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

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

Decides that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

It can be convincingly argued that the cooperation required by Res. 1593 encompasses a number of positive acts that can be required or expected from those all UN member States. At the minimum, it would sure include an obligation for them not to act in any way that would clearly undermine the work and the authority of the Court in the Darfur situation. A minimum obligation of reserve, restraint and deference can reasonably be expected from UN member States on the basis the deferral resolution adopted by the Security Council.

Criticizing the warrant issued by the Court, as disloyal as it maybe, may not amount to a full-fledged violation of an obligation created by Res. 1593. However, welcome President Al Bashir on an official visit after such warrant became standing, if not constituting an illicit act, does not seem to respect that minimum obligation of reserve and restraint that could be read in the text of the above mentioned UN resolution.

President Al Bashir has visited so far four countries (Eritrea, Egypt, Libya and Qatar in chronological order) in an attempt to defy and mock the ICC warrant against him. Among those countries visited, two are signatories of the Rome Statute. Indeed, Eritrea signed the Rome Statute on October 7, 1998 and Egypt did so on December 26, 2000. Thus, in the case of Qatar and Libya, the analysis of the legal implications of receiving President Al Bashir on their territories confines to the considerations above related to UN resolution 1593. However, as regards the two signatory States, further implications derive from their status as signatories of the Statute.

It is trivial to recall that being a signatory to an international treaty does not generally make the provisions of such treaty ipso facto legally binding upon the State concerned as a matter of international law rules and principles. For this to happen, the further procedural and substantial step of ratification is needed. Nevertheless, having signed an international legal instrument carries certain minimal duties, or at least expectations, for the concerned States.

In line with generally accepted doctrine and case-law, signatories to a treaty have an obligation to act in good faith as regards the obligations contained in said treaty. They have the minimal duty of not adopting any act or position that would undermine the fundamental object and purpose of the treaty. This rule is clearly stated by article 18 of the Vienna Convention on the Law of Treaties (VCLT), which provides that “[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty;…”. This rule can be said to be also part of customary international law.

 Thus as regards the Rome Statute, signatory States can legitimately be expected not to indulge in any action or behaviour that clearly weakens the authority of the ICC or undermines the ultimate purpose and raison d’être of the Court which is to bring alleged perpetrators of crimes within its jurisdiction to justice.

 Al Bashir’s visit to Eritrea took place at the invitation of Eritrean President Issaias Afeworki, who did so in a show of support for Al Bashir after the ICC issued the arrest warrant. The extension of the invitation to Al Bashir took place amid vivid criticisms on the part of the Eritrean authorities against the action of the Court regarding Al Bashir. Indeed, the Minister of Information of Eritrea harshly described the warrant as “irresponsible and [as] an insult to the intelligence of African countries”. The one-day visit to Egypt also took place in a similar context and atmosphere. It intervened on March 25, 2009, some three weeks after the ICC arrest warrant. That country also received Al Bashir as a way of offering support against the ICC.

 Those two visits, by virtue of the openly expressed intention and motivation behind them, were actions voluntarily undertaken with the aim of defying the authority and the force of ICC actions in the Darfur situation. As already mentioned these clearly constituted acts that went against the fundamental object and purpose of the Rome Statute, which is an international treaty. As such they were not compatible with the behavior to be expected from signatories of the Statute as a matter of well established rules and principles of international law.