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Wednesday, October 7, 2015

Obligation to Surrender President Bashir to the ICC: A Critique of the ICC Decisions on State Parties’ Obligation to Cooperate

The following article was written by Phoebe Oyugi. Phoebe is a Kenyan scholar and is currently working at the ICC on the Ble Goude Case. This article also featured recently in the Midlands State University Journal


Phoebe Oyugi

  1. Introduction
Predictably, the visit by President Bashir to South Africa on 14 June 2015 sparked a lot of furore around the world due to the two International Criminal Court (ICC) warrants of arrests pending against him.[1] In view of South African courts’ previously demonstrated zeal in fulfilling South Africa’s obligations under the Rome Statute,[2] some thought that President Bashir would finally be arrested and surrendered to the ICC.[3] Indeed the South African High Court lived up to its reputation and made an interim order prohibiting President Bashir from leaving the country until an application brought before it by the South African Litigation Center had been decided upon.[4] However, this did not come to pass as Bashir ‘mysteriously’ left South Africa in the middle of the chaos.[5] The High Court then made a decision stating that the responsible authorities in the South African government were in breach of their duty under the South African Constitution and the Rome Statute by failing to take steps towards arresting and detaining President Bashir.[6]

This issue is not unique to South Africa. As is well known President Bashir has visited other African States Parties to the Rome Statute, some repeatedly, since the warrants against him were issued. The reaction of these African States has been almost similar to that of South Africa. The consequence is that six years after the first warrant was issued against President Bashir, he is yet to be arrested and surrendered to the ICC. The ICC has advanced the same argument, almost verbatim, in the decisions against the African States Parties to the Rome which have refused to arrest and surrender President Bashir to the ICC: namely Djibouti,[7] Malawi,[8] Kenya,[9] Chad,[10] Congo,[11] and now South Africa.[12] The ICC’s position is inter alia that:

“… the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State have been implicitly waived by the Security Council of the United Nations by Resolution 1593(2005) referring the situation in Darfur, Sudan to the Prosecutor of the Court, and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary” (emphasis added). [13]

This article critiques this position on the basis that a United Nations Security Council (UNSC) Resolution, even when made under Chapter VII, does not suffice to waive the immunity of a sitting head of state vis-a-vis other states. This contribution argues that the obligation of a state to respect the immunities of the head of another state is such a fundamental pillar of international law and international relations that it cannot be implicitly waived by a UNSC Resolution. Furthermore, this article fronts the argument that article 98 of the Rome Statute requires a state party to the Rome Statute to respect the immunities of the head of a third state such as President Bashir.

The first part of the article contains the introduction. The second part discusses the impact of a UNSC Resolution, made under Chapter VII of the UN Charter, on the immunity of the head of state before the ICC as well as vis-Ă -vis other states. The third part discusses article 98 of the Rome Statute and its implications on the obligation of states to arrest and surrender President Bashir to the ICC. The fourth section deals with conclusions and recommendations.

  1. The immunity of President Bashir as the head of a non-party state in view of UNSC Resolution 1593(2005)
The Situation in Darfur, Sudan was referred to the ICC by a UNSC resolution after being qualified as a threat to peace and security.[14] The prosecutor after conducting investigations instituted proceedings against five Sudanese nationals, among them the Sudanese President Omar Bashir.[15] The prosecution later applied for a warrant of arrest against President Bashir and three other accused persons.[16] The Court granted the application for a warrant against President Bashir on the ground that it was necessary to ensure that he would appear for trial, that he would not  interfere  with  the  on-going  investigations  and  that  he  would  not  continue  with  the commission of crimes alleged.[17]

While issuing the warrant, the Pre-trial Chamber stated that the current position of Omar Al Bashir as the head of a state, which is not a party to the Statute, has no effect on the Courts jurisdiction over the present case”.[18]  The Court based this decision on the fact that the Darfur situation had been referred to it by the UNSC under Chapter VII of the UN Charter and on the provisions of Article 27 inter alia.[19] 

