Specific norms are stronger than general norms, as in IHL Vs. HRL, And here there’s a specific norm in the statute (same as in a convention), and a general norm in customary law. I was taught that a convention over powers a customary norm.

Following that logic, the statute over powers the customary obligation to grant Bashir immunity, and so member states are allowed and must arrest him and coperate with the ICC.

In addition, the Rome statute allows non state members to turn to the court and ask for it’s jursdiction in a specific case. A non party doing so while Bashir is in their territory might be considered as a party state for the matter of his arrest.

I hope I got it right

Gal Sion,
Haifa university Israel.

Sudan is under an obligation to arrest and surrender Bashir. I agree this includes an obligation to waive any immunity that might stand in the way of his arrest. However, I don’t think that helps with regard to Art. 98. That provision requires an actual waiver of immunity by the State. So I think the only way of arguing that Art. 98 does not apply is to say that an arresting state would not be acting “inconsistently with its obligations under international law with respect to state or diplomatic immunity.”

The way to make this argument is that those obligations include the obligations under the Statute and include Art. 27. So where Art. 27 removes immunity there is none under international law. But to make that argument one needs to argue that Sudan is in a position similar to that of a party to the Statute. One also needs to argue that ARt. 27 removes immunity not just before the Court but also with respec to national authorities acting in support of the Court.

No, not according to the ICJ. The Court addressed cases like Pinochet and Qaddafi in its Arrest Warrant Judgment and “has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction”. See paras. 56-8 for the discussion.

Aditya

Many thanks for your comments. I also agree that the Security Council’s urging of all States to cooperate with the ICC cannot trump the immunity Bashir is entitled to. However, if Sudan is to be considered as bound by the Statute then Art. 27 would remove that immunity. Many ICC parties take the view that despite Art. 98, Art. 27 not only removes immunity before the Court but also from arrest when the ICC has requested arrest. I agree that this is the correct interpretation to be given to Art. 27 but only with regard to immunity accruing to a party (and not immunity accruing to a non-party). Sudan is a non-party but I think one can argue that it is bound by the Statute in this case by virtue of SC Res. 1593. When the SC referred the case to the Court it was subjecting Sudan to the decisions of the Court. And, the Court is bound by its Statute to exercise jurisdiction and operate in accordance with its Statute. So subjecting Sudan to the Court’s jurisdiction should be taken as subjecting it to the Court’s Statute. That being the case, one may argue that Sudan is bound by the Statute (and by Art. 27) and in a position analogous to that of a party.

On the final point, I do not see that a Security Council exhortation (“urges States …”) to co-operate can create a permission to act contrary to an established rule (the inviolability of serving heads of State). A non-binding exhortation cannot trump a binding command.

Even had the SC required co-operation with the Court’s statutory powers (thus imposing an Art 103 obligation), as you rightly point out this would not resolve the Art 98 issue.

The black letter conclusion has to be, no matter how undesirable, that Bashir has immunity unless it is waived by Sudan or excluded by the SC.