Is it legal to arrest Al Bashir? Akande v. Gaeta
July 21st, 2009 • ICL
Ever since the ICC issued its arrest warrant for President Al Bashir of Sudan, a lively debate has ensued as to whether countries can actually legally arrest him. This became especially relevant last week as Uganda began the first indicated that they would arrest him if he travelled to their territory, had a rethink, and ended up assuring Bashir’s freedom from arrest if he travelled to Kampala for the 2009 Smart Partnership Dialogue.
However, would an arrest of Bashir by Uganda be legal?
Two recent articles deal with this issue head on. On the one side you have Paola Gaeta in the Journal of International Criminal Justice, arguing that “the ICC request to state parties to surrender President Al Bashir is…an act ultra vires. State parties are therefore not bound to comply with this request”; and contrary to this is Dapo Akande, also writing in the JICJ (and over at EJIL:Talk!), arguing that “the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC Statute…[and that] the removal of immunity operates even with regard to non-parties.”
The core of the disagreement between Gaeta and Akande is their interpretation of the Security Council resolution referring the situation in Darfur to the ICC. While Akande sees the Security Council requiring Sudan to co-operate with the ICC as effectively turning Sudan into a party to the Rome Statute, Gaeta argues that the effect of Security Council referral is explicitly regulated by the Rome Statute, and nothing in it or the terms of the resolution bind Sudan to the provisions of the Rome Statute.
While I’m sympathetic to Akande’s argument that the Security Council can bind non-parties to treaty provisions such as those of the Rome Statute, I wonder whether something more explicit is needed then the obligation to co-operate contained in Resolution 1593.
Technically one could look at the creation of the ICTY/R as analogous examples of the Security Council imposing a Court’s statute upon the international community, however because the ICC already exists as a body established by treaty apart from the UN, its a strange departure from VCLT treaty interpretation rules to allow the Security Council to bind whoever they like by Rome Statute obligations.
Both articles are worth a read for coverage of the issues, especially the end of Akande’s where he comments on the one immunity that the Security Council referral can’t remove:
These are the immunities of representatives to the United Nations. These immunities…are also conferred by Article 105(2) of the UN Charter which provides that:
Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their f unctions in connection with the Organization.
Therefore if Al Bashir were to travel to the United States to attend a meeting of the UN General Assembly he would be immune from arrest.
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