Last week, the International Criminal Court issued an arrest warrant for the Sudanese President, Omar Al Bashir. The Pre-Trial Chamber of the ICC directed the ICC Registry to transmit a request for arrest and surrender of Bashir to (i) all States Parties to the ICC Statute and (ii) all United Nations Security Council members that are not States Parties to the Statute. Does this mean that these States are under an obligation to arrest Bashir were him to travel to their territory? Are these States even permitted by international law to arrest Bashir? It remains to be seen whether Bashir would be bold enough to leave Sudan. For example would he attend the Heads of States meeting of the African Union or perhaps wish to attend the annual session of United Nations General Assembly in New York. Were Bashir to travel abroad, States, particularly non-parties to the ICC Statute (like Ethiopia and the United States) would be faced with these tricky questions
The answer to these questions depend on the extent to which international law accords immunity to Heads of States and on the legal nature of Security Council referrals of situations to the ICC. Many have noted the significance of an international tribunal issuing an arrest warrant for a serving Head of State. Of course, this is not the first time that this has happened. The ICTY issued a warrant for Milosevic while he was head of the State of the Federal Republic of Yugoslavia and the Special Court for Sierra Leone indicted Charles Taylor while he was President of Liberia. Christine Chung notes in her post below that there has been no hand-wringing by other States about Bashir’s immunity and suggest that this is a matter of interest only to academics. States may not have commented on this issue but this is only because States have not as yet been faced with the question. States will only be faced with the question if Bashir travels abroad and they are called upon to arrest him. In that scenario, States will have to consider not only this particular case but also the precedents that they wish to set. They will also have to consider what obligations they may have under the ICC Statute, under other treaties (including the UN Charter) and under customary international law.
While, the ICC Pre-Trial Chamber implicitly answered one part of the immunity question in its decision, it has not disposed of the entire question. The Pre-Trial Chamber in para 41considered that
the current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case.
The PTC reached this decision based on four considerations the most important of which are that: (i) Art. 27 of the ICC provides that the Statute applies equally to all persons without distinction based on official capacity and that immunities which may attach to official capacity under national or international law shall not bar the Court from exercising jurisdiction; and (ii) the Security Council by referring the Darfur situation to the Court has accepted that the investigation and prosecution shall take place in accordance with the framework set out in the Statute.
Implied in the Court’s statement is the view, that the Security Council has implicitly adopted Art. 27 and thus implicitly sanctioned the exercise of jurisdiction by the Court over a serving head of State who would otherwise be immune from jurisdiction. I do not disagree with this. Any other view would leave Article 27 without effect.
However, the Court does not have power of arrests. Unless Bashir surrenders voluntarily, it will have to depend on a State to arrest Bashir. The question that then arises is whether Bashir is immune from arrest by national authorities. Under international law, Bashir as a Head of State would ordinarily be entitled to immmunity from the exercise of criminal jurisdition, including immunity from arrest, by foreign States. As the ICJ stated in the Arrest Warrant case, this is an immunity that does not cease even where the foreign Head of State is accused of international crimes . Does Bashir’s immunity before national authorities change as a result of an ICC request for an arrest warrant? The question may be analysed in relation to 3 categories of States: (i) Sudan; (ii) ICC parties and (iii) non-parties to the ICC Statute. I am currently working a piece that analyses these questions so I only propose to raise the key questions here.
One State that is under a clear obligation to arrest Bashir is Sudan. In Security Council Res. 1593 by which the Security Council referred the situation in Darfur to the ICC, the Council imposed an obligation on the Government of Sudan to “cooperate fully” with the ICC. However, Sudan has not been meeting its obligations and is unlikely to do so in the near future.
Parties to the ICC Statute have an obligation to cooperate with the Court and to comply with requests for arrest and surrender. But they also have an obligation to accord immunity to foreign heads of States. So how are these conflicting obligations to be reconciled? The situation is made more complicated by Art. 98 of the ICC Statute. Despite the proclamation of the irrelevance of immunity and official capacity in Art. 27 of the ICC Statute, Art. 98 of the Statute points the other way. Para. 1 of that provision states that the
The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
I am amazed that the PTC did not even mention this provision, despite the fact that the PTC proceeded to make a request for arrest and surrender in circumstances where immunity is in issue. A reader of the decision would think that the PTC was unaware that Art. 98 appears to apply in precisely this sort of case. Referring to Art 27 does not dispose of the issues. Iin justifying its exercise of jurisdiction over a head of State of a non-party, the PTC stated in (para. 45) that the Security Council has accepted that investigations and prosecutions from the Darfur situation
will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.
Art. 27 is part of the statutory framework. But so is Art. 98! The PTC ought to have dealt with the applicability of Art. 98 and how it relates to Art. 27 before proceeding to issue the request for arrest and surrender to States parties and Security Council Members. The PTC is under an obligation to satisfy itself that it would not be requiring those States to act inconsistently with their international obligations relating to immunity.
Elsewhere, I have dealt with the tension between Art. 27 and 98 and argued that the only way to give meaningful effect to both provisions is to interpret Art. 98 as requiring the ICC and national authorities to respect immunities accruing to non-parties (immunities which the ICC Statute is unable to remove). On the other hand, Art. 27 is to be taken as removing immunities accruing to ICC parties, even with respect to action taken by national authorities, where those authorities are acting in response to a request by the Court.
So the key question is whether Sudan is to be considered analogous to a party in the case of the Security Council referral. Remember that though Security Council Res. 1593 imposes an obligation on Sudan to cooperate with the Court, it does not explicitly make the Statute binding on it nor does it explicitly deal with the question of immunity. So, what one needs (in order to permit arrest of Bashir by parties) is an argument that says that Sudan is to be considered as bound by the Statute and by the removal of immunity in Art. 27.
What about non-parties to the ICC Statute. Are they obliged to arrest Bashir? SC Res. 1593 urges them to cooperate with the Court but it also explicitly recognises that non-parties have no obligation under the Statute. So there is clearly no obligation to act either under the Statute or under the SC Res. But are non-parties permitted to arrest Bashir? These State owe obligations to Sudan to respect the immunity of Sudan’s Head of State from the exercise of foreign criminal jurisdiction. Even if one were to conclude that the ICC Statute is made binding on Sudan by virtue of Res. 1593 and that Art. 27 removes that immunity where States are acting in support of the ICC, how does that removal relate to the obligations of non-parties. Some would immediately refer to Art. 103 of the Charter as providing the answer and requiring that one give preference to the removal of immunity by the SC resolution. But Art. 103 refers to “obligations under the Charter” as prevailing over obligations under other international agreements. There are two problems here. The first (and perhaps more minor) is that the obligation to respect the immunity of Bashir as a Head of State is a customary law obligation. The second is that in this case, non-parties have no obligations under the Charter to arrest Bashir. This is not like the position with respect to the ad hoc tribunals were the Security Council created an explicit obligation to cooperate with the tribunals. At most, there is a permission to act (if one construes Art. 27 as removing immunities before national authorities and if one takes the view that the whole of the Statute is binding on Sudan). So the question is how does one deal with a “conflict” between a right under the Charter and other international law obligations.
Answers on a post card please. Or preferably using the comments feature.