Resolving the
Al-Bashir
Conundrum:
In Light of the Conflicting Opinions of the ICC Pre-Trial
Chamber Judges on the Legal Basis for Finding State
Parties Including South Africa Non-compliant with the
ICC Request for the Arrest and Surrender of Omar
Al-Bashir, Are State Parties to the Rome Statute Under an
Obligation to Arrest Al-Bashir and Surrender Him to the
ICC?
By James Onalaja
1
1 2017/18 LLM Candidate, Amsterdam Law School, University of Amsterdam and Certificate of Studies,
Columbia Law School, Columbia University New York; Barrister-at-Law, Chambers of Andrew Trollope QC and Richard Christie QC, 187 Fleet Street, London; Called to Bar of England and Wales; Member of the Honourable Society of Lincoln’s Inn; Member of the Association of Military Courts Advocate and the Criminal Bar Association of England and Wales; PG.Dip. Professional and Legal Skills, Inns of Court School of Law, City University; LLB Hons., University of Durham.
Dedication and Gratitude:
• This paper is dedicated to the memory of Sergey Prokofiev (1981- 2013): An
enthusiastic academic; accomplished lawyer; fearless advocate and above all; a true friend.
• The author is grateful to Professors Harmen van der Wilt, Goran Sluiter and Lori
Damrosch for their guidance and stewardship throughout the Masters programme and the drafting of this paper.
• The author is further grateful to colleagues at the: Chambers of Andrew Trollope QC
and Richard Christie QC, 187 Fleet Street London; Amsterdam Law School and; Columbia Law School for their support and encouragement throughout the Masters
programme.
Table of Contents
Abstract p. 5
Chapter 1: Introduction p. 6
Chapter 2: Background p. 10
Chapter 3: The Legal Basis for Al-Bashir’s Immunity as Head of State p. 12 3.1: The Personal Immunities Enjoyed by Al-Bashir as a Seating Head
of State p. 12
3.2: Contrasting Al-Bashir’s Personal Immunity with Functional Immunity
of State Officials p. 13
Chapter 4: Is there an Exception Under Customary International Law to the Principle of Head of State Immunity with Respect to
Proceedings Before International Criminal Tribunals p. 15 4.1: Analysis of the ICC PTC’s Reasoning in its Al-Bashir/Malawi
Decision re an Established Exception Under Customary
International Law p. 15
4.2: Is there an Emergence of a New Exception to the Customary International Law Principle of Personal Immunities Before
International Criminal Courts? p. 22
Chapter 5: The Basis for the Jurisdiction of the International Criminal Court and the Impact of Articles 27(2) and 98 Rome Statute on Immunities p. 27 5.1: Basis for the ICC’s Exercise of Jurisdiction and the Obligation
to Cooperate p. 27
5.2: The Impact of Articles 27(2) and 98 Rome Statute on Immunities
of State Parties & Non-Parties p. 28
Chapter 6: The Impact of Security Council Resolution 1593 on Al-Bashir’s
Immunity p. 31
6.1: The ICC’s 2017 Majority Reasoning p. 31
6.2: Support for the ICC’s Conclusion and Reasoning p. 32 6.3: An Analysis of the Arguments Against the ICC Majority’s
6.3.1: Can the UNSC Impose an Obligation on Sudan which
Violates a Principle of Customary International Law p. 36 6.3.2: Does UNSCR 1593 in fact make Sudan’s Customary
International Law Right to its Head of State’s Personal Immunity Inapplicable with Respect to the Darfur
Situation? p. 37
6.4: The Approach to Interpreting UNSCR 1593 p. 37
6.4.1: Considering the Ordinary Meaning of the Text of the
Resolution and Statute p. 38
6.4.2: Considering the Object & Purpose and the Context of the
Resolution p. 40
6.4.3: Subsequent Practice of the UN Organs and Affected States p. 43 6.4.4: Statements by Members of the UNSC and other UNSC
Resolutions p. 44
6.5: The Rights and Obligations on a Balance p. 44
6.6: Is the Issuing of an Arrest Warrant a Violation of Al-Bashir’s
Personal Immunity? p. 45
Chapter 7: What is the impact of the Genocide Convention on Al-Bashir’s Immunity and on the Obligations of State Parties to the ICC
with Respect to the Execution of the Warrant? p. 47
7.1: Judge Brichambaut’s Reasoning p. 47
7.2: Analysis of the Arguments re Impact of the Genocide Convention p. 49
Chapter 8: Conclusion- Where do we go From Here? p. 54
Bibliography: p. 57
Abstract:
This paper considers the variety of legal bases provided by the International Criminal Court (ICC) for the removal of Sudanese President Al-Bashir’s immunity. In seeking to clarify whether the ICC’s warrant for Al-Bashir’s arrest imposes a lawful obligation on State parties, the paper clarifies the position with respect to customary international law and analyses the impact of: The United Nations Security Council Resolution (UNSCR) 1593 (2005); the Rome Statute including Articles 27 and 98, and the Genocide Convention. It is argued that Al-Bashir’s personal immunity are not removed simply because he faces
allegations before an international criminal court. Whilst it is accepted that there are strong arguments on both sides and that acting under Chapter VII United Nations(UN) Charter powers, the United Nations Security Council (UNSC) may impose obligations on Sudan which makes inapplicable Al-Bashir’s personal immunity, it is argued that in so acting the UNSC must use words which makes clear the intention to deviate from such an important rule of customary international law. It is argued that in light of the ambiguity within both UNSCR 1593 and the Rome Statute, Sudan’s obligation ought to be interpreted consistently with customary international law and as such Al-Bashir’s immunities under customary international law remain applicable. On balance, as a result, and in line with Article 98(1) Rome Statute, it is argued the Court may not request that State parties arrest and surrender Al-Bashir without first obtaining Sudan’s waiver of his personal immunity. It is argued that the fact that Sudan is a party to the Genocide Convention, does not change the position.
Chapter 1: Introduction
1. On the 6th July 2017, the International Criminal Court2 Pre-Trial Chamber II3
published its decision under Article 87(7) of the Rome Statute on South Africa’s non-compliance with its request for the arrest and surrender of President Omar Al-Bashir of Sudan4. In their respective majority and minority decisions, the PTC found that the immunities enjoyed by Al-Bashir as President of Sudan did not bar State parties to the Rome Statute from executing the court’s request for his arrest and surrender and thus South Africa had failed to comply with its obligation under Article 86 Rome Statute by not executing the arrest warrant when Al-Bashir was on its territory. However, in reaching their decision the majority and the minority of the PTC provided conflicting legal bases for the removal of Al-Bashir’s immunity.
2. The majority of the PTC found that the effect of the United Nations Security Council5 resolution triggering the ICC’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the Court, is that, for the limited purpose of the situation in Darfur, Sudan now has rights and duties analogous to those of State parties to the Rome Statute and thus removing Al-Bashir’s immunity by virtue of Article 27(2) of the statute. As a result, the majority found that Article 98(1) Rome Statue was inapplicable as there was no longer a need for Al-Bashir’s immunity to be waived by Sudan6.
