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:
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:
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…
I do not think I fully share your thoughts on whether Chad has an obligation to arrest Bashir.The PTC in its 'Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir' (4 March '09) having issued the arrest warrant, called upon the Registrar to:'prepare a request for cooperation seeking [Bashir's] arrest and surrender' for all the States Parties. (An identical order was made with regard to this month's second arrest warrant on genocide)Although I am not entirely certain whether the Registrar in actual fact enforced this Chamber order, I can imagine that within the past year or so, the Registrar has taken the effort to prepare and transfer the request to Chad (and other State Parties).Nevertheless, the fact that Chad has an obligation towards the Court does not seem to clear up all that much. As you touched upon, Bashir would still be entitled to functional Head of State immunity under international law. Chad is thus faced by two utterly conflicting legal obligations. On the one hand, a treaty obligation towards the ICC to enforce the arrest warrant, and, on the other hand, an obligation under customary international law to adhere to his immunity. How this legal dichotomy of State Party obligations plays out is in itself an interesting question. The Statute seems to suggest (Art. 119) that the Court itself can settle any 'dispute concerning judicial functions.' But somehow I doubt that the Court would ever consider its own issuance of an arrest warrant to be ultra vires, no matter the academic support. Hopefully these current events will help bring some much needed clarity to this wonderfully intricate legal mess!If interested, a more detailed take on this issue:http://www.zis-online.com/dat/artikel/2010_6_461.pdf
The Registrar did indeed follow up both warrants with a request (albeit a blanket one) to all States Parties for Al-Bashir's arrest and surrender. The latest request is available here: http://www.icc-cpi.int/iccdocs/doc/doc910850.pdfDov – does that alter your outlook at all, or do you think this to be still inadequate?
Thank you both for pointing out that the Court has in fact issued requests to all State parties. I wans't aware of that.This doesn't change my outlook on the point of principle that there is no automatic obligation to arrest someone based on the arrest warrant. But it of course might affect my conclusion that Chad is in this case under an obligation to arrest Bashir.I'd still have one question on the use of article 89 by the Court in this wholesale way. 89(1) mentions a possibility to issue a request to "any State on the territory of which thatperson may be found", rather than just "any State". If the second part of the sentence is to have any legal meaning, it can't just be all the countries in the world preemptively… Shouldn't there be some reasonable indication of the presence of the accused on the territory of a State as a condition of the issuance of the request?
Pingback: The ICC and immunities, Round 326: ICC finds that South Africa had an obligation to arrest Bashir but no referral to the UNSC | Spreading the Jam