2.1 The impact of UNSC Resolutions under Chapter VII of the UN Charter to immunity
Under Chapter VII of the UN Charter, member states of the UN empower the UNSC to take actions necessary in order “to maintain and restore international peace.”[20] Although establishing international tribunals is not expressly provided for as a means of attaining this end, it is now generally accepted that it is within the UNSC’s discretion to decide what means to employ to this end including the establishment of international tribunals.[21]  Due to the binding nature of the UNSC resolutions on member states[22]  and the near-universal membership of the UN,[23] tribunals created by the UNSC have jurisdiction over the citizens of almost all states of the world.[24] The UNSC has by resolutions, under chapter VII of the UN Charter, established two international tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY)[25] and the International Criminal Tribunal for Rwanda (ICTR).[26] It has been argued that tribunals established by the UNSC under Chapter VII powers, like the ICTY and ICTR, have jurisdiction over all citizens of   the  UN  member  states  even those who would ordinarily enjoy immunity from prosecution.[27]
However, as is well known, the ICC is not a tribunal established under UNSC Chapter VII powers but through a multilateral treaty - the Rome Statute. Unlike international criminal tribunals established under Chapter VII powers of the UNSC which bind all members of the UN, those established by way of treaty bind only the states that have expressed their intention to be bound by signing and ratifying the relevant treaty. This is justified by the customary international law principle under which only parties to a treaty are bound by its provisions.[28] It follows, therefore, that as a general rule, article 27 of the Rome Statute which excludes the application of immunities before the ICC, only removes the immunities of the officials of states parties to the Rome Statute. By ratifying the Rome Statute, a state is considered to have waived the immunity of its officials by virtue of article 27.[29]
The position of non-party states is more complicated. As a general rule, the provisions of a treaty do not usually apply to non-party states. In this regard, Akande says:
“... since only parties to a treaty are bound by its provisions, a treaty establishing an international tribunal cannot remove immunities that international law grants to officials of states that are not party to the treaty. Those immunities are rights belonging to the non-party states and those states may not be deprived of their rights by a treaty to which they are not party.”[30]

This informs the unending debate sparked by the indictment of President Bashir at the ICC flowing from a referral by the UNSC under Chapter VII. Scholars are divided on the issue of whether the immunity of President Bashir would apply before the ICC. Some scholars argue that President Bashir’s immunity do not apply before the ICC, however, it is noteworthy that these scholars espouse different arguments to arrive at this conclusion.[31] For example, Akande argues that UNSC referral of the Darfur situation to the ICC under Chapter VII of the UN Charter effectively removes the immunities that would otherwise apply to President Bashir as a sitting head of state.[32] While Gaeta argues that the UNSC merely serves to trigger the jurisdiction of the ICC but the immunity of President Bashir is removed by the fact that the provisions of article 27 of the Rome Statute represent a new position of customary international law that immunities cannot apply in prosecutions before international criminal tribunals.[33]

On the other hand, some scholars argue that President Bashir as the head of a non-party state is immune, despite the UNSC referral, from prosecution at the ICC. Members of this school of thought also present different reasons for arrival at this conclusion. To name a few, Wardle opines that although the UNSC has the power to abrogate immunities under Chapter VII of the UN Charter this cannot be accomplished impliedly by the referral of an entire conflict situation to the ICC and not a particular case.[34] He argues that the removal of immunities must be done in an explicit and  unequivocal  manner  which  was  not  the  case  during  the  UNSC  referral  of the  Darfur situation.[35] While Kiyani states that the UNSC referral of a situation to the ICC cannot remove the immunities applicable to the head of a non-party state since the Security Council itself does not have the authority to revise the rules of public international law in order to negate al-Bashirs immunity”.[36] 

The ICC agrees with the first school of thought that the immunities of President Bashir are inapplicable before the ICC. This is shown through the issuance of two warrants of arrest against him, cooperation requests to states parties and the judgments against states parties that have refused or failed to comply with the requests referred to in part 1 above.  The Pre Trial Chamber (PTC) stated, as mentioned above, that the position of President Bashir as a sitting head of state does not interfere with the jurisdiction of the ICC over him.

