Should the U.S. Accept the ICC’s “Invitation” to Illegally Arrest Bashir?

by Julian Ku

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?

8 Responses

  1. There is simply no way under national law to legally arrest and then transfer Bashir to the ICC. This exact thing is prohibited by statute: “no agency or entity of the United States Government or of any State or local government may extradite any person from the United States to the International Criminal Court” 22 USC § 7423(d). The same section also precludes responding to requests for cooperation.
    (The United States could, under national law, arrest Bashir if it were to charge him with genocide or torture, but the he is immune from national proceedings since he is a sitting head of state.)

  2. Re: Zach
    I’ve wondered about this for a while – much of the language in anti-ICC US legislation uses the language that uses terms other than simple “extradite”, and the Rome Statute itself discusses extradition between states and surrender or transfer to the court.
    18 USC § 3181 says
    (d) Prohibition on extradition to the International Criminal Court Notwithstanding any other provision of law, no agency or entity of the United States Government or of any State or local government may extradite any person from the United States to the International Criminal Court, nor support the transfer of any United States citizen or permanent resident alien to the International Criminal Court.
    Why the different usages for “extradite”, “transfer” and “surrender”?  Why not “any person” in the second clause?  One interpretation is that extradition is supposed to refer only to extradition between states.  This doesn’t make a lot of sense with the phrase “extradite any person from the United States to the International Criminal Court” on its own, however.

    It seems to me there are at least three interpretations of that phrase discussing extradition of any person:
    1. It’s poorly written, and doesn’t make sense, so it can be disregarded (which goes against the canon of interpretation in favor of making legislation meaningful);
    2. It only prohibits extradition to other states that would then arrest and surrender the person to the ICC, leaving open the option of surrender/transfer of a person who is not a United States citizen or permanent resident alien; or
    3.  It means no “extradition”/transfer/surrender of any person to the ICC.
    With respect to customary international law, while it appears the majority of scholars believe heads of state and heads of government enjoy immunity from arrest warrants from international tribunals, the ICC disagrees.  As does the SCSL.  (A complex issue, I know, but it’s just worth noting the lack of universal consensus on the issue.)
    Of course, the Headquarters Agreement is also domestic law.  An interpretation that disregarded it (Non-self executing?  Overruled by an obligation to extradite/surrender or prosecute for genocide/war crimes?  Hard to find an argument with merit.) would be devastating to the functioning of the UN.  The only option I could see might be a UNSC resolution.  And why not?  HRW is pushing for this.  UNSC helped create the problem by triggering jurisdiction without providing backing – I don’t see why they can’t try to help solve it.

  3. And the U.S. statute would not be violated if the U.S. consented to Dutch officers exercising control over the accused at an airport (and, by the way, before, by fiction, he was inside the U.S. and while he was still an unadmitted alien) and Dutch officers were bringing him into custody for transfer to the ICC at the Hague.  With respect to alleged claims to immunity, bringing him into custody would only be for the purpose of rendering him to the ICC as part of a criminal sanction process for which he has no immunity under customary international law reflected in article 27 of the Rome Statute of the ICC, whether or not the U.S. or the Dutch were bringing him into custody for transfer.  Additionally, any temporary immunity that might arguably exist before the U.N. “shall not bar the Court from erxercising its jurisdiction over” the accused.  See Rome Stat., art. 27(2).  See also id., prmbl.  Further, there is no immunity under Art. IV of the Genocide Convention (or any other article therein) or the 1949 Geneva Conventions, etc., etc.  Article IV of the Genocide Convention creates an obligation that is also phrased in mandatory “shall” language (i.e., the obligation to punish — one that is also reflected in arts. I, III, and VI of the treaty).See also GC, art. 14146.
    Finally, a claim could be made that not all conduct in connection with a visit to the U.N. would necessarily be immune, since only “such” forms of conduct as “are necessary for the independent exercise of their functions in connection with the Organization” is covered and it is not “necessary” that a criminal accused who has an outstanding arrest warrant issued by the ICC speak to the General Assembly.  Perhaps the U.N. Secretariat can also bring him into custody for the purpose of rendering him to the ICC.

  4. p.s. I like the jus cogens argument: that genocide is a violation of jus cogens and it is logical and policy-serving to affirm that the mandatory sanction process reflected in the 1948 Genocide Convention (e.g., in Articles I, III, IV, and V of the Convention) is a concomitant part of jus cogens. As jus cogens, the concomitant obligations to engage in sanctions outlined in the Convention prevail over conflicting portions of the U.N. Charter that are not based in jus cogens.

  5. I like the jus cogens argument too, but I don’t think it’s even necessary to apply the Genocide Convention. Pre-Trial Chamber I remarked that customary international law allows for an exception to head of state immunity with regard to international criminal proceedings.

  6. Does’nt nutiyahoo, bush and clinton have warrants too.

Trackbacks and Pingbacks

  1. […] I tend to agree with Julian Ku—law professor, prolific blogger on issues relating to sovereignty, and a college classmate—in his opinion expressed at Opiniojuris: […]

  2. […] I tend to agree with Julian Ku—law professor, prolific blogger on issues relating to sovereignty, and a college classmate—in his opinion expressed at Opiniojuris: […]