Making the Argument: Why the ICC Should Rescind the Arrest Warrants Against Omar Al-Bashir

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Making the Argument: Why the ICC

Should Rescind the Arrest Warrants

Against Omar Al-Bashir

University of Amsterdam

Christian Eriksson

Master track: International and European Law – Public International Law Date of submission (latest): 2018-07-27

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Abstract

This thesis sets out to make the argument that the International Criminal Court should rescind the arrest warrants currently being circulated against Omar Al-Bashir. This is so because there is indeterminacy in the state of the law, and because there is no instrument or mechanism that removes his Head of State immunity as incumbent president of Sudan. The first chapter provides a background to the issue to be investigated, as well as the structure, questions, and delimitations to be followed. Chapter two provides a brief overview and introduction to the concept of immunities that gives the benighted reader a minimum level of knowledge necessary to follow along. Chapter three delves into the South Africa decision on non-compliance and the Minority opinion to show errors that supports the author’s argument. Chapter four delves deeper into the customary law argument for the removal of Head of State immunity to show that it is inadequate and offers no consolation to the Court. Chapter five deals with breaches of international law, and elucidates that both the States Parties having been held accountable by the Court, as well as the Court itself, is breaching international law. In chapter six the thesis will be concluded and some final reflections will be offered. The thesis shows that the Court should rescind the arrest warrants because they place States in a precarious and unacceptable position, prone to further damage its already dwindling reputation.

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LIST OF ABBREVIATIONS

ECtHR European Court of Human Rights

ICC or Court International Criminal Court

ICJ International Court of Justice

ICJ Statute Statute of the International Court of Justice

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

IMT International Military Tribunal

PTC Pre-Trial Chamber

Rome Statute or Statute Rome Statute of the International Criminal Court

SC Security Council

SCSL Special Court for Sierra Leone

UNSC United Nations Security Council

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1 Introduction

1.1 Background

Two international warrants, one issued in 2009,1 the other in 2010,2 are currently actively being circulated regarding the arrest and surrender of incumbent president of Sudan, Omar Al-Bashir. Furthermore, the International Criminal Court (ICC) has held no less than seven States (Chad has been beheld twice) responsible for breaching their Rome Statute3 (Statute) obligations for failing to arrest and surrender him according to those warrants. These countries are Chad,4 Malawi,5 the Democratic Republic of Congo,6 Sudan (although not even being a State Party to the Rome Statute!),7 Djibouti,8 Uganda,9 South Africa,10 and Jordan.11 Although differently constituted Chambers have advanced different arguments, the overall gist of the situation is that the Court believes the incumbent president does not enjoy immunity from arrest and surrender – and perhaps more so – that the States Parties to the

1_{Pre-Trial Chamber I, Prosecutor v Omar Hassan Ahmad Al Bashir, Warrant of Arrest for Omar Hassan Ahmad}

Al Bashir, 4 March 2009, ICC-02/05-01/09-1.

2

Pre-Trial Chamber I, Prosecutor v Omar Hassan Ahmad Al Bashir, Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010, ICC-02/05-01/09-94.

3_{Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187}

UNTS 3.

4

Pre-Trial Chamber I, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC-02/05-01/09-140; Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, 26 March 2013, ICC-02/05-01/09-151.

5_{Pre-Trial Chamber I, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision Pursuant to Article 87(7) of the}

Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 12 December 2011, ICC-02/05-01/09-139.

6_{Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Cooperation of the}

Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, 9 April 2014, ICC-02/05-01/09-195.

7_{Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the Prosecutor’s Request for a}

Finding of Non-Compliance Against the Republic of Sudan, 9 March 2015, ICC-02/05-01/09-227.

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Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the non-compliance by the Republic of Djibouti 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, 11 July 2016, ICC-02/05-01/09-266.

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Pre-Trial Chamber, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision on the non-compliance by the Republic of Uganda 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 State Parties to the Rome Statute, 11 July 2016, ICC-02/05-01/09-267.

10_{Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision under article 87(7) of the Rome}

Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, 6 July 2017, ICC-02/05-01/09-302 (‘Majority’ or the ‘Majority decision’).

11_{Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Decision under article 87(7) of the Rome}

Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir, 11 December 2017, ICC-02/05-01/09-309.

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2 Rome Statute have an obligation to arrest and surrender him; and their failing to do so have thus resulted in findings of non-compliance with the Statute. The general argument by the States’ being held accountable is, that since president Al-Bashir is the president of a State not party to the Statute, ie Sudan, the provisions in the Rome Statute removing any and all immunities (for States Parties) do not apply and that therefore they in fact have a duty not to arrest and surrender him.

This particular situation has given rise to a huge scholarly debate and there are an absolute free-for-all of opinions out there, many somewhat overlapping, but none completely in accordance with the next. As a result, there is a real uncertainty as to the nature of Security Council Resolution 1593 (2005),12 what the Resolution means for the status of Sudan in relation to States Parties, and which provisions of the Rome Statute actually apply. As incredibly interesting as all of these points are, this thesis will not and cannot provide a definite answer to all of them. What will be advanced in these following pages might nevertheless be quite different and somewhat controversial.

