Defiant Bashir   Photo courtesy

Media reports both in Uganda indicated that the indicted head of state of the Republic of Sudan, Omar Bashir, would be arrested if he stepped in Uganda. 

Both national and international legal analysts argue that Uganda has a legal obligation as signatory to the ICC statute to arrest President Bashir. They hold that as a Member of the UN security council, a country that is yet to host the ICC review conference in 2009 and being the first state party to refer a case to the Court, Uganda has a moral obligation.

In my humble opinion, the country faces legal hurdles to jump if it is to arrest Bashir and extradite him. The argument in support of Bashir's arrest and extradition is hinged on Article 27 of the ICC statute, which states that immunities attached to persons as a result of their official capacity do not apply under the statute. Therefore, President Bashir’s immunities as a head of state have no consequence with regard to his criminal responsibility.

However, the ICC statute under Article 98(1) states that the court cannot make a request for surrender or assistance if it would require the requested state to breach its obligations under customary international law with respect to state or diplomatic immunity of a person or property of a third state, unless the court first obtains the cooperation of that third state for the waiver of the immunity.

Under customary international law, Uganda has an obligation to respect the immunity of high ranking diplomatic members of a foreign state. In addition, in 2000, the International Court of Justice (ICJ), in the DRC v Belgium case held that high-ranking state officials are immune from domestic jurisdictions of other states and this includes heads of state.

This customary norm of international law has been adhered to by states and has become a norm of jus cogens, or a grand norm of international law from which there can be no derogation. This norm stems from the doctrine of recognition under which states accord immunity to heads of state from governments that they recognise. Under this doctrine, a head of state must have both physical (de facto) and legal (de jure) control as a head of state. In a situation where one of the two is lacking, states can refuse to accord a head of state immunity.

Uganda recognises President Bashir as the defacto (physical) and dejure (legal) head of the Republic of Sudan, thus for Uganda to arrest Bashir, it must first observe customary international law that provides for Bashir’s immunity as a head of state;( immunity ratione personae.)Consequently, although his acts are not immune, (rationae material), President Al Bashir is personally  immune from arrest and service in a foreign country as long as he is head of state. The ICC might have Jurisdiction over President Bashir but he would have immunity from the proceedings in Ugandan national courts in any attempt to arrest or transfer him.

Uganda  has not yet domesticated the ICC Statute. The Extradition Act which would be applicable does not include provisions for the extradition of war crimes, crimes against humanity and genocide. The schedule to the act which sets out the “extraditable offences” does not include offences reflected in Bashir’s indictment. Much as it includes offences such as homicide and similar offences, it does not include war crimes and crimes against immunity, crimes allegedly committed by Al Bashir.

The arguments I raise above are not for the maintenance of procedural immunities under the ICC statute. Impunity must come to an end and the suffering in Darfur is extreme. Mine is not only a call for  intellectual honesty in this grey area of international law in case it is raised by President Bashir at one time, but also the need to examine the implications, both political and legal, of Bashir’s arrest and extradition by Uganda, and may be explore better legal solutions to the same.

 By Stephen Tumwesigye

A legal Reseracher on international and human rights law.