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Nothing at all for Heads of States? – The ICC’s Appeals Chamber’s ruling in the case of Jordan regarding Omar Al-Bashir: whether article 98(1) Rome Statute has lost its meaning
Arman Hama
L.L.M. International Criminal Law – Joint Program
12797642
Supervisors: Prof. Harmen van der Wilt & Prof. Lori Damrosch
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Table of content
Abstract ... 1
1 Introduction ... 2
2 Arrest warrants and Immunities against the Head of State of Sudan ... 3
2.1 Three strikes against Omar Al-Bashir ... 3
2.2 Either functional immunity or personal immunity in international criminal law ... 3
3 Intertwinement of customary international law and the principle of immunity ... 4
3.1 How to identify customary international law? ... 4
3.2 Personal immunity as a rule of customary international law before international courts ... 6
4 Immunity of Heads of State of Non-State Parties vis-à-vis international courts ... 10
4.1 The PTC cases of Malawi/Chad and Jordan – similar facts create similar outcomes ... 10
4.2 Never ending critique on the PTC’s approach in Malawi/Chad ... 11
4.3 Whether Al-Bashir should or should enjoy personal immunity vis-à-vis the ICC ... 17
5 The Appeals Chamber Judgement in the case of Al-Bashir and the question of the principle of immunity in the horizontal level vis-à-vis international courts ... 19
5.1 Appeals Chamber’s judgement regarding Jordan’s failure to comply with the ICC ... 19
5.2 Security Council Avenue v. Customary Law Avenue ... 23
5.3 Own Remarks: whether article 98(1) can be considered meaningless ... 29
6 CONCLUSION ... 32
Bibliography ... 34
Books ... 34
Case Law ... 34
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Abstract
The principle of immunity has a long history and extends back to hundreds of years. Immunity means that intervention with representatives of a State is not allowed in order to ensure effective international cooperation between States and to respect their sovereignty. In the context of international criminal law, it is widely recognized that immunity does not apply vis-à-vis international courts i.e. the vertical relationship between a State and an ‘international court’. However, difficult questions still arise, such as in the referral case of Omar Al-Bashir before the International Criminal Court (ICC). Al-Bashir was the former president of Sudan and was alleged of perpetrating crimes against humanity, war crimes and the crime of genocide. In 2004, the UN Security Council issued Resolution 1593, thereby ordering all the States that took part in the Darfur conflict to arrest and surrender Al-Bashir to the ICC and cooperate fully with the ICC. This also created obligations for Sudan, a non-State-Party to the ICC. Years after Resolution 1593 was issued, Al-Bashir visited Malawi and Chad, both State-Parties to the Rome Statute. Malawi and Chad both refused to arrest Al-Bashir due to conflicting international obligations, since they had to comply with an obligation under customary international law to respect the immunity of Al-Bashir. According to article 98(1), in such circumstances the ICC may not proceed with a request for arrest and surrender, since there are conflicting international obligations, while article 27(2) states that personal immunities do not form a bar for jurisdiction. However, the PTC still held that both Malawi and Chad had breached their obligations in the Rome Statute, because Resolution 1593 stripped off immunity also in the horizontal relationship. Years later, Jordan was also found in the same difficult situation after hosting the Arab League Summit and inviting Al-Bashir. Jordan refused to arrest and surrender Al-Bashir. The PTC came to the same conclusion as in the cases of Malawi and Chad and concluded that Jordan had breached their obligations under the Rome Statute to cooperate fully with the ICC. Jordan appealed and the Appeals Chamber came to the same verdict. This thesis shall discuss whether it is legally sound that Jordan, as a State-Party to the ICC, was placed under the obligation to arrest Al-Bashir as the Head of State of a Non-State Party.
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1 Introduction
On the 6th of May 2019, the Appeals Chamber of the International Criminal Court (‘’ICC’’) in the Hague issued its judgement in the Jordan referral case regarding Omar Al-Bashir, the former president of Sudan. The Appeals Chamber judgement stated that Jordan had acted in contravention with their obligations under the Rome Statute, since Jordan failed to arrest and surrender Al-Bashir when he visited Jordan. According to the Appeals Chamber, Sudan could not invoke immunity as a Non-State Party, due to the UN Security Council Resolution 1593, which obliged Sudan to cooperate fully with the ICC and therefore, Al-Bashir’s immunity was stripped off due article 27(2) Rome Statute. Article 27(2) entails that immunities do not bar the ICC from exercising jurisdiction. However, there is an unquestionable interplay between article 27(2) and article 98(1) Rome Statute. The latter provision stipulates that the ICC may not proceed with a request for arrest and surrender if the requested State has to act inconsistently with its obligations under international law. The judgement of the Appeals Chamber revealed this tension by concluding that Jordan had acted in contravention with the Rome Statute when it failed to arrest and surrender Al-Bashir. However, cooperation by Jordan with the ICC would also have led to Jordan breaching their obligations under international law vis-à-vis Sudan as described in article 98(1) Rome Statute. This thesis shall therefore focus on whether it is legally sound that the Appeals Chamber striped off Al-Bashir’s immunity due to Resolution 1593, not only in the vertical relationship between the ICC and a (non-)State Party, but also on the horizontal level between Sudan and Jordan, whereby both States are placed under the scrutiny of obligations of international law. The first chapter shall at first set out the issued arrest warrants against Al-Bashir and focus on the principle of immunity in general. The third section will discuss the relation between customary international law and personal immunity. Whereas chapter four shall focus on immunity as a rule of custom before international courts. The fifth chapter shall then examine the question of principle of immunity in the horizontal level vis-à-vis international courts. It will thereby pay particular attention to the Security Council Avenue and the Customary Law Avenue. Furthermore, in this section I shall give my own remarks and points of critique upon the Appeals Chamber’s judgement.
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2 Arrest warrants and Immunities against the Head of State of Sudan
2.1 Three strikes against Omar Al-Bashir
On 4 March 2009, the PTC decided that there were reasonable grounds to believe that Al-Bashir was criminally responsible as an indirect co-perpetrator for war crimes and crimes against humanity and therefore issued an arrest warrant against Al-Bashir.1 The PTC noted that these reasonable grounds stemmed from the evidence that from March 2003 to at least 2008 the Darfur conflict existed whereby both the Sudanese Liberation Movement/Army (‘’SLM/A’’) and the Justice and Equality movement (‘’ JEM’’) were involved in an armed conflict.2 However, the PTC did reject the Prosecutors application for the charge of crime of genocide. In appeal by the Prosecutor, the Appeals Chamber found that the PTC had erred in applying the standard of ‘reasonable grounds’ correctly to the facts, since it used a higher burden of proof.3 The PTC decided anew and concluded, with the correct application of the standard of proof, that Al-Bashir had also acted with the genocidal intent to destroy the Fur, Malawi and Zaghawa groups.4
2.2 Either functional immunity or personal immunity in international criminal law
The personal inviolability of Heads of State is one of the oldest accepted rules of international law. Obligations were historically imposed upon the receiving State to protect the Head of State of the foreign State from criminal jurisdiction and proceedings and to take all steps to prevent attacks on their freedom and dignity. The receiving State was placed under an obligation to refrain from exercising its powers against the State or Government official. Not only was immunity meant as a procedural bar, but also constituted physical privilege for international relations to be respected and uninfringed upon. Even if a State issues an arrest warrant, without the consent of the foreign State of the Head of State, could therefore constitute a violation of the principle of immunity of the official involved.5
1 Prosecutor v. Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber I, ICC-02/05-01/09 (4 March 2009) para. 105 & para. 106.
