18 Mar Wronging Rights on the Warrant for Bashir
The following is a guest post written by Kate Cronin-Furman and Amanda Taub, the brains behind the must-read blog wronging rights. My thanks to them for contributing it.
Two weeks ago, Pre-Trial Chamber I of the International Criminal Court issued a warrant for the arrest of Sudanese President Omar Hassan al-Bashir. (We’re sure you all remember; it was kind of a big deal.)
International lawyers, human rights activists, talking heads, and bloggers have spent the intervening time scrutinizing the warrant and its implications. Reactions have ranged widely -from “This is literally the worst idea ever” to “This presages an end to impunity and the dawn of a new age of peace and justice”- but all share a conviction that this warrant is Serious Business. Bashir thinks it’s serious enough to merit kicking out nearly half of Darfur’s humanitarian aid providers, thereby endangering millions of civilians’ lives. And any number of compassionate and thoughtful lawyers (Hi Kevin!) and human rights activists, aware of the risk to the population of Darfur, thought the warrant was important enough to push ahead anyway.
ICC prosecutor Luis “I Am the Law and the Law Is Not Mocked” Moreno-Ocampo lost no time before demanding that all of the UN’s member states enforce the warrant, and insisting that all of the States Parties to the ICC were legally required to do so. Lest there be any doubt, Moreno-Ocampo told the international press that “as soon as al-Bashir travels through international airspace, his plane can be forced down and he can be arrested. That is what I expect.”
Funny how he left out the “as soon as Sudan gives permission” part.
In fact, no State Party to the ICC can act upon the warrant, because Bashir is a sitting head of state. Obviously, that doesn’t deprive the ICC of the right to try him. ( Art. 27(2) of the Rome Statute expressly states that head-of-state immunity won’t bar the court from exercising jurisdiction.) But it does prevent the Court’s warrant from having any legal effect outside of Sudan, because Articles 98(1) and 59(2), respectively, bar arrests that violate international law, and provide a basis for arrestees to challenge their detention in court.
Article 98(1) expressly prohibits states from cooperating with arrest warrants that would violate 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.”
It’s pretty clear that Bashir, as President, falls squarely within that persons-with-diplomatic-immunity category. And there can be little question that the arrest would violate international law: in Congo v. Belgium, the ICJ held that a state’s issuance of an arrest warrant for another state’s incumbent foreign minister was a violation of its obligation under international law to respect his immunity from criminal jurisdiction. Theoretically, the ICC could disagree, and find that the gravity of Bashir’s crimes stripped him of his protected status under international law. Judge ad hoc Van den Wyngaert’s dissent to the Congo v. Belgium decision, which chastised the Court for failing to “give more thought and consideration to the balancing of the relative normative status of international jus cogens crimes and immunities,” would be a good place for them to start. But such a holding would render Art. 98(1) meaningless, by automatically stripping the protections of international law from anyone subject to an ICC warrant, and therefore seems a bit dodgy as a matter of treaty interpretation. So, to sum up: Bashir is entitled to immunity, and the ICC’s own statute expressly says that it must be respected, so the warrant’s power is nullified. It doesn’t grant any state authority to arrest Bashir, whether he is in ‘international airspace’ or not, unless his own government (read: Bashir himself) waives his immunity. That scenario’s only slightly slightly more likely than a flying pig snatching up Bashir in its delicate trotters and winging him north to The Hague, so he can probably travel to Qatar at the end of the month without much worry.
However, there are a couple of ways Bashir could end up on trial without aero-porcine intervention. The most exciting possibility would be for someone to abduct him, Eichmann-style, and drop him on the ICC’s doorstep. The Rome Statute doesn’t contain any prohibitions on the exercise of jurisdiction over someone who has been kidnapped, so it’s quite likely that the doctrine of male captus, bene detentus (“wrongly captured, properly detained”) would apply.
Alternately, if Bashir traveled to a state with a universal jurisdiction statute, he could be arrested on a domestic warrant issued under that law. Presumably, the arresting state could then determine that it is “unwilling or unable” to prosecute him within the terms of the Rome Statute and hand him off to the ICC, which could again invoke male captus, bene detentus, and hang onto him. The relevant precedent would come from Prosecutor v. Nikolic, where the ICTY held that an illegal arrest did not bar the court from exercising jurisdiction unless there had been “egregious violations” of the rights of the accused, and/or reason to believe that the prosecutor was involved in the abduction.
That kind of arrest would violate the Congo v. Belgium holding, so Sudan could sue the arresting state at the ICJ. But if Bashir had already been sent to the Hague, the damage would be done. (It might provoke an exciting constitutional crisis among the international courts if the ICJ tried to order the ICC to give Bashir back, though. And we’ve all been waiting for this non-hierarchical international tribunal system to get ugly at some point anyway.)
We’re guessing Bashir has already gotten someone to google which states have universal jurisdiction statutes, and is therefore unlikely to head to Belgium to sample the moules frites any time soon. But it may be that the warrant’s true power is political, not legal. It could operate as an appealing door prize for a coup: “depose your president, pick up his convenient incarceration at The Hague on your way out!”* No need to even bother with an assassination and the attendant opprobrium from the international community.
So it looks like Moreno-Ocampo will have to pin his hopes on political, rather than legal, processes if he wants to see Bashir’s face anytime soon. That is, unless anyone wants to get to work on a hyper-intelligent pig-eagle hybrid. Anyone?
*Some infighting, civil unrest, and unraveling of key peace agreements may apply<–>