The Sudanese government has very cleverly applied to the United States for a visa so that President Bashir can attend the upcoming session of the United Nations General Assembly. This move highlights the problems with the position that the Court has taken respecting the existence of immunities. As head of State of a United Nations Member State, it is axiomatic that Bashir is entitled to participate in the United Nations General Assembly.
Under the Charter of the United Nations, (Article 105 (2)): ‘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 functions in connexion with the Organization.’ The Charter takes precedence over the Rome Statute of the International Criminal Court. The headquarters agreement between the United States and the United Nations requires that travel be facilitated to United Nations headquarters. This too is beyond dispute. Dr Dapo Akande of Oxford University has very fully and eloquently set out the situation in a blogpost on Ejil Talk.
In sum, the US is bound allow Bashir to attend the GA session and not to arrest him. Quite rightly too. The obligations in question are rather limited, they are temporary and are of great importance for the ability of the UN to function without interference. Thus, they are ultimately of great importance for the maintenance of a system of peaceful relations among states. Participation by states in the UN is part of the very essence of the UN system. Allowing encroachment of that right would set a damaging precedent for the system. Enforcement of ICC arrest warrants is not ultimately dependent on what happens with respect to UN summits.
Almost two years ago, the Pre-TrialChamber of the Court took a very extreme position, holding that Bashir had no immunity at all as a consequence of article 27 of the Rome Statute.
The entirely simplistic analysis by the Pre-Trial Chamber was even inconsistent with the relationship agreement that the Court had signed with the United Nations. According to article 19 of that Agreement:
Article 19. Rules concerning United Nations privileges and immunitiesIf the Court seeks to exercise its jurisdiction over a person who is alleged to be criminally responsible for a crime within the jurisdiction of the Court and if, in the circumstances, such person enjoys, according to the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law, any privileges and immunities as are necessary for the independent exercise of his or her work for the United Nations, the United Nations undertakes to cooperate fully with the Court and to take all necessary measures to allow the Court to exercise its jurisdiction, in particular by waiving any such privileges and immunities in accordance with the Convention on the Privileges and Immunities of the United Nations and the relevant rules of international law.
But if there is no immunity as a result of article 27, what is there to waive? Belgium had made the argument when the Relationship Agreement was being drafted, but the United Nations Secretariat didn’t agree. Thus, the Court acknowledged that immunities exist, and that article 27 does not provide a full answer when someone is charged before the Court.
Since Dr. Akande’s post, the Pre-TrialChamber has issued a decision on the matter. It follows a ‘notification’ by the Prosecutor asking ‘that the Chamber take steps to ensure that the arrest warrants are executed’. Here are the relevant conclusions of the Decision
Reminds the United States of America of the two outstanding warrants of arrest issued against Omar Hassan Ahmad Al Bashir and the requests for arrest and surrender transmitted by the Registry on 6 March 2009 and 21 July 2010;Invites the competent authorities of the United States of America to arrest Omar Hassan Ahmad Al Bashir and surrender him to the Court, in the event he enters their territory;
It is a curious conclusion because it seems as if the Pre-Trial Chamber is actually encouraging the United States to issue the visa to Bashir.
Neither the Prosecutor’s application nor the decision of the Trial Chamber refers to article 98(1) of the Rome Statute:
Article 98Cooperation with respect to waiver of immunity and consent to surrender1. 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 would have been interesting to have some discussion of the relevance of this injunction to the Court that it ‘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’. Perhaps someone could explain why article 98(1) doesn’t apply here. Probably if the proceedings before the Pre-Trial Chamber were genuinely adversarial this issue might have been addressed. This is a rather common problem when important precedents are set in ex parte proceedings before the Court.
Some pundits have been suggesting that immunity is trumped because Bashir has been charged with genocide. The magic of jus cogens is supposed to blow away arguments based on various international agreements and even the Charter of the United Nations. In this respect, it is worth recalling the words of the International Court of Justice in a very recent case, where the ‘logical problem’ of maintaining that immunity evaporated because serious crimes are charged was addressed. The Court was speaking of State immunity, but the reasoning applies to individuals too. It noted that if ‘the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skillful construction of the claim’ (Jurisdictional Immunities of the State, para. 82). Isn't that what is happening here? Can it really be the case, as some contend, that the legal position of Sudan and Bashir has been drastically altered merely because a Pre-Trial Chamber of the Court ruled that there were ‘reasonable grounds’ to allow the Prosecutor to pursue a charge of genocide (after initially concluding that there were not even reasonable grounds and then being 'corrected' by the Appeals Chamber which said it had set too demanding a standard)?
Dr Akande’s comment, cited above, about the importance of full participation in the United Nations system is extremely helpful. However frustrating the international law on immunities may seem because of its impact on accountability, immunities also fulfill a very important purpose in encouraging international peace and security.
Obstructing Bashir's visit to New York is not without consequences over the long term. The same reasoning also applies to ad hoc peace negotiations like, for example, what is now being proposed in Geneva with respect to Syria. Is there not a profoundly important value to the international system in having a rule that facilitates negotiations between heads of State and similar officials, whatever we may think of them?
Suppose the principle were to be established that a head of State was not immune from arrest pursuant to a warrant of the International Criminal Court when attending the United Nations General Assembly. Probably many governments would then question the safety of traveling to New York. After all, the Court – and other international criminal tribunals – can issue arrest warrants secretly. Traps would be set. The world would not be better off if the General Assembly ceased being a secure, privileged forum with its sacred mission of promoting international peace.