2 Ibid, para 70.
3 Prosecutor v. Omar Hassan Ahmad Al Bashir (Judgement on Appeal against the Application for Al-Bashir’s Arrest Warrant), Appeals Chamber, ICC-02/05-01/09-1, para. 16.
4 Prosecutor v. Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest for Omar Al Bashir), Pre-Trial Chamber, ICC-02/05-01/09, p. 9.
5 Joanne Foakes, The Position of Heads of State and Senior Officials in International Law (first edition Oxford University Press 2014) p. 76.
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There are two types of immunity to be distinguished, namely ‘personal immunity’ and ‘functional immunity’. The former type is known as ratione personae and is only granted to a small number of people, such as Heads of States, Foreign Ministers or Heads of Government.6 This form of immunity applied to Al-Bashir as the serving President of Sudan. Personal immunity is not restricted to particular conduct, which is the case with functional immunity. It involves absolute protection for persons who carry out important functions as representatives of the State. After leaving this position, however, prosecution is allowed for crimes committed during their term in their private capacity.7 Functional immunity is known as ratione materiae and protects the conduct that is carried out on behalf of a State and linked to the maxim of sovereign equality that State’s policies and actions cannot be judged without some form of consent by that State. Criminal activity in private capacity, however, remains subject to prosecution.8
3 Intertwinement of customary international law and the principle of immunity
3.1 How to identify customary international law?
In 1950, the International Law Commission issued a report for ways and means for making the evidence of customary international law more available. During this time the ICTR, ICTY and ICC were not yet established. But the report still offers relevant direction. The report set out different tools that could be used in deciding whether a legal rule could be regarded as customary international law. It stated that decisions of international courts such as the International Court of Justice (‘’ICJ’’) and judgements from ad hoc tribunals and other temporary tribunals can be regarded as a way to decide whether a rule is of customary international law.9 Decisions of the national court of a State are of value as evidence for the State’s practice insofar international law is incorporated in national law. This, however, does have limited value since it is only the national view of international law.10 Comparable national legislation of different States could also support as evidence for customary international law.11 The elements used nowadays in international law in order to define
6 Dapo Akande, ‘International Law Immunities and the International Criminal Court’ [2004] Vol. 98 p. 409 7 Robert Cryer, An Introduction to International Criminal Law and Procedure (second edition, Cambridge University Press, 2019)
8 Robert Cryer et. al., ‘An Introduction to International Criminal Law and Procedure’ (fourth edition 2019) p. 508.
9 International Law Commission ‘Report of the International Law Commission to the General Assembly’ (1950) Vol. 11. para. 46.
10 Ibid, para. 52. 11 Ibid, para. 60.
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customary international law are State Practice i.e. States must have a practice of acting in accordance with the rule and opinio juris i.e. a belief in the legal obligation.12 The ICJ
decided in the North Sea Continental Shelf Case that there has to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it and States must feel that they act conform to what amounts to a legal obligation.13 It could also be derived from the infamous Lotus case that State Practice alone is not enough, and therefore, customary international law has to include both elements of State Practice and opinion juris.14
Article 38(1)(b) of the ICJ Statute defines customary international law (international custom) as ‘general practice accepted as law’. However, even for the drafters themselves this provision was not very clear as to what exactly constituted customary international law. Cassese has asserted that ‘given the rudimentary character of international law…many decisions of the most authoritative courts, in particular the ICJ, are bound to have crucial importance in establishing the existence of customary rules, or in defining their scope and content’’.15However it is still the question whether the ICJ has such overruling power that it can establish customary international law proprio motu. As will be discussed in the below paragraphs, in the so-called Arrest Warrant case the question that was left unanswered was whether the precedent that personal immunity does not have to apply before ‘certain international courts, where they have jurisdiction’ is already a rule of customary international law. In the ICJ’s judgement a short referral was made to the Nuremberg Trial (‘’IMT’’) and the Tokyo Tribunal (‘’IMTFE’’). The Charters of these tribunals were used as evidence that exceptions to personal immunity could be made in regard to international courts and tribunals, even as immunity is a recognized rule of customary international law. However, the ICJ did not use this particular situation to determine that this rule also meant that personal immunity was completely absent vis-à-vis international courts. Instead, it only created a probable exception through the international courts’ theory, which merely stated that in such situation an official that enjoys absolute personal immunity may be subject to criminal proceedings. The ICJ provide examples of international courts that would fall under the umbrella of ‘certain international courts’ such as the ICTY, ICTR and the ICC. These
12 Christopher Greenwood, ‘Sources of International Law: An Introduction’ [2008] p. 1. < https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf > accessed on 16 July 2020
13 Ibid, p. 1. See also Continental Shelf (Germany/Denmark) ICJ Reports 1969, p. 44.
14 SS Lotus (France v. Turkey) (Permanent Court of International Justice) [1927] Vol. II, p. 20. 15 Loretta Chan, ‘The Dominance of the International Court of Justice in the Creation’ [2016] Vol. 6 Southampton Student Law Review <
https://www.peacepalacelibrary.nl/ebooks/files/dominance_international_court_justice.pdf > accessed on 16 July 2020
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international courts were either created via Chapter VII of the UN Charter pursuant to Security Council Resolutions which binds all UN Member States, in the case of the ICC, via a treaty whereby 160 States ratified the Rome Statute. In the latter situation, however, States can always make the decision to opt-in and opt-out of the Rome Statute via withdrawals, even after ratification, thereby creating a flow in the acceptance and refusal of the ICC’s jurisdiction. Whereas in the situation of the ICTR and ICTY, Member States were obliged to cooperate with the criminal proceedings without further ado. Would this mean that legal decisions via Resolutions, such as in the present case of Sudan and Bashir, could in themselves be constituted as rules of customary international law, since UN Member States have agreed to accept such decisions and cooperate therewith on the basis of article 25 UN Charter and therefore deemed as evidence of State Practice and opinion juris? Or should there be an overruling international court that decides upon (new) rules of customary international law, such as the ICC or the ICJ, since these courts ‘represent’ all States to the treaty? Regarding some legal rules or principles of law there is no doubt that these also inherently consists of customary international law, such as the doctrine of non-refoulement. However, for some rules, it even seems to depend on the context. More specifically, in the situation of Sudan, whether the principle of immunity is invoked in the vertical or horizontal context before either an international criminal court or in Inter-State relations.
