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Some Remarks on the Legal Implications of Foreign Visits by Sudanese President Omar Al Bashir After the ICC Arrest Warrant

Published on May 11, 2009        Author: 

Materneau Chrispin is currently a PhD Candidate in International Law at the University of Lausanne, Switzerland

On March 4, 2009, Pre-Trial Chamber I of the International Criminal Court (ICC) issued an Arrest Warrant against Omar Al Bashir (see here), the current Head of State of Sudan. That warrant was the latest step taken against Al Bashir in the criminal proceedings that have been initiated against him as indirect perpetrator or indirect co-perpetrator of various counts of crimes against humanity and war crimes, which fall under ICC jurisdiction.

Al Bashir’s reaction to the issuance of that arrest warrant has been the rejection of such warrant, open mockery and defiance of the ICC. Moreover, Sudanese authorities have also expelled many foreign NGOs providing assistance to the victims of the conflict in Darfur, especially refugees. The move by the ICC has been criticized by many as being untimely and somewhat unhelpful in view of all the political considerations to be taken into account relative to the ongoing conflict in Darfur. Somehow, that controversy falls within the purview of the more general debate on Justice vs. Peace in international law. Nonetheless, the ICC warrant remains a valid act issued by that international tribunal on the basis of the referral of the Darfur situation to the ICC by the United Nations Security Council.

Such a referral was made by UN Security Council Resolution 1593 (2005). It fully gave the ICC jurisdiction over the crimes committed in Darfur. Indeed Article 13 (b) ICC Statute establishes the referral mechanism as the mean for the ICC to exercise its jurisdiction over crimes in a State that is not a party to the Rome Statute, which is the case of Sudan. That article that deals with exercise of jurisdiction by the Court reads as follows:

 A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;

In the light of that referral, how should we assess, as a matter of international law, the behaviour of the States that have not only criticized the warrant, but welcomed President Al Bashir on their territories after the arrest warrant had been issued against him by the ICC?

Any analysis of the issue should start with the Security Council resolution that introduced the case to the ICC. That resolution was adopted under Chapter VII of the UN Charter. It is therefore binding on all member States of the UN per article 25 of that Charter which provides that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. On the basis of article 103 of the same Charter, obligations of Member States flowing from resolutions adopted by the Security Council prevail over any other obligations that they would be bound by.

Security Council Resolution 1593 (2005) does not contain strong language that would create a compelling legal obligation for UN member States to cooperate with the ICC in all the steps that it would take in the Darfur situation. However, paragraph 2 of its operative part formulates obligations not only for Sudan, but also for all member States that are urged by the Council to fully cooperate with the Court in the Darfur case. Indeed that paragraph indicates that the Security Council Read the rest of this entry…