Why the Security Council Should Not be Involved Regarding Al-Bashir’s Immunity

[Alexandre Skander Galand is a Newton Postdoctoral Researcher at the Center for Global Public Law, Koç University; Ph.D. in Law (EUI).]

In a post published in September 2015, I asked whether the International Criminal Court (ICC) was in need of support to clarify the status of Heads of States’ immunities. My post followed the ICC Pre-Trial Chamber II (PTC II) request for submissions from the Republic of South Africa (RSA) with regards to the stay in its territory of the Head of State of Sudan, Omar Al-Bashir, on June 14-17, 2015.

Following UN Security Council (UNSC) Resolution 1593 (2005), referring the situation in Darfur to the ICC, two warrants of arrest have been issued against Al-Bashir for war crimes, crimes against humanity, and genocide. Sudan is not a State party to the Rome Statute, and many States have hosted Al-Bashir on the premise that he is protected by his immunity as the Head of a State not party to the Rome Statute. On 6 July 2017, after 2 years of proceedings, PTC II found that RSA failed to abide by its obligation under the Rome Statute to arrest and surrender the most wanted ICC fugitive. Nevertheless, the PTC also opined that a referral of the matter to the Assembly of States (ASP) and/or the UNSC, as provided in article 87(7) Rome Statute, was needless.

In this post I argue that two reasons lie behind PTC II’s decision to not refer the RSA. First, it is an acknowledgment that the ICC case law on the immunity of non-party Heads of States is cloudy. And, second, the PTC II foresaw that such referral would have seriously backfired. A referral would not have led to an environment conducive to the arrest of Al-Bashir, but quite the opposite: it could have incentivized the long called for use of an Article 16 deferral.

1. Whatever the ratio decidi, Al-Bashir must be arrested and surrendered

On the eve of Al-Bashir’s travel to Johannesburg, Judge Tarfusser (acting as an ICC Single Judge) had affirmed (.pdf) to the RSA’s ambassador that there was nothing to consult upon (under article 97 Rome Statute) with the Court regarding the obligation to arrest Al-Bashir, as there was a very clear ICC case law establishing that Sudan’s Head of State immunities had been implicitly waived by the UNSC. Very intuitively, Judge Tarfusser responded to the Ambassador’s call for revisiting this case law that if the matter went before a full chamber, it “could decide in a slightly different way. I cannot imagine completely opposite but in a slightly different way.”

Judge Tarfusser was right! PTC II (with Tarfusser as Presiding Judge) decided in a different but not opposite way: the obligation to arrest Al-Bashir stands but his immunity has not been waived. In the Decision on South Africa’s failure to arrest and surrender Al-Bashir (South Africa Decision), PTC II exposed three theories on the inapplicability of immunities before the court of a State implementing an ICC arrest warrant.

First, the PTC II completely discarded its previous holding in Decision on Malawi’s Failure to Arrest and Surrender Al-Bashir (.pdf) (Malawi Decision) and the Special Court of Sierra Leone’s Decision on Taylor Immunity (.pdf). Indeed, the PTC II acknowledged to be ”unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court.” (para. 68) Note that the PTC was cautious enough to underline that this finding did not apply to its own exercise of jurisdiction, but to the arrest and surrender, which is an exercise of jurisdiction that only States can undertake.

Second, the PTC decided not to go by the Decision on DRC’s Cooperation Regarding Al-Bashir’s Arrest and Surrender (.pdf) (DRC Decision) where it held that the UNSC had implicitly waived the immunity of Al-Bashir. Three years earlier, this theory seemed useful as it served to reject the African Union (AU)’s arguments (.pdf) against the Malawi Decision. According to the DRC Decision, Sudan’s obligation under Chapter VII to cooperate fully fitted within the exception provided in article 98 (1) Rome Statute, which reads: ”unless the Court can first obtain the cooperation of that third State [Sudan] for the waiver of the immunity.” The implicit waiver under Chapter VII also tackled, on the premise of Article 103 UN Charter, DRC’s claim that it was bound by the AU resolutions obliging its State parties not to arrest Al-Bashir. On this conflict of norms between the ICC order and the AU order, the PTC II used the Chapter VII’s trumping power to declare that ‘the DRC cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.’

The DRC Decision had been reiterated by the ICC several times since 2014. However, during the hearing on its non-compliance, the RSA raised a fair point on the interpretation of the UNSC’s resolutions in a way consistent with existing law on immunities, questioning whether the immunities Heads of States are normally entitled to under customary international law can be implicitly waived. The RSA referred to various sources including article 32 of the Vienna Convention on the Law of Diplomatic Immunities (.pdf), which specifies that a waiver must always be express. The RSA also argued that ”if the UNSC intended to remove immunity, it could have clarified the situation by adopting another resolution.” This is indeed a suggestion I made in my previous post; not as sine qua non for finding that Al-Bashir’s immunity did not apply but simply as an aid for the ICC to uphold its position.

Despite Judge Tarfusser’s confidence in the DRC Decision’s ratio decidendi, PTC II decided to hold that no such waiver was necessary for the immunity of Al-Bashir to be considered irrelevant. The PTC rationale is simple: Sudan’s obligation to fully cooperate with the Court, which is underpinned by the Chapter VII power character of UNSC Resolution 1593, puts it in a position analogous to those of States Parties to the Rome Statute.