3.2 Personal immunity as a rule of customary international law before international courts
In the famous Arrest Warrant Case, the ICJ had to decide whether an ‘international arrest warrant in absentia’ issued by the Brussels Tribunal de premiere against the Minister for Foreign Affairs of Congo, Abulaye Yerodia, charging him with war crimes and crimes against humanity, was a violation of Yerodia’s immunity.16 The ICJ held that customary international law accorded to Ministers for Foreign Affairs enjoy absolute immunity, both in private and official capacity regardless of whether the arrest warrant relates to alleged crimes committed before, while or after the person became Minister for Foreign Affairs.17 The question that arose in this case was whether an exception of the protection of personal immunity existed for war crimes and crimes against humanity. The ICJ was unable to deduce from State practice that any exception to immunity existed in customary international in regards to war
16 Arrest Warrant Case (Democratic Republic of Congo v. Belgium (Judgement) ICJ Rep. 2. para. 56. 17 Ibid, para. 58.
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crimes or crimes against humanity before national courts.18 However, and this formed the
basis for the most interesting parts of the ICJ’s decision, the ICJ did conclude that ‘immunity did not mean impunity’. In furtherance thereof, it stated that exceptions exist 19, whereby one of those exceptions entailed that an incumbent or former Minister for Foreign Affairs may be subjected to criminal proceedings before ‘certain international courts where they have jurisdiction’. It thereby referred to the legal practice of the international criminal tribunals of Yugoslavia and Rwanda and the ICC. Other exceptions entailed that the immunity of a Minister for Foreign Affairs could be waived by the foreign State, that such an official is still subject to prosecution after leaving office and that no such immunity exists before their own national courts. 20
It can be derived from the above reasoning that no exception exists to immunity ratione personae, even in regards to crimes of genocide, crimes against humanity or war crimes in the relation of States vis-à-vis other States. For some, this reasoning came as no surprise. In the case of Pinonchet an exception was allowed in regards to functional immunity enjoyed by a former Head of State for the international crime of torture. However, Judge Brown-Wilkinson had a rather straight-forward view on personal immunity. Accordingly: ‘’immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state.’’21
The more interesting part of the ICJ’s judgement is of course the exception to personal immunity before ‘certain international criminal courts, where they have jurisdiction’. The ICJ did not set out any criteria in order to identify an ‘international, although this decision does have significant legal consequences for Head of States and Foreign Ministers. Nor did it provide any arguments as to why international courts do not have to consider personal immunity in their criminal proceedings. Also, the terminology of ‘where they have jurisdiction’ does leave room open for interpretation in regard of whether 18 Ibid, para. 58.
19 The International Court of Justice recognized four exceptions in totality whereby immunities enjoyed by Ministers for Foreign Affairs would not form a bar for criminal prosecution. In light of this paragraph only the fourth exception – before certain international courts – is further analysed. The other exceptions to immunity respectively entail; 1) that no person enjoys criminal immunity in their own country and may be tried by domestic courts; 2) that immunity ceases after the represented State waives immunity and 3) after the person ceases to hold the office of Minister for Foreign Affairs, whereby other States may exercise jurisdiction in respect to acts committed prior or while in office.
20 Arrest Warrant Case (Democratic Republic of Congo v. Belgium (Judgement) ICJ Rep. 2. para. 58. 21 Judgement of the House of Lords, Regina v. Bartle, 24 March 1999, Concurring Opinion Lord Browne-Wilkinson
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an overarching organ, such as the United Nations, has to be involved in establishing such international court or whether this could also be established between States that agree on exercising jurisdiction in a particular manner over Heads of States. Secondly, it raises questions as to whether the ‘international court’ should only have jurisdiction regarding officials who allegedly have committed international crimes i.e. genocide, crimes against humanity, war crimes and aggression or that it also extends to more domestic crimes.
Despite the above questions being left unanswered, this ruling was still profoundly used in the case of the Special Court for Sierra Leone against the President of Liberia, Charles Taylor. In the Taylor case, similar to the Arrest Warrant case, an arrest warrant was issued against Taylor for war crimes and crimes against humanity.
First, the SCSL strictly distinguished immunity before national courts and international courts by concluding that ‘’due to the fact that the principle that one sovereign state does not adjudicate on the conduct of another state; the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.’’22
The SCSL stated that it was, unlike the ICTY and ICTR which were established by the UN Security Council under Chapter VII, established by treaty. The establishment of the SCSL derived from an UN agreement with Sierra Leone to create an independent special court. As such, the SCSL concluded that it was an international court that ‘derived from the UN charter in both the general purposes of the United Nations and the specific powers of the Security Council’. The SCSL held that it had characteristics such as classical international organizations and its competence ratione materiae and ratione personae were broadly similar to that of the ICTY and ICTR. This reasoning that the SCSL could be regarded as an international court was regardless of the fact that the SCSL also exercised jurisdiction over certain domestic crimes, such as ‘abuse of children under fourteen years’ and the offense of arson.23
Convincingly, the Arrest Warrant case had substantive influence for the SCSL as it explicitly determined that it was an ‘international court’ with obvious reference to the precedent of the ICJ. Considering themselves as ‘a truly international court’, the SCSL could exercise jurisdiction over Charles Taylor regardless of whether or not Taylor was the Head of
22 Prosecutor v. Charles Taylor (Decision on the immunity of Charles Taylor) (31 May 2004) para. 51. 23 UNSC ‘Report of the Secretary-General on the establishment of a Special Court for Sierra Leone’ 4 October 2000 para. 19.
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State. This conclusion was not a complete surprise. After all, the Arrest Warrant case already stated that the exception to customary international law protection from personal immunity could arise when an international court with jurisdiction would initiate criminal proceedings.
The foregoing confirmed that personal immunity in itself is not a bar for criminal proceedings before international courts. However, a question that is left unanswered whether multiple States, for example two or three States, can create an international court and act on behalf of the international community and establish jurisdiction. Phillipe Sands and Alison Macdonald argued in their joint amici curiae brief regarding the SCSL decision that this thesis is incorrect. According to both: ‘Two states may not establish an international criminal court for the purpose, or with the effect, of circumventing the jurisdictional limitation incumbent on national courts as adjudged by the ICJ in the Arrest Warrant case.’’ 24 Claus Kress also argues in this line and states that there is no State practice and opinio iuris support the view customary international law of head of state immunity applies vis-à-vis a bilateral international criminal court set up, for example, by France and Germany.25
There have been difficulties understanding the extend of the agreement of the United Nations vis-à-vis Sierra Leone. The SCSL namely decided that the United Nations and Sierra Leone entered into an agreement that had bound ‘all the Members of the United Nations’, including Liberia as a UN Member State. But the mere fact that the UN entered into an agreement with Sierra Leone does not make Liberia also part of that agreement. The request of the Security Council to establish a special court between the UN and Sierra Leone is not legally binding upon all Member States of the UN Charter, but merely a request. Article 25 UN Charter after all explicitly states that ‘members of the UN accept and carry out decisions of the UN Security Council’. Since the request of the UN Security Council is not binding, it could also be stated that that personal immunity should have barred the SCSL from exercising jurisdiction.
