In a post last week, I mentioned a forthcoming article of mine dealing with Bashir’s Immunity. That article titled “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al’Bashir’s Immunities” has now been published in the latest issue of the Journal of International Criminal Justice (available here). The abstract of my article is as follows:
This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article 27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.
In the same issue (which contains a symposium on the Bashir Case), there is an article by my friend and fellow EJIL Scientific Advisory Board member, Professor Gaeta (Universities of Florence and Geneva) which takes a different view. The abstract of her article, “Does President Bashir Enjoy Immunity from Arrest?” is as follows:
This article discusses whether the International Criminal Court (ICC) has lawfully issued and circulated an arrest warrant against the incumbent head of state of Sudan, Omar al Bashir, and whether its request to the states parties to the Rome Statute to arrest and surrender him is in conformity with the provisions of the Statute. In this article, the argument is made that the rules of customary international law on personal immunities of incumbent heads of state do not apply in the case of the exercise of criminal jurisdiction by an international criminal court; therefore they do not bar the exercise of the jurisdiction of the ICC with respect to an incumbent head of state, even if this individual comes from a state not party to the Rome Statute, like Sudan. However, it is one thing to assert that an international criminal court can ‘lawfully’ issue and circulate an arrest warrant against individuals entitled to personal immunity before national courts, and quite another to say that states can ‘lawfully’ disregard the personal immunity of these same individuals, and surrender them to the requesting international court. This article endeavours to demonstrate that while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires. States parties are therefore not bound to comply with this request.
Unfortunately, Professor Gaeta and I did not have sight of each other’s article and were therefore unable to address the opposing arguments that each of us make. It is interesting that Prof. Gaeta and I not only have different conclusions we even have different starting points. She starts from a position that I disagree with: that international law immunities do not bar the exercise of jurisdiction by international criminal tribunals (see my views here on this blog and an article in the American Journal of International Law). But she concludes that Bashir is immune from the jurisdiction of national authorities. I start from the position that international criminal tribunals are obliged to respect immunities accorded by international law but conclude that the effect of the Security Council referral means that Bashir is not immune from the exercise of national jurisdictions acting in support of the ICC.