In less than a fortnight, India will host the incumbent Sudanese President Omar al-Bashir as part of the Third India-Africa Forum Summit, expected to be the largest gathering of world leaders in India since the Non-Aligned Summit in New Delhi in 1983. However, the event, in view of President Bashir’s attendance, may not pass without its share of controversy.
Jay Sanklecha President Bashir’s arrival will represent a serious challenge to the authority of the International Criminal Court (ICC), which has issued two separate arrest warrants against him. The first was issued on March 4, 2009, when the President was charged with war crimes over the conflict in Darfur, earning the ill-repute of becoming the first sitting head of state issued with an arrest warrant by the ICC. And on July 12, 2010, the ICC charged Mr. Bashir with three counts of genocide in Darfur, accusing him of trying to wipe out three non-Arab ethnic groups in the region. According to reports, in anticipation of his attendance at the summit, the office of the prosecutor of the ICC has called upon India to “contribute to the important goal of ending impunity for the world’s worst crimes” by arresting and surrendering President Bashir to the ICC. The question is, is India under any international legal obligation to do so?
President Bashir first came to power in a coup in 1989 when Sudan was in the midst of a civil war between north and south. He then allegedly exploited these differences in order to destroy those ethnic groups which presented a threat to his power. This resulted in extended clashes between the government’s armed forces and rebel groups, which reportedly lasted from 2003 to 2008, a period that witnessed serious war atrocities such as pillaging and rape. It is believed that as a result of the ensuing armed conflict, over 2,00,000 civilians were killed and over 2.4 million people were forced to flee their homes. Taking a serious view of the matter, and given that Sudan was not a party to the Rome Statute establishing the ICC, the United Nations Security Council, acting under Chapter VII of the United Nations Charter, referred the situation in Darfur to the ICC vide Resolution 1593. Pursuant to a formal investigation, the then chief prosecutor of the ICC requested and obtained arrest warrants against President Bashir and other senior ministers of Sudan. Immediately following the issuance of the arrest warrants, cooperation requests for the arrest and surrender of President Bashir were transmitted to all states that are parties to the Rome Statute and all UNSC members, including states who are not parties to the Rome Statute. Curiously, the decision of the pre-trial chamber of the ICC, while issuing the arrest warrants against Mr. Bashir, directed the registry of the ICC to prepare and transmit any additional request for the arrest and surrender of President Bashir to other states as appropriate.
India’s response If such a formal request were made, how should India respond? At the outset, since India is not a signatory to the Rome Statute that established the ICC, it would not ordinarily be under any legal obligation to comply with a request made by the Court. However, the situation is complicated by virtue of the Security Council referral in Resolution 1593. Paragraph 2 of the Security Council resolution states: “…the government of Sudan and all other parties to the conflict in Darfur shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this Resolution and, while recognising that states not party to the Rome Statute have no obligation under the Statute, urges all states and concerned regional organisations to co-operate fully.”
Since the resolution was adopted under Chapter VII, it is binding on all member states, including India. If it creates legal obligations, it would prevail over India’s other international law obligations. Fortunately, the wording of the resolution falls short of creating a legal obligation on non-member states — and only ‘urges’ non-member states to co-operate. Since the resolution falls short of a creating an international law obligation, India can, by arresting President Bashir, violate international law, since heads of state are accorded full immunity from arrest in a foreign state under both treaty and customary international law. Therefore, India is not under any legal obligation to arrest and surrender President Bashir to the ICC and may, in fact, not be permitted to arrest President Bashir on Indian soil.
Nevertheless, given India’s position in the international legal order and its push for a permanent seat on the UNSC, it may have been prudent on the part of India to have avoided this controversy altogether by not extending the invitation to host President Bashir in the first place.
(Jay Sanklecha is a graduate of the West Bengal National University of Juridical Sciences, Kolkata, and is working with a law firm in Mumbai. The views expressed are personal.)