However, the above simply ignores the applicability of the second exception to personal immunity in the Arrest Warrant case, namely that personal immunity can also be abrogated if the represented State waives the immunity of the representative. Even if the above agreement between Sierra Leone and the UN would not apply, then Al-Bashir’s immunity was still waived. After all, the Liberian government had demanded the extradition
24 Prosecutor v. Charles Taylor, SCSL-2003-01-I, Submissions of the Amicus Curiae on Head of State Immunity, Trial Chamber II (23 October 2003) para.78
25 Claus Kress, ‘The International Criminal Court and immunities under International Law For States Not Party to the Court’s Statute’, in Morten Bergsmo and LING Yan (editors), State sovereignty and International
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of Taylor who was then residing in Nigeria. Therefore, it could be stated that via the extradition request, personal immunity was stripped off by this form of waiver and SCSL rightfully exercised criminal jurisdiction over Taylor. However, the above argument entails also hypothetical situations, wherein a State simply does not want to cooperate with the SCSL. The question is then whether such a State would still be bound by the agreement of the United Nations and Sierra Leone. This is left unanswered in the decision of the SCSL.
In sum, as both the ICJ, SCSL and the other international tribunals and courts have either concluded or indirectly decided personal immunity for Foreign Ministers and Head of States in the situation vis-à-vis international courts forms no bar for initiating criminal proceedings, I am of the belief that it can be concluded that an independent rule of customary international law has been established in regards to the absence of immunity in the vertical relationship in the situation of international courts.
In the subsequent paragraphs the decisions in the Chad, Malawi and Jordan case shall be discussed in regards to the abrogation of personal immunity in customary international law in the vertical and horizontal relationship vis-à-vis Sudan, a Non-State Party, via a UN Security Council referral, namely Resolution 1593.
4 Immunity of Heads of State of Non-State Parties vis-à-vis international courts
4.1 The PTC cases of Malawi/Chad and Jordan – similar facts create similar outcomes
In the separate cases of the State-Parties Malawi/Chad, the PTC decided that both States were placed under an obligation to arrest and surrender Al-Bashir during his visits to each country. According to the PTC, Malawi/Chad and Jordan were placed in a situation wherein they were obliged to cooperate with the ICC. By not complying with the ICC’s request they acted in contravention with the Rome Statute. This non-compliance founds its basis due the effect of Resolution 1593, which at first obliged Sudan and all other parties involved in the Darfur conflict to fully cooperate with the ICC.26 Other States were urged to cooperate with the ICC. Both Malawi/Chad argued that Non-State Parties such as Sudan, were granted, according with principles of international law, immunity to Heads of States in respect of proceedings before international courts.27
26 Prosecutor v. Malawi (Corrigendum to Decisions on Failure of Malawi to comply with Cooperation Requests) ICC-02/05-01/09 (13 December 2011) para. 10
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At first, the PTC referred to the IMT’s conclusion that ‘official positions, such as Head of State or Government, shall not be considered of freeing them from responsibility or mitigating punishment’.28 The IMTFE had a similar provision, but considered that officials would enjoy mitigation of punishment: ‘’the official position shall not free such person from responsibility from any crime, but such circumstance may be considered in mitigation of punishment.29 The PTC, unsurprisingly, proceeded to the ICJ’s exception of ‘international courts’ in which they explicitly referred to the ICC and article 27(2). As mentioned in the first paragraph, article 27(2) provides that immunity shall not bar the ICC from exercising jurisdiction. Accordingly, the ICJ could not find an exception of personal immunity vis-à-vis national courts, but ruled that such existence could apply vis-à-vis international courts. Antonio Cassese had already argued that ‘’rationale for foreign state officials being entitled to raise personal immunity before national courts is that otherwise national authorities might use prosecutions to unduly impede or limit a foreign state's ability to engage in international action.’’ At last, the merits of the Taylor case were applied by the PTC. From this judgement the PTC quoted the SCSL that ‘the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court’. As such, the PTC found that the principle of immunity could not be invoked to oppose a prosecution by an international court, also applicable to Heads of States Not-Parties to the ICC whenever the ICC can exercise jurisdiction, either via the Prosecutor proprio motu, State referral or referral via the Security Council, such as in this case.30
4.2 Never ending critique on the PTC’s approach in Malawi/Chad
The reasoning was criticized by various academic scholars, including Dapo Akande, who stated that these arguments do not apply vis-à-vis Non-State Parties. In his view, the provisions of the previous international tribunals addressed whether the State official bears criminal responsibility and did not recognize immunity. 31 Additionally, Asad Kiyani argued
similarly and concluded that former courts and tribunals could not form a precedent and
28 Ibid, para. 25. 29 Ibid, para. 26. 30 Ibid, para. 36.
31 Dapo Akande, ‘The immunity of Heads of States of Nonparties in the Early Years of the ICC’ (2018) 112 ASIL p. 174 < https://www.cambridge.org/core/services/aop-cambridge- > accessed on 18 July 2020
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contradict the nature of immunities.32 Therefore, there is not a customary international law
rule abrogating personal immunity vis-à-vis international courts.
According to Akande, the provisions of the ICTR, ICTY, IMT and IMTFE did not establish that a Head of State of a Non-Party State to a treaty or charter would also be bound by an international tribunal.33 Akande addressed that the ICTY and ICTR merely decided that the accused bears criminal responsibility, but that it did not regulate immunity from the tribunal’s jurisdiction. Kiyani also argued that that ‘criminal responsibility’ is not the same as ‘regulating immunity’, since this was upheld in the Arrest Warrant case. The ICJ ruled that ‘’immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.’’34 Robert Cryer also argued that defenses do not entail or include immunities, since these are no defenses. Immunities can be waived by States regardless of the accused point of view, which is inconsistent with defenses, which are invocable by the defendant irrespective of the wishes of others.35 According to the previous academics, the Nuremberg, Tokyo, ICTR and ICTY Charters and Statutes, all removed the substantive defense of official capacity i.e. defense than individuals can be responsible for crimes of the state. Whereas article 27(2) removes personal immunities, that is, the procedural barriers which prevent the ICC from exercising authority over the accused.36
Thus, article 27(2), according to Kiyani does not have a statutory predecessor. Kiyani argues that ‘if the two – defenses and immunities - were identical in meaning, then Head of State immunity could never be waived by a State against the wishes of the accused. This strongly undermines the PTC’s argument that statutory precedent is on its side’.37 Therefore, it is
difficult to recognize a customary law rule that immunities can be deemed inapplicable before international criminal tribunals.
