Kampala — THE fact that a warrant of arrest has been issued against Bashir does not mean Uganda or state parties must legally arrest Bashir if he visited them.

Even the position of the African Union can be challenged because it seems to act on the ICC legal position without proper legal investigation and interpretation. Another argument being advanced is that obligations to arrest Bashir arise from the UN Security Council resolution, which referred the Darfur war crimes matter to the ICC. This referral is only mandatory, but does not change the terms of Article 98(1), unless it creates a completely different mechanism to arrest Bashir.

It should be noted that Bashir is the first sitting head of state to be indicted by the ICC. The case of Charles Taylor is being conducted under a special tribunal for Sierra Leone and is only hosted by the ICC at The Hague for security reasons. Other cases such as that of Slobodan Milosevic, Saddam Hussein and Alberto Fijumori are different.

Uganda faces fundamental legal obstacles to effect the Bashir arrest within Uganda if he visited the country. As a country, Uganda has not domesticated the Rome Statute. This means that the ICC is not a legal regime in Uganda. The co-operation Uganda has with the ICC is, therefore, adhoc.

I stand to be corrected, but this adhoc arrangement does not provide enough grounds to arrest a head of state because it would not survive constitutional challenges.

It would also be politically embarrassing to arrest another head of state and subject him to a national legal procedure without due process as required by Article 59 of the Rome Statute.

So the issue here is not about the validity of the warrants of arrest because they are valid under Article 27. The issue is their enforcement in the absence of a waiver in light of Article 98(1).

Legal experts seem to agree that another challenge is that the legal regime for extradition under the Extradition Act in Uganda does not apply to the ICC. The ICC requires a specific regime for arrest, surrender and transfer of individuals.