Guest Post: The ICC Changes Its Mind on the Immunity from Arrest of President Al Bashir, But It Is Wrong Again

[Paola Gaeta is a Professor at the Law Faculty of the University of Geneva, Adjunct Professor, Graduate Institute of International and Development Studies and the Director of Geneva Academy of International Humanitarian Law and Human Rights.]

On 9^th April, Pre-Trial Chamber II of the International Criminal Court (‘the ICC’ or ‘the Court’) issued another decision concerning the lack of compliance by a State party with its request to arrest and surrender Sudanese President Al Bashir. The decision thus adds to others on the same matter and all involving African member States of the ICC. This time the State concerned is the Democratic Republic of Congo (‘DRC’), which did not arrest President Al Bashir during an official visit to the country and despite a specific request to that effect by the Court.

The DRC argued, among other things, that it was not obliged to execute the request for arrest and surrender of Al Bashir on the basis of Article 98 (1) of the Rome Statute. This provision provides that the Court may not proceed with a request of cooperation or assistance whenever the requested State, in order to execute such a request, would have to breach –with respect to a third State—its international legal undertakings in the area of immunities, including personal immunities. In such cases, the Court may issue a request for assistance or co-operation to a member State only after obtaining a waiver of the relevant immunities from the third State concerned. Since the Court had not obtained the waiver of immunities, the DRC contended that it was not obliged to comply with the request of the Court.

The Pre-Trial Chamber rejected this argument. Surprisingly, it did not do so by referring to the two decisions of 2011 (against Malawi and Chad, respectively) that had already tackled the matter. Not at all: the Pre-Trial Chamber did not dedicate one word to this case law, as if these two decisions were never delivered. True, the Court is not bound by its own decisions, as Article 21(2) of the Rome Statute makes clear in providing that the Court ‘may apply principles and rules of law as interpreted in its previous decisions’. Nevertheless, this provision certainly does not mean that the Court can change its jurisprudence without even clarifying the reasons why. This is particularly true when the criminal responsibility of an individual accused of very serious international crimes is at stake. But it is also true with respect to a highly sensitive issue such as that of immunities of Al Bashir as head of State of a State not party to the Rome Statute, and the more so in light of the stand taken by the African Union on that matter on multiple occasions. The highly political tension between the African Union and the Court on this and other matters is far from being settled and the jurisprudence of the Court, which is not impeccable, certainly won’t help to alleviate it.

I do not want to say that the 2011 Pre-Trial Chamber decisions on the question of immunities of Al Bashir were convincing. Quite the contrary:  as correctly emphasized by Dapo Akande in a post on EJIL Talk! those decisions adopted a stand which made Article 98 (1) of the Rome Statute redundant, something which is ‘contrary to a basic principle of treaty interpretation’.

Unfortunately, this last of Pre-Trial Chamber II is not more convincing than those issued in 2011. This decision correctly recognizes that Article 98 (1) of the Statute directs the Court to secure the cooperation of a State not party to the Rome Statute for the waiver or lifting of the immunity of its Head of State. This in order to prevent ‘the requested State from acting inconsistently with its international obligations towards the non-State party with respect to the immunities attached to the latter’s Head of State’. However, according to the Chamber, the Court does not need to obtain the cooperation of Sudan to remove the immunities of Al Bashir. This is so because the Security Council, in obliging Sudan to cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’, eliminated ‘any impediment to the proceedings before the Court, including the lifting of immunities’. For the Chamber, any other interpretation would be ‘senseless’. The Chamber thus concludes that the requirement under Article 98(1) of the Statute was already ensured by the relevant Security Council’s Resolution, by virtue of which it ‘implicitly waived the immunities granted to Omar Al Bashir under international law’. Consequently, for the Chamber the DRC was obliged under the Rome Statute to arrest and surrender Al Bashir, which it failed to do and hence violated its obligations as a State party to the Rome Statute.

