The Pre-Trial Chamber of the ICC has today issued a second warrant of arrest for Sudanese President Omar Al Bashir, this time on charges of Genocide. This decision is not unexpected and follows from the Appeals Chamber decision of February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. The Appeals Chamber held that the Pre-Trial Chamber (PTC) has applied the wrong test in considering whether there were “reasonable grounds” to believe that genocide had been committed under Art. 58(1) of the Rome Statute which deals with arrest warrants (see Marko’s comment on that test here). It remanded the decision back to the PTC which has now reached a new decision.
Once again, this decision fails to deal with questions regarding the possible immunity of Bashir. I continued to be amazed that the ICC chooses to ignore this issue. The point is not that I think Bashir has immunity as I have written elsewhere that I do not think he does have immunity from arrest in the territory of ICC parties (see here). The point is that the Court does not even consider the issue at all and that it will be issuing a request for surrender of Bashir without considering whether Article 98 of the Statute prevents it (the Court) from doing so. I considered this issue in an earlier post where I stated that:
Art. 98 of the Statute says that “the Court may not proceed with the request for surrender” which would require the requested State to act inconsistently with its immunity obligations. This is a provision which the Court itself has an obligation to take up. The fact that it is not raised by the Prosecution should be irrelevant. There is a particular obligation on the Court in this sort of issue as requests for arrest warrants will usually come to the Court with just the prosecution being heard. In addition, Art. 98 is a provision which is designed not just for the benefit of the accused but for the benefit of the State of the accused and, as importantly, for the benefit of other States who may be put in the position of having inconsistent obligations were the matter not addressed. Thus, the Court ought to address this issue at the earliest opportunity. In fact a failure to address it and the issuance of a request for surrender (as the ICC has done in the Bashir case) may be a breach by the Court of its obligations under Art. 98 in circumstances where that provision would prevent such a request.
Now that the ICC has added a genocide charge to the case, I would also like to take the opportunity to revisit a question that I asked a year ago: would the addition of a genocide charge to the Bashir arrest warrant change the position on immunity? In that post I analysed the International Court of Justice’s 2007 merits judgment in the Bosnian Genocide Convention Case, where the Court held (at paras. 439-450) that the obligation to punish genocide contained in the Genocide Convention also includes an obligation to cooperate with competent international courts including an obligation to arrest persons suspected of genocide. I argued that:
for ICC parties, the existence of an obligation to cooperate and arrest under the Genocide Convention opens up a different argument with regard to Bashir’s immunity. Under Article IV of the Convention, “Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” This statement appears to be directed primarily at removing a substantive defence based on official capacity. However, the provision must also be taken as removing any procedural immunities as the availability of any such immunities would be mean that the persons mentioned in Art. IV are not punished. Immunities are removed before the two types of courts provided for in Article VI in the Genocide Convention: the courts of the territory where the genocide occurred and a competent international penal tribunal whose jurisdiction is accepted the State in question.
Since, according to the ICJ’s logic, States parties to the ICC have an obligation to cooperate with the ICC when persons wanted for genocide are on their territory, and since Art. IV provides that even heads of State and public officials are to be punished, it could be argued the Genocide obligation imposes an obligation on ICC States to arrest those wanted for genocide, even if they are the head of State. This argument bypasses the application of Article 27 of the ICC Statute and the question whether Sudan is to be regarded as in the position of a party to the ICC Statute. Here the obligation of ICC parties to arrest is based on the acceptance of the ICC’s jurisdiction by that party and the imposition of ICC jurisdiction on Sudan. Furthermore, the removal of immunity is based on the acceptance of the Genocide Convention by the arresting party and by Sudan.
In a recent article in the Journal of International Criminal Justice, Goran Sluiter has also addressed this question. He reaches a similar conclusion to me though he relies more on Art. VI of the Genocide Convention than Art. IV.
Art. VI reads “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
However, Professor Sluiter perhaps goes a bit further than I do in my post and my article in that I think he would say that there is no immunity even in the territory of parties to the Genocide Convention who are not parties to the ICC Statute. The difference turns on whether one accepts what the ICJ said in the Bosnia Case that a State only has a duty to cooperate with an international tribunal under the Genocide Convention, if it has accepted the jurisdiction of the tribunal and that to know whether it has accepted the jurisdiction of the tribunal for this provision one looks to see whether the State has a duty to cooperate with the tribunal. So the ICJ’s reasoning leads to a circular logic which would mean that the duty to cooperate under the Genocide Convention requires a duty to cooperate under another instrument. Prof. Sluiter disagrees with this reasoning. In the context of the Bashir case, he says that:
when the Security Council, by a binding decision taken under Chapter VII, submits a situation to the ICC, thereby creating jurisdiction for that Court, UN members must be regarded as having accepted the jurisdiction of the ICC in respect of that situation. This brings the ICC, in relation to the situation in Darfur and when an arrest warrant includes accusations of genocide, within the full reach of Article VI of the Genocide Convention. All contracting parties to that Convention are members of the UN and all of them can be said to have accepted the jurisdiction of the Court. (p. 372, Sluiter article)
In any event, application of the ICJ’s decision in the Bosnian Genocide Convention Case to the Bashir case adds another argument for coming to the conclusion that he would not be entitled to immunity at least in the territory of ICC parties and perhaps in the territory of all parties to the Genocide Convention.