The use of the ‘proxy argument’ in the Al-Bashir Case: a riddle for the law of international organizations

One of the complex legal issues arising from the Al-Bashir case concerns the international relevance of the conduct of a member state in the context of its international organization: how to qualify the conduct of an ICC member state acting, or omitting to act, in response to an ICC arrest warrant? Is it acting on behalf of the organization or as an independent subject of international law? In this blogpost I evaluate an argument that was put forward during the proceedings, according to which member states would act as “agents”, “organs” or “proxies” of the ICC. I will contend that the argument is based on the unclear conceptualization of the ICC as a supranational international organization. I will contest this thesis, but I will also contend that the law of international organizations does not provide a clear answer to this dilemma.