The gist of the reasoning is that the UNSC, when referring the situation in Darfur, submitted Sudan to the Rome Statute legal framework, which includes Article 27 (2) on the irrelevance of official capacity. In the particular situation in Darfur, the immunities to which Sudan’s officials are normally entitled under international law are not waived, they are simply irrelevant – as if it was a State party. As the PTC II put it, Sudan is subjected to “a sui generis regime” that extends ”the effect inter partes of the Statute, an international treaty” to a State that has not voluntarily accepted it. The caveat to this sui generis regime is that Sudan’s analogous position is only for the limited purpose of the situation in Darfur. In other words, the immunities from arrest and surrender of Sudan’s high ranking officials are relevant for crimes committed in, let’s say, Uganda.

This is slightly different from the DRC Decision in that while the PTC still heavily relies on the Chapter VII character of the obligation to cooperate fully, it is not dependent on the UNSC’s intent when adopting a referral to the ICC. The Chamber indeed insisted on this and emphasized:

‘it is immaterial whether the Security Council intended – or even anticipated – that, by virtue of article 27(2) of the Statute, Omar Al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest sought by the Court […]’ (par. 95)

This is a very important point since, as I will show below, the Court cannot count on the UNSC to support it in its prosecution of Al-Bashir.

Furthermore, the South Africa Decision affirms that States cannot rely on Article 98 (1) for justifying non-cooperation, as this provision is addressed to the Court solely. According to PTC II, the option States have if the Court makes a request contrary to Article 98 is to appeal the decision; not to ‘consult’ with the Court as RSA did. In contrast, the DRC Decision had called on the Congolese authorities to consult the Court when there is a problem related to article 98(1) of the Statute. PTC II acknowledged that the DRC Decision misled the RSA. While the OtP argued that the RSA abused the consultation process provided in article 97 to create a legal impediment to rely upon, the Chamber credited this ‘attempt’ to consult as one point in favour of not referring the matter to the ASP and/or UNSC.

2. This will stay between us!

As anticipated, the PTC II found that it was unwarranted to refer the failure of RSA to arrest Al-Bashir. To justify its decision, the PTC II noted that the RSA’s domestic courts had already found that the State had breached its obligations. Thus, with the RSA domestic courts holding and its decision, PTC II considered that any possible ambiguity as to the law concerning the arrest and surrender of Al-Bashir had now been removed.

The remaining question was whether the ICC could really count on external actors to force compliance with its request to arrest and surrender Al-Bashir. The PTC noted that in all previous instances where a State’s failure to arrest Al-Bashir had been referred to the UNSC, the latter also failed to take any type of measure whatsoever against the non-cooperating State or Sudan. This is indeed the first acceptance from an ICC Chamber that the ‘last resort’ mechanism provided in Article 87(7) is ineffective, at least with regard to the arrest of Al-Bashir.

To tell the truth, a UNSC meeting on the failure of the RSA would have probably turned in a session where the ICC case law on immunity was trashed by some UNSC members. A month before the PTC delivered the South Africa Decision, Fatou Bensouda was admonishing the UNSC for the absence of concrete action in response to decisions of non-compliance referred to it by the Court. In response, the Russian representative affirmed once more that:

‘the obligation to cooperate, as set forth in resolution 1593 (2005), does not mean that the norms of international law governing the immunity of the Government officials of those States not party the Rome Statute can be repealed, and presuming the contrary is unacceptable.’

The AU position on the arrest of Al-Bashir is also well known known. African States sitting at the UNSC constantly remind it of their opposition to the arrest and surrender of Al-Bashir and reiterate their call for the use of an Article 16 deferral. For instance, Egypt declared:

‘we reject any action taken against any African country under the pretext that it has not complied with its obligations under the Rome Statute or on the basis of its non-cooperation pursuant to Security Council resolution 1593 (2005), because it did not arrest President Al-Bashir and hand him over to the ICC’

A referral of the RSA’s non-compliance to the UNSC could have turned to be a meeting where an Article 16 deferral would actually be granted. China, the AU and the Arab League, support a deferral of the proceedings against Al-Bashir. Even the United States have admitted that Sudan has taken meaningful positive steps with respect to the conflict in Darfur, and worked in cooperation with the US government to address regional conflicts. After all, let’s not forget that the RSA is the State that made a proposal for amending Article 16 of the Rome Statute, which would provide for the General Assembly to assume this power where the UNSC fails to respond to a request. Despite the repetitive requests for Article 16 Rome Statute to be triggered, the UNSC has not formally decided upon this matter yet.

On 29 March 2017, Al-Bashir travelled to Jordan, a State party to the Rome Statute, for a meeting of the Arab League and once again he was not arrested. There will be proceedings similar to the ones for RSA to take place at the ICC. The PTC will probably affirm its new case law on how Al-Bashir’s immunity does not apply. However, I very much doubt that the ICC will take the chance to refer Jordan to the UNSC, unless it is ready to accept the possibility of a deferral.