Wronging Rights on the Warrant for Bashir

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<–>

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Africa, Featured, Foreign Relations Law, International Criminal Law, International Human Rights Law, National Security Law
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This analysis is so flawed, I do not know where to begin. Did you guys read the decision? I do not see a single mention of the UN Security Council involvement in this case, nor any substantive comments on the fact that the Court will deal with the situation under “statutory framework” of ICC Legal Texts (Statute, Rules, Regulations). Or are these irrelevant details to the question of the immunity? You think your Art. 27 versus Art. 98 discussion is convincing? How many State Parties would adopt such an interpretation?

For anyone interested in the Al-Bashir immunity issue, I would suggest Dapo Akande’s excellent analysis on ejiltalk.org, written, by the way, in much more humble way.

Amanda and Kate

Dear *Failed*, First, thanks for responding. We presume you were too exhausted after criticizing our tone to tackle the substance of our post, and we understand.  You aren’t the first to die on that hill.  It’s been a few hours now, though, so we hope you have gotten some rest and are up to trying again.  We’re going to try to get the ball rolling here, but because you didn’t explain exactly what your problem is with our post, we’ll respond to the arguments that Dapo Akande made on Ejil: Talk! post you cited. First, as to Akande’s post on the warrant: We have read it, and agree that it’s very good.  Which shouldn’t be surprising, because for the most part our analyses agree with each other.  He notes the same tension between Art. 98 and Art. 27 that we did in our post, and makes several very good points, such as the peculiarity of the PTC’s failure to mention Art. 98’s protections at all in its opinion: “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… Read more »


It seems a bit inconsistent in my view to accept that due to the lack of formal competence of the ICC to arrest endicted persons itself, then immediately one would fall back to State consent ( as in a required waiver of Sudan). States acting as private judges, pursuing their own subjective views, and creating tension by prosecuting foreign officials because they think it is the right thing to do, should not be equated with States who are acting in compliance with their obligations toward the ICC, legitimized by the Security Council acting under Chapter VII. States would act as organs of the ICC, not as judges themselves. With the absence of a ‘police force’, the ICC basically deals with the same problem as the UN, which also has to rely on the cooperation of its members, to fulfil its mandate. Although a specific SC resolution creating an obligation for UN member States to implement the arrest warrant if feasible would be preferable, it does not sound too persuasive to me to hold States in violation with the law on diplomatic immunity if trying to comply with the obligations toward the ICC. Of course, without a warrant issued by the… Read more »


[…] wenn Bashir keine diplomatische Immunität mehr genießt. Hier die entscheidende Passage aus dem Posting: In fact, no State Party to the ICC can act upon the warrant, because Bashir is a sitting head of […]

Michael Kevane
Michael Kevane

“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.” Can one of you lawyer types explain to me the difference between “requiring” a state to act and “requesting but not requiring” a state to act?  98(1) seems to say that ICC cannot require- which in normal English would mean that if they requested as requirement, and state did not fulfill, then non-fulfilling state could be sanctioned by ICC or perhaps SC.  But if ICC requests but does not require, and state chooses to arrest, then state can in be taken to ICJ, as Amanda/Kate suggest.  But that case might well be moot, since with al-Bashir arrested new regime in Khartoum might decide not to pursue case against arresting state.  Alternatively, as Kate/Amanada suggest, an international court faceoff clarification would be very interesting.  What does arresting state have to lose except possible enmity from a deeply failed state… Read more »

James Cockayne
James Cockayne

This was an interesting post, but it does seem to me that para. 2 of UNSC Res. 1593 (2005) is pretty important here. It doesn’t place Sudan in the same position as an ICC State Party: it places it in in a unique position. In that paragraph, the UNSC decides that Sudan ‘shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’. I think the question is whether that extends to surrendering an indicted Head of State who would otherwise be immune from jurisdiction. The point is well explored in Goran Sluiter’s article, “Obtaining Cooperation from Sudan – Where is the Law?”, in the current issue of the Journal of International Criminal Justice. [Disclosure: I am a member of the JICJ’s Editorial Committee.] It’s available here: http://jicj.oxfordjournals.org/current.dtl  Sluiter makes the point that the Council has been in this position before – in Yugoslavia. There, in SC Res. 827 (1993), the Council specifically explained that duties of cooperation must be discharged in accordance with the ICTY Statute (see Sluiter, op. cit., pp. 876-877). In SC Res. 1593 (2005), by contrast, the Council is silent about the relationship between Sudan’s duty of cooperation… Read more »

Alex Welsh
Alex Welsh

Part of the supposed tension between Articles 98 and 27 rests upon the conclusion that immunity ratione personae applies here. This is the type of personal immunity which protects sitting heads of state as discussed in Arrest Warrant. Nowhere does the ICC Statute enshrine the ICJ’s interpretation.  Article 98(1) states that no state shall be required “to act inconsistently with its obligations under international law with respect to…diplomatic immunity of a person.”   A decision by an ICC state party to arrest Bashir would not render Article 98 meaningless, unless the state were to act inconsistently with it’s own obligations.  Those obligations are not defined by the ICJ case, but primarily by the state’s own laws and treaties and secondarily by customary international law, which in turn is based on state practice.  A decision by the ICJ applies to the parties to the controversy and future ICJ decisions.  It no more defines the general obligations of states than does an ICC decision.   What is irreconcilable is the idea that parties to the ICC would be somehow precluded from ever arresting a sitting head of state.  This seems patently absurd as it would only encourage state criminals to cling to power.  It seems to me… Read more »