It appears clear to me that the reasoning followed by the Pre-Trial Chamber is based on a wrong interpretation of Article 98(1) of the Rome Statute. This provision is not concerned with whether a State that is not party to the Rome Statute is obliged to cooperate with the Court. Article 98(1) says that the Court may not proceed with requests of cooperation which would put the requested State in the position to act inconsistently with its obligations on immunities vis-à-vis third States ‘unless the Court can first obtain the cooperation of that third State for the waiver of immunity’ (emphasis added). The question here is not the existence of a legal obligation upon the third State to cooperate, but the actual cooperation that the Court must obtain from the third State to waive the immunity.

In addition, I do not see how the obligation of cooperation imposed on Sudan by the Security Council can modify the powers and competence of the Court, including the powers of the Court vis-à-vis member States in the matter of judicial cooperation. The Court is an international organization, created by a treaty and exercising, as all international organizations, the powers and competences attributed to it by its member States. The obligations set forth by the Security Council upon a UN member State with a binding decision under Chapter VII of the UN Charter cannot affect the rights and powers of another international organization, in this case the ICC, as they are regulated in the respective constitutive instrument of such other international organization. The decision of the Security Council on the obligation of Sudan to cooperate cannot relieve the Court from the necessity to implement a requirement for the correct exercise of a power as it is the case of Article 98 (1) of the Rome Statute.  The Court has not obtained the cooperation of Sudan for the waiver of immunity of Al Bashir, as Article 98 (1) provides. To the best of my knowledge, the Court has not even attempted to obtain from Sudan such a waiver. The fact that Sudan would be legally obliged to comply with such a request – should the Court decide to submit one to Sudan – does not imply that the terms of Article 98 (1) are respected, should Sudan refuse to provide the waiver of immunities.

Finally, I do not understand how the Pre-Trial Chamber could claim that the obligation of Sudan to cooperate with the Court, by virtue of the relevant resolution of the Security Council, would be ‘senseless’ if not interpreted as implying the waiver of immunities of the Head of State of Sudan. The fact that Sudan is obliged to cooperate with the Court is not deprived of sense if one recognizes that its head of State is protected by immunities under international law in the territory of foreign states.  After all, extradition treaties are not deprived of sense simply because, as the ICJ has clarified, a state may not even circulate internationally an arrest warrant against a foreign sitting head of state or government, or ministers for foreign affairs.

Commentators who have argued that the Security Council’s decision has a bearing on the matter of immunities have been not so naïve to claim that the inapplicability of Article 98(1) of the Rome Statute stems from the obligation of Sudan to cooperate with the Court. They have been much more sophisticated than the Pre-Trial Chamber. For instance, in a paper published in the JICJ, Dapo Akande argues that whenever the Security Council triggers the jurisdiction of the Court (as in the case of Darfur, Sudan), States that are not members of the Rome Statute become bound by the latter since the referral by the Security Council ‘is a decision to confer jurisdiction on the Court (in circumstances where such jurisdiction may otherwise not exist)’. Therefore Sudan, and other non-member States of the ICC, would be obliged to accept that the Court exercises its jurisdiction in accordance with the Statute. Sudan would therefore be obliged by Article 27(2) of the Rome Statute, and its State officials would not be entitled to personal immunities before national jurisdictions that could therefore arrest and surrender incriminated officials to the ICC to comply with its request.

I do not find this argument convincing. I contend that the referral of a situation to the Court by the Security Council constitutes just one of the conditions for the exercise by the Court of its criminal jurisdiction, and does not constitute the source of the jurisdiction of the Court. This applies also when the Security Council refers to the Court a situation where the crimes are committed in the territory or by a national of a state not party to the Rome Statute. This is however not the point here. The point is that the Court cannot take the luxury of changing its mind on a sensitive issue such as that of the immunities of Al Bashir without even saying why; and in addition to issuing another unconvincing decision on the matter.

I have personally no sympathy for President Al Bashir. I do hope, as many do, that sooner or later he will be brought before the Court, or at least induced to surrender, to respond to the serious allegations brought against him. I do not believe, however, that the Court is making justice to international law by delivering decisions that, at least with respect to issue of the obligation of States parties to arrest Al Bashir, are, with all due respect, frankly wrong.