As stated above, the ICC, as a tribunal established by way of treaty, does not ordinarily have jurisdiction over citizens and heads of non-party states. However, as an exception, citizens of non-party states to the Rome Statute, who are non the less member states of the United Nations (UN), may be subjected to the jurisdiction of the ICC following referral by the UNSC, which is provided for by article 13 of the Rome Statute and backed by UNSC Chapter VII. In this author’s view, the applicability of immunity before a particular tribunal depends on the manner of establishment of a tribunal and the provisions of its constitutive statute.[37] In this regard, tribunals established by the UNSC under Chapter VII of the UN Charter have jurisdiction to try the heads of UN member states while those established by treaty can only have jurisdiction over heads of states parties. The exception in the latter case can occur by referral of a situation in a non-party state, like Darfur, to the ICC by the UNSC under Chapter VII of the UN Charter. Such referral gives the ICC jurisdiction over all the persons allegedly responsible for the crimes committed including heads of state like President Bashir.

Be that as it may, this author argues for a narrow interpretation of this exception because it limits at least two cardinal principles of public international law. The first is that states are ordinarily not bound by treaties to which they are not party;[38] and second one being that heads of state are ordinarily immune from prosecution except under certain exceptions.[39] The ICC takes note of both points in the decision against Congo, for its refusal to surrender President Bashir, and states as follows:

“At the outset, the Chamber wishes to make clear that it is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court. Such personal immunities are ensured under international law for the purpose of the effective performance of the functions of sitting Heads of States.”[40]

The second justification for a narrow interpretation of this exception is the composition of the UNSC and the politics that result from it. The fact that the UNSC, a political body, is able to render the immunity of the head of a non-party state inapplicable before the ICC is disconcerting. This is especially because three out of the five permanent members of the UNSC; China, Russia, and the US, are not parties to the Rome Statute. The UNSC involvement with the proceedings at the ICC has been viewed, by some, as an interference with the independence of the ICC and the dispensation of justice.[41] Furthermore, the UNSC has in the past been accused of abusing its powers with regards to article 16 of the Rome Statute,[42] and a narrow interpretation of article 13 could guard against similar occurrences in future.  

From the foregoing, the fact that ICC, as a treaty based international tribunal, has jurisdiction over President Bashir, as the head of a non-party state due to a UNSC referral, should be treated as the exception it is. This informs the author’s critique of the ICC decision in which the Court concludes that the fact that the ICC has jurisdiction over president Bashir, implies that immunity that is ordinarily available to a head of state, vis-a-vis other states, is no longer applicable. This kind of extrapolation is unprecedented and lacks the backing of general principles of international law and article 98 of the Rome Statute as discussed below.

3.     The implications Article 98 (1) of the Rome Statute on states parties’ duty to cooperate with the ICC

Article 98 (1) of the Rome Statute requires the ICC to seek the cooperation of a third state, like Sudan, for the waiver of immunity before requesting for the arrest and surrender of a person bearing such immunities. It provides that:

“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” (emphasis added).

It seems difficult to reconcile the fact that article 98 (1) prohibits the ICC from requesting a state to cooperate by arresting a person if the state, by that arrest and surrender, stands to breach its immunity obligations towards a third state; with the fact that article 27 of the Rome Statute provides that both national and international law immunities are irrelevant to prosecution before the ICC.  If article  27  is  interpreted  to  remove  all kinds  of  immunities,  both  national  and international, of officials of both state parties to the Rome Statute and non-parties this would render article 98 (1) redundant; on the other hand if article 98 is interpreted to prohibit the ICC from requesting states to arrest and surrender all persons bearing immunity, the purpose of the Rome Statute would be defeated.[43] This provides some insight as to why there has been so much debate concerning the relationship between articles 27 and 98 of the Rome Statute.

The debate culminated with the ICCs request of state parties to cooperate by arresting and surrendering President Bashir to the ICC. The contentious issue is whether the ICC goes against article 98 by requiring states to arrest and surrender the Sudanese President. As is well known, the African Union (AU)[44] and some Africa states like Chad,[45] Malawi,[46] and Congo[47] have refused cooperation relying on Article 98 (1).  Their  argument  is  that  arresting  and  surrendering  President  Bashir  would  constitute  a violation of international and national law on immunities enjoyed by a sitting head of state. The ICC made decisions against these states holding that they failed to fulfil their obligations and referring their failure to the UNSC as mentioned in part 1 of this article.

3.1 ICC interpretation of Article 98 (1) of the Rome Statute

The ICC has argued that the decision as to whether the article 98 (1) exception would apply to a particular request lies entirely with the ICC and not the requested state.[48] This is based on an interpretation of article 97 of the Rome Statute which precedes the controversial article 98. Article 97 provides that:

Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter.