Although Kiyani and Akande make reasonable arguments, I am of the belief that there has been a smooth transition in international criminal law regarding the abrogation of immunity vis-à-vis international courts instead of what is seemed to expected by Akande and
32 Asad Kiyani, ‘Al Bashir & ICC: The Problem of Head of State immunity’, (2013) 12 CJIL p. 491 < https://watermark.silverchair.com/jmt035.pdf > accessed on 20 July 2020
33 Dapo Akande, ‘The immunity of Heads of States of Nonparties in the Early Years of the ICC’ (2018) ASIL < https://www.cambridge.org/core/services/aop-cambridge- > accessed on 18 July 2020
34 Arrest Warrant Case (Democratic Republic of Congo) ICJ Reports 3 para. 60.
35 Robert Cryer, Prosecuting International Crimes (first edition Cambridge University Press New York 2005) p. 291 and p. 292.
36 Asad Kiyani, ‘Al Bashir & ICC: The Problem of Head of State immunity’, (2013) 12 CJIL p. 491 < https://watermark.silverchair.com/jmt035.pdf > accessed on 20 July 2020
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Kiyani, namely a clear-cut unambiguous practice. In the Pinochet case of 1998, it was held that there cannot be immunity ratione materiae when the international crime of torture has been committed by a former Head of State. In the Pinochet case there was not even a Statute or Charter that prevented the House of Lords from concluding that ‘international law cannot be supposed to have established a crime…and at the same time to have provided immunity which is co-extensive with the obligation it seeks to impose’.38 The view of Lord Slynn of Hardley stipulated also the following:
“there is ... no doubt that states have been moving towards the recognition of some crimes as those which should not be covered by claims of state or Head of State or other official or diplomatic immunity when charges are brought before international tribunals.’’39
Regardless of whether previous international courts or tribunals have removed the substantive defense of officials in terms of criminal responsibility, based on the above judgements and Statutes and Charters of the IMT, IMTFE, ICTY, ICTR, ICJ and SCSL, I am of view that there has been an ongoing, undeniable trend, wherein Heads of States or other high officials that are granted immunity have been prosecuted and eventually convicted. The IMT Charter stated that official position of defendants such as Heads of State or Government, shall not be considered as freeing them from responsibility or mitigating punishment. The ICTY, established via the Security Council thereby binding all UN Members, reinforced this notion in article 7(2) that Heads of States or Government officials are not relieved from criminal responsibility. Thereinafter, in 2002, the ICJ noted that the principle of personal immunity does not have to apply before ‘certain international courts. While the SCSL expanded this view and eventually held that personal immunity of a Head of State does not prevent international courts from being prosecuted within the realms of international (criminal) courts and tribunals.40 The international community has therefore taken subsequent
steps and recognized accountability of a Head of State for international crimes regardless of his or her immunity.
Thus, even, as argued by Kiyani, that the differences between ‘immunities’ and ‘defenses’ are not the same, this would make no difference in the conclusion regarding the international community intent to prosecute and convict high-officials. The effect and
38 Regina v. Bartle ex parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division)1998] UKHL [25 November 1998] Lord Millet (Judgement Opinion)
39 Prosecutor v. Charles Taylor (Decision on Immunity from Jurisdiction) [2004] SCSL-2003-01-I para. 52. See also: Regina v. Bartle ex parte Pinochet (on appeal from a Divisional Court of the Queen's Bench
Division)1998] UKHL [25 November 1998] Lord Slynn of Hardley (Judgement Opinion) 40.Ibid.
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execution given to these definitions of immunities and criminal responsibility in the Statutes and Charters before the international tribunals and courts are in the end the same. Namely that positions of high-ranked officials do not render the relevant international criminal tribunal or court incompetent from exercising jurisdiction.
Another critique point of Akande was whether the ICC can be considered at all as an ‘international court that the international community has entrusted with its ius puniendi’ i.e. a court that is given the right to punish offences within the limits of international law. Akande argues that the mere ratification by States cannot in itself have the consequence that the ICC can be considered an ‘international court’. If this would be the case, it would allow the African Court of Human and People’s Rights under the Malobo Protocol, for example, to expand its jurisdiction to deal with international crimes committed by head of states.41
This interpretation by Akande does not stand in my opinion. Indeed, the SCSL held that the difference between national and international courts is that the latter derives their mandate from the international community. The terminology used by the SCSL regarding ‘international community’, however, seems to refer to widely consensus among States that agreed upon a universal court. The SCSL namely referred to the ICTR, ICTY, IMT, IMTFE and ICC. Each of these international tribunals and courts have in common that their mandate derived from either the United Nations, the Security Council or via treaty with the ratification of States across the continents. The African Court of Human and People’s Rights was adopted by Member States of the African Unity and therefore, in my view, the African Court of Human Rights when expanding their powers to international crimes via the Malobo Protocol would not be entrusted per se by the international community with jus puniendi, but by the continental community of Africa. Similarly, this would also apply in my view if the European Court of Human Rights (‘’ECHR’’) would, hypothetically, expand its powers to prosecute the most responsible for international crimes, since only members of the Council of Europe become member hereto I would also regard it as a continental court. Only if the official concerned is a Head of State of a Member State, it would be possible for the previous two continental courts to prosecute this person for international crimes. According to the influential legal theorist Hans Kelsen ‘an international community is constituted by general international law, and hence states are subject to that law: and a state may without losing its character as a state, be a member of an international community constituted by particular
41 Dapo Akande, ‘The Immunity of Heads of States of Nonparties in the Early years of the ICC’ (2018) 112 AJIL Unbound p. 175 > https://search-proquest-com.ezproxy.cul.columbia.edu/docview/2414656887?pq-origsite=summon < accessed 20 July 2020
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international law i.e. by a treaty to which the state is a contracting party’.42 The ‘international
court’ thus has to represents the ‘international community’ and thereby should be open for other States to become a Member of that international court via a treaty or other universal legal instrument. In Tod Lindberg’s Working Paper regarding ‘international communities’ it was stated that the United Nations, ICJ, established by the United Nations, and the Permanent Court of International Justice (‘’PJC’’), established by the League of Nations, are the locus at which international communities manifest themselves.43 These institutions furthermore all have in common that they all have accepted the framework of international law, treaties and human rights conventions. Indeed, the African Court of Human Rights has also accepted these principles, but lacks being the ‘locus at which international communities manifest themselves’. Moreover, as Lindberg implicitly states: ‘all that is required to join the international community is to accept its fundamental norms and rules that States are bound by’.44 As such, and as I have stated above, the most important distinction between Akande’s comparison of African Courts and the ICC, is that the ‘international community’ is deemed as a community that remains open to all, such as the ICJ and PJC, while the African Court (or the ECHR) was negotiated upon by only the (African) members of the African Unity45 (or in the case of the ECHR, the Council of Europe). In the words of Lindberg, an international organization can have considerable reach and influence, but can ‘lack authority to speak for the international community as a whole, even though they may at times express the view of international community’.46 Akande further argues regarding this matter that the PTC should
have noticed that ‘not the entire international community has entrusted jurisdiction to the Court, since less than two thirds of the States of the world have done so. The one third cannot be simply ignored’.47 However, in the present case the ICC the one third is not ignored,
because the ICC prosecuted Al-Bashir in accordance with Resolution 1593 of the Security Council. The Resolution eventually derives from UN Chapter VII in which article 25 stipulates that all the members of the United Nations agree to accept and carry out decisions
42 Hans Kelsen, Principles of International Law (Rinehart & Company New York 1952) p. 111.
43 Tod Lindberg, ‘Making Sense of the International Community’ (Council on Foreign Relations: International Institutions and Global Governance Program 2014) p. 5 >
https://www.cfr.org/report/making-sense-international-community < accessed on 20 July 2020
44 Stewart M. Patrick, ‘In search of the ‘International Community’ (The Internationalists and International Institutions and Global Governance Program 15 January 2014) > https://www.cfr.org/blog/search-international-community <
45 Kamari Clarke, Charles Jalloh & Vincent Nhehielle, The African Court of Justice and Human and People’s Rights in Context: Development and Challenges (Eds. Cambridge University Press 2019) p. 3.
