunity of a State representative steming from the Convention (and thus ultimately, as you rightly say, from the Charter) should be accorded a different status as “normal” immunities under customary or conventional international law. By becoming a party to the ICC Statute (or in the case of Sudan via the Security Council referral) the respective state has waived all immunity rights it owns in respect of an indicted official. Accordingly, the Danish government would be correct in saying that it would have to comply with the ICC arrest warrant and take Bashir into custody.

I am very interested in hearing your thoughts on this!