Insights Into Editorial: India not obliged to arrest President Bashir
13 October 2015
India not obliged to arrest President Bashir
The president of Sudan, Omar al-Bashir, will shortly be visiting India to attend the Third India-Africa Forum Summit. India has invited al-Bashir, along with 54 heads of state, for the Summit. This summit is expected to be the largest gathering of world leaders in India since the Non-Aligned Summit in New Delhi in 1983.
However, the presence of Sudanese president Omar al-Bashir may not be appreciated by some countries.
The International Criminal Court (ICC) has issued two separate arrest warrants against president Omar al-Bashir and his arrival may represent a serious challenge to the authority of the International Criminal Court (ICC).
Why were the warrants issued against him?
The first warrant was issued in March, 2009, when the President was charged with war crimes over the conflict in Darfur, sudan. Second warrant was issued in July, 2010, and 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.
It is being said that 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.
Is India under any international legal obligation to do so?
Since India is not a signatory to the Rome Statute that established the ICC, it is not 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. Taking a serious note of what happened in Sudan, 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, had referred the situation in the country to the ICC vide Resolution 1593.
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.
However, 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.
If India arrests President Bashir, it also amounts to the violation of 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 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.
What happened in Sudan? Brief background:
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.