Is Sudanese President Bashir Immune from Arrest?

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In a post last week, I mentioned a forthcoming article of mine dealing with Bashir’s Immunity. That article titled “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” has now been published in the latest issue of the Journal of International Criminal Justice (available here).  The  abstract of my article is as follows:

This article considers whether states are obliged or permittedto arrest Sudanese President Omar al Bashir pursuant to a warrantof arrest issued by the International Criminal Court (ICC).The article considers the extent to which the ICC Statute removesimmunities which would ordinarily be available to state officials.It is argued that the removal of the immunity by Article 27of the ICC Statute applies also at the national level, whennational authorities act in support of the ICC. The articleexamines the application of Article 98 of the ICC Statute andconsiders the legal nature of Security Council referrals tothe ICC. It is argued that the effect of the Security Councilreferral is that Sudan is to be regarded as bound by the ICCStatute and thus by Article 27. Given that the Statute operatesin this case not as a treaty but by virtue of being a SecurityCouncil resolution, the removal of immunity operates even withregard to non-parties. However, since any (implicit) removalof immunity by the Security Council would conflict with customaryinternational law and treaty rules according immunity to a servinghead of state, the article considers the application of Article103 of the United Nations (UN) Charter in this case.

In the same issue (which contains a symposium on the Bashir Case), there is an article by my friend and fellow EJIL Scientific Advisory Board member,  Professor Gaeta (Universities of Florence and Geneva) which takes a different view. The abstract of her article, “Does President Bashir Enjoy Immunity from Arrest?” is as follows:

This article discusses whether the International Criminal Court(ICC) has lawfully issued and circulated an arrest warrant againstthe incumbent head of state of Sudan, Omar al Bashir, and whetherits request to the states parties to the Rome Statute to arrestand surrender him is in conformity with the provisions of theStatute. In this article, the argument is made that the rulesof customary international law on personal immunities of incumbentheads of state do not apply in the case of the exercise of criminaljurisdiction by an international criminal court; therefore theydo not bar the exercise of the jurisdiction of the ICC withrespect to an incumbent head of state, even if this individualcomes from a state not party to the Rome Statute, like Sudan.However, it is one thing to assert that an international criminalcourt can ‘lawfully’ issue and circulate an arrestwarrant against individuals entitled to personal immunity beforenational courts, and quite another to say that states can ‘lawfully’disregard the personal immunity of these same individuals, andsurrender them to the requesting international court. This articleendeavours to demonstrate that while the ICC arrest warrantis a lawful coercive act against an incumbent head of state,the ICC request to states parties to surrender President AlBashir is contrary to Article 98(1) of the Rome Statute andit is an act ultra vires. States parties are therefore not boundto comply with this request.

Unfortunately, Professor Gaeta and I did not have sight of each other’s article and were therefore unable to address the opposing arguments that each of us make. It is interesting that Prof. Gaeta and I not only have different conclusions we even have different starting points. She starts from a position that I disagree with: that international law immunities do not bar the exercise of jurisdiction by international criminal tribunals (see my views here on this blog and  an article in the American Journal of International Law). But she concludes that Bashir is immune from the jurisdiction of national authorities. I start from the position that international criminal tribunals are obliged to respect immunities accorded by international law but conclude that the effect of the Security Council referral means that Bashir is not immune from the exercise of national jurisdictions acting in support of the ICC.

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    Phillip Wardle says

    October 11, 2009

    Professor Akande,

    I agree with the position that you take in your recent article (and that you have taken in others) that international immunities are not rendered irrelevant before the ICC by virtue of the purportedly 'international' character of the Court. However, I have some comments in relation to your argument that Sudan should be treated as analogous to an ICC state party. You suggest that this is the case because in its decision the Pre-Trial Chamber understood the Security Council referral to have accepted that the exercise of jurisdiction must occur in accordance with the entirety of the Rome Statute. Because (as is widely accepted in the attendant literature) Article 98(1) will only apply in the case of requests in relation to non states parties, its application can only arise in the case of a Security Council referral under Article 13(b) of the Rome Statute. The only other possible situation in which a situation involving a non state party could potentially come before the Court would be in the case of a referral by a state party, or if the prosecutor exercises his propio motu powers and initiates an investigation. In both of these scenarios the Vienna Convention on the Law of Treaties states that the Rome Statute cannot be applied to the non state party because they have not consented to the provisions of the treaty. Therefore, as far as I understand, the only way in which the provisions of the Rome Statute can be applied to a non state party is through the mechanism of a Security Council referral, as by acting under Chapter VII of the UN Charter the Security Council can effectively assign such treaty responsibilities to a non party. Thus, the only time Article 98(1) would be relevant would also be in the case of a Security Council referral to the ICC. If a Security Council referral places the non state party in a position analogous to a state party thus making Article 98(1) inapplicable, it seems that Article 98(1) is rendered useless in all cases. If we accept the maxim of effectiveness in treaty interpretation (ut ret magis valeat quam pereat), provisions of a treaty must be interpreted in such as way as to render them operative. Therefore, if Security Council Resolution 1593 places Sudan in a position analogous to a state party, would it not cause Article 98(1) to be devoid of all relevance?

    I would be interested to hear your thoughts on this.

    Phillip.

    Dapo Akande says

    October 20, 2009

    Phillip,

    You raise a very good question. In my view the purpose of Art. 98(1) is precisely to give effect to the principles that non-parties are not bound by the ICC Statute and that the Statute cannot deprive non-party States of rights they ordinarily possess. Article 98(1) is not redundant, even if one takes the view, as I do, that in the case of a Security Council referral of a situation relating to a non-party, the non party is in a position analogous to a State Party and therefore, Article 98(1) is inapplicable. In cases of referrals by States or propio motu prosecutions by the Prosecutor, Art. 98(1) serves the purpose of directing the Court not to place State parties in a position where they owe competing obligations to the Court (to surrender) and to the non-State party possessing immunity(not to arrest and surrender). The provision is necessary because it acts as a qualification on Article 27.

    Phillip Wardle says

    November 11, 2009

    Thanks for your helpful comments,

    The issue of immunities before the ICC is indeed very complex - especially the problems with arts. 27 and 98. It will be interesting to see debate on this issue at the review conference, and whether a renovation of these articles will be considered.