1.2 Purpose

This Master’s thesis aims to make the argument that: (i) the incumbent president of Sudan still enjoys immunity from arrest and surrender, (ii) none of the alternative arguments advanced by the different Chambers are convincing enough to change that, (iii) the Court actually violated its international obligations by issuing the warrant(s) for arrest, and (iv) that it therefore should rescind those very warrants. To accomplish this task, this thesis will adopt the South Africa decision and the Minority opinion13 as its fons et origo, or point of departure, and venture outwards. The purpose here is not to paint an objective account of the situation in order to find the most plausible conclusion; instead, this thesis will actively provide an argument for why the warrants should be quashed, and as such will adopt a subjective and perhaps somewhat partial stance to the situation as a whole. As an argument such as this has not yet (to the best of this author’s knowledge) been advanced, the author will seize this opportunity to do so, since even though difficult, controversial and uncomfortable, such an argument still deserves to be advanced.

12_{UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593. This was the resolution through which the SC}

referred the situation in Darfur to the ICC.

13

Pre-Trial Chamber II, Prosecutor v Omar Hassan Ahmad Al Bashir, Minority Opinion of Judge Marc Perrin De Brichambaut, 6 July 2017, ICC-02/05-01/09-302-Anx (Minority opinion).

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1.3 Delimitations

Immunity is a vast and complex area of law, and it goes without saying that this work cannot exhaust what there is to be said on the topic. It is moreover not the purpose of this paper to provide a general overview on the subject, but to advance the specific arguments just outlined above. Immunity is also a difficult concept to talk about without reference to jurisdiction, but this thesis will nevertheless aim to deal solely with a specific form of immunity, that is Head of State immunity, and will only mention jurisdiction in passing. This work will venture into areas of law about which it has been written, and is still possible to write, several volumes of books, yet here the surface of those topics will barely be scratched. This is for obvious reasons. If one were to pull on every thread that presented itself it would be impossible to keep any coherence, consistency or conciseness, and some topics will therefore be brushed over with painstaking brevity. Finally, by the very nature of this thesis, it will not concern lex

ferenda but shall stick to, and examine, the lex lata.

1.4 Method and Material

It may not be customary to, in a thesis like this, set out to argue one way or the other, but instead seek to elucidate the law on a certain topic and retain an open mind about the conclusions until the very end. However, the author hopes that by acknowledging the fact that he will take a specific stance and argue from a specific point of view, some criticism that would otherwise be completely appropriate, be spared.

This thesis will use internationally recognised legal sources as enumerated in the Statute of the International Court of Justice, Article 38(1), which includes: international treaties and conventions, customary international law, general principles of law, judicial decisions, and writings and publications from prominent scholars.14 The most relevant sources for this work will be the Rome Statute itself; judicial decisions from the ICC, most importantly perhaps the South Africa decision and the accompanying Minority opinion, but also certain judgments from the International Court of Justice. Scholarly articles will be used to support the arguments where necessary and, to a lesser extent, other published works such as textbooks and handbooks, where they might be of use.

The overarching question that this paper seeks to answer is: ‘Should the ICC rescind the arrest warrants against Al-Bashir? If yes, why?’. A few sub-questions, the answers of which will

14

Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 59 Stat 1031; TS 993; 3 Bevans 1153, Article 38.

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4 serve as a guide to answer the main question, are: ‘Was the issuance of the arrest warrants contrary to international law? In which ways?’; ‘Is there any instrument that removes the Head of State immunity of Al-Bashir (SC Resolution 1593 (2005), the Genocide Convention, the Rome Statute)?’ Answering these questions will clarify the legitimacy (or not) of the warrants, and whether the States Parties need or need not cooperate with the Court.

1.5 Disposition

From this point, the second chapter will provide a brief account on the nature of immunities which will be relevant and necessary to understand the rest of this thesis. Next, chapter three will provide a deeper examination of the South Africa decision and the Minority opinion, and will provide an important part of the argument for why in the end there is no legitimate legal basis for the warrants issued. Chapter four will dive into the intricacies of the ‘customary law’ argument for removal of Al-Bashir’s immunities and conclude that the argument in all its constituent parts is inadequate. In chapter five it will be established which parties (ie the States, or the Court, or both) have breached international law and in which ways. Chapter six will be the concluding chapter where the paper is summarized and it will be shown that the ICC should indeed rescind the arrest warrants against Al-Bashir. It will also provide some of the authors own final reflections on the topic.

2 On Immunity

Immunity is not an un-nuanced concept in international law, but is multifaceted and versatile. This work will obviously deal with immunity from criminal prosecution, and in such a case, the most important distinction is between functional immunity (ratione materiae) and personal immunity (ratