Is
Chad really under an obligation to arrest Bashir?
July
21, 2010
The
news today has been filled with reports about the visit of President of Sudan,
Omar Bashir, to Chad, and calls for Chad, which is a State Party to
the ICC to arrest him. Beyond
any discussion of the political opportunity of such an act, every commentary
seems to take for granted that Chad is under a legal obligation to do so.
CNN has a "Court official" (probably OTP...) on the record saying that:
CNN has a "Court official" (probably OTP...) on the record saying that:
Chad is legally obliged to arrest Omar al-Bashir and hand him over to
the International Criminal Court.
According
to Human Rights Watch:
Chad should not flout its obligations to arrest al-Bashir if he enters
Chad.
Same
tune at Amnesty International:
If it were not to arrest him, Chad would violate its obligations under
the Rome Statute of the International Criminal Court, which it ratified in
November 2006.
I'm
not sure that's actually true. Sure, the Statute, at Article 86 provides that (my emphasis):
States Parties shall, in accordance with the provisions of this
Statute, cooperate fully with the Court in its investigation
and prosecution of crimes within the jurisdiction of the Court.
However,
"in accordance with the provisions of the Statute", there is in fact
no automatic obligation to cooperate in relation to the
execution of an arrest warrant. Indeed, Article 89 provides that the
Court must make a request for cooperation to a State. The request must
contain specific information outlined in Article 91 (such as a copy of the
arrest warrant). Only then does the Statute provide (Article 89(1)) that (my
emphasis):
States Parties shall, in accordance with the provisions of this Part
and the procedure under their national law, comply with requests for
arrest and surrender.
To
my knowledge, there hasn't been such a request.
Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:
Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:
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.
It's
arguable that Bashir, as an acting head of State, does benefit from diplomatic
immunity, in application of the ICJ Arrest
Warrant Case (for a discussion of the immunity question in the
Bashir case, see here).
If that were the case, not only would Chad not be under an obligation to
cooperate, but the request itself would be contrary to the Statute.
So, all in all it's far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation...
So, all in all it's far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation...
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DO
Regarding
the argument that Bashir might benefit from diplomatic immunity (head of state immunity,
or immunities rationae personae),
The
question presented here is whether Chad is obligated to arrest and transfer Bashir
to the ICC.
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Under
domestic law
o
I
don’t know about any legislation in Chad that implement the Rome Statute.
-
Under
CIL
o
Head
of state immunity (immunities rationae personae) and act of state alike constitute
customary international law, though controversial as to what extent and under
what circumstances the theories can be undermined or reduced
o
If
Chad supports a strong form of head of state immunity, in other words,
vehemently advocates sovereign equality and non-interference in domestic
affairs, Bashir is likely to be immune from criminal jurisdiction of Chad
o
If
Bashir is immune, Chad is not obligated to arrest and transfer him to the iCC
o
The
above analysis is in line with the Arrest
Warrant case (Republic of Congo v. Belgium) that upheld immunity of foreign
minister to the criminal jurisdiction of foreign domestic court
-
Under
treaty
o
Under Rome Statute, as the author pointed out, it depends on how
to interpret art.86 and art. 89
§
my
suspicion is that once the OTP issue arrest warrant, states parties are under
obligation to cooperate with it, whether the OTP or the ICC issues additional
request, because the intention of the OTP was made clear by the arrest warrant
o
§
If
Darfur situation were brought by state referral or prosecutor (OTP proprio
motu), and Bashir were entitled to immunity in criminal jurisdiction of Chad,,
the ICC may not request Chad to arrest and transfer him to the ICC, because it
would be inconsistent with international law, i.e., immunity
·
Sudan
is not state party to the Rome Statute. Art. 98 is meant to benefit, at least, non-state
party
§
However,
Darfur situation was brought to the ICC by UNSC referral. All UN member states
are obligate to carry out UNSC decision. (art. 25 of the UN Charter) Chad is
under obligation to arrest and transfer Bashir to the ICC pursuant to art. 25
of UN Charter.
