I want to thank Alexandre Skander Galand for his interesting post last week on the continuing controversy over President al-Bashir’s non-arrest during his recent visit to South Africa. The post reignited a long-standing debate in the comments section. My own views are too long for posting in the comments section.
I write now to expand a bit on my previous arguments regarding the role of the Security Council in imposing a binding obligation on Sudan (and other states) to cooperate with the ICC and execute its arrest warrant. If the obligation to Sudan vitiated its putative immunity, then South Africa had no basis to refuse to comply with the ICC arrest warrant, especially since it is a party to the Rome Statute.
First, before I get to that issue, I want to briefly mention the other argument for imposing a duty on Sudan to cooperate, which is a jus cogens obligation stemming from the investigate/prosecute-or-extradite norm that applies in genocide cases. Goran Sluiter wrote an important article on this subject, which was published in the Journal of International Criminal Justice in 2010. This is a different argument (albeit a good one), and it is best to keep them separate.
Now back to the issue of the Security Council. Some commentators (including Asad Kiyani here) doubt that the Security Council has the authority under Chapter VII to impose a binding obligation on Sudan to cooperate to such an extent that it requires waiving their rights under head of state or diplomatic immunity. I understand the claim. But I think it is clear that the Security Council has this authority and that implicitly other scholars should be committed to this conclusion as well, since this power is far less grave than the other powers that the Security Council clearly has. Indeed, the power to abrogate Sudan’s head of state immunity is downright trivial compared to the Security Council’s other powers.
One should recall that the Security Council has the authority, under the UN Charter, to authorize military action against the sovereignty of a state. This authority is taken pursuant to the Security Council’s power under Chapter VII to determine the existence of a threat to, or breach of, international peace and security, and to make binding resolutions that include, among other possible remedies, the authorization of military measures taken against an offending state in order to repair the breach to international peace and security.
This is an awesome power. It effectively allows the Security Council to bless a military incursion that might otherwise violate the UN Charter prohibition on the use of military force to solve international disputes–a prohibition codified in Article 2(4) of the Charter (and also arguably a jus cogens norm). However, if the military action is supported by a binding resolution of the Security Council, the military action is not illegal–it is a lawful enforcement action undertaken under the auspices of Chapter VII of the UN Charter.
This power of the Security Council is explicitly outlined in the UN Charter. It is rarely invoked, in part because military remedies are extremely serious, but also because the veto power among the permanent members limits the number of binding resolutions that the council will pass. However, few scholars (if any), deny that the Security Council has the power to: “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
So I find it strange that some scholars have trouble with the idea that the Security Council has the authority to abrogate the sovereign or diplomatic immunity of state officials in cases such as the Darfur situation. Indeed, the Security Council had the authority–which it declined to exercise–to declare the Darfur crisis a threat to international peace and security (in part because it caused regional instability and included massive violations of IHL and human rights, possibly including crimes against humanity and perhaps even genocide) and authorize a collective military intervention to breach Sudan’s sovereignty, occupy the entire country, and remove Bashir from power. But for some reason, the Council does not have the power to do the smallest thing imaginable: refer the case to the ICC and implicitly remove any immunity arrangements that conflict with that referral? I find that hard to believe. In this case, the greater includes the lesser.
Of course, there is a separate issue regarding whether the Security Council actually abrogated that immunity when it directed states to comply with the ICC in the Darfur investigation. That is a separate point. I think they did so, and there is no other way of interpreting the relevant resolutions. But that’s not the point I am defending here. I am simply asserting that if they displaced Sudan’s diplomatic and sovereign immunity, they certainly had the authority under international law to do so.