Similarly, Rule 195 of the Rules of Procedure and Evidence provide that:

 When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court.”
According to these provisions, it is clear that it is not for the requested state to decide on its own whether the reasons that exist warrant denial of the ICCs cooperation request under article 98. Concerning this issue, Sluiter says that:
Party states conceded to the ultimate interpretation of the extent of the duty to cooperate when they ratified the Statutes and accepted article 119[49] in particular. This ratification included their concession to the interpretation of the duty to arrest and surrender war criminals to the requesting side, which is typically the ICC.[50]
The fact that the court alone is charged with the responsibility of deciding on the applicability of article 98 (1) further underscores the importance of the discussion as to whether the Court has applied the most justifiable interpretation to this article. The Court  reserves the right  to determine whether presenting a particular request to a state will put a state in a position of conflicting obligations in view of  article 98  (1).[51]  Therefore when the Court errs in its interpretation of the article, as it has in the view of the author, it is the duty of academics to point out this error.
In the ICC decisions on the cooperation of states parties, the Court states that article 98 cannot be used by states parties to deny the request to arrest and surrender President Bashir but does not state under what circumstances the controversial article may be used.[52] The Court further states that when a state arrests an accused person pursuant to a request by the ICC, the state is not acting in its own right but as a representative or agent of the Court therefore immunities do not apply.[53] The Court barely discusses the relationship between the controversial articles 27 and 98. Instead the Court holds that the fact that article 2 of UNSC Resolution 1593 (2005) requires Sudan to “cooperate fully with and provide necessary assistance to the ICC”; effectively means that the requirement of article 98 (1), that the ICC should not require cooperation “unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”, has been dispensed with.[54] In other words the ICC states that the UNSC Resolution 1593 (2005) implicitly waived the immunities applicable to Sudan therefore article 98 (1) cannot apply.

This kind of interpretation is not backed by the doctrine of immunity of states. Immunity belongs to the state itself but since a state does not act by itself but only through its agents, state immunity logically extends to heads of state and other senior state officials.[55] Immunity can therefore not be waived except by the consent of the state to which it belongs. Consequently, a UNSC Resolution cannot be considered to have implicitly waived the immunity of Sudan merely because it decided that “Sudan, and all other parties to the conflict in Darfur, shall cooperate fully and provide necessary assistance to the Court.”

3.2 Scholarly Interpretation of article 98(1)

Some commentators argue that there is no conflict between articles 27 and 98 of the Rome statute.[56] For example, Broomhall opines that:

it is important to note that articles 98 (1) and 27(2) are not necessarily contradictory. Rather Article 27(2) makes clear that immunities under national or international law shall not bar the Court from exercising its jurisdiction.’ Article 98 (1) instead pertains to the obligations under international law of the requested state as well as the exercise of jurisdiction by such states, rather than by the Court.[57]

However,  other  commentators  argue that there  is  some  tension  between  the  two  articles  and  the arguments espoused by this group of scholars may be loosely classified into two categories. The first group argues that the scope of immunities has shrunk considerably over time therefore article 27 should be interpreted to have a wider scope as it embodies the new position of international criminal law that immunities are not applicable in relation to international crimes.[58] According to this view, therefore, article 98 should be given a narrow interpretation to cover only non-party states so that cooperation may be favored over immunity.
One of the scholars who belong to this school of thought, Akande, opines that the UNSC referral of the Darfur situation to the ICC put Sudan in an analogous position to a party to the Rome Statute therefore the Rome Statute is binding to it as it is to a state party to the Rome Statute.[59] As a result, all the provisions of the Rome Statute are applicable to Sudan including article 27 which concerns the irrelevance of both national and international law immunities. [60] This not only gives the ICC jurisdiction over President Bashir, the head of a non-party state, but also permits  states  parties  to  cooperate  by  arresting  and  surrendering  him  to  the  ICC  without triggering the immunity exception under article 98 (1).[61]

