A Thought Experiment About Complementarity and the Jordan Appeal Decision

Imagine the following situation, S1. During a bitter and very one-sided armed conflict, the President of Alpha commits genocide on the territory of Beta. Alpha is not a member of the ICC; Beta is. When the President of Alpha attends a peace conference in Beta, Beta arrests him and prosecutes him for genocide.

In this scenario, Beta has clearly violated international law. The President of Alpha has Head of State (HoS) immunity by virtue of his governmental position. Pursuant to the ICJ’s decision in the Arrest Warrant case, that immunity prohibited Beta from arresting the President, to say nothing of prosecuting him.

The Appeals Chamber specifically endorsed this aspect of Arrest Warrant in the Jordan appeal decision. Here is para. 101:

The Appeals Chamber notes that Head of State immunity, which has been asserted in the case at hand, is a manner of immunity that is, as such, accepted under customary international law. That immunity prevents one State from exercising its criminal jurisdiction over the Head of State of another State. It is important to stress that immunity of that kind operates in the context of relations between States.

Now let’s change the scenario. In S2, hoping to put pressure on Alpha to end the war, Beta self-refers the situation in Beta to the ICC. The ICC opens an investigation and issues an arrest warrant for the President of Alpha. When the President attends the peace conference in Beta, Beta arrests him and surrenders him to the ICC.

This is not the same situation as in the Jordan appeal, because in S2 there is no Security Council resolution referring the President of Alpha to the ICC. The basis of jurisdiction is territorial: the President committed genocide on the territory of Beta, a member state, which self-referred the situation. It is nevertheless beyond doubt that the Appeals Chamber would hold that Beta did not violate the President’s HoS immunity. In its view, because Heads of State do not have immunity before the ICC (as an international court), they also do not have HoS immunity from arrest by a member state that is acting pursuant to an ICC request:

114. The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State. As further explained in the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa and correctly found by the Pre-Trial Chamber in the Malawi Decision, no immunities under customary international law operate in such a situation to bar an international court in its exercise of its own jurisdiction.

117. In sum, the Appeals Chamber finds that there was no rule of customary international law that would have given Mr Al-Bashir immunity from arrest and surrender by Jordan on the basis of the request for arrest and surrender issued by the Court. It follows that there was no ground for Jordan not to execute the request for arrest and surrender and that therefore it did not comply with its obligation to cooperate with the Court pursuant to articles 86 et seq. of the Statute.

Now let’s change the scenario again. In S3, hoping to put pressure on Alpha to end the war, Beta self-refers the situation in Beta to the ICC. The ICC opens an investigation and issues an arrest warrant for the President of Alpha. When the President attends the peace conference in Beta, Beta arrests him. This time, however, Beta does not surrender the President to the ICC. Instead, exercising its right under Art. 17 of the Rome Statute, it prosecutes him for genocide itself.

I see nothing in the Jordan appeal decision that rules out S3. If the ICC arrest warrant entitled Beta to arrest and surrender the President of Alpha to the ICC despite his HoS immunity, surely it entitled Beta to arrest the President and prosecute him itself. The principle of complementarity is a foundational part of the ICC’s jurisdictional regime. Beta has thus managed to evade HoS immunity simply by self-referring the situation on its territory to the ICC, waiting for the Court to issue an arrest warrant for the President, and then arresting him “pursuant to the warrant.”

S3, however, hardly seems consistent with the idea of HoS immunity – especially given the Appeals Chamber’s handy reminder (para. 127) that “[t]he law does not readily condone to be done through the back door something it forbids to be done through the front door.” Yet the Jordan appeals decision not only makes such back-door evasion of HoS immunity possible, it creates a positive incentive for states in Beta’s situation to launder their desire to prosecute a sitting HoS through the ICC by self-referring.

It is also important to recognize that the same analysis would apply to a similar, and perhaps more likely, situation — S4 — in which the President of Alpha was arrested not by Beta but by a different member-state, Gamma. If the ICC sought the President’s surrender and Beta sought his extradition, Gamma would be entitled under Art. 90 of the Rome Statute to prioritize Beta’s extradition request as long as Beta obtained a ruling from the Court that the President’s case was inadmissible. (Because of Beta’s investigation.) So once again Beta would be able to evade the President’s HoS immunity – this time dragging yet another state into its machinations.

To be fair, the Appeals Chamber seems to be vaguely aware that scenarios like S3 are possible. After making its “back door” comment, it said the following concerning the Jordan situation:

It must be noted that, in such situations, the requested State Party is not proceeding to arrest the Head of State in order to prosecute him of her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of proper jurisdiction.

Unfortunately, the Appeals Chamber does not say that HoS immunity would continue to apply in a situation like S3. (Or in S4, where the result is the same.) Moreover, and more importantly, nothing in the Jordan appeal decision suggests that it would. After all, the principle of complementarity is a foundational part of the ICC’s jurisdictional regime. When a state permits the Court avoid a long and costly prosecution by genuinely prosecuting the same suspect for the same conduct, it is “lending assistance to the Court in the exercise of its proper jurisdiction.” Indeed, no assistance could be more useful.

Other scholars – most notably Dapo Akande, Dov Jacobs, Ben Batros, and Asad Kiyani – have ably criticised aspects of the Jordan appeal decision, and I recommend their posts highly. This post simply provides yet another reason to think that the decision is irremediably flawed: it makes scenarios like S3 and S4 possible, despite the fact that they cannot be reconciled with any coherent understanding of the horizontal effects of HoS immunity.