Atithi Devo Bhava: Does India have a legal obligation to arrest Omar Al Bashir at the request of the Prosecutor of the International Criminal Court?

Atithi Devo Bhava: Does India have a legal obligation to arrest Omar Al Bashir at the request of the Prosecutor of the International Criminal Court?

Omar Hassan Ahmad Al Bashir is all set to attend the India-Africa Forum Summit slated to be held at New Delhi later this month. In response to a query from the Sunday Standard, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda stated that, “By arresting and surrendering ICC suspects, India can contribute to the important goal of ending impunity for the world’s worst crimes”. The obligation to arrest Al Bashir, the President of Sudan, who is suspected of committing Genocide, Crimes against Humanity and War Crimes in Darfur, Sudan can arise out of three sources: First, under the Rome Statute (Statute) which establishes the International Criminal Court where Al Bashir is sought to be prosecuted; Second, the Security Council Resolution 1593 passed by the United Nations Security Council (SC) which ‘urges’ all non State parties to the ICC to cooperate fully with the court and Third, the 1948 Genocide Convention (Convention) which prohibits genocide to which India is a party.

The Rome Statute under Articles 86 and 89 directs that the state parties need to cooperate fully with the investigations being carried on by the Court and comply with requests for arrest. The cooperation of the state parties is critical to the effective functioning of the Court because it does not possess a police force of its own. Therefore, countries like Malawi, Congo & South Africa who had been requested in the past to arrest Al Bashir are bound by the Statute to effectuate such arrests. India is not a party to the Statue and therefore, does not have any such obligations. However, the Statute does contemplate existence of ‘ad hoc arrangements’ or ‘an agreement’ between the Court and a non state party for the purposes of cooperation under Article 87(5). Unfortunately, the ICC did not enter into any such arrangements with India. On top of it, the request to arrest Al Bashir was not made by the Court (which per Article 1 of the Statute refers to the ICC), rather it was made by the Prosecutor. Consequently, the Rome Statute does not obligate India to conduct the arrest of Al Bashir.

With respect to the Security Council resolution, it must be noted at the very outset that the decisions of the SC are binding on the members of the United Nations (Article 25, UN Charter). India is a member of the United Nations and hence any decision of the Security Council must be followed. A prima facie reading of paragraph 2 of the Resolution clearly lends to the conclusion that the SC did not make it obligatory on the non state parties to the Rome Statute to cooperate with the investigations.

“Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court [here: ICC] and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully” (emphasis provided)

While the resolution obligates the Government of Sudan to cooperate fully with the ICC, it only urges the non state parties to cooperate with the efforts of the ICC. Therefore, the SC resolution cannot create a binding obligation on the Indian Government to arrest Al Bashir.

The only confusing area is the Genocide Convention (Convention) which states that ‘The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’. (Article 1, emphasis provided) Although the Convention does not contain any specific provision on the question of arresting an individual suspected of committing genocide (like Al Bashir), nonetheless this provision should cause India to think twice before saying that it does not have any legal obligation to arrest our guest, President Al Bashir. Atithi Devo Bhava or the guest is equivalent to God – so goes the old Sanskrit sloka.