Guest Post: Is the International Criminal Court in Need of Support to Clarify the Status of Heads of States’ Immunities?

by Alexandre Skander Galand

[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.

20 Responses

  1. Alexandre, thanks, this is a very useful recap of where we stand with respect to Bashir and immunity. You’ve addressed the main issues, although there is one important point that I think you forget.

    You argue that “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… This would be the right opportunity for the SC to set once for all the status of Al-Bashir’s immunity.”

    The question is whether the SC can really settle this question. I understand that, in the absence of a world government, we often think of the SC as a quasi-legislature (and quasi-executive, for that matter). But if you actually go back to the basics of international law, and specifically how international law is created, SC resolutions are not usually considered a source of international law. Custom and treaties are.

    An important and overlooked question is what happens if African states continue to invoke the AU resolutions that you mention, arguing that Bashir retains immunity under customary international law, and refuse to arrest Bashir. I emphasise: they refuse to arrest Bashir out of a sense of legal duty.

    What happens then? Customary international law is what states say it is. In other words, international law is made by states, not by the Security Council or the P5.

    Given the AU’s criticisms of the Security Council’s politicised referrals targeting African states (their words, not mine), the question is whether a SC resolution will really change much about Al-Bashir’s immunities? It is no doubt an important POLITICAL statement – but is it really that important legally? State practice and opinio juris seem like stronger legal arguments.

    I’d be curious to hear your thoughts.

  2. Patryk,

    But isn’t the argument that the Security Council enjoys its quasi-legislative powers over member states precisely because of the traditional sources of international law — namely, the fact that the UN Charter is a treaty to which all states are party? In other words, hasn’t Sudan consented to the possibility of the Security Council lifting Bashir’s immunity via Chapter VII by virtue of joining the UN?

  3. Thanks for the post . The SC , has nothing to do here in that case of Bashir . The referral , granted the ICC the trigger for investigation . Yet , investigation , can’t remove any immunity , until , the person subject , becomes a suspect or indicted one .

    So , per se , SC referral ,can’t do it , shouldn’t do it , but :

    Accomplishing investigation , and , issuing warrants ( appearance or arrest ) which actually , binding the person , to comply , and obey the court , despite his immunity .

    So , the warrant of arrest is the ” remover ” and not and can’t be the SC .

    This is a universal concept !! Imagine a parliament member, he has immunity as such. Yet ,complaint and police investigation ,can’t remove it ,but :

    Court decision , means ,arrest warrant in our case .


  4. Dear Patryk,

    Thank you for your comment. You raise an interesting point. I believe you can find my response in the paragraph where I address Asad Kiyani’s argument that the Council does not have the power to override customary international law. Immunity of Heads of States is a right under customary international law. Since it is a right, it can also be waived. That is also what appears from the ICJ Arrest Warrant Case (par. 61). As Kevin rightly points out, States by ratifying the UN Charter accepted that the SC, when there is a threat to international peace and security, adopts resolutions under Chapter VII that require action to be carried out by all or some UN member States. Thus, the power of the SC to take action that may have a quasi-legislative aspect emanate from a treaty source. Akande, claims (and I agree with him) that it is implied from a SC referral to the ICC that the immunity of high ranking officials from the targeted State has been waived. What would be the difference – in respect with the legislative nature of the act – if the resolution of the SC under Chapter VII would explicitly require Sudan to waive the immunity of its high ranking state representatives with regards to the ICC and the states enforcing its requests for arrest and surrender. Yemin in his seminal book defined legislative acts in the international setting as acts that “are unilateral in form, they create or modify some element of a legal norm, and the legal norm in question is general in nature, that is, directed to indeterminate addressees and capable of repeated application in time.” A resolution waiving the right to immunity of all high ranking State representatives for an indeterminate period of time in relation to any forum would certainly fit this definition. But, a resolution lifting the immunity of the Head of State of Sudan in relation to the referral to the ICC (I believe) does not.

  5. Kevin,

    So are you suggesting that UNSC resolutions are, in fact, just a form of treaty law? Does this mean the UNSC can simply pass a resolution that changes the Rome Statute and under the traditional canons of treaty interpretation lex posterior derogat legi priori?

    I am wary of these wide-ranging interpretations of SC powers precisely because this turns it into a legislature-cum-executive with boundless powers and makes a mockery of international law tout court. Forget treaty law, forget customary law, forget the ‘traditional’ rules and principles of international law developed over the centuries… in short, we are free to ignore what African states do and say because the P5, which is conveniently above the law, can do whatever it wants by virtue of Art. 103 (when it is convenient to do so, of course).