46 Supra note 43, Lindberg, p. 13.
47 Dapo Akande, ‘ICC Issues Detailed Decision on Bashir’s Immunity (…At long last…) but gets the Law wrong’ (ECIJ Blog of the European Journal of International Law > https://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%E2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/ <
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of the Security Council. Additionally, professor Paolo Gaeta also concludes that international criminal courts can prosecute international crimes, whereby customary international law rules of personal immunity is not applicable. These rules of customary international law only apply to prevent States from interfering with international relations and to respect sovereignty in order for the foreign State to conduct activities. This rationale lacks when criminal proceedings are initiated by an international criminal court. At the horizontal level there is a need to protect foreign State officials, however, at international courts there is an entirely different situation. The jurisdiction that is exercised by an international court is for the purpose of protecting universal values and repress international crimes. This cannot be deemed as a form of unduly infringing upon the foreign State.48
As stated above, a rule of customary international law means that there should be opinion juris and sufficient State practice that follows the rule and its legality. According to Kiyani there is still limited evidence that there is a rule of customary international law acclaimed to the absence of personal immunity before international courts. The cases that the PTC brought forward suffered from flaws according to Kiyani, who argues similarly as Harmen van der Wilt49 : either the individuals were former Heads of State and as such, lacked personal immunity altogether at the moment of arrest and surrender or, they had been transferred with consent or co-operation of the State, which actually would imply a waiver.50
The PTC did indeed rely on other rulings, whereby sitting Heads of States lost their immunity before the international courts and tribunals, namely in the cases of: Muanmmar Gaddafi, Charles Taylor, Slobodan Milosovic and Laurent Gbagbo. Kiyani argues that in the cases of Gbagbo, Gaddafi and Taylor it concerned former Heads of State, while Milosevic lacked any personal immunities at the time of arrest and trial. In Gbagbo’s situation, immunity was waived, while Gaddafi was deceased before trial could take place. Taylor was indicted during his time as a Head of State, but was out of office during his arrest. As in the case of Milosevic, he had lost his bid for reelection and therefore a former Head of State during at his arrest.
48 Paolo Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7 Journal of International Criminal Justice p. 320 > https://academic.oup.com/jicj/article-abstract/7/2/315/902208 < accessed on 21 July 2020
49 Immuntiies and the International Criminal Court, Oxford
50 Asad Kiyani, ‘Al Bashir & ICC: The Problem of Head of State immunity’ (2013) 12 CJIL p. 487 < https://watermark.silverchair.com/jmt035.pdf > accessed on 20 July 2020 See also: Harmen van der Wilt, Immunities and the International Criminal Court p. 600 in, Tom Ruys, Nicolas Angelet & edited by Luca Ferro, The Cambridge Handbook of Immunities and International Law (first edition Cambridge 2019)
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However, I disagree with the above arguments. Although the aforementioned Heads of States were perhaps not brought before trial as sitting Heads of States, it should be noted that the abrogation of either personal or functional immunity already can occur in an earlier stage, namely when an arrest warrant is issued against the State or government official involved, as I stated earlier in this thesis51. After all, this is already evidenced in the Arrest Warrant case wherein against Yerodia, at that time sitting Minister of Foreign Affairs, an arrest warrant was issued by Belgium. The ICJ held that the international arrest warrant infringed upon the personal immunity of Yerodia as a Foreign Minister as such.52 This was regardless of the fact whether he was actually arrested by Belgium and brought before the Brussels Tribunal. The sole fact that an arrest warrant was issued was enough ground for the ICJ to conclude that Belgium had acted in contravention with international law. Applying this finding to the case of Taylor, who was indeed indicted by the SCSL as a sitting Head of State but not brought before the SCSL during that time, the logical conclusion would be that the SCSL, in that particular earlier stage, had already found that personal immunity did not apply before the SCSL i.e. international courts. Otherwise the SCSL would have refrained from issuing an arrest warrant in first instance and waited until Taylor’s resignation. Therefore, I do not agree that the abrogation of personal immunity could amount to a rule of customary international law vis-à-vis international courts only if there is also evidence of officials that were also practically brought before an international court, since the abrogation of immunity can occur in an earlier phase, namely in the arrest warrant phase or detention or remand in another country whilst waiting trial before an international court.
4.3 Whether Al-Bashir should or should enjoy personal immunity vis-à-vis the ICC
The question that is then still left unanswered is whether Al-Bashir, as a national of a Non-State Party to the ICC, can invoke personal immunity and whether his immunity would form a bar against the ICC’s jurisdiction. As mentioned before, the PTC already held that former or sitting Heads of State cannot invoke immunity against prosecution. This also applies to Non-State parties, since the exercise of jurisdiction is followed by a United Nations Security Council referral under Chapter VII of the UN Charter. Claus Kress and Akande both agree with this reasoning and find that the obligation for Sudan to cooperate fully also implies that
51 Joanne Foakes, The Position of Heads of State and Senior Officials in International Law (first edition Oxford University Press 2014) p. 76.
52 Arrest Warrant Case (Democratic Republic of Congo v. Belgium (Judgement) ICJ Rep. 2. para. 75: The Court has already concluded (see paragraphs 70 and 71) that the issue and circulation of the arrest warrant (own emphasize) of 11 April 2000 by the Belgian authorities failed to respect the immunity.
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article 27(2) is applicable and as such, there is no bar for the ICC in its jurisdiction. According to Akande the UN Security Council had also explicitly required the cooperation of Sudan subjected them to the ICC’s regime, and therefore the ICC can act in accordance with the Rome Statute, while also binding Sudan as a Non-State Party to the ICC’s cooperation regime. The UN Security Council thereby placed Sudan in an analogous situation as a State-Party to the ICC.53
However, according to Gaeta, the UN Security Council referral serves merely as a trigger mechanism of the ICC to act accordance with the Rome Statute and with respect to committed crimes in the territory or by nationals of Non-State Parties. In his words ‘it does not and cannot turn a Non-State Party into a State-Party’. Gaeta is accordingly of the view that the arguments strands as to how a UN Security Council referral can make a treaty provision, article 27(2), applicable to Sudan, a Non-State Party.