The second group of scholars opposes this view. The general argument is that although the mandate of the ICC is vital to international criminal justice, immunities are just as important as cooperation is, and should not be eroded easily.[62] Gaeta, for example, views the conflict between article 27 and article 98 as a clash between two conflicting values, namely[63]on one hand, the need to protect state sovereignty and inter-state relations; and, on the other hand, the need to prosecute the most serious crimes of international concern.[64] The former should be held up and above the latter, she argues, since personal immunities are not permanent but are terminated as the persons term of office is terminated. This, she says, creates the need to respect personal immunity since quashing of personal immunities would be extremely dangerous for inter-state relations.[65] She opines, elsewhere, with regard to the request to arrest and surrender President Bashir that:

The steps taken by the ICC in this respect are ultra vires and at odds with Article 98(1). Therefore, states parties to the Statute are not obliged to execute the ICC request for surrender of President Al Bashir, and can lawfully decide not to comply with it.[66]
While commenting on the ICC’s decision on cooperation of states Parties, Tladi opines that:
The  fundamental  flaw  of  the  Courts  approach  is  thus  that  it  treats  the  subject  of  the unavailability of immunity as a defense before the ICC under Article 27 of the Statute as co- extensive with the question of immunity as a limit to cooperation under Article 98(1). The subject of Article 98(1), to the extent that it refers to immunities, is obviously related to the subject of Article 27 but it is not the same. There is obvious tension between the two provisions, which the Court concedes. However, instead of addressing the tension between Articles 98(1) and 27, the Court simply proceeds to decide the case as if Article 27 is dispositive of the issue, ignoring completely Article 98(1). The Court asserts, for example, that the requested states cannot raise immunities as they ratified Article 27 of the Statute, as if the requested states did not, at the same time, ratify Article 98.[67]

In this authors view, article 98 should be interpreted to mean that the ICC should not request states parties to arrest and surrender President Bashir unless it “can first obtain the waiver of immunities” from Sudan. The fact it would be impossible to obtain such waiver from Sudan, in this particular case, does not then entitle the ICC to go through a “back door” by holding that the immunities applicable to Sudan were waived by UNSC Resolution 1593 (2005). Waiver of immunity, except by the consent of the state concerned, is impossible for the reasons given above. Although the goal to try and punish perpetrators of crimes in Darfur is important, the need to respect international law principles while accomplishing this is equally vital. There can be no justice unless the Court rightly applies the applicable legal principles. The Court’s dismissal of the application of article 98 (1), without proper justification, could reinforce the notion that the ICC is prejudiced against African leaders; a view which is detrimental to the ever deteriorating ICC-Africa relationship.[68]

4.     Conclusion and Recommendation
It cannot be disputed that crimes have been committed in Darfur especially against the Fur, Zangawa and Masaalit communities.[69] There is a general consensus that the violence in Darfur is unacceptable and the perpetrators thereof should not go unpunished. The contentious issue, however, is how this should be accomplished. Currently, the issue has turned into a tag of war with President Bashir, the AU and some African states on one side, and the ICC on the other side. President Bashir keeps daring the ICC by defiantly visiting states parties who refuse to arrest him in spite the numerous ICC decisions made in a vain attempt to the cooperation of these states. Six years after the first warrant was issued, no progress has been made in the case against President Bashir and in the redressing crimes committed in Darfur. However, according to some commentators, the fact that President Bashir can no longer freely travel without the fear of arrest and that he always has to depart prematurely from the events he attends is in itself a sign of progress.[70]

Be that as it may, it is highly unlikely that President Bashir will be arrested while he is the sitting Sudanese President. His arrest and surrender would inevitably result into a massive political and diplomatic storm and the head of the arresting state, if African, would be a pariah among his/her peers in the AU Assembly. The state concerned might even face AU sanctions.[71] Due to the complexity of the matter, it is no wonder that states have been reluctant to arrest and surrender President Bashir to the ICC. The political consequences of cooperating with the ICC seem, in the view of individual states, to outweigh the possible benefits thereof. Therefore, the stalemate ensues.

