Is Sudan an Indispensable Party in the Al-Bashir Immunity Appeal? A Monetary Gold Question for the ICC

[Michail Vagias is a Senior Lecturer in Law and the Program Manager of ProCuria 2017-2018 at The Hague University of Applied Sciences.]

The problem: Discussing Sudan’s immunities in the absence of Sudan

On 29 March 2017, Sudanese President Al-Bashir made an official visit to Jordan for the 28^th Arab League Summit. Jordan neither arrested nor surrendered him to the International Criminal Court, pursuant to the arrest warrants issued against him in 2009 and 2010. In light of these events, Pre-Trial Chamber II proceeded to issue on 11 December 2017 a decision of non-compliance against Jordan and referred the matter to the Assembly of States Parties and the Security Council.

So far, there is nothing new under the sun. The issuance of the arrest warrants against President Al-Bashir failed to prevent his international travels. The Jordan decision is therefore only the latest in a string of non-compliance decisions issued by the Court against states – such as the Democratic Republic of the Congo, Uganda, Chad and South Africa – where Al-Bashir travelled officially but was not arrested.

The new development in this saga was Jordan’s decision to appeal the non-compliance decision of the Pre-Trial Chamber. On 21 February 2018, the Pre-Trial Chamber granted leave to appeal three issues, as formulated by Jordan. The first issue questions whether the Chamber erred as regards Jordan’s duty to respect the immunity of Al-Bashir according to the Rome Statute and the 1953 Convention on the Privileges and Immunities of the Arab League, the second whether the Chamber erred in the interpretation of UN SC Resolution 1593 (2005) and the corresponding state obligations flowing therefrom, whereas the third is whether the Chamber abused its discretion by referring the non-compliance to the UN Security Council and the ICC Assembly of States Parties.

So far, in response to the Court’s call for submission, beyond the Prosecutor and Jordan, academics and the League of Arab States filed submissions debating the merits of these issues. However, one question that has remained at the fringes of this rich discussion, is whether this appeal should actually take place even though Sudan and President Al-Bashir are absent. After all, one of the main issues of the litigation is the immunity of the President of Sudan under international law and its effect in the ICC context.

The Appeals Chamber has tried to address this issue by inviting Sudan to participate, although the latter has not participated in the process within the time limit set for that purpose (16 July 2018). In its invitation decision, the Appeals Chamber acknowledged that Sudan and Al-Bashir are ‘concerned in the legal questions presented in the appeal’. In this context, an interesting question is whether this ‘concern’ is significant enough to have the appeal declared inadmissible by applying in the ICC context a variation of the ‘Monetary Gold’ principle well-known from ICJ litigation. In a nutshell; Are Sudan and President Al-Bashir indispensable parties for the purposes of the Appeals Chamber proceedings?

Indispensable Party Doctrine in ICJ Jurisprudence

The indispensable party doctrine became well known from the jurisprudence of the International Court of Justice. In light of the fundamental significance of state consent for the jurisdiction of that Court, the question soon emerged whether the Court could adjudicate cases involving the rights and duties of states that do not participate in the relevant proceedings.

In its 1953 decision in the case of the Albanian Monetary Gold, the Court held that Albania’s participation was indispensable for the adjudication of a case, where Italy had filed an application against France, UK and the US concerning the fate of the Albanian Monetary Gold in Rome after World War II. The Court highlighted that “in the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.” (Monetary Gold, p. 32).

Beyond this laconic and somewhat cryptic statement of law, international lawyers had little by way of guidance as regards the nature and the scope of the legal threshold, beyond which a party became ‘indispensable’ for the purpose of the relevant proceedings. It is therefore unsurprising that subsequent jurisprudence fluctuated considerably as regards the degree of interest required to transform an absent litigant to an ‘indispensable party’ and thus preclude judicial proceedings before the Court. In Nicaragua v. US (para. 88), the United States tried unsuccessfully to invoke Monetary Gold, claiming that the rights and duties of Honduras and El Salvador constituted the ‘very subject-matter’ of that case and therefore the case could not proceed without them. In East Timor (para. 29), on the other hand, Monetary Gold was successfully invoked, insofar as the Court refused to adjudicate a case involving the validity of the 1989 East Timor Gap Treaty between Indonesia and Australia in the absence of Indonesia. In Croatia v. Serbia, the respondent argued Monetary Gold due to the absence of Yugoslavia from the litigation involving allegations of genocide against Croatians; the Court rejected the argument, explaining that “such a state no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court” (para. 116).