  6. Alexandre, thanks, that is helpful. I would be interested to hear more about the distinction you seem to be making between general international legislative acts and (implicitly) those that target specific individuals. So kind of like bills of attainder in US constitutional law (or did I misunderstand the distinction you are making?).

    You go on to say: “Akande, claims (and I agree with him) that it is implied from a SC referral to the ICC that the immunity of high ranking officials from the targeted State has been waived.”

    I think Akande’s is a perfectly legitimate interpretation of what the SC did. The problem is simply that African states have now repeatedly affirmed – in word and in deed – that this interpretation of what the SC did is incorrect. How many times will African states have to ignore the ICC arrest warrant – again, assuming it is out of an obligation to respect Bashir’s customary immunities – for this to become ‘good law’?

    I don’t entirely understand how we can keep pretending this (African state practice) is not happening, and keep insisting that our theories about SC powers are more important than facts on the ground. I suspect it has a great deal to do with the fact that the states in question are ‘unimportant’ African states, while the SC and especially the P5 are the world’s policemen. More importantly, however, I wonder how we can square these developments with fundamental precepts of international law without undermining the very system that we are trying to preserve.

  7. Alexandre , I presume it was to me , and there is no debate , and can’t be :

    Effectively ,the SC can’t remove immunity in a ” Roman procedure ” , but a judge !! And again, without even stepping into theoretical issues:

    The person, who becomes a subject of investigation, and during that process his immunity is kept intact, only when becoming indicted, or arrested and so forth… he becomes a substantial status in the eyes of the court, then, there is an effective meaning to removal of immunity.
    The legal source would be in the eyes of the judge , the Rome convention ( by itself a customary international law ) and the SC resolution , only :

    The trigger for the launch of investigation, although, it does enhance the legitimacy for removing immunity, especially in the eyes of non member states (see request for surrender of Bashir to Indonesia, not member of the convention (No.: ICC-02/05-01/09 , Date: 16 April 2015)) yet , judicially , must be consolidated , after investigation , proper one , and above all :

    Only a power of competent judge , as ultimate expert for interpretation of law , can do it effectively , since , it is the outcome of findings ,skils , and power , not within the scope of the SC by nature .


  8. Patryk, if I could be so presumptuous, I think KJH’s point was more modest. Treaty law (the UN Charter) authorizes and underwrites SC action. This does not transform all SC action and words, in toto, into treaties (e.g. quaere whether VCLT applies to SC Resolutions), just as constitutions do not transform *all* executive acts into legislation. The Charter itself contains limits to the authority of the Security Council. I have difficulty seeing how the SC could “rewrite” other treaties–but it certainly could direct or authorize action within its authority inconsistent with such treaties and it seems pretty clear Art. 103’s primacy would require compliance. The Charter still bounds the SC’s authority, a matter that could be adjudicated, in appropriate cases, by the ICJ. On the political question of whether this gives the SC excessive reach (not the P5–they only possess veto rights, they do not command the majority required for action), it seems to me that very few commentators have criticized the SC for being too efficacious or hasty in acting.

  9. Miles, my comment about SC resolutions being transformed into treaties should not be read too literally. I think we agree on that.

    Where we part company is your interpretation of art. 103. To be sure, there are some scholars that give the SC these magical powers by virtue of art. 103, ie everything is allowed except what the Charter doesn’t expressly prohibit, the SC is a super-legislature etc. You suggest that ‘very few commentators have criticized the SC for being too efficacious…’, but this misses the point. The issue isn’t efficacy, but lawfulness. And as far as I know there are real concerns about the scope of SC powers (eg violations of human rights in the context of terrorism sanctions lists).

    In the context of the Rome Statute, many scholars disagree about the SC’s power to “direct or authorize action within its authority inconsistent with such treaties”, in this case the treaty being the Rome Statute. It’s hard to know where people stand on this issue, but my guess is that the majority would disagree with you that the SC can pass a resolution – to give one example – that extends the ICC’s jurisdiction to events pre-dating 2002. Yet if one takes your view of art. 103, the SC can pass such a resolution and that’s that.

