Would states violate international law if they execute an arrest warrant against President Bashir?
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.
Realising the complexity of the impending arrest warrant against him Al-Bashir started to circumvent it by legal measures behind close corridors. While publicly denouncing the ICC he is working very hard behind the scenes to use the provisions for the Comprehensive Peace Agreement (CPA) to seek legitimacy and stay as President for as long as he could. He already said and insisted that the elections will be held next year and on time. He knows very well that he is going to win by all means. The international community should brace itself for a protracted period of political and legal wranglings. The first scenario is the indictment of Al-Bashir and he remains free, the second one is if he is indicetd and arrested, the third one is if he is ousted by his own party in a coup and fourthly but worse is if he is not indicted and goes free. Each of these scenarios have serious implications at the political, humanitarian and security situations in the whole of Sudan let alone Darfur. This should not deter the international community to stand firm in the search for justice for the victims of the Darfur crisis. In all, if Al-Bashir gets away with it can only open the gates for further unimaginable atrocities with immunity backed by international community.
Corrupt leaders over the globe will rejoice if UN Security Council opted for article 16 and invoked the arrest warrant against Bashir. That will be catastrophic to the free and democratic world which strives to set new standards of accountability and impunity against tyrants and dictators. We hope to see Al-Bashir indicted and arrested no matter what the legal wrangling provides.
I don’t know if the arrest would make any improvement. There is still the conflict. What would the arrest make? Justice? How about the resolution of the problems there in Sudan? Make more arrests to people who are liable. So, there will be more arrests now… I would rather settle for a peace talk rather than arresting people, well, I’m still open to the fact that Bashir should be arrested, he has done more than enough problems.
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Mandino P. Cheng
The Emma Academy Project
This project will be building a school there in Sudan. To be built in Leer, Sudan, the school will be fostering the children and at the same time nurturing the minds of the young children there. This school will be for the children of Sudan, keeping them away from the effects of war. This school is in honor of Emma McCune, the angel who saved the WarChild. To help build a school, we would need to support this cause.
On 14 July 2008 France revealed to Sudan’s rulers that it was opening dialouge with its ‘Allies and Partners’ to find an acceptable solution to the ICC question. To that, the Sudan should ‘Make a gesture’; i.e., hand over both Haroun and Kushaim. Khartoum has not delivered, after six months.
On 8 December 2008 France closed the ICC chapter to further dialouge with Sudan’s President: either ‘put-up or buzz …’. This is just like saying that an arrest warrant by the ICC is either ‘made’ or is ‘too close’. In either case, Sudan is in deeper trouble than before. Of course, options are withering away.
Khartoum’s crack down on jurnalists and human rights activists in the past two weeks is clear indication of lack of internal unity on the President’s position of non-recognition of the ICC jurisdiction earned through the UNSC referral for the Hague Court to investigate the situation under Chapter Seven of the UN Charter.
The Sudan’s road to cofrontation with the world community of States, particularly those who wield vito power in the UNSC and those who are members of the ICC, will be wide open in the very near future – maybe shortly after Obama takes oath. The International community will be faced with the terminal scenario of how to carry out the ICC resolution on the case, especially, if an arrest warrant is issued. Six persons are to appear in the Hague: al-Bashir, Haroun, Kushaib plus three unspecified from Darfur ‘movements’. Regime change, regime ‘crushing’, or personal apprehention of those wanted could be made on the basis of ‘sealed envelopes’. Whichever the case, it would be disasters for the poverty-stiken people of Sudan who, perhaps, are incapable of defending the President but would be killing each other on the streets. The future of the country will be ‘in the air’. Even if the NIF clique is ruptured, who would gaurantee that SPLM would not opt for Zero-interim and declare immediate independence for the South. Concealing the results of the census is one strong reason for SPLM to claim failure of CPA implementation as the core reason. Darfur would find it an opportune moment to transform the rebellion into a revolution and declare independence, in the face of the ensuing chaos. The weak political parties in the north would realize that they wasted valuable time, for not agreeing on a ‘National rogramme’ to save their country. Instead, they persisted on fruitless squabbles among themselves. They have utterly failed, in two decades, to plan for ‘THE ALTERNATIVE in Sudan’ after the demise of the NIF.
This is a gloomy picture but, presumably, a wors-case scenario.
I am wondering if the government has a plan B for when the arrest warrant is issued? The way I see it, the government seems to be focusing on how to block the indictment rather than how to act if it becomes a reality. I personally believe that the arrest warrant will be issued if it has not been already. The prospect of the upcoming months in Sudan looks seriously dim since the NCP people are known for their irrational reactions to what they deem insulting to their authority. I really hope that there could be some way to postpone the ICC procedures for a while so people can focus on what matters, peace.
NIF has a good chance to change its skin as it did when it ousted Hassan Alturabi. The Phoenix Ali Osman Taha is capable of doing it again, may be with the assistance of NISS or SAF. Otherwise, the regime will fight tooth and nail for Kahrtoum. Fortifying Omdurman and the last military parades are a sign of how some of the regime leaders think. They are trying to prepare themselves for protecting Khartoum their last hold out. Let me remind you of a dissimilar ocassion when Abd Alahi Altaishi back in the 19th century fought his battle against the invading English army. He strengthened his grip of power by giving leadership to his tribe. His opposers waited for the final outcome of the battle to decide which way to go.He was abandoned by many people because of the injustices that he inflicted upon them. Only his cohorts stood by him. He was killed while he was praying the thing that shows how desperate he was at the time. Albashir said it in Sinnar lately, that “he wants to die in an honorable way”.
In the DRC v Belgium case, the ICJ affirmed the firmly established principle of international law that, as also diplomatic and consular agents, certain holders of high-ranking office in a State such as the Head of State, the Head of Government and Minister of Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal (P51). The Court stated that the legal question that it had to decide upon concerned the question of immunity in relation to national Courts and not international criminal tribunals (P58). It did not decide on the question of immunity with respect to international courts.
Furthermore, the Court stated that in incumbent or former high official may be subject to criminal proceedings before certain international criminal courts, such as the ICC, where they have jurisdiction. It cited Article 27(2) of the Rome Statute in this regard (P61).
With respect to Article 98, the nations that negotiated the drafting of the Statute did so with extensive reference to international law and with care to address potential conflicts between the Rome Statute and existing international obligations. The drafters recognized that some nations had previously existing agreements, such as Status of Forces Agreements (SOFAs), which obliged them to return home the nationals of another country (the “sending stateâ€) when a crime had allegedly been committed. Thus Article 98(2) was designed to address any potential discrepancies that may arise as a result of these existing agreements and to permit cooperation with the ICC. The article also gives the “sending state†priority to pursue an investigation of crimes allegedly committed by its nationals. This provision is consistent with the Statute’s complementarity principle, which allows the country of the nationality of the accused the first opportunity to investigate and, if necessary, try an alleged case of genocide, war crimes, or crimes against humanity.
Therefore it cannot be said that States would be violating international law if they executed an arrest warrant against Al-Bashir.
Further note for clarification purposes:
Article 98(1), provides that the Court cannot make a request for surrender or assistance if it would require the requested State to breach its obligations under international law with respect to State or diplomatic immunity. It would appear at first glance that this provision conflicts with Article 27. However Article 98 is limited to international co-operation and judicial assistance, whereas Article 27 is concerned with the question of the Court’s jurisdiction.