It would seem that the Court pays particular attention to state consent as the foundation of its jurisdiction. Therefore, in the absence of such consent, it refuses to engage with the subject-matter sub judice. In this context, the Monetary Gold rule can be seen as a procedural obstacle to litigant’s attempts to bypass state consent as a requirement to ICJ jurisdiction.

Sudan and Al-Bashir: Are they indispensable parties in the Appeals Chamber immunity litigation?

In the current Al-Bashir litigation, the formulation of the first and second ground of appeal put squarely before the Court questions concerning Sudan’s right to respect for the immunity of its Head of State, as well as the scope of Sudan’s obligations under SC Res 1593.

In this situation, Jordan, governmental organisations and academics are arguing the immunity afforded by international law to Sudan and its president and its applicability under the ICC Statute and general international law – in the absence of Sudan and Al-Bashir. To compound the situation, this happens without any indication that Jordan – or anyone else for that matter – is acting on behalf of Sudan or Al-Bashir. Sudan’s entitlement to international respect for the immunity of its head of State appears inextricably intertwined with the question of Jordan’s obligation to disregard it, arrest and surrender him to the Court. Equally, an adverse interpretation of SC Res 1593/2005 may lead to the imposition of important obligations upon Sudan. In a situation where the rights of one state and the obligations of the other appear to constitute two sides of the same coin, can it be said that the litigation is inappropriate in the absence of one of them?

Beyond the state level, President Al-Bashir has human rights relating to a fair trial. In that context, an Appeals Chamber decision declaring that the immunity of the Sudanese President is not applicable before the Court may be issued soon. Such a ruling made in his absence may prove of considerable importance, if the suspect is one day arrested and brought before the Court. Against that backdrop, should the appeal be declared inadmissible in the absence of the suspect to avoid prejudice to his eventual defence?

The argument against using Monetary Gold – or a variant thereof – in the ICC Context

To begin with, critics would suggest that Monetary Gold or indispensable party considerations are inapplicable in the ICC context. The Statute provides that no trial may take place in absentia and to that extent, it may be said to make the presence of an accused indispensable for the trial process. However, the drafters did not choose to add such requirement for the pre-trial process. Therefore, since such requirement is not explicitly included in the Statute, it cannot be devised, lest the Court usurp the role of the ASP in the formulation of the Rules of Procedure.

Secondly, the analogy between ICJ and ICC proceedings is inapposite, as far as the principle justification for the transposition of Monetary Gold is concerned. The foundation of ICJ jurisdiction is consent. The Statute and the Rules provide the details through which such consent can be given to the Court. The same, however, is not necessarily true as regards ICC jurisdiction in the case of SC referrals. The two-tier ICJ approach to jurisdiction was proposed by the ILC in its draft ICC statute in 1994 but was rejected by the drafters in Rome. It is true that the Court’s creation is due to state ratification. However, the Court also acts as a substitute for ad hoc tribunals, insofar as the Rome Statute allows for a Security Council referral under Chapter VII. In the Al-Bashir case specifically, the Court is acting pursuant to a Security Council resolution adopted under Chapter VII of the UN Charter. In these circumstances, its function is not that much different to that of a fictional ‘International Criminal Tribunal for Sudan’, in the tradition of the ICTY and the ICTR. In this context, the discussion on consent can proceed no further than the admission of Sudan to the UN and its obligation to abide by binding SC Resolutions.