I do not agree with these findings by Gaeta. As concluded by Kress and Akande, the UN Security Council has already made article 27(2) implicitly applicable to Sudan. Indeed, a referral of the UN Security Council triggers jurisdiction. However, the UN Security Council as an overarching organ must have been aware of the fact that Al-Bashir, as the Sudanese President, already enjoyed personal immunity, while still deciding that Sudan had to cooperate fully and arrest and surrender Al-Bashir. Otherwise it would have refrained from issuing Resolution 1593 in the first place since it would infringe upon his immunity. In furtherance of that, paragraph 2 explicitly stated that Sudan had to cooperate fully with the ICC. There is, in my view, no ground that the ICC should have waited from 2004 onwards until 2020 for Al-Bashir’s presidency to be over in order to lawfully exercise jurisdiction over Al-Bashir. Resolution 1593 binds all the UN Member States, including Sudan. Again, article 25 of the UN Charter states that all UN Members are bound by the decisions of the Security Council. Resolution 1593 even explicitly states that ‘Sudan shall cooperate fully with the ICC’. From my perspective, even in the hypothetical case of inexistence of article 27(2) Rome Statute, Sudan would still be obliged to cooperate with the ICC and waive Al-Bashir’s immunity based upon the fact that they are obliged to do so as a UN Member State upon the Security Council’s demand via the legally binding Resolution. Based upon these findings, the abrogation of personal immunity in my view is an established rule of customary international law vis-à-vis international courts and tribunals, even if it concerns a Non-State Party. I
53 Claus Kress, ‘Preliminary Observations on the ICC Appeals Chamber’s Judgement on 6 May 2019 in the Jordan referral re Al-Bashir Appeal’ (first edition Torkel Opsahl Academic EPublisher Brussels 2019) p. 4 >
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therefore completely agree with the PTC’s judgement that ‘effect of a Security Council resolution triggering the Court’s jurisdiction under article 13(b) of the Statute is that the legal framework of the Statute applies, in its entirety, with respect to the situation referred - Darfur’.
5 The Appeals Chamber Judgement in the case of Al-Bashir and the question of the principle of immunity in the horizontal level vis-à-vis international courts
5.1 Appeals Chamber’s judgement regarding Jordan’s failure to comply with the ICC
In addition to the first question whether Al-Bashir enjoyed personal immunity vis-à-vis the ICC, the second question came up in the Jordan case in regards to the so-called horizontal level i.e. the relation between States, whereby one of these States is requested by the ICC to arrest and surrender an official Head of State of a Non-State Party. Jordan submitted that this decision erred, since article 98(1) Rome Statute especially addresses that the ICC should request from its request if it would lead to the State Party violating their international obligation under international law.54 It argued that even if article 27(2) is applicable in the present case then article 98(1) would turn into effect, since Sudan is a Non-State Party and therefore the ICC should refrain from requesting arrest. While the Resolution may prevent Sudan from immunity vis-à-vis the ICC, it does not reach the issue of international obligations on the horizontal level between States vis-à-vis the Court.55 The PTC at first decided that article 27(2) has another effect, which entails that immunity is also prevented ‘when cooperation in the arrest and surrender of a person to the ICC is provided by another State Party.56 Therefore, Sudan was not able to invoke immunity not only before the ICC, but also vis-à-vis Jordan. This also meant that Jordan was placed under an obligation to cooperate with the ICC under the Rome Statute regime and due to Resolution 1593, and that Jordan had to arrest and surrender Al-Bashir during his visit to Jordan.57 According to the PTC, article
98(1) did also not apply, since Resolution 1593 stripped off Al-Bashir’s immunity and as such, there was no immunity to be waived before the ICC could continue with its request to arrest Al-Bashir. Jordan appealed against this decision of the PTC.58
54 Ibid, para. 14. 55 Ibid, para. 15.
56 Prosecutor v. Malawi (Decision under article 87(7) on non-compliance by Jordan by request of the ICC for arrest and surrender of Al-Bashir) ICC-02/05/01/09
57 Ibid, para. 9 and para. 54-55. 58 Ibid, para .34.
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The Appeals Chamber also found the arguments of Jordan unpersuasive. In the view of the Chamber, there was no reason to assume that article 27(2) was not applicable to Sudan, since Resolution 1593 explicitly stated that Sudan had to ‘fully cooperate’ in accordance with the Statute entails all obligations that States Parties owe to the ICC and which are necessary for the effective exercise of jurisdiction by the ICC.59 This wording was also used in article in article 86 regarding the general obligations to cooperate with the ICC and as Sudan is obliged to fully cooperate, the State Party regime also is applicable to Sudan’s cooperation with the ICC as it is placed in an analogous situation as other State Parties.60
The Appeals Chamber further held that article 98(1) is merely a procedural rule that decides how the ICC has to proceed when immunity where any immunity exists. As such, it does not create any duties for the ICC nor does it create any rights for the State-Parties or Non-State Parties, but is only directed at the ICC.61 Accordingly, there would be no ‘full cooperation’ if Sudan could simply invoke immunities vis-à-vis the Court, which may otherwise exist under national or international law as matter of its relations with another State. If this would be the case then the ICC’s ability to punish the crimes in the Darfur conflict would be limited from the start. The obligation imposed on Sudan via Resolution 1593, prevailed les specialis over any immunity that would exists between Jordan and Sudan. As the Appeals Chamber stipulates: ‘’The law does not readily condone to be done through the back door something it forbids to be done through the front door.’’62Since Al-Bashir did
not enjoy immunity, there was nothing to be waived was the conclusion by the Appeals Chamber.63 Thus, no conflicting obligations existed that Jordan faced when they were asked to arrest and surrender Al-Bashir to the ICC. There was no ‘waiver of immunity’ needed therefore, and the question whether the Resolution should have explicitly expressed that no waiver existed, does not arise. In addition, Jordan may not decide not to execute a request for arrest and surrender, if it considers that the ICC’s request is erroneously upon the basis of article 98(1).64 According to the Appeals Chamber Jordan had to ‘engage in consultation’ rather than decide hereupon on its own.65
59 Prosecutor v. Al-Bashir (Judgement in the Jordan Referral re Al-Bashir Appeal) ICC-02/-5-01/09 (6 May 2019) para. 143.
60 Ibid, para. 96 and para. 136. and para. 140. 61 Ibid, para. 130.
62 Ibid, para. 127. 63 Ibid, para. 144. 64 Ibid, para. 146. 65 Ibid, para. 153.
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This ruling of the PTC and Appeals Chamber was met with heavy criticism from the academic community. In their amici briefs66, Gaeta, Akande and Jacobs heavily disagreed
with these above findings by the PTC and Appeals Chamber.