3. It was however the minority view of Judge De Brichambaut that it could not be firmly concluded as a result of UN Security Council Resolution 1593 (2005)7 which referred the matter to the Court, that Sudan’s position was now analogous to that of State
2 Hereinafter, the ICC. 3 Hereinafter, PTC.
4 Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the non-compliance by the South Africa with the
request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute, 6 July 2017, ICC- 02/05-01/09-302;
hereinafter ICC Al-Bashir/South Africa July 2017 Majority Decision.
5 Hereinafter, UNSC.
6 ICC Al-Bashir/South Africa July 2017 Majority Decision, para 107. 7 Hereinafter, UNSCR 1593.
parties to the Rome Statute8. Judge De Brichambaut however held that as a result of Sudan and South Africa being parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide9 and the fact that the ICC had issued a warrant for the arrest of Al-Bashir for his alleged responsibility for genocide (amongst other alleged crimes), Al-Bashir’s immunity is removed for the purpose of prosecution before an international penal tribunal such as the ICC. It was on this basis that he found that South Africa would not have acted inconsistently with its obligations under international law with respect to Al-Bashir’s immunity, and had thus failed to comply with its obligation under the Rome Statute10.
4. To further complicate the position, it was the majority’s conclusion that the Genocide Convention did not render inapplicable Al-Bashir’s immunity as a sitting Head of State as it does not mention immunity based on official capacity, and the majority did not see a convincing basis for a constructive interpretation of the provision which could give rise to an implicit exclusion of immunities11. It is further of note that earlier decisions of the ICC PTC with regards to the effects of UNSCR 1593 have been based on varying and mutually inconsistent reasoning and contradictory interpretations.
5. In the December 2011 decisions regarding Malawi and Chad’s non-compliance with the ICC Al-Bashir arrest request, the PTC concluded that there existed a special customary international law exception to immunities of Heads of States when facing allegations before international courts, whilst failing to properly address the impact of Article 98 of the Rome Statute12. In an apparent determined departure from this reasoning, the PTC has been criticised for not providing an explanation for this
8 The Minority Opinion of Judge De Brichambaut in Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on
the non-compliance by the South Africa with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute, 6 July 2017, ICC- 02/05-01/09-302-Anx; Hereinafter ICC Al-Bashir/South Africa July 2017 Minority Opinion, see paras 39 to 58 (particularly 58). See also paras 88 and 99.
9 Hereinafter, the Genocide Convention or the Convention.
10 ICC Al-Bashir/South Africa July 2017 Minority Opinion paras 37 – 38 and 106. 11 ICC Al-Bashir/South Africa July 2017 Majority Decision para 109.
12 Decision Pursuant to Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation
Request Issued by the Court with Respect to the Arrest and Surrender of Omar Al Bashir, the Prosecutor v Al Bashir, PTC 1, 12th December 2011 (ICC-02/05-01/09), (Hereinafter, Al-Bashir/Malawi December 2011
Decision) at paras 22 – 43; Decision Pursuant to Article 87(7) on the Failure of the Republic of Chad to Comply with the Cooperation Request Issued by the Court with Respect to the Arrest and Surrender of Omar Al Bashir, the Prosecutor v Al Bashir, PTC 1, 13th December 2011 (ICC-02/05-01/09) (Hereinafter, Al-Bashir/Chad
departure13. In the PTC decision re Democratic Republic of Congo’s14
non-compliance and a previous decision on South Africa’s obligations re the Al-Bashir warrant, the PTC had been of the view that the duty imposed on Sudan to cooperate fully with the ICC by the said UNSCR amounted to a waiver of the immunity of Sudanese officials including Al-Bashir’s as a sitting Head of State15.
6. In light of the growing tensions between some State parties to the Rome Statute (most notably African Union16 and Arab League members States17) and the ICC on the issue of the execution of the Al-Bashir arrest warrant, this PTC decision will not be the final ruling on the matter18. It is arguable that the contradictory nature of the PTC’s legal reasoning has exacerbated the confusion as to whether Al-Bashir continues to enjoy immunity from prosecution whilst in office and the obligations of State parties with respect to the ICC’s arrest warrant, both under the Rome statute and under customary international law. It is argued that the deficiencies in the Court’s reasoning undermines its credibility and as a result, its ability to protect future victims of
atrocities. This is likely to arise by: providing non-States parties with an incentive not to ratify the Rome Statute; alienating some States parties possibly to the extent of withdrawal and thus reducing or eradicating the necessary local cooperation essential for the ICC to achieve its aim of ending impunity for the serious crimes of concern to the international community set out at Article 5 of its Statute19.
7. In seeking to clarify the legal position, this paper will: set out the background to the
13 C Kreb & E. Pobjie. ‘Written observations as amicus curiae on the merits of the legal questions presented in
The Hashemite Kingdom of Jordan’s appeal against the “Decision under Art 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender of Omar Al-Bashir” of 12th
March 2018 (1CC -02/05- 01/09-326) [Dated 18th June ‘18] at para 5. 14 Hereinafter DRC.
15 Decision Pursuant to Article 87(7) on the Failure of the DRC to Comply with the Cooperation Request Issued
by the Court with Respect to the Arrest and Surrender of Omar Al Bashir, the Prosecutor v Al Bashir, PTC II, 9th April 2014 (ICC-02/05-01/09) at para 29 (Hereinafter, Al-Bashir/DRC April 2014 Decision); Prosecutor v
Al-Bashir, Case No. ICC-02/05-01/09, Decision Following the Prosecutor’s Request for an Order Further Clarifying that the Republic of South Africa is under the Obligation to Immediately Arrest and Surrender Omar Al-Bashir [13 June 2015] (Hereinafter, Al-Bashir/South Africa June 2015 Decision) at paras. 6 and 7.
16 Hereinafter, AU. 17 Hereinafter, AL.
18 The PTC granted Jordan leave to appeal the 11th December 2017 decision re Jordan’s non-compliance with
the Court’s request for Al-Bashir’s surrender (ICC-02/05-01/09-309) which was firmly in line with its July 2017 majority decision re South Africa. See: Decision on the request for leave to appeal (ICC-02/05-01/09-319) dated 21st February 2018.
19 See A Kiyani, “Al-Bashir and the ICC”: The Problem of Head of State Immunity” 12 Chinese J. Int’l L. 467
current situation (Chapter 2); consider the legal basis for Al-Bashir’s immunity as a seating Head of State (Chapter 3); consider whether there is an applicable exception to the principle of personal immunities before an international criminal court (Chapter 4); set out the basis for the ICC’s exercise of its jurisdiction under the Rome Statute and the impact of Articles 27 and 98 on immunities (Chapter 5); Analyse the impact of UNSC 1593 (Chapter 6) and the Genocide Convention (Chapter 7) on Al-Bashir’s immunity and the obligations of member States.
Chapter 2: The Background
8. Sudan is not a party to the Rome Statute. During the heat of the conflict in its Darfur region between the Sudanese government forces, the allied Janjaweed militia and other armed rebel groups20, resulting in reported atrocities including the alleged rapes and murders of civilians, on the 31st March 2005 the UNSC acting under Chapter VII of the UN Charter and in accordance with Article 13(b) Rome Statute, referred the Darfur situation to the prosecutor of the ICC. By paragraph 2 of the UNSCR 1593, the UNSC decided that “the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and , while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully”.