  10. “immunity under customary international law”? no such thing at the international level or in an international criminal tribunal. IMT at Nuremberg convicted a head of state (who had been such for only a short time), ICTY ruling in Milosevic was: no head of state immunity exists before the ICTY and this mirrors customary international law; and see (and cases therein); customary international law reflected in the Genocide Convention, art. IV; etc.

  11. supplementing Kevin John’s point regarding Articles 24(2), 25, 39, 41, and 103 of the UN Charter must surely be the practice and opinio juris that supports the UN SC creations of the Statutes of the ICTY and ICTR will express nonimmunity for officials.

  12. Patryk,

    Miles captured my point well — the duty to comply with SC resolutions is based on a treaty, the UN Charter; it’s not that SC resolutions are treaty law themselves.

    I share your concern with the SC becoming a super-legislature, and I’ve criticised that position (most notably in discussions with Jens) on the blog. I think most people would agree that the the SC, even acting under Chapter VII, cannot violate jus cogens norms (if they exist), because they are superior to treaties — even the UN Charter. And I would argue that the SC does not have the authority to legislate for independent international organisations like the ICC, which are not party to the Charter. (Erika deWet agrees with this in her wonderful book.) A more interesting question is what would happen if the SC ordered ICC member-states to disregard a provision of the Rome Statute — but that’s beyond my meagre PIL knowledge…

  13. South Africa(SA)has obliterated its duty under international law.This was a case of non-compliance by the African State. In order to strengthen the ICC SA as a Party to the ICC Statute has failed. I am eager to know that what action can be taken against SA in such circumstances? or, in the aftermath of failure on part of any State for that matter.

    Prof. Mohit Kumar Gupta

  14. Mohit Kumar Gupta ,

    It’s all a matter of degree of course , I can tell you , what the ICC , should and did , on the issue of non compliance finding concerning Sudan , concerning the AU and other states , well, one may conclude that it does depend upon the level of lets say : wrongdoing …..but steps taken , should be similar , so :

    1) First , there is a report of the ICC to the SC , about findings of non compliance , everything in accordance with article 17 ( 3 ) to the agreement between the UN and the ICC ( “Negotiated Draft Relationship Agreement between the International Criminal Court and the United Nations” ) and see link on that report of non compliance at the foot .

    2) In such case , the SC , is obliged to take measures in accordance with the right articles of Chapter 7 , to the UN charter , and I quote :

    ” Article 39

    The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

    Article 41

    The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”



  15. I wonder if we should make a distinction between Al Bashir’s immunity and possible conflicts within the Rome Statute on the one hand, and the obligation of the South African legal system to cooperate with the ICC on the other. Is it even correct for a domestic judiciary to look at the issues of immunity in relation to the Rome Statute because the ICC already did that and reached the decision that immunity had been overcome. Now all we have is simply an order of the ICC to a state party to comply – and there is no exception. The state party should not re-examine the issue of immunity now. If Al Bashir wants to contest immunity, then he should do so before the court that has competence over that matter – the ICC.

  16. Unanswered question: What if the states in question have not signed the Treaty of Rome such as the United States and Israel; they do not recognize the authority of the court nor will they honor the decisions of said court?????????? Then what if, for example, the Prime Minister of Israel as in recent events has been cited for crimes in the recent conflict with the Palestians, then does a treaty signer have the right to arrest and detain him if he is on an official visit or this Prime Minister goes to the United States and the court orders his detention??

  17. lloyd a cohen ,

    Pay attention :

    this the meaning of customary international law ( among others ) :

    Acting out of sense of obligation , not due to signature or ratification of convention . An arrest of such , of a state member , is due to its domestic law , for a state not member , due to CIL .And , it’s beyond any debate :

    Rome convention , and the crimes it is standing for , are : jus cognes , and as such , it is one of the utmost corps of CIL , not mentioning the spread and distribution of 123 states members .


  18. Given that Al Bashir is subject to judicially approved arrest warrants containing charges that include genocide, the Genocide Convention is also potentially relevant to the issue of immunities, as I discussed here:

  19. el roam. The problems with jus cognes and egra omes is that there is neither a universal accepted definition of same for CIL nor an universal honoring of same since the time of the Treaty of the Congress of Berlin

  20. Iloud a cohen ,

    You are right !! but this is the right model on the other hand , one must stick to .

    And in fact , when the right model is put as such , thinks change . gradually , maybe in a frustrating pace , yet change !!

    the proof :

    International, permanent court, in Hague. Since when , such court is permanent ??

    ” Even a journey of a thousand miles begins with a single step ”


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