Should the U.S. Accept the ICC’s “Invitation” to Illegally Arrest Bashir?
An ICC chamber, at the request of the ICC Prosecutor, has issued a decision “remind[ing]” U.S. authorities of the two Arrest Warrants issued by the ICC, and “invit[ing]” U.S. authorities to apprehend Bashir and turn him over to the ICC. This is not exactly surprising.
Still, it is worth noting that the ICC chamber reviews the legal landscape and it concludes (rightly in my view) that the U.S. has no legal obligation to arrest Bashir if he comes to the U.S. This is true both because the U.S. is a non-party to the Rome Statute, but also because the UN Security Council’s referral of Sudan to the ICC was carefully worded so as to not place obligations on non-parties to the ICC. That UNSC Resolution merely urges UN member states to cooperate fully. It doesn’t require cooperation. I will also note, in response to Prof. Jordan Paust’s comments to an earlier post on this subject, that although the UNSC Res. 1591 did obligate member states to deny transit to certain individuals related to the Sudan conflict, Bashir does not appear to be on that list of people.
So, as I argued in a prior post, the US-UN Headquarters Agreement almost certainly requires the U.S. to allow Bashir to attend and then leave the UN General Assembly meetings The U.S. is further obligated to accord Bashir immunity as a head of state under customary international law. Arresting Bashir would require the U.S. to violate both of these legal obligations (although arguably the head of state immunity cannot be invoked in this context).
If the U.S. arrests Bashir, they are violating at least one, and maybe two, important international legal obligations. And, as the ICC chamber makes clear, the U.S. has no legal obligation to detain Bashir. So from a purely legal point of view, this is a no-brainer: the U.S. should grant Bashir a visa, and let him come and go unmolested.
In this light, we seem to be back to the “illegal but legitimate” conversation that we were having over a possible U.S. strike into Syria. Kevin’s post on that comparison makes a similar point. But here is a difficult question for international lawyers. Arresting Bashir would plainly be illegal, but it would almost certainly be legitimate to most people, like Mia Farrow. (I am in the minority of folks who think such an arrest is unwise since its repercussions in Sudan might be severe.) Still, is legitimacy enough to act illegally? And if it is, why wasn’t that standard good enough to justify a US strike into Syria?