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.