Guest Post: Is the International Criminal Court in Need of Support to Clarify the Status of Heads of States’ Immunities?
[Alexandre Skander Galand is a Ph.D. Candidate at the European University Institute (EUI), Law Department.]
In the aftermath of the last episode of the ‘Al-Bashir saga’, one might have wondered what the International Criminal Court (ICC) will do with the last report (filed on 17 June 2015) of the ICC registry concerning South Africa’s failure to arrest and surrender Sudan’s President. The answer is now clear: there will be proceedings to determine whether South Africa failed to cooperate with the ICC. Indeed, last Friday 4 September, Pre-Trial Chamber II issued an “Order requesting submissions from the Republic of South Africa for the purposes of proceedings under article 87(7) of the Rome Statute”.
As it is known, the Decision of Pretoria High Court Judge Hans Fabricius on 15 June directing the various executive authorities of South Africa to take all necessary steps to prevent President Omar Al-Bashir of Sudan from leaving South Africa was overlooked by the concerned authorities. On the next day, just after the High Court handed down its decision that Al-Bashir be arrested and detained, the counsel for the South African executive authorities informed the Court that Sudan’s President had already left the country.
The ‘Al-Bashir Saga’ raises the question of whether it is crystal clear that Al-Bashir is not immune from the ICC and its States parties’ exercise of jurisdiction. Is the immunity of Heads of States not parties to the Rome Statute completely irrelevant when a State enforces an ICC arrest warrant? Or, must the State be deemed to have waived its immunity? If so, is a Security Council (SC) referral sufficient to waive the immunity of a Head of State? Or, must the immunity to which the Head of State is entitled under international law be explicitly waived by the SC?
The ICC says: In claris non fit interpretatio
Three days before the Pretoria High Court ruling, the ICC Pre-Trial Chamber (PTC) held:
“it is unnecessary to further clarify that the Republic of South Africa is under the duty under the Rome Statute to immediately arrest Omar Al-Bashir and surrender him to the Court, as the existence of this duty is already clear and needs not be further reiterated. The Republic of South Africa is already aware of this statutory duty and a further reminder is unwarranted.” (§ 10)
According to the PTC, there were no doubts that South Africa, a State party to the Rome Statute, was fully aware of its obligation to immediately arrest and surrender Al-Bashir to the Court. Al-Bashir is subject to two ICC warrants of arrest for war crimes, crimes against humanity and genocide committed in Darfur – after the situation was referred to the ICC in 2005 by the SC under Chapter VII of the UN Charter.
In the Arrest Warrant Case, the International Court of Justice (ICJ) famously held that high-ranking state representatives “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.” The ICJ offered as examples of ‘certain international criminal courts’ the ICTY, the ICTR and the ICC. Article 27 (2) of the Rome Statute on the irrelevance of personal immunities was explicitly quoted by the World Court.
The ICC said: No immunity when facing the jus puniendi of the international community
Back in 2011, PTC I declared in Decision on Malawi’s Failure to Arrest and Surrender Al-Bashir that:
“the principle in international law is that immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction. (§ 36)”
PTC I was also of the view that:
“the unavailability of immunities with respect to prosecutions by international courts applies to any act of cooperation by States which forms an integral part of those prosecutions.” (§ 44)
According to PTC I,
“when cooperating with this Court and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise has been entrusted to this Court[….].” (§ 46)
Such a construction renders the application of Article 27 (2) fully operational. Indeed, no immunities could be raised when the ICC seeks through its ‘artificial limbs’ to exercise jurisdiction; this would apply equally to all, including high-ranking officials of non-party States. Thus, the immunity enjoyed by Heads of States is not only irrelevant before the Court but also when a State enforces an arrest warrant of the Court.
However, such interpretation of Article 27 would deprive Article 98 of its content. Let us remind ourselves that the African Union (AU) has decided that “AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.”
Schabas wrote in 2011 that the PTC decision has “the consequence of stripping Obama, Medvedev and Hu Jintao of their immunity before the Court.” Although the US, Russia and China are not party to the Rome Statute, the ICC, under Article 12(2)(a), can have jurisdiction over their nationals if they commit crimes within the territory of a State party (e.g. Afghanistan, Georgia, Japan, and many others). Hence, according to PTC I, if the ICC issues an arrest warrant against one of them, the 123 States party to the Rome Statute could execute it without breaching the international law on immunity. It seems rather implausible that the US, Russia and China disagree with the AU that such interpretation is not reflective of customary international law.
Then, the ICC reverted to the Chapter VII power of the referral
The reaction of inter alia the AU to Decision on Malawi’s Failure to Arrest and Surrender Al-Bashir has prompted the ICC in 2014 to change its reasoning with respect to the effect of Article 27 Rome Statute towards non-party States. In Decision on DRC’s Cooperation Regarding Al-Bashir’s Arrest and Surrender, PTC II took a more considered approach by emphasizing the effect of Article 25 and 103 of the UN Charter, underlying the referral.
