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Arresting al-Bahir: Can it happen in international air space?

Luis Moreno-Ocampo

Luis Moreno-Ocampo

ICC Prosecutor Luis Moreno-Ocampo has suggested that Sudanese President Omar al-Bashir could be lawfully seized in international air space on his way to the Arab League Summit in Qatar.

The BBC reports:

Mr Moreno-Ocampo said that entering international airspace would be enough, since UN Security Council resolution 1583 [sic– the correct resolution number is 1593] urges all UN members to co-operate with the court.

Is this an accurate interpretation of the law? Security Council Resolution 1593 provides that:

The Security Council,
* * *
Acting under Chapter VII of the Charter of the United Nations,
1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;
2. 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 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;

* * *

I don’t actually think there is anything in this resolution that authorizes a state to seize an aircraft in international airspace. While the resolution is binding and does require the Sudan and other states party to the conflict in Darfur to “provide necessary assistance to the Court and the Prosecutor,” such assistance seems limited to what is “pursuant to this resolution.” And what that seems to mean is the actual referal of the Darfur case to the ICC. Moreover, no existing conventions that deal with aircraft– the Chicago Convention, the Hague Convention, the Montreal Convention, or the Tokyo Convention– establish any authority to seize an aircraft in flight in international airspace simply because someone suspected of commiting a war crime or a crime against humanity is on the plane.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.