It is widely believed that President Bashir will stop travelling abroad, fearing the execution of a (potentially sealed) ICC arrest warrant against him. Whilst cautious, from a legal perspective this may not be necessary. Under current international law, states, whether parties to the Rome Statute or not, would still have to accept Bashir’s procedural immunity (immunity/ratione personae), unless this is lifted by either Sudan or the Security Council.

Article 27 of the Rome Statute clearly provides that nobody enjoys immunity, substantial or procedural, before the Court. Yet, article 98(1) also provides that “[t]he 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.”

In Resolution 1593 (2005) the Security Council triggered the Court’s jurisdiction by referring the situation to the Court. In this resolution, adopted under Chapter VII of the UN Charter, it also obliged Sudan to cooperate. However, the resolution has not determined that Sudan should now be considered a “state party” rather than “third state”. The resolution merely urges other states to cooperate. Since operative clauses that “urge” do not create legal obligations, states are still bound by current international law, according to which Heads of State enjoy immunity/ratione personae/, even if accused of genocide, crimes against humanity and war crimes (International Court of Justice, DRC versus Belgium 14 February 2002). Only if the Security Council adopts a resolution under Chapter VII of the UN Charter, obliging states to execute an arrest warrant notwithstanding the President’s immunity, or in another way explicitly lifing the President’s immunity, or in the unlikely scenario that Sudan lifts the immunity, would states parties not violate international law if they execute the arrest warrant.