Gaeta was not convinced by the decision that the Security Council had imposed an obligation to cooperate on Sudan and that it entailed an obligation that ‘lifted all immunities’ and that other interpretations would render Resolution 1593 senseless.67 The mere fact that Sudan is under an obligation does not have an impact on the applicability of article 98(1). Rather, this provision is concerned with the waiver that the ICC must obtain to waive the immunity of the third State. Article 98(1) explicitly provides that the third State is allowed to waive immunity. The mere fact that Sudan must cooperate fully with the ICC does not mean that this has an impact on article 98(1). Gaeta argues that this provision is only concerned with the cooperation that the ICC must obtain from the third State and not with whether a Non-State Party to the Rome Statute must cooperate with the ICC.68 Therefore, Sudan was under no obligation to lift Al-Bashir’s immunity.69 Furthermore, Gaeta argues that article 98(1) explicitly states that the Court may not proceed with a request that would allow the requested State to act inconsistently with obligations under international law.70 If the UN Security Council really had the intention to waive the immunity of Al-Bashir then it could have done so by an express provision in the Resolution. According to Gaeta, article 98(1) therefore does apply and the ICC should refrain from engaging in any way that would otherwise violate international obligations of State Parties vis-à-vis Non-State Parties. Also, the Resolution cannot modify the powers of the ICC and extend it vis-à-vis Non-State Parties to the Rome Statute. These obligations cannot simply change the rights of other international organizations, since the ICC is regulated via the Rome Statute, after it was negotiated upon by States.71 Also, the Rome Statute does not support the ICC in its conclusion, since the Rome Statute does not provide for an regime regarding obligations for Non-State Parties due to Resolutions issued the Security Council.72 Gaeta concludes that States cannot therefore lawfully enforce the ICC’s request to arrest a person protected by personal immunities, because they are required to do so by the UN Security Council.73 Dov Jacobs argues on the
66 These were submitted after the Pre-Trial Chamber’s decision
67 Paolo Gaeta, ‘Request by Professor Paolo Gaeta to submit observation on the merits in Jordan’s appeal case’, Appeals Chamber Case No. ICC-02/05-01/09, p. 7.
68 Ibid, p. 3. 69 Ibid, p. 7.
70 Supra note 48 - Paolo Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, p. 328. 71 Supra note 66 – Paolo Gaeta, ‘Request to submit observations on the merits in Jordan’.
72 Ibid, para. 8. 73 Ibid, para. 9.
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same path and states that article 98(1) explicitly obligates the Court from refraining to not proceed with requests and indeed, does not create a right for States. Furthermore, this article, or even the Rome Statute regime, does not provide for the interpretation of the Appeals Chamber to suddenly broaden the powers of the ICC by disregarding the historical rule of personal immunity vis-à-vis Inter-State relations, since Jordan is only urged to cooperate via the Resolution. Moreover, no mention was made at all of ‘immunity’ in the Resolution. Therefore, even if personal immunity would be abrogated in the vertical relationship there is no evidence that the same applies in the horizontal relationship.74
According to the ICC, although the Rome Statute does not provide for such a cooperation regime, the text of the Resolution 1593 explicitly that ‘Sudan is obliged to fully cooperate with the ICC’ which is the similar text as in article 86 of the Rome Statute that stipulates that ‘State Parties shall cooperate fully with the ICC’.75 As such, Sudan had to
cooperate as a ‘State-Party’ and could not enjoy immunity as such under article 98(1). However, Gaeta argues that nothing in the Statute supports the view that a referral turns the ICC into an organ of the Security Council and subsequently turns Non-State Parties into State-Parties, while State-Parties can simply forget about the meaning of article 98(1) Rome Statute.76 Also, while the situation was referred to the ICC, the Security Council did not
decide that all members of the United Nations had to cooperate with the ICC.77 However, it
did not make such a decision. It only provided that Sudan and all other parties to the conflict had to cooperate fully. Other states are merely ‘urged’ to cooperate with the ICC, including Jordan as a State-Party.78 As also Dov Jacobs argues, Resolution 1593 does not remove immunity, since it does not even mention ‘immunity’
Akande argues that it is unconvincing that by deciding that there is no immunity under customary international law vis-à-vis international courts would lead to vice versa the abrogation of immunity at the horizontal level between States. The discussion regarding the content of this provision was left to the drafting committee who was also in charge of drafting Part 9 of the Rome Statute. Therefore, it seems to Akande that there was a relationship between article 27(2) and article 98(1) of the Rome Statute. Akande furthermore refers to
74 Dov Jacobs, Request for leave to submit an Amicus Curiae brief against the decision relating to Jordan with request to arrest and surrender Al-Bashir, 30 April 2018, ICC-02/05-01/09-347 para. 3 and para. 15.
75 Prosecutor v. Al-Bashir (Judgement in the Jordan Referral re Al-Bashir Appeal) ICC-02/-5-01/09 (6 May 2019) para. 143. para 140.
76 Ibid, para. 8.
77 Paolo Gaeta, ‘Request by Professor Paolo Gaeta to submit observation on the merits in Jordan’s appeal case’, Appeals Chamber Case No. ICC-02/05-01/09, p. 9.
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State Parties that have implemented the ICC Statute in their legislation and that draw a distinction between the immunity of State Parties to the Statute and Non-State Parties.79 This
argument states that even on the national level there is a strict difference made between State and State Parties. The judgement of the ICC currently takes away the rights of Non-State Parties, creates them into Non-State Parties under international law and makes them subject to arrest and surrender of their officials by State Parties of the Rome Statute.
5.2 Security Council Avenue v. Customary Law Avenue
However, Van der Wilt and Claus Kress make completely different arguments than Akande, Gaeta and Jacobs and the Appeals Chamber regarding the application of article 98(1) and whether it should be interpreted as creating duties or rights for the ICC or States in light of Resolution 1593. According to Van der Wilt, ‘one way to resolve the conflict between the obligation to cooperate with the Court and the duty of States to respect the immunity of foreign heads of states is to acknowledge that customary international law has decided the contest in favors of the former’.80 This would mean that on the horizontal level, in inter-State relations vis-à-vis an international (criminal) court such as the case with Jordan, Sudan and the ICC, protection of personal immunity does not apply at all, but not due to an UN Security Council referral, but rather as a rule of customary international law, whereby there is an obligation for State Parties to cooperate with international courts as trustees. The PTC in Malawi/Chad touched hereupon and made the distinction between national enforcement for particular self-interest and enforcement when they act as ‘agents of the court:
‘Indeed, it is the view of the Chamber that when cooperating with this Court and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within its jurisdiction’’81
Claus Kress is of similar view and believes that the above reasoning of the PTC is ‘’therefore justified and that the principles underlying the customary law exception to the
79 Akande De Souza Dias, Does the ICC Statute Remove Immunities of State Officals in National Proceedings? Some observations from drafting history of article 27(2)
80 Harmen van der Wilt, Immunities and the International Criminal Court p. 600 in, Tom Ruys, Nicolas Angelet & edited by Luca Ferro, The Cambridge Handbook of Immunities and International Law (first edition
Cambridge 2019) p. 605.
81 Ibid, p. 604 and p. 605. See: Prosecutor v. Malawi (Decision under article 87(7) on non-compliance by Jordan by request of the ICC for arrest and surrender of Al-Bashir) ICC-02/05/01/09 para. 46.