9. On the 4th March 2009 the ICC issued an arrest warrant for Al-Bashir with respect to seven counts of war crimes and crimes against humanity21. On the 12th July 2010, it issued a further warrant for Al-Bashir’s arrest for three counts of genocide22. The alleged offences were said to have been committed in Darfur between March 2003 and July 2008. Both warrants of arrest were transmitted to State parties to the Rome Statute, requesting the arrest of Al-Bashir and his surrender to the ICC. South Africa was said to have been notified of the request on the 5th March 2009 and 16th August 2010 respectively23.
10. On the 13th June 2015, Al-Bashir entered South Africa in order to attend an AU summit occurring there between 7th and 15th June 2015. The Registrar, aware of Al-Bashir’s intention to attend the said summit had further notified the competent
authorities in South Africa of the request for cooperation, requesting that South Africa arrest and surrender him to the ICC should he enter South African territory. On the 15th June 2015, Al-Bashir left South Africa without South Africa arresting and
20 Between 2003 and 2008.
21 See: Warrant of arrest for Omar Hassan Ahmad Al-Bashir, 4th March 2009, ICC-02/05-01/09-01[
https://www.icc-cpi.int/CourtRecords/CR2009_01514.PDF]
22 See: Second Warrant of Arrest for Omar Hassan Ahmad Al-Bashir” 12th July 2010, ICC-02/05-01/09-95
[https://www.icc-cpi.int/CourtRecords/CR2010_04825.PDF].
23 See reference in ICC-02/05-01/09-239-Conf-Anx1 and ICC Al-Bashir/South Africa July 2017 Majority
Chapter 3: The Legal Basis for Al-Bashir’s Immunity as Head of State
3.1: The Personal Immunities Enjoyed by Al-Bashir as a Seating Head of State
11. It is a firmly established principle of customary international law that certain current holders of high ranking offices of State, such as the Heads of State, Heads of
Governments and Ministers of Foreign Affairs enjoy immunities from jurisdiction in foreign States both with respect to civil and criminal matters24. The International Court of Justice25 observed that this said immunity, generally referred to as personal immunities26, are not granted for the personal benefit of these specific office holders but are attached to the said office holders in order to ensure the effective performance of their functions on behalf of their respective States. This customary international law is reflected in the preamble of the Vienna Convention on Diplomatic Relations 196127 although the VCDR does not contain any provision which specifically defines immunities enjoyed by a Head of State28. Therefore, throughout the duration of Al-Bashir’s term of office, he ordinarily enjoys full immunity from criminal jurisdiction and inviolability. This protects him against any act or authority of another State which would hinder him in the performance of his duty as Head of State29.
12. There is no dispute that attending international and/or regional summits are part of the functions of a Head of State. However, the personal immunity enjoyed by a Head of State is more wide-ranging than that enjoyed by diplomats or ordinary functional immunity. It applies whether or not Al-Bashir is travelling outside of Sudanese jurisdiction or whether he is abroad for Sudanese State business or for a private purpose. As a result, no distinction may be drawn between alleged criminal acts performed in his official capacity and those allegedly performed in a private capacity and irrespective of whether the alleged acts were performed whilst in office or prior to taking office30. As this immunity belongs to the State and not the individual, only the
24 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Merits
[2002] ICJ Rep. 3 [Hereinafter, Arrest Warrant Case] para 51.
25 Hereinafter, ICJ.
26 Or immunity ratione personae. 27 Hereinafter, VCDR.
28 Arrest Warrant Case para 52 – 3. 29 Arrest Warrant Case para 53
30 Arrest Warrant Case para 54 – 55; Certain Question of Mutual Assistance in Criminal Matters (Djibouti v
France), Judgement, ICJ Report 2008, 177, para 170; A. Kiyani, para 6. It is clear from the Pinochet Case that the said judgement only applied to functional immunities which are attached only to the official functions of a
State may waive it31.
3.2: Contrasting Al-Bashir’s Personal Immunity with Functional Immunity of State Officials
13. The personal immunity enjoyed by Al-Bashir is thus very different to ordinary functional immunity32 which is linked to the maxim of sovereign equality that a State’s policies and actions cannot be judged without the consent of that State. It is accepted that functional immunity only protects conduct carried out on behalf of a State by all those who carry out State functions, and remain attached to the act even after the official has left office. Therefore, alleged criminal acts carried out in a private capacity will not be barred from prosecution by functional immunity33. 14. It is acknowledged, in line with the R v Bow Street Magistrate, ex parte Pinochet (No.
3) that an exception to the protection provided by functional immunity has emerged
with respect to certain international crimes34. Whilst the extent of this exception is beyond the scope of this paper, it is accepted for the purpose of this paper that torture and possibly other serious international crimes, including those within the ICC’s jurisdiction, may not be ranked for functional immunity purposes as official functions due to their jus cogens character35. However, whether their prosecutions will be barred by functional immunities or not is irrelevant with respect to a sitting Head of State. As Lord Browne-Wilkinson stated: “[t]his immunity enjoyed by a head of state in power ….is a complete immunity attached to the person of the head of state… and
State official conducted whilst in office. Indeed, Lord Browne Wilkinson noted that “this immunity enjoyed by a head of state in power … is a complete immunity attached to the person of a head of state… rendering him immune from all actions or prosecutions…”
31 Art 32 VCDR.
32 Also referred to as immunity ratione materiae. 33 Cryer et al, p. 542.
34 [1999] 2 All ER 97, HL; Hereinafter Pinochet No. 3 Case.
35 Six out of seven Law Lords of the UK’s House of Lords (now renamed the UK Supreme Court) held that the
immunity of a former Head of State did not prevent his extradition for acts of torture, each of the Law Lords gave separate opinions providing different and arguably unclear reasoning for their conclusions which have been subjected to differing interpretations by legal commentators, from a restriction of this exception to torture, to possible applicability to other serious international crimes. See for example Lord Millets reasoning at p. 179 which finds support in the opinions of Lords Browne-Wilkinson, Saville and Philips at p. 114 – 115, 169 and 190 respectively. See also Lord Browne-Wilkinson’s comments at p. 113 which finds support in Lord Hutton’s at p. 166.
rendering him immune from all actions or prosecutions…”36 It is furthermore clear from the ICJ’s ruling in the Arrest Warrant Case that the fact that Al-Bashir is alleged to have committed international crimes will not provide an exception under customary international law to the rule re personal immunity from criminal prosecution and inviolability of a sitting Head of State37.
36 Pinochet No.3 Case, [2000] 1 AC 147 at p. 201 – 202. 37 Arrest Warrant Case para 58 – 9.
Chapter 4: Is there an Exception Under Customary International Law to the Principle of Head of State Immunity with Respect to Proceedings Before International Criminal Tribunals?
