Donald Sutherland currently stars in a TV series where a crack squad of international agents working for the International Criminal Court (ICC) investigate trans-national crime and arrest the masterminds of horrible crimes. They conduct multi-national investigations, collecting evidence and bringing the perpetrators to justice. No criminals are safe.
Back in reality, the well-known mandate of the ICC is limited to the international crimes of genocide, crimes against humanity and war crimes. There is also no crack squad of international agents seeking out those suspected of committing these crimes and bringing them before the court. This lack of an enforcement arm and its consequences are thrown into stark relief by the case of Sudanese President Omar Hassan Ahmad Al Bashir.
Mr. Al Bashir is wanted by the court on charges arising from the violence in the Darfur region of Sudan. While Sudan is not a State party to the ICC, the United Nations Security Council referred the situation of Darfur to the court in 2005. The court, after in depth investigations by the Office of the Prosecutor (OTP), issued warrants for Al Bashir’s arrest in 2009 on charges of war crimes and later on charges of genocide. These warrants, according the ICC, are grounds for the States party to the ICC statute to arrest Mr. Al Bashir notwithstanding the fact that he is an incumbent head of State and would otherwise be immune from arrest in other countries.
The African Union (AU), however, has taken a very different view. According to that organization, the members of the AU cannot arrest Mr. Al Bashir while he is attending AU events in other countries as this would constitute an interference in Sudan’s participation in the organization. Consequently, Mr. Al Bashir has traveled to different countries throughout the AU to participate in conferences. Most recently last week to participate in a conference on HIV/AIDS, Tuberculosis and Malaria.
Pre-Trial Chamber II, currently seized of the situation in Darfur and composed of judges Trendafilova, Kaul and Tarfusser, took note of Mr. Al Bashir’s trip to Nigeria and issued a decision ordering Nigeria to take him into custody and transfer him to the court under threat of referring the country to the UNSC or the Assembly of States Parties for non-compliance. Nigeria did not arrest Mr. Al Bashir.
This is not the first time that a Pre-Trial Chamber of the ICC has ordered a country hosting Mr. Al Bashir to arrest him. It is obviously not the first time that the order has been ignored. This whole situation squarely poses the question of whether or not the ICC made a mistake in issuing the arrest warrant or the subsequent arrest orders. There is also the issue of the conflicting decisions of the ICC and the AU as to the precedence of immunity to attend AU meetings and the lack of head of State immunity for purposes of arrest and trial at the ICC. This last situation will need to be authoritatively resolved in order to ensure the proper and legal functioning of the court.
Should the ICC have issued the arrest warrant for Al-Bashir in the first place?
This is a delicate question and depends on what angle the question is analyzed from. There is the political angle and then there is the legal angle. The first relates, in large part, to whether one considers the court to be a legitimate actor on the international scene and whether serious international crimes were in fact committed in Darfur. While this is an interesting subject, its consideration will take us a bit far afield. For present purposes, I will assume that the ICC properly has jurisdiction over the situation in Darfur, that the alleged crimes were committed and that Mr. Al Bashir is in fact responsible for them.
Under these circumstances, I do not think that the ICC could have decided not to issue the arrest warrants. It would be the height of hypocrisy for an institution such as the ICC to decline to prosecute international crimes simply because the accused is a head of State. This is in fact the purpose for which the court was created. The problem is that the issuance of the arrest warrants places the ICC in direct conflict with the AU and every time Al Bashir is not arrested the standing of the court and its effectiveness are undermined.
Resolution of the Dispute between the ICC and the AU
The continual refusal of AU member States to arrest and surrender Al Bashir to the ICC, along with the statements of the AU that doing so would be a violation of international law, are troubling and present a serious block to the court properly asserting its role in the international community. These conflicting positions on the arrestablitiy of the Sudanese president creates tension between two important international organizations that both have as their purposes the protection of human rights. This tension means that cooperation between them will be more difficult in other situations.
This kind of conflict between international organizations needs to be resolved. It is true that the ICC statute says that any questions about the interpretation of the rules applicable to trials before the court are to be interpreted by the court itself. However, a treaty (such as the ICC statute) cannot bind the AU as it is not a party. This is an international dispute that should not be decided unilaterally by one the organizations. The dispute should be decided by a third party neutral, and the best choice in this case (ICJ) is the International Court of Justice.
The issues involved in the prosecution of international crimes are complex, all the more so because the ICC does not have any enforcement arm of its own. The court must rely on the will of States to cooperate, arrest and transfer subjects to the seat of the court for trial. When some States do no wish to assist the court, or they assert legal bars to cooperation, the ICC has the authority under its statute to determine issues of immunity. However, where the State in question is not a party to the statute this can be problematic. The only way to resolve the decision is to refer the issue of cooperation and immunity to a third party neutral to decide, and the best option is the ICJ due to its standing and universal character.
 There is also the specter of Aggression within the jurisdiction of the court. However, this jurisdiction has not yet been activated.
 Art. 12, sets out that the court will have jurisdiction only where the crime was committed on the territory of a State party, the accused is a national of a State party or the United Nations Security Council has referred the case to the court.
 Prosecutor v. Al Bashir, ICC-02/05-01/09, Warrant of Arrest for Oman Hassan Ahmad Al Bashir, PTC I, 4 March 2009; Prosecutor v. Al Bashir, ICC-02/05-01/09, Second Warrant of Arrest for Oman Hassan Ahmad Al Bashir, PTC I, 12 July 2010.
 Prosecutor v. Al Bashir, ICC-02/05-01/09, Decision Regarding Omar Al-Bashir’s Visit to the Federal Republic of Nigeria, PTC-II, ¶ 5, 15 July 2013.
 It is true that some of the individual member States of the AU are members of the ICC and so the court’s interpretation of the statute is authoritative vis-a-vis these States. However, the same can be said of the AU’s interpretation of its own provisions and treaties. The State then is under two competing obligations that cannot be reconciled. The same problem, the same conflict between the organizations is therefore present and needs to be resolved.