In a post last week, I mentioned a forthcoming article of mine dealing with Bashir’s Immunity. That article titled “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” has now been published in the latest issue of the Journal of International Criminal Justice (available here). The abstract of my article is as follows:
This article considers whether states are obliged or permittedto arrest Sudanese President Omar al Bashir pursuant to a warrantof arrest issued by the International Criminal Court (ICC).The article considers the extent to which the ICC Statute removesimmunities which would ordinarily be available to state officials.It is argued that the removal of the immunity by Article 27of the ICC Statute applies also at the national level, whennational authorities act in support of the ICC. The articleexamines the application of Article 98 of the ICC Statute andconsiders the legal nature of Security Council referrals tothe ICC. It is argued that the effect of the Security Councilreferral is that Sudan is to be regarded as bound by the ICCStatute and thus by Article 27. Given that the Statute operatesin this case not as a treaty but by virtue of being a SecurityCouncil resolution, the removal of immunity operates even withregard to non-parties. However, since any (implicit) removalof immunity by the Security Council would conflict with customaryinternational law and treaty rules according immunity to a servinghead of state, the article considers the application of Article103 of the United Nations (UN) Charter in this case.
In the same issue (which contains a symposium on the Bashir Case), there is an article by my friend and fellow EJIL Scientific Advisory Board member, Professor Gaeta (Universities of Florence and Geneva) which takes a different view. The abstract of her article, “Does President Bashir Enjoy Immunity from Arrest?” is as follows:
This article discusses whether the International Criminal Court(ICC) has lawfully issued and circulated an arrest warrant againstthe incumbent head of state of Sudan, Omar al Bashir, and whetherits request to the states parties to the Rome Statute to arrestand surrender him is in conformity with the provisions of theStatute. In this article, the argument is made that the rulesof customary international law on personal immunities of incumbentheads of state do not apply in the case of the exercise of criminaljurisdiction by an international criminal court; therefore theydo not bar the exercise of the jurisdiction of the ICC withrespect to an incumbent head of state, even if this individualcomes from a state not party to the Rome Statute, like Sudan.However, it is one thing to assert that an international criminalcourt can ‘lawfully’ issue and circulate an arrestwarrant against individuals entitled to personal immunity beforenational courts, and quite another to say that states can ‘lawfully’disregard the personal immunity of these same individuals, andsurrender them to the requesting international court. This articleendeavours to demonstrate that while the ICC arrest warrantis a lawful coercive act against an incumbent head of state,the ICC request to states parties to surrender President AlBashir is contrary to Article 98(1) of the Rome Statute andit is an act ultra vires. States parties are therefore not boundto comply with this request.
Unfortunately, Professor Gaeta and I did not have sight of each other’s article and were therefore unable to address the opposing arguments that each of us make. It is interesting that Prof. Gaeta and I not only have different conclusions we even have different starting points. She starts from a position that I disagree with: that international law immunities do not bar the exercise of jurisdiction by international criminal tribunals (see my views here on this blog and an article in the American Journal of International Law). But she concludes that Bashir is immune from the jurisdiction of national authorities. I start from the position that international criminal tribunals are obliged to respect immunities accorded by international law but conclude that the effect of the Security Council referral means that Bashir is not immune from the exercise of national jurisdictions acting in support of the ICC.