One possible way to dissolve the impasse is to have deeper negotiations and cooperation between the AU, the UNSC and the ICC. The three institutions, all stakeholders who have separately contributed in one way or another towards the peace and justice process in Darfur, need to work together to ensure that the crimes committed in Darfur are redressed. Firstly, the UNSC has made several Resolutions directed towards resolving the conflict in Darfur including the Resolutions referring the Darfur Situation to the ICC and creating United Nations Mission in the Sudan (UNMIS).[72] Secondly, the AU has played an important, often overlooked role, in the complex peace negotiations between the government of Sudan and the Sudanese resistance groups.[73] Thirdly, it goes without saying that the ICC has made its contribution, or attempted to do so, by conducting investigations and indicting persons suspected to bear the highest responsibility for the crimes committed in Darfur. The fact that all these three institutions share the mission to resolve the conflict in Darfur is therefore not an overstatement.

From the foregoing, it is reasonable to conclude that if the three institutions would make a concerted effort towards addressing the peace and justice concerns in Darfur, better results would be achieved than have so far been produced by them working separately. Perhaps the League of Arab States and the Organization of Islamic Cooperation could be consulted and be offered the opportunity to make meaningful contribution towards the resolution of conflict and attainment of justice, not just in the Darfur region but in Sudan in general. For that reason, undertakings such as the 14 August 2015 visit by the President to the Assembly of State Parties to the Rome Statute, to the Chairperson of the AU Commission, with a view “to restore trust between the Court and African States Parties to the Rome Statute”;[74] should be highly encouraged and the decisions reached be followed up on. Tackling the current deadlock, in the manner suggested in this article may greatly assist in repairing the AU-ICC relationship and at the same time improve the chances of delivering international criminal justice in Darfur.