Third, even if Monetary Gold or a variant thereof did apply, it is not clear whether the rights of Sudan and its President constitute the ‘very subject-matter’ of the litigation. The main issue properly defined is whether Jordan failed to uphold its obligations under the ICC Statute and the UN Charter. These are obligations owed to the Court. Therefore, the Court has a clear legal interest in seeking legal redress to their purported violation. Jordan’s justifications for failing to do so are relevant; however, they are only incidental to the discussion. The final decision will concern Jordan’s failure to respect its international obligations owed to the Court. Sudan’s immunities will be incidental, but not the main issue. For example, if Jordan presented a different excuse, the main subject-matter would remain the same, regardless of Sudan’s rights or duties (e.g. inability due to a natural disaster). This can only be an secondary issue due to the adoption of article 98 of the Rome Statute.

Fourth, there is no human right under international law to choice of jurisdiction. Considerations of fair trial therefore are not relevant, to the extent that they would be argued in a ‘forum shopping’ in criminal matters type of exercise.

The argument in favour of using Monetary Gold – or a variant thereof – in the ICC Context

At the same time, however, there is also an argument to be made in favour of using Monetary Gold or a variant thereof in the present proceedings.

First, under general international law, immunities are a right of a state. In this case, the immunity of Sudan and its head of state constitute international rights of Sudan. Therefore, no other state in the world has the same legal interest as Sudan in a finding that such immunities do not exist or are not applicable in the ICC context. It is the right of Sudan that generates an obligation for Jordan, which the latter is bound to respect. Therefore, in this case, Jordan’s claim of an obligation is directly connected to Sudan’s sovereign rights. Arguably, the source of such obligations is not only customary law, but also treaty law (the 1953 Arab League Treaty). Therefore, in the same way the ICJ refused to discuss the validity of the Timor Gap Treaty between Australia and Indonesia in the absence of Indonesia in East Timor, the ICC should also refuse to discuss the legal effect of a treaty in the absence of the key party before it. It is not possible to make a determination in this litigation without ruling on Sudan’s international rights, in its absence. Finally, it is worth noting that Sudan never authorised Jordan or the Arab League or the African Union to act on its behalf and represent it before the ICC on the adjudication of its rights (immunities) and obligations (under UNSC 1593/2005).

Secondly, the proceedings under consideration would in effect render meaningless article 19(2)(a) and (b) of the Rome Statute. Under these provisions, Sudan and Al-Bashir have the right to raise a challenge to the jurisdiction of the Court. It does not take much imagination to contemplate an immunity challenge to jurisdiction, once the suspect is in custody. However, the present litigation may result issue a final decision on point, albeit clothed in the typical ‘without prejudice’ language. Be that as it may, however, it is difficult to see how this decision will not pre-empt and render meaningless any possible challenges to jurisdiction on the basis of immunity. It is true that decisions of the Chambers are not binding; it is also true that such decision does not mean that the suspect cannot bring other types of challenges to jurisdiction. However, a final decision by the Appeals Chamber on point would pre-judge an important right of the suspect under the statute and his state of nationality and in their absence to boot.

Third, the ICC is no stranger to procedural innovation, when it felt that it was needed. It has adopted procedural novelties as an expression of its implied or inherent powers, for example as regards its authority to stay proceedings or to decide no-case-to-answer motions and declare a mistrial. Making a decision on the inadmissibility of this appeal – at least as regards the first two grounds – in order to preserve the judicial process could be argued therefore as a matter within the scope of its judicial duties. After all, it is the Court’s responsibility to satisfy itself of its jurisdiction under article 19(1) of the Statute; this duty cannot be outsourced to anyone else.

Concluding Remarks

This blog post offered some brief thoughts on the application of the Monetary Gold rule in the Al-Bashir immunities litigation. The Appeals Chamber seems aware of the difficulties. It has already invited Sudan and President Al-Bashir to submit observations – to no avail. It has acknowledged that they are ‘concerned in the legal questions’ of this appeal.

As things stand presently, we are faced with an ICC litigation where Jordan, the Arab League, the AU and certain academics are arguing for Sudan’s immunities and its obligations under SC Res. 1593/2005 in Sudan’s absence. The Court is required to balance safeguarding the integrity of the eventual subsequent process against the need to send a clear message to states that Al-Bashir must be arrested. It remains to be seen which way the balance will finally tilt. In this delicate exercise, the Court’s final decision is anticipated with interest.