International Criminal Court: The Relevance of Prosecutor v Omar Hassan Ahmad Al Bashir (Decision) to the Russia-Ukraine War
The International Criminal issued the first arrest warrant for Omar Hassan Ahmad Al Bashir on 4 March 2009. The warrants list five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. The decision referred to in this article concerns specifically the issue of immunity, and whether an act committed by a head of state during their time of office is immune from the jurisdiction of the International Criminal Court (ICC). Additionally, whether ordering the arrest is a violation of customary international law.
Prosecutor v Omar Hassan Ahmad Al Bashir Decision concerns the co-operation of the Democratic Republic of the Congo with regards to Omar Al Bashir’s arrest and surrender to the court. In this decision, the court made it clear that a sitting Head of State “enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign states even where suspected of having committed one or more of the crimes that fall within the jurisdiction of the court.” It is clear that this section of the judgement applies to states that have not ratified the Rome Statute of the International Criminal Court because in making this statement, the court refers to the lack of consent by non-state parties which is required for multilateral treats (see Article 11 of the Vienna Convention on the Law of Treaties). However, the Court creates an exception pursuant of article 27(2) of the Rome Statute, which excludes personal immunities if it prevents “the court from exercising its jurisdiction over such a person”. Considering the context of the case, this exception was to allow states party to the statute to be able to arrest individuals that are warranted by the court without violating customary international law. This decision created clear rules which seemed to have left non-state parties free from the International Criminal Court’s jurisdiction should they commit crimes that fall within its remit.
The court attempts to tackle this issue through citing article 98(1) of the Rome Statute, “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.” In pursuit of this article, non-party states can waive the immunity of their Head of State should the International Criminal Court be able to secure cooperation from the state in question.This is relevant to the Ukraine-Russia conflict as Russia is not party to the statute, therefore to bring the Head of State before the International Criminal Court (if an arrest warrant is issued) would prove to be difficult. Russia has opposed the International Criminal Court, and relying on article 98(1) in a bid to secure cooperation is unlikely.
The decision also refers to a different mechanism that has the same effect of waiving immunity, United Nations Security Council Resolution. The court specifically refers to Resolution 1593 (2005) holding that the “Government of Sudan [...] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” This has the same effect of lifting Head of State immunities as article 25 of the UN Charter establishes the Security Council’s authority: “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the [...] Charter.” In practice, Russia sits on the Security Council (one of the five permanent members) and possesses the ability to veto draft resolutions. Accordingly, any draft resolution aimed at waiving immunities of Russia’s Head of State for the Russia-Ukraine war will most certainly be vetoed.
13 years on, Omar Al Bashir is yet to be transferred to the International Criminal Court, however an agreement has been reached between Sudan and the ICC for the eventual transfer. Considering the relevant provisions that would allow for an ICC issued arrest warrant to be effective against a non-party state, it is likely that Vladmir Putin (if indicted) will likely remain free of the ICC’s jurisdiction with an agreement unlikely to ever be reached.