[1] The Prosecutor v Hassan Omar Ahmad Al Bashir, “Warrant of arrest for Hassan Omar Ahmad Al Bashir”, 04- March 2009, ICC-02/05-01/09-1 and The Prosecutor v Hassan Omar Ahmad Al Bashir, “Second Warrant of arrest for Hassan Omar Ahmad Al Bashir”, 12 March 2010, ICC-02/05-01/09-95.
[2] South Africa was among the first state parties to pass a national legislation implementing the Rome Statute see Implementation of The Rome Statute of The International Criminal Court Act 27 of 2002. See also National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre (485/2012) [2013] ZASCA 168.
[3] A de Waal “What if South Africa Arrests al Bashir?” African Arguments 14 June 2015 http://africanarguments.org/2015/06/14/what-if-south-africa-arrests-al-bashir-by-alex-de-waal/ (accessed 09 August 2015).
[4] Southern African Human Rights Litigation Centre v the Minister of Justice and Constitutional Development and others (27740/2015), 14 June 2015 http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2015/06/Interim-interdict.pdf (accessed 09 August 2015).
[5] N ONISHIJUNE “Omar al-Bashir, Leaving South Africa, Eludes Arrest Again” The New York Times 15 June 2015  http://www.nytimes.com/2015/06/16/world/africa/omar-hassan-al-bashir-sudan-south-africa.html?_r=0 (accessed 16 August 2015).
[6] Southern African Human Rights Litigation Centre v the Minister of Justice and Constitutional Development and others (27740/2015), 21 June 2015 http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2015/06/Judgement-2.pdf (accessed 09 August 2015).
[7] “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti”, 12 May 2011, ICC-02/05-01/09-129.
[8] “Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with respect to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir”, 12 December 2011, ICC-02/05-01/09-139.
[9] “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome
Statute about Omar Al-Bashir's presence in the territory of the Republic of Kenya”, 27 August 2010, ICC-02/05-01/09-107.
[10] “Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad”, 27 August 2010, ICC-02/05-01/09-109; 12 May 2011, ICC-02/05-01/09-129; “Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al-Bashir”, 13 December 2011, ICC-02/05-01/09-140-tENG; “Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir”, 26 March 2013, ICC-02/05-01/09-151.
[11] “Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court”, 09 April 2014, ICC-02/05-01/09-195.
[12] “Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir”, 13 June 2015, ICC-02/05-01/09-242.
[13] Ibid.
[14] Resolution 1593 (2005) Adopted by the Security Council at its 5158th meeting on 31 March 2005 S/RES/1593 (2005).
[15] See                     the                     Situation                     in                     Darfur                     Sudan”
[16] Ibid.
[17] The Prosecutor v Hassan Omar Ahmad Al Bashir, Warrant of arrest for Hassan Omar Ahmad Al Bashir, 04- March 2009, ICC-02/05-01/09-1.
[18] The Prosecutor v Hassan Omar Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 04 March 2009, ICC-02/05-01/09-3 para 41.
[19] Ibid
[20] Articles 39 and 41 of the UN Charter.
[21] Prosecutor v Dusko Tadic Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) para 31-36 http://www.icty.org/x/cases/tadic/acdec/en/51002.htm (accessed 23 April 2013). See also WA Schabas The UN International Criminal Tribunals the Former Yugoslavia, Rwanda and Sierra Leone (2006) at 48-53.
[22] Article 25 of the UN Charter provides that members of the UN agree to accept and carry out the decisions of the UNSC in accordance with the UN charter.
[23] Out of the 196 States of the world, 193 are members of the UN. See http://www.un.org/en/members/index.shtml (accessed 23 April 2013).
[24] D Akande “International Law Immunities And The International Criminal Court” (2004) 98 AJIL 417; C C Jalloh “The Contribution of the Special Court for Sierra Leone to the Development of International Law” (2007) 15 African Journal of International and Comparative law 165 at 187.
[25] Security Council Resolution on Establishing an International Tribunal for the Prosecution of Persons Responsible for  Serious Violations of International  Law and Humanitarian  law Committed in the  Territory of the Former Yugoslavia http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/827%281993%29 (accessed 22 April 2013).
[26] UNSC                  Resolution                  955                  of                  1994                  http://daccess-dds ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf?OpenElement (accessed 22 April 2013).
[27] S Wirth “Immunities Related Problems, and Article98 of the Rome Statute” (2001) 12 Criminal Law Forum 442.
[28] Articles 34-38 of the Vienna Convention on the Law of Treaties, 23 May 1969.
[29] Akande 2004 AJIL 417; S Wirth “Immunity for Core Crimes? ICJ’s Judgment in the Congo v Belgium Case” (2002) 13 EJIL 882; Wirth 2001 Criminal Law Forum 429.
[30] Akande 2004 AJIL 417.
[31]  J Needham “Protection or Prosecution for Omar Al Bashir? The Changing State of Immunity in International Criminal Law”17 (2011) Auckland University Law Review 219.
[32] D Akande "The Legal Nature of Security Council Referrals to the ICC and its impact on Al Bashir's
Immunities" (2009) 7 JICJ 333.
[33] P Gaeta "Does President Al Bashir Enjoy Immunity from Arrest?" (2009) 7 JICJ 315 at 324-325.
[34] P Wardle “The survival of Head of State Immunity at the International Criminal Court” (2011)18 Australian Journal of International Law 181 at 196. See also a different argument from D Mainak “Presidential Immunity and the International Criminal Court’s ‘Exception’- A Critique” (2012) Juris Gentium Law Review 19 at 20.
