Denmark Invites Sudanese President Bashir to Climate Change Conference

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As readers will probably know, there will be a United Nations Conference on Climate Change to be held in Copenhagen, Denmark in December (see conference website here). Participation in the conference is open to parties to the United Nations Framework Convention on Climate Change as well as Observer States, organizations within the United Nations System and observer organizations admitted by the Conference of the Parties. A Danish newspaper has recently reported (see here) that Sudanese President Bashir has been invited to attend the conference:

[Danish Prime Minister] Lars Løkke Rasmussen has invited world leaders to [the] climate meeting, including one subject to an ICC arrest warrant.  . . . World leaders from 191 countries received the official invitation from Prime Minister Lars Løkke Rasmussen yesterday to attend the UN Climate Change Conference in Copenhagen (COP15) this December.

. . . one of those invited is Sudanese president Omar al-Bashir, who is currently subject to an arrest warrant issued by the International Criminal Court for crimes against humanity.

Thomas Winkler, head of the Foreign Ministry’s legal department, said that as the climate conference is a UN event, Denmark is obliged to invite all heads of government without exception.

‘But at the same time we would point out that Denmark is also obliged to comply with the Security Council’s resolution regarding Darfur,’ Winkler said to Berlingske.dk.

The security council resolution states that Sudan, like all countries, must cooperate with the International Criminal Court, and Denmark would be obliged to honour the ICC arrest warrant should al-Bashir arrive in the country.

The issue of President Bashir’s immunity has been discussed extensively on this blog (see here, here,  here, here, and here). I have argued on the blog and in the Journal of International Criminal Justice that the effect of the Security Council referral of the Darfur situation to the ICC is that 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.

However, I am not sure that the Danish Legal Adviser is right that Denmark would be bound to honour the ICC Arrest Warrant. The reason for this is Article IV, Section II of the Convention on the Privileges and Immunities of the United Nations (1946), which provides:

“SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities:

(a) Immunity from personal arrest or detention  . . .”

It seems to me that there is good argument to be made that this obligation prevails over any other inconsistent obligation as a result of Article 103 of the UN Charter. Although the UN Immunities Convention is a treaty, it is a treaty that elaborates on Article 105 of the UN Charter. That article provides that:

“(2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

(3) The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.”

In short, the obligation to accord immunity is a Charter obligation. As such it would prevail over any inconsistent obligations. Even if the Security Council were to explicitly provide that Bashir should be arrested at the conference, that would be contrary to the Charter.

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    Thomas says

    November 22, 2009

    Dear Dapo,

    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!

    Dapo Akande says

    November 22, 2009

    Thomas,

    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.

    Thomas says

    November 23, 2009

    Dapo,

    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.

    Aris says

    November 24, 2009

    This post was very interesting and I have been thinking about this issue, since you published it. Since I am now studying the Conventions on the Privileges and Immunities for a course I have, it crossed my mind to take a look at the Relationship Agreement between the International Criminal Court and the United Nations. There is an interesting provision there, namely Article 19, which states:

    "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.

    Dapo Akande says

    November 24, 2009

    Aris,
    Article 19 of the Relationship Agreement between the ICC and the UN applies (and can only apply) to immunities which belong to the UN. In other words, it applies to those immunities which the UN Convention confers on the United Nations, its officials and on its experts on missions. This is clear from the heading of Art. 19 and from its text. The heading to Art. 19 refers to "United Nations Privileges and Immunities". Also the text of Art. 19 refers to "privileges and immunities as are necessary for the independent exercise of his or her work for the United Nations". Member States do not work for the United Nations , only officials and expert on missions do. Therefore, Article 19 does not apply to the immunities conferred by the UN Convention on States. In fact, it could not do as that would be an attempt to deprive States of their rights by virtue of a treaty to which they are not party. As Thomas points out in this comment above, it is Member States that are competent to waive the immunity of their representatives.

    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.