Since the SC in Resolution 1593 referring the situation in Darfur to the ICC decided under Chapter VII that Sudan “shall cooperate fully” with the Court, PTC II held that “the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State.” (§ 29)
Thus, when a situation is triggered on the basis of Article 12(2)(a) –territorial jurisdiction – Heads of States not parties to the Rome Statute are immune from the Court and its States parties’ jurisdiction. At the very least, this position comforts the US, China and Russia as a SC referral is practically impossible. Although, they do not benefit from the veto power, the Heads of States of Angola, Cameroon, Egypt, Ethiopia, Rwanda, Somalia, Zimbabwe and other non-party States are currently immune from the ICC community’s jurisdiction. However, if the SC triggers a situation occurring in one of these States, the Court would conclude that the referral and the ensuing obligation to cooperate imply a waiver of the immunity of the concerned Head of State.
Nonetheless, the AU is not so easy to convince. Indeed, in a press release issued in 2012 the AU had already stated:
“The Security Council has not lifted President Bashir’s immunity either; any such lifting should have been explicit, mere referral of a “situation” by the SC to the ICC or requesting a state to cooperate with the ICC cannot be interpreted as lifting immunities granted under international law.”
Certainly, the SC could have decided in its referral to the ICC to explicitly lift immunities. While Asad Kiyani argues that the Council does not have such power as it cannot override customary international law, it is generally recognized that SC resolutions adopted under Chapter VII will prevail over conflicting customs constituting jus dispositivum (see Akande (p.348), Dinstein (p. 424-425) and Gaya (p. 86)). The issue differs for jus cogens norms; but nobody refers to immunity of Heads of States as such a norm. On the contrary, some claim, like Jen David Ohlin, that the duty to extradite or prosecute international crimes, such as genocide, has become a jus cogens norm. Thus, immunity would not stand in front of this jus cogens obligation. However, in Jurisdictional Immunities of the State, the ICJ clearly stated that the jus cogens nature of a norm doesn’t deprive a State from the jurisdictional immunity it is entitled to under international law.
If the SC had explicitly lifted the immunity that Sudanese high-ranking State representatives may enjoy under international law, no ambiguity would have remained as to the relevance of immunities from the execution of an ICC arrest warrant. Thanks to this ambiguity, the AU decided that its Member States shall not enforce the warrants against Al-Bashir.
Is the immunity of Al-Bashir retained for political or legal reasons?
One may argue that the AU’s motivation for upholding the immunity of Al-Bashir might be political or, more clearly, predicated on the peace v. justice debate. The AU Assembly, stated in its first decision re ICC arrest warrant against Al-Bashir that it: “notes with grave concern the unfortunate consequences that the indictment has had on the delicate peace processes underway in the Sudan […].” Indeed, from the day the ICC Prosecutor requested a warrant against Al-Bashir, the AU repeatedly called on the SC to apply article 16 of the Rome Statute to “defer the process initiated by the ICC”. These calls were not heeded; hence, the AU decided that:
“in view of the fact that the request by the African Union has never been acted upon (by UN Security Council), the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan”
The statement of Angola’s representative at the last meeting of the SC (29 June 2015) on the situation in Sudan clearly reinforces the view that the AU’s decision to limit its cooperation with the ICC with respect to Al-Bashir is a retaliation to the refusal of the SC to act on the AU’s requests to defer the proceedings. Thus, immunity may appear as a legal argument used as a fig leaf for a political argument.
Conversely, the Russian representative seemed to be of the opinion that the argument against cooperation can be justified relying entirely on international law:
“we recall that, in addition to the obligation to cooperate with the ICC, the Statute states that parties to the Statute are bound by obligations arising from international legal norms governing the immunity of high-level officials, particularly Heads of States, of States that, like the Sudan, are not party to the Rome Statute.”
Similarly, Venezuela’s representative stated that the warrant against Al-Bashir “violates customary international law, which guarantees jurisdictional immunity to Heads of State in the exercise of their functions.” On the other hand, he also declared: “we urge the competent regional authorities to immediately arrest those individuals who do not enjoy jurisdictional immunity as Heads of State.” This statement seems to refer to Sudan’s Defence Minister, Abdel Raheem Muhammad Hussein, who travelled to Chad and Central Africa, despite the pending ICC arrest warrant for crimes against humanity and war crimes. Indeed, as a Defence Minister, Hussein does not enjoy the same immunity as the “troika” i.e. Head of State, Head of Government and Foreign Affairs Minister. In contrast with the ‘Al-Bashir saga’, States failing to arrest Hussein did not invoke the immunity of the latter but their inability to take prompt action.
This highlights that while it appears important to establish an effective follow-up mechanism for the SC referrals to the Court, one other thing the SC could do is to issue a resolution in which it explicitly declares that with respect to the SC referral to the ICC of the situation in Darfur, Sudan, immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court and States enforcing its requests from exercising their jurisdiction over such a person. As it is quite clear that PTC II will find that South Africa failed to arrest and surrender Al-Bashir, the issue will probably be referred to the SC. This would be the right opportunity for the SC to set once for all the status of Al-Bashir’s immunity.