4.1: Analysis of the ICC PTC’s Reasoning in its Al-Bashir/Malawi Decision re an Established Exception Under Customary International Law
15. In light of the ICC PTC’s reasoning in its 2011 decisions re the non-compliances by Malawi and Chad, that customary international law does not recognise immunities for Heads of State when facing allegations before international courts38, it is necessary to explore this proposition further.
16. The PTC was wrongly of the view that statutes of previous international criminal tribunals provided evidence in support of this conclusion39. Article 7 of the Charter of the International Military Tribunal for Nuremberg40 state that: “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment”. A similar provision was reproduced at Article 6 of the Charter of the International Military Tribunal of Tokyo41. Article 7(2) of the Statute of the International Criminal Tribunal for the Former Yugoslavia42 states: “The official position of any accused person, whether as Head of State or Government or as responsible Government Official, shall not relive such person of criminal
responsibility nor mitigate punishment”.43 Article 6(2) of the Statute of the Special Court for Sierra Leone44 substantially replicates the same terms as all the previous international criminal tribunals’ statutes.
17. It is clear that these provisions simply remove the applicability of the substantive
38 Al-Bashir/Malawi December 2011 Decision at paras 22 – 43; Al-Bashir/Chad December 2011 Decision at
paras 13 - 14.
39 Al-Bashir/Malawi December 2011 Decision paras 24 – 31. 40 Hereinafter, Nuremberg Tribunal.
41 Hereinafter, Tokyo Tribunal. 42 Hereinafter ICTY
43 An identical provision was reproduced in Art 6(2) of the Statute of the International Criminal Tribunal for
Rwanda [Hereinafter, ICTR].
defence of official capacity in relation to allegations before these international criminal tribunals. Neither these provisions set out above nor the entirety of the said statutes make any mention of immunities. It is thus erroneous to conclude that they support a conclusion of the existence of an exception under customary international law to the principle of a sitting Head of State’s personal immunity before international criminal tribunals. There is a clear difference between substantive defences to
allegations and procedural bars to prosecution under which immunities must fall45. As acknowledged by the ICJ in the Arrest Warrant Case, immunity from jurisdiction is not the same as responsibility for the alleged crime and does not mean that the individual also enjoys impunity46.
18. However, Claus Kreb, Paola Gaeta and Patryk Labuda agreed with the ICC Al’
Bashir/Malawi December 2011 Decision47 that its conclusion found support in the ICJ decision in the Arrest Warrant Case and the decision of the SCSL Appeal Chamber in the Charles Taylor Case48. In the Arrest Warrant Case the ICJ stated that “an
incumbent or former Minister for Foreign Affairs may be subject to criminal
proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statue expressly provides, in Article 27, paragraph 2, that “[i]mmunities 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 from exercising its jurisdiction over such a person””49.
45 Kiyani para 35. 46 At para 60. 47 See paras 33 – 36.
48Decision on Immunity from Jurisdiction, CharlesTaylor, SCSL Appeals Chamber, SCSL-2003-01 [31 May
2004]; See P. Gaeta and Patryk I. Labuda “Trying a Sitting Head of State” in Charles Jalloh and Ilias Banketas ed “The International Criminal Court and Africa”, Oxford University Press [2017] at p. 145 – 6; C. Kreb, “Request by Prof Claus Kreb for leave to submit observations on the merits of the legal questions presented in ‘The Hashemite Kingdom of Jordan’s appeal against the decision under Art 87(7) Rome Statute on the non-compliance by Jordan with the request by the Court for arrest and surrender of Omar Al-Bashir of 12th March
2018 No: ICC -02/05-01/09 OA2 [Dated 30th April 18], p. 2; C Kreb & E. Pobjie. ‘Written observations as
amicus curiae on the merits of the legal questions presented in The Hashemite Kingdom of Jordan’s appeal against the “Decision under Art 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender of Omar Al-Bashir” of 12th March 2018 (1CC -02/05- 01/09-326) [Dated
18th June ‘18] at paras 3.
19. Gaeta and Labuda were of the view that this arguably meant that the ICJ did not require the question of immunity to be conclusively regulated in the statute of the relevant court, but that the non-applicability of personal immunities before international criminal courts hinged on whether the court or tribunal possessed jurisdiction over the international crime the State official was charged with50. 20. In the Taylor Case, the SCSL Appeals Chamber similarly relied on the above stated
paragraph from the Arrest Warrant Case in order to conclude that there was now an established norm that the principle of sovereign equality of States which derives the principle of State immunity will not prevent a Head of State from being prosecuted before an international criminal tribunal as it has no relevance because international criminal tribunals are not State organs but derive their mandate from the international community51.
21. Gaeta and Labuda, in agreement with the ICC PTC 2011 decision and the SCSL both reasoned that the rationale for personal immunities is non-existent when international criminal tribunals and courts exercise criminal jurisdiction because whilst it may be useful to protect foreign State officials from the exercise or abuse of jurisdiction by the receiving State at the horizontal level, this is not necessary at the purely
international level where international criminal tribunals are not organs of a particular State. As international criminal tribunals are acting on behalf of the international community as a whole, their jurisdiction cannot be regarded as an expression of the sovereign authority of one State over another, nor can it be considered to be an improper interference with the sovereign prerogatives of another State52.
22. However, it is argued that the SCSL, ICC PTC and Gaeta and Labuda’s reasoning are based on a series of misconceptions. Firstly, as stated in the previous chapter, the principle of sovereign equality is the rationale for functional immunity, it is not the basis for personal immunity as applicable to a sitting Head of State. The basis for personal immunities applicable with respect to a sitting Head of State is to protect international relations by precluding any avenue to interfere with high representatives
50 P. Gaeta and P. Labuda at p. 145 – 146. 51 Taylor Case, at para 51 – 52.
without the consent of their sending State53. As the ICJ set out in the Arrest Warrant
Case, it is granted to ensure the effective performance of the functions of the high
representatives for the benefit of their respective States. “Even the mere risk that by travelling to or transiting another State a [Head of State] might be exposing himself or herself to legal proceedings could deter the [Head of State] from travelling
internationally when required to do so for the purpose of the performance of his or her official functions”54. It is argued that it matters not whether this risk stems from prosecutions before national courts or prosecutions before an international court, the risk will still hamper the ability of a sitting Head of State to carry out his or her official functions. Attempting to side step the issue of immunity by arguing that an international court is not a State amounts to a superficial argument. An international court is a creation of States. If individual States do not have the power to ignore the personal immunity of a third State without consent, those group of States acting together “cannot create an international court and bestow upon it a power that they do not possess”55.
23. Secondly, it is argued that the said sub-paragraph 61 in the Arrest Warrant Decision which led to the SCSL, ICC PTC and Gaeta et al’s reasoning is an obiter dictum lacking any detailed analysis in order to give birth to such a conclusion. It is pure speculation as to whether the ICJ intended such far reaching consequences or in fact simply omitted to qualify its proposition appropriately as this was not necessary for the purpose of adjudicating on the specific issues in that particular case. Evidently, the Court did not hear submissions from the parties on this point. The dictum clearly has the potential to drastically and incorrectly restrict the immunity afforded by
international law without proper consideration of all necessary factors.
