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International Criminal Court: Decisions Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi and 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 & African Union Response

Published online by Cambridge University Press:  27 February 2017

Alexander K. A. Greenawalt
Alexander K. A. Greenawalt*
Affiliation:
Pace Law School
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Type
International Legal Materials
Information
International Legal Materials , Volume 51 , Issue 2 , April 2012 , pp. 393 - 417
Copyright
Copyright © American Society of International Law 2012

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References

Endnotes

1 Prosecutor v. Omar Hassan Ahmad AI Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest for Omar Hassan Ahmad AI Bashir (Mar. 4, 2009) (charging Bashir with war crimes and crimes against humanity); Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (July 12, 2010) (charging Bashir with genocide).

2 Assembly of the African Union, Assembly/AU/Dec.391-415(XVIII), ¶ 3 (Jan. 30, 2012); Assembly of the African Union, Assembly/AU/Dec.363-390(XVII), ¶¶ 3, 6 (July 1, 2011); Assembly of the African Union, Assembly/ AU/ Dec.332-361(XVI), ¶ 3 (Jan. 31, 2011); Assembly of the African Union, Assembly/AU/Dec.289-331(XV), ¶ 4 (July 27, 2010); Assembly of the African Union, Assembly/AU/Dec.268 - 288 (XIV), ¶ 10 (Feb. 2, 2010); Assembly of the African Union, Assembly/AU/Dec. 243-267 (XIII) Rev.l, ¶ 9 (July 3, 2009); Assembly of the African Union, Assembly/AU/Dec.208 - 242(XII), ¶ 10 (Feb. 3, 2009).

3 See Rome Statute of the International Criminal Court art. 16, opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

4 Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, 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 (Dec. 12, 2011) [hereinafter Malawi Decision]; Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, 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 (Dec. 13, 2011) [hereinafter Chad Decision].

5 Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir (Mar. 4, 2009).

6 See Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, 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 (May 12, 2011); Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, 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 (Aug. 27,2010); Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09, 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 (Aug. 27, 2010).

7 Rome Statute, supra note 3, art. 27(1).

8 Id. art. 27(2).

9 Note, however, Paola Gaeta’s argument that Article 27 addresses only the powers of the ICC itself and does not relieve arresting states of their independent obligation to recognize immunities conferred by customary international law. See Gaeta, Paola, Does Al Bashir Enjoy Immunity From Arrest? 7 J. Int’l Crim. J. 315 (2012)CrossRefGoogle Scholar.

10 Rome Statute, supra note 3, art. 98(1).

11 Malawi Decision, supra note 4, ¶ 37.

12 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. (Feb. 14) [hereinafter Arrest Warrant].

13 Malawi Decision, supra note 4, ¶ 34.

14 See S.C. Res. 827, ¶ 7(2), U.N. Doc. S/RES/827 (May 25, 1993) (ICTY Statute) (“The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”); See S.C. Res. 955, ¶ 6(2), U.N. Doc. S/RES/955 (Nov. 8, 1994) (ICTR Statute) (same).

15 See, e.g., Dapo Akande, ICC Issues Detailed Decision on Bashir’s Immunity (. . . At long Last. . . ) But Gets the Law Wrong, EJIL: Talk! (Dec. 15, 2011), available at http://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir’s-im-munity-at-long-last-but-gets-the-law-wrong/.

16 See Arrest Warrant, supra note 12, ¶ 53 (“In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States.”) The Pre-Trial Chamber did note that “[e]ven some States which have not joined the Court have twice allowed for situations to be referred to the Court by United Nations Security Council Resolutions, undoubtedly in the knowledge that these referrals might involve prosecution of Heads of State who might ordinarily have immunity from domestic prosecution,” but the Court invoked this observation merely to support its general interpretation of Article 27 rather than to argue that the force of Article 27 ever depends on a Security Council referral. Malawi Decision, supra note 4, ¶ 40.

17 Malawi Decision, supra note 4, ¶ 35 (quoting Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-l-AR72(E), Decision on Immunity from Jurisdiction, at 31, ¶¶ 51-52 (May 31, 2004) [hereinafter Taylor Decision]).

18 Id. ¶ 36.

19 Arrest Warrant, supra note 12, ¶ 61.

20 Id.

21 Malawi Decision, supra note 4, ¶ 36 (quoting Antonio Cassese, International Criminal Law 312 (2008)).

22 Id

23 See Taylor Decision, supra note 17, ¶ 51 (“the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.”)

24 See, e.g., Jens Iverson, Head of State Immunity is Not the Same as State Immunity: A Response to the African Union ‘s Position On Article 98 of the ICC Statute, EJIL: Talk! (Feb. 13, 2012), available at http://www.ejiltalk.org/head-of-state-immunity-is-not-the-same-as-state-immunity-a-response-to-the-african-unions-position-on-article-98-of-the-icc-statute/.

25 Press Release, African Union Commission, On The Decisions Of Pre-Trial Chamber I of the International Criminal Court (ICC) Pursuant To Article 87(7) of the Rome Statute On the Alleged Failure by The Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of The Sudan, AU Comm’n Press Release No. 002/2012 (Jan. 9, 2012), available at http://au.int/en/sites/default/files/PR-%20002-%20ICC%20English.pdf

26 Assembly of the African Union, ¶ 10, Assembly/AU/Dec.391-415 (XVni) (Jan. 2012).