[35] Wardle 2011Australian Journal of International Law 196.
[36] A G Kiyani “Al-Bashir & the ICC: The Problem of Head of State Immunity” (2013) 12 Chinese Journal of International Law 467.
[37] See also for example Akande 2004 AJIL 417.
[38] Article 34 of the 1969 Vienna Convention on the Law of Treaties.
[39] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo V Belgium) 2002 3 ICJ paras 19 and 61.
[40] See ICC-02/05-01/09-195 para 25.
[41] See the sentiments expressed by the delegate from Sudan at the UNSC’s 6887th Meeting on 13 December 2012 “United Nations Meetings and coverage press Releases” http://www.un.org/press/en/2012/sc10855.doc.htm  (accessed 16 August 2015). See also  discussions in relation article 16 deferral power of the UNSC in WA Schabas An Introduction to the International Criminal Court 2ed (2004) 82.
[42] See the letters addressed to the UNSC president over the renewal of Resolution 1422 by countries such as Brazil, Canada, DRC, Argentina, South Africa and the EU as well as non-governmental organizations such as the Coalition for the International Criminal Court (CICC) and Human Rights Watch (HRW) all available at http://www.iccnow.org/?mod=res1422&idudctp=13&show=all#13 (accessed 08 March 2014).
[43] See D Akande The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashirs Immunities (2009)7JICJ333 at 337-339; Van der Vyver2011 African Human Rights Law Journal 691.
[44] See for example “Decision on The Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC)”, 29-30 January 2012, Doc. EX.CL/710(XX).
[45] ICC-02/05-01/09-140 paras 13-14.
[46] ICC-02/05-01/09-139 para 13.
[47] ICC-02/05-01/09-195 para 18.
[48] ICC-02/05-01/09-195 para 16. See also Broomhall International Justice and the International Criminal Court 145; S Wirth 2001 Criminal Law Forum 454.
[49] Article 119 deals with the settlement of disputes and provides that:  Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.
[50] Sluiter The Library of Essays in International Law: International Criminal Court 291.
[51] ICC-02/05-01/09-139, para 46.
[52] ICC-02/05-01/09-139, para 41. For a critique of this decision see C   Gevers      “The   ICC   Pre-Trial   Chamber's   Non-Cooperation   Decision   on   Malawi”   16   Feb   2012
http://warandlaw.blogspot.com/2012/02/icc-pre-trial-chambers-non-cooperation.html   (accessed 22 April 2014).
[53] Ibid para 46.
[54] ICC-02/05-01/09-195 para 29.
[55] Wirth 2001 Criminal Law Forum 431; Wirth 2002 EJIL 882.
[56]  See Broomhall  International Justice  and the International  Criminal Court  141.  See also A Dworkin & K Iliopoulis     The     ICC,     Bashir,     and     the     immunity     of     heads     of     state     Crimes     of     war     3 http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of- state/#sthash.LWgK6lsL.dpuf  (accessed  21  August  2013).  They say It would  appear  at  first  glance  that  this provision conflicts with Article 27. However Article 27 is concerned with the question of the Court’s jurisdiction, whereas Article 98 is concerned with international co-operation and judicial assistance.
[57] Broomhall International Justice and the International Criminal Court 141.
[58] See Van der Vyver 2011 African Human Rights Law Journal 693. He argues that precedence should be given to article 27 since unlike article 98 it endorses a “salient norm of international criminal law.
[59] Akande 2009 JICJ 342. See also D Akande “The Bashir Indictment: Are Serving Heads of State Immune from ICC Prosecution?” Oxford Transitional Justice Research Working Paper Series http://otjr.csls.ox.ac.uk/materials/papers/40/Akande.pdf (accessed 21 August 2013). For a contrary view see S Williams and L Sherif “The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court” (2009) 14 Journal of Conflict & Security Law 71 at 81.
[60] Akande (2009) JICJ 342
[61] Akande (2009) JICJ 342.
[62] See for example VM Blommestijn and C Ryngaert “Exploring the Obligations for States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashir: A Legal Conflict between the Duty to Arrest and the Customary Status of Head of State Immunity” (2010) 6 ZIS 428 at 428-430.
[63] P Gaeta Official Capacity and Immunity in A Cassese, P Gaeta and J Jones (eds) The Rome Statute of the International Criminal Court: A Commentary (2002) 985-986.
[64] Ibid.
[65] Ibid.
[66] Gaeta 2009 JICJ 329.
[67] D Tladi “The ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98” (2013)11 JICJ 207.
[68] ibid.
[69] “Massive Atrocities in Darfur: Almost One Million Civilians Forcibly Displaced in Government’s Scorched-Earth Campaign” Human Rights Watch 3 April 2004 https://www.hrw.org/news/2004/04/02/sudan-massive-atrocities-darfur (accessed 16 August 2015).
[70] D Kiwuwa “South Africa: Al-Bashir - South Africa's Moment of Glory and Shame” All Africa 19 June 2015 http://allafrica.com/stories/201506191598.html (accessed 16 August 2015).
[71] The AU has made a number of decisions urging member states not to cooperate with the ICC and Article 23 of the AU Constitutive Act enables the AU to impose sanctions of a member state that does not comply with AU decisions.
[72] See UNSC Resolutions 1556 (2004), 1564 (2005), 1574 (2004), 1590 (2004), 1591 (2005), 1593 (2004), 1663 (2006), 1665 (2006) and 1679 (2006) and 1706 (2006).
[73] A  Sarjoh  Bah  “The  African  Union  In  Darfur:  Understanding  The  Afro-Arab  Response  To  The  Crisis”
[74]“The President of the Assembly of States Parties meets with the Chairperson of the African Union Commission and with the Bureau of the Committee of Representatives” 14 August 2015, ICC-ASP-20150814-PR1138.


Guest Post by Phoebe Oyugi

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