24. One important factor is that this sub-paragraph must be read together with the preceding paragraphs in order to reveal the most appropriate interpretation of it. In considering the preceding paragraphs, it is clear that the ICJ first acknowledged that none of the decisions or statutes of the Nuremberg and Tokyo tribunals, the ICTY, the
53 See Cryer et al, “An Introduction to International Criminal Law and Procedure” (3rd Edition Cambridge
University Press) [2014] at p. 563.
54 Arrest Warrant Case paras 53 and 55.
55 Cryer et al, “An Introduction” at p. 563; Akande, “ICC Issues Detailed Decision on Bashir’s Immunity (…At
ICTR, the ICC or the international conventions on the prevention and punishment of certain serious crimes affect the immunities of a serving minister of foreign affairs before a foreign national court with respect to international crimes under customary international law56. The ICJ then progressed to address an apparent concern that its ruling may lead to impunity for some officials by emphasizing that immunity from jurisdiction enjoyed by an incumbent Foreign Minister does not mean that the
individual enjoys impunity. Whilst jurisdictional immunity may bar prosecution for a certain period of time or for certain offences, it cannot exonerate the individual from all criminal responsibility57. The ICJ then proceeded to set out certain circumstances where the immunities of an incumbent or former Foreign Minister will not bar a criminal prosecution, including: before the courts of the State of the said minister; if the State the minister represents decides to waive that immunity; when the individual ceases to hold that office; before the ICJ moves on to the fourth example set out in the disputed subparagraph relied upon by the SCSL and PTC58.
25. When one considers that the fourth example begins with “...an incumbent or former
Minister… may be subject to criminal proceedings before certain international
criminal courts, where they have jurisdiction…” , it is arguably clear from the italicised words highlighted above that the ICJ was not suggesting that as long as a court can be rightfully termed ‘international’ it may ignore the personal immunities of officials, as interpreted by the SCSL and the PTC in the Al-Bashir/Malawi 2011
Decision. The more plausible interpretation is that this subparagraph was simply part
of a list of possible avenues for recourse against impunity. Cryer et al were of the view that “the ICJ was simply observing that there are international courts with the power to supersede personal immunities in accordance with known principles of law” such as State waiver by treaty as in the case of the Rome Statute or the exercise of Chapter VII UN Charter powers by the UNSC59.
26. Thirdly there is a need to reassess the PTC’s December 2011 interpretation of the case law of historic tribunals used to support this assertion that there now existed an
exception to the customary international law principle of personal immunities of
56 Arrest Warrant Case paras 58 - 59 57 Arrest Warrant Case para 60 58 Arrest Warrant Case para 61.
Heads of State before international criminal courts.60A consideration of the position of those who faced prosecution before the Nuremberg and Tokyo Tribunals provide no support for this assertion. At the time of the said prosecutions, both Germany and Japan had surrendered to the Allies who assumed the position of occupying powers in control of both countries. As a result, any official of the previous Nazi or Japanese regime prosecuted had been removed from office and thus no longer enjoyed any personal immunity.
27. With respect to the relevant ad-hoc tribunal caselaw, although Slobodan Milosevic61 and Milan Milutinovic62 were both indicted and had warrants for their arrest issued whilst they were serving as Head of State of the Federal Republic of Yugoslavia and President of Serbia respectively, these cases provide very limited support for the suggested established exception. By the time Milosevic was surrendered to the ICTY in 2001, he was no longer a serving president following his resignation and had been arrested by the Yugoslav authorities on charges of corruption and abuse of power, with the ICTY furthermore reissuing the arrest warrant. He therefore did not enjoy any personal immunities at the time of his arrest and appeared before the ICTY as a former Head of State63. Milan Milutinovic also surrendered himself to the ICTY after the end of his term in office and thus the immunities of a serving Head of State was not in issue64.
28. Furthermore, neither the cases of Laurent Gbagbo65, Muammar Gaddafi66 and
Charles Taylor provide much support for the PTC’s 2011 assertion. Laurent Gbagbo
was a former Head of State at the time of his arrest and surrender to the ICC and in any event, any existing immunities he enjoyed had been waived by the fact of the Ivory Coast’s declaration of its continuing unconditional acceptance of ICC
60 Al-Bashir/Malawi December 2011 Decision paras 25, 27, 38 – 39.
61 Prosecutor v Slobodan Milosevic, IT-02-54, TCh, Decision on Preliminary Motions [8th November 2001] 62 Prosecutor v Sianovic et al. IT-05-87, TCh. Decision on Milutinovic Motion for Provisional Release – Public
[22 May 2007]
63 Kiyani para 31.
64 Prosecutor v Sianovic et al. IT-05-87, TCh. Decision on Milutinovic Motion for Provisional Release – Public
[22 May 2007] para 10.
65 Prosecutor v Laurent Gbagbo ICC-02/11, PTC III Warrant of Arrest for Laurent Gbagbo [23rd November
2011].
66 See: Situation in the Libyan Arab Jamahiriya, ICC-01/11, PTC I, Decision on the Prosecutor’s Application
Pursuant to Article 58 re Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah al-Senussi [20th June 2011]; Hereinafter the Gaddafi Decision.
jurisdiction under Art 12(3) Rome Statute67.
29. With respect to the ICC issuing of a warrant for the arrest of Gaddafi in proceedings which were later terminated following his death in November 2011 and before any attempt to execute the said warrant, this arguably cannot amount to any meaningful precedent, not least because Gaddafi was indicted after Al-Bashir in June 2011 and was simply placed in the same precarious, heavily disputed and yet to be determined legal position as Al-Bashir68. It is of note that not only was the Taylor Decision arguably based on an inaccurate interpretation of the Arrest Warrant Decision as set out above, it was furthermore arguably an unnecessary decision due to the fact that by the time of this hearing before the SCSL, Taylor was no longer a serving Head of State and thus did not enjoy any personal immunities which could have prevented the court from exercising its jurisdiction over him69.
30. Thus, contrary to the PTC’s assertion in the Al-Bashir/Malawi December 2011
Decision, there is in fact little evidence of state practice or opinio juris that sitting
heads of State may be arrested and tried for international crimes before international courts which stands up to scrutiny.
31. It is thus argued that a better reading of the disputed sub-paragraph 61 of the ICJ
Arrest Warrant Decision is that in its listing of possible avenues for recourse against
official impunity for international crimes for both incumbent and former leading officials of State, the ICJ was simply observing that there are international courts where immunities will not bar prosecutions in accordance with known principles of international law such as State waiver by treaty as in the case of the Rome Statute70 or a prosecution after the said official has left office and or the State of the said official has waived immunity, or (as set out in Chapter 6 below) via the clear express removal of the State’s personal immunity rights by the UNSC acting under Chapter VII
powers, so long as the said international court (whether created under Chapter VII
67 See: Confirmation de la Declaration de Reconnaissance, from President Alassane Outtara (CIV to ICC) [14th
December 2010]. This followed the initial acceptance of the ICC’s jurisdiction by Gbagbo’s government as part of its self-referral of the situation surrounding the armed rebellion against his rule which started on 19th
September 2002. See letter from Bamba Mamadou, Minister of State (CIV) to ICC [18th April 2003] at
www.icc-cpi.int ; Kiyani at para 29.
68 Kiyani, at para 30.
69 As admitted by the SCSL at para. 59.
powers or by treaty) has jurisdiction over the said allegations.
4.2: Is there an Emergence of a New Exception to the Customary International Law Principle of Personal Immunities Before International Criminal Courts?
32. Some legal commentators have argued that there is an emergence of a new rule of customary international law that incumbent Heads of State and other officials do not enjoy personal immunities before international criminal tribunals because these tribunals intervene in the domestic prerogatives of a State by claiming the right to start criminal prosecutions, which is a curtailment of State sovereign power. This infringement of State sovereignty by international criminal law enforcement is argued to be justified on the basis of Larry May’s international harm principle71 as
humanitarian crisis must involve the interest of the entire international community. Accordingly, it is argued that crimes within the jurisdiction of international criminal tribunals must qualify as a justification for such curtailment72.
33. Van der Wilt argues that “if we accept that international criminal courts are authorised to make incursions on state’s sovereignty, it requires only a small step to understand that this must have repercussions for – personal and functional – immunities”. He argues that both functional and personal immunities signify the identification of the State and its representatives and that conception dovetails with the ‘act of State’ doctrine which shielded the individual, acting de jure on behalf of the State from responsibility. It is thus argued that the erosion of State sovereignty means that this close connection between the State and its representatives in the face of international criminal law enforcement means that firstly, representatives of the State cannot hide behind the shield of the sovereign State because the very fabric of sovereignty has been eroded; and secondly, the assault on State sovereignty must have repercussions for the State representatives because the State itself cannot be criminally prosecuted. He argues that the principle that international criminal law enforcement is
all-inclusive has been accepted in the context of functional immunity, but the same
71 Larry May, “Crimes Against Humanity: A Normative Account, [Oxford University Press 2005] p. 82 – 83, 72 Harmen van der Wilt, “The Continuing Story of the International Criminal Court and Personal Immunities”,
arguments also apply in respect of personal immunities. He further argues that as international criminal law enforcement focuses on those bearing the greatest
responsibility this cannot be reconciled with a preclusion from criminal responsibility of those who plan and initiate systematic repression of people73.
34. However, the initial flaw in Van der Wilt’s argument is that it is not supported by State practice or opinio juris as demonstrated above. It misses the crucial point that there does not exist an international criminal court or tribunal which curtails the sovereign right of the State in the way he describes without a State willingly
consenting to such a curtailment. As a result, it would arguably be incorrect to suggest that “international criminal courts are authorised to make incursions on state’s
sovereignty” as the incursion has been by way of State consent save when the UNSC has exercised its Chapter VII UN Charter powers which in itself does not necessarily suggest the removal of personal immunities74. In any event one arguably risks painting a misleading picture to conflate the position of international criminal
tribunals created by the UNSC acting under Chapter VII powers and those such as the ICC created by treaty as van der Wilt appears to have done. It will furthermore be gravely misleading to suggest that the very limited instances that the UNSC acting under Chapter VII powers has created international criminal tribunals have paved the way for the emergence of a new exception to the customary international law
principle of personal immunities, which is now generally applicable to all international criminal tribunals.
35. Therefore whilst Van der Wilt’s arguments might support why a State who consents to the ICC’s exercise of its jurisdiction over its nationals may not argue that its
officials enjoy immunity from prosecution, or may even be advanced in support of the assertion that where the UNSC extends jurisdiction over a situation, individuals alleged to be responsible for crimes within the said situation should not be entitled to argue that they enjoy personal immunity from prosecution75, it certainly does not
73 Harmen van der Wilt, “The Continuing Story of the International Criminal Court and Personal Immunities”,
ACIL Research Paper 2015 – 22 available at www.acil.uva.nl and SSRN. at p. 7 – 8.
74 The impact of such a jurisdiction being granted to the Court by the UNSC is discussed in Chapter 6 below,
but it is argued here that this granting of jurisdiction by the UNSC thus far has not sought to remove the customary international law rights of the said State with respect to the personal immunities of its sitting Heads of State.
support the emergence of a customary international law exception of general
application to the principle of personal immunities of a Head of State. In essence, the advocated Larry May principles may well be good policy arguments and justifications for international criminal tribunals to be provided with jurisdiction over certain
international crimes or for restricting immunities, they however do not amount to a legal basis for the said restriction of immunities.
36. Secondly, Van der Wilt conflates (whether intentionally or unintentionally) functional and personal immunities thus resulting in the conflation of the concept of
responsibility for an international crime with concept of immunity from jurisdiction. It is argued that to conflate the two is to mis-state basic principles of criminal law, and as argued by the ICJ, it is essential that these two quite separate concepts are not conflated76.
37. Thirdly, Van der Wilt’s laudable attempt to place international criminal justice on a pedestal of sanctity in the interest of the entire international community could be argued to arise out of a belief that as the purpose of the international criminal justice is to protect the values of the international community, an international court
entrusted to this task will naturally guarantee that the enforcement of these values will not lead to abuse or bias by the court, thus making personal immunities irrelevant77. 38. It is however argued that far from impartially and consistently working towards the
interest of the entire international community, history suggests that the exercise of international criminal justice has arguably involved a partial and selective imposition of justice by the powerful and/or victorious States on the weaker States. Critics point to: the Nuremberg and Tokyo’s tribunals’ focus on Nazi and Japanese atrocities without any attempt to prosecute allied forces responsible for alleged widespread and indiscriminate destruction of German cities such as Dresden and the dropping of the atom bombs on Japanese cities which arguably amounted to intentionally directing attacks against civilian population and objects and/or intentionally launching attacks in the knowledge that they will cause death and injury to civilians and long term
76 Arrest Warrant Case, para 59 – 60.
77 This appears consistent with the SCSL’s reasoning in the Taylor Case and that of Gaeta and Labuda’s
discussed at paras 21 and 22 above. See: C. Kress, “Commentary on the Decision on Immunity from Jurisdiction, Prosecutor v Taylor, Case No. SCSL-2003-01-I, A.Ch., 31st May 2004”; Klip/Sluiter ALC-IX
environmental damage in excess of the military advantage anticipated78; The alleged atrocities carried out by nationals of permanent members States of the UNSC and their allies, where international criminal justice appear powerless to intervene
including as a result of the abuse of veto powers, this includes: The My Lai massacre of up to 500 unarmed civilians by US troops in Vietnam in March 196879; The repeated and ongoing allegations of war crimes by Israeli forces in the occupied Palestinians territories80; The destruction of the Malaysian Airlines flight MH17 allegedly by pro-Russian separatist rebels in the civil war in Eastern Ukraine, which was at the time allegedly under de facto Russian control, and the flight allegedly brought down by a surface to air missile launcher based at a Russian military unit, with evidence pointing to the involvement of Russian military intelligence and causing the death of 298 civilians81; and the ongoing atrocities allegedly by Syrian government forces with the support of Russian forces and other actors on Syrian territory82.
39. It is argued that as a result of this evident partiality in the scope of international
78 E. Langenbacher, “The Allies in World War II: An Anglo-American Bombardment of German Cities” in
“Genocide, War Crimes and the West: History and Complicity”, London Zed Books [2004] at p. 116 – 133; R. Steenhard, “Dresden 1945: “An Allied War Crime?”, Peace Palace Library Blog, [18th February 2011] at:
https://www.peacepalacelibrary.nl/2011/02/dresden-1945-an-allied-war-crime/ [Last viewed 25th July 18]; M.
Hasan, “Hiroshima – War Crime or Not”, NewStatesman [7th August 2010] at:
https://www.newstatesman.com/blogs/mehdi-hasan/2010/08/hiroshima-war-japanese [Last viewed 25th July
2018]
79 See: C. J. Levesque, “The Truth behind My Lai”, New York Time, 16th March 2018 at
https://www.nytimes.com/2018/03/16/opinion/the-truth-behind-my-lai.html [Last viewed 25th July ‘18]. Furthermore, it has been argued that the belated attempts to bring some of those alleged to have been involved in this tragedy to justice in U.S. Courts Martial failed to uphold the laws of war clarified in the Nuremberg and Tokyo tribunals, resulting in the conviction of just one individual, his lenient sentence and a most unsatisfactory outcome for the victims and their families. See: T. Taylor, “Nuremberg and Vietnam: An American Tragedy”, [Chicago: Quadrangle Books Inc. 1970] p. 139.
80 It is of note that rather than supporting the Palestinian Authority in its attempt to utilise the mechanism of
international criminal justice rather than resorting to violence, States such as Canada and the USA have instead joined Israel in threatening the Palestinian Authority for taking steps to refer alleged crimes by Israeli Forces to the ICC. See: M. Blanchfield, “You’ll Face Consequences from Canada if you Take Israel to International Criminal Court: Baird to Palestinians”, National Post [16th March 2013]; J. Kouary, “Palestinian Official says
US Threatens ‘Severe Steps’ if Leaders sue Israel in World Court”, Haaretz, [1st February 2017] at:
https://www.haaretz.com/middle-east-news/palestinians/.premium-palestinians-say-u-s-threatens-severe-steps-if-they-sue-israel-1.5493266 [Last viewed 25th July 18]; J. Schulberg, “Palestinians Join International Criminal
Court Risking loss of U.S. Aid”, Huffingting Post [1st April 2015] at:
https://www.huffingtonpost.ca/entry/palestine-israel-icc-funding_n_6986810 [Last viewed 25th July ‘18].
81 See: Editorial Board, “A Step Closer to the True Story of the Plane Shot Down Over Ukraine”, Washington
Post [26th May 2018] at:
https://www.washingtonpost.com/opinions/a-step-closer-to-the-true-story-of-the-plane-
shot-down-over-ukraine/2018/05/25/e8396ca2-6043-11e8-b2b8-08a538d9dbd6_story.html?utm_term=.3351b82d9df4 [Last viewed 25th July ‘18].
82 Amnesty International Report on Syria 2017/18 at:
criminal justice which critics such as the AU allege points to an inbuilt bias, it is imperative that international courts such as the ICC are not perceived as stretching the basic concepts of international law in order to reinforce and perpetuate the imbalance. It is thus not only imperative that international criminal courts act firmly within the boundaries of international law in order to limit the ensuing threats to their
legitimacy, but in doing so, the customary international law principle of Head of State’s personal immunities remain firmly relevant within the arena of international criminal justice in which they operate, irrespective of its conflation with functional immunities.
Chapter 5: The Basis for the Jurisdiction of the International Criminal Court and the Impact of Articles 27(2) and 98 Rome Statute on Immunities
5.1: Basis for the ICC’s Exercise of Jurisdiction and the Obligation to Cooperate
40. Article 5 Rome Statute sets out the crimes over which the Court has jurisdiction83. Article 12(1) Rome Statute makes clear of the fact that the ICC is a treaty-based court and thus a State accepts jurisdiction of the Court with respect to the crimes set out in Article 5 by becoming party to its statute. A State which is not party to the statute may accept the ICC’s exercise of jurisdiction over the said crimes with respect to a particular situation by lodging a declaration with the Court’s Registrar and as a result will be under the same obligations as a State party to cooperate with the Court and be bound by its statute with respect to that situation84.
41. Sudan is not a State party to the Statute and has not made a declaration under Article 12(3) accepting the ICC’s jurisdiction with respect to the Darfur situation. The ICC is able to exercise jurisdiction over the Darfur situation as a result of the UNSC referral of the situation acting under Chapter VII of the UN Charter in line with Article 13(b) Rome Statute. The impact of the UNSCR referring the Darfur situation to the ICC is considered in detail in Chapter 6 below however, consideration is given in this chapter to the impact of Articles 27(2) and 98 on the immunities ordinarily enjoyed by non-State parties to the Rome Statute.
42. State parties to the Rome Statute such as South Africa are under an obligation to cooperate fully with the ICC in its investigations and prosecution of crimes within its jurisdiction85. This includes an obligation to comply with the ICC’s request for the arrest and surrender of an individual in accordance with the provisions set out in Part 9 of the Rome Statute86.
83 The most serious crimes of concern to the international community as a whole, these being: genocide; crimes
against humanity; war crimes and the crimes of aggression.
84 Art 12(3) Rome Statute. 85 Art 86 Rome Statute 86 Art 89 Rome Statute.
5.2: The Impact of Articles 27(2) and 98 Rome Statute on Immunities of State Parties & Non-Parties
43. Article 27(2) states that “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 from exercising its jurisdiction over such a person”. Article 98(1)
provides that: “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.
44. The PTC in its Al-Bashir/Malawi December 2011 Decision concluded that Article 27(2) reflects customary international law, resulting in the unavailability of immunities with respect to all prosecutions by international criminal courts irrespective of whether the defendant is a national of a State party to the Rome Statute, and further applies equally to enforcement jurisdiction of States which forms an integral part of prosecutions by international courts, irrespective of Article 9887. Some commentators such as Tladi88, Gaeta and Labuda89 argue that Article 27(2) codifies an existing rule of customary international law in that it relates to the inapplicability of personal immunities in relation to the adjudicatory jurisdiction of international criminal courts and not the immunities relating to the enforcement jurisdiction of states when arresting and surrendering a foreign Head of State to the ICC, which they argue does not bar the applicability of personal immunities on a horizontal level.
45. However, it is clear that Article 27(2) simply reflects that by becoming party to the Statute or by making an Article 12(3) declaration, a State waives its customary international law right to the immunities of its seating officials including its Head of
87 See paras 37 – 44, particularly para 44.
88 Tladi, “Duty on South Africa to Arrest and Surrender Al-Bashir under South African and International Law:
Attempting to Make a Collage from an Incoherent Framework [2015] available at:
http://ssm.com/abstract=2626490 [Last visited 10th June 2018] at section 3.3. 89 Gaeta and Labuda at p. 147 & 149.
State. As Akande argues, a better interpretation of Article 27(2) is that it removes immunities including with respect to action taken by national authorities, where they are acting in response to an ICC request. Interpreting Article 27(2) as applying only to actions by the ICC, contrary to the principle of effective treaty interpretation, renders part of that provision meaningless as the ICC has no independent powers of arrest and relies on national authorities90. It is furthermore clear from the wording of Article 27(2) that it removes immunities both at the international and national level as
immunities under national law will only be applicable at the national level as the ICC does not apply national law.91
46. It is thus argued that Article 27(2) Rome Statute will ordinarily only apply to officials of members States and States such as Ivory Coast who have declared an acceptance of the court’s jurisdiction under Article 12(3). It follows that where the ICC requests the arrest and surrender of the Head of State of such States, Article 98 would be irrelevant as the requested State, in executing the arrest warrant, would not be acting
inconsistently with its obligations under international law to respect the immunities of the said States as the rights were waived by becoming a party or by the Article 12(3) declaration. The ICC PTC accepted this as the correct interpretation of Article 27(2) in its July 2017 Al-Bashir/South Africa Majority Decision.92 The ICC therefore may not simply rely on Article 27(2) in seeking to render inapplicable the personal immunity of the Head of State of a non-State party. Nothing in the Rome Statute can remove the immunity belonging to non-State parties to the Statute since the treaty cannot create obligations for third States.93
47. The above stated interpretation of Article 27(2) is consistent with Article 98, which confirms that the customary international law principle of personal immunities pertaining to high officials including the Head of State of non-State parties remain applicable before the ICC and with respect to a request for surrender of such an
90 D. Akande, “The Legal Nature of SC Referrals to the ICC and its Impact on Al-Bashir’s Immunities”, Journal
of International Criminal Justice 7 [2009] 333; p. 337 – 8; See also De Wet, “Referral to the International Criminal Court Under Chapter VII of the United Nations Charter and the Immunity of Foreign State Officials”, 112 AJIL Unbound 33, [2018] at p. 34.
91 D. Akande, ibid.
92 ICC Al-Bashir/South Africa July 2017 Majority Decision at paras 78 - 82
93 Art 34 Vienna Convention on the Law of Treaties [1969]; Akande “The Legal Nature of SC Referrals” [2009]
individual by the ICC. Where the ICC requests from a State party the arrest and surrender of a seating Head of State of a non-State party, the Court may only proceed with such a request if the cooperation of the non-State party has been obtained, by way of a waiver of its customary international law immunity right as the continuation of such immunities would prevent the arrest at the national level94. The question however remains: What is the impact of a UNSC referral of a situation in the territory of a non-state party such as Sudan under Article 13(b) Rome Statute on the existence of any personal immunities enjoyed by its Head of State?
94 De Wet , AJIL Unbound 2018 at p. 34, Gaeta, “Does President Al-Bashir Enjoy Immunity from Arrest”, 7 J.
Int’l Crim Just [2009] 315 at p. 328. This interpretation of Art 98 was correctly supported by the decision of the majority in Al-Bashir/South Africa July 2017 Decision, para 82
Chapter 6: The Impact of Security Council Resolution 1593 on Al-Bashir’s Immunity
6.1: The ICC’s 2017 Majority Reasoning
48. The ICC PTC in the Al-Bashir/South Africa July 2017 Majority Decision, was of the view that the Rome Statute provides for a particular situation where obligations defined in the Statute may become incumbent upon Sudan not as a result of its acceptance of the Statute but as a result of and under the UN Charter. That was the result of the UNSC triggering of the ICC’s jurisdiction over the Darfur situation under Article 13(b) by way of UNSCR 1593, the effect of which is that the legal framework of the Rome Statute now applies in its entirety with respect to the Darfur situation. This is because the object and purpose and the effect of a referral is to enable the ICC to act in the Darfur situation and to do so under the rules according to which it has been designed to act, its Statute95.
49. The PTC further held that by the UNSC imposing on Sudan an obligation vis-à-vis the court to cooperate fully and provide any necessary assistance, the result is that for the limited purpose of the Darfur situation, Sudan has rights and duties analogous to those of State Parties to the Rome Statute96. Whilst acknowledging that this amounted to an expansion of the applicability of an international treaty to a State which has not voluntarily accepted it, the majority of the PTC concluded that following the decision of the ICJ in Legal Consequences for States of Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21st June 197197, the UN Charter permitted the UNSC to impose obligations on States98.
50. A consequence of this was that Article 27(2) of the Statute now applied equally with respect to Sudan, rendering inapplicable any immunity on the ground of official capacity belonging to Sudan that would otherwise exist under international law and thus Sudan cannot claim (with respect to the ICC and the Darfur situation) that Al-Bashir enjoyed immunity as it now has the obligation to arrest and surrender him to
95 At paras 83 – 86. 96 At para 87.
97 [1971] ICJ Reports 16, paras 114 – 116, Hereinafter, Namibia Advisory Opinion.
the Court. A further consequence in the majority’s opinion is that Article 98(1) of the Statute is no longer applicable to Al-Bashir’s arrest and surrender as his immunity as Head of State no longer needs to be waived and therefore States parties including South Africa can execute the ICC’s request without violating Sudan’s rights under international law, and are thus obliged to arrest and surrender him to the ICC99.
6.2: Support for the ICC’s Conclusion and Reasoning
51. The ICC PTC’s majority opinion finds supports with a number of legal
commentators100. Akande was of the view that by its referral which takes advantage of Article 13(b) of the Rome Statute, and by intending the Court to investigate and prosecute as appropriate without providing a procedure by which this was to take place, the UNSC must be taken as expecting the Rome Statute to be the governing law. Indeed, it is argued that by Article 1 of the statute, the Court may only act in accordance with its Statute. 101 It is argued that as the UNSCR was made under Chapter VII of the UN Charter and by Article 25 of the Charter, member States of the UN agree to accept and carry out the decisions of the UNSC, all UN member States including Sudan and other non-parties to the Rome Statute are obliged to accept that the Court has jurisdiction over the situation in Darfur and can act in accordance with its Statute. It is further argued that by the UNSC requiring Sudan to cooperate fully with the ICC, the resolution explicitly subjects Sudan to the requests and decisions of the ICC and since the Court must act in accordance with its Statute, making the decision of the Court binding on Sudan is to subject her to the provisions of the Statute indirectly, including Article 27(2)102. It is argued this puts Sudan in an analogous position to a party to the Statute, with the only difference being that Sudan’s obligations to accept the provisions of the Statute are derived not from the Statute directly but from the UNSCR and the UN Charter and as Article 98 will not apply due to the irrelevance of Head of State immunity103, State parties such as South Africa are under an obligation to comply with the Court’s request for Al-Bashir’s arrest and surrender104.
99 Ibid at paras 91 – 93 and 109.
100 See for example: Akande, JICJ 7 [2009] 333 at 340 – 342; De Wet, 112 AJIL Unbound 34 at 35 – 37; 101 Akande, JICJ 7 [2009] at p. 340.
102 Ibid p. 341
103 As discussed in Chapter 5 above.
104 Akande, JICJ 7 [2009] at p. 342; N. Tsagourias, “Amicus Curiae Observations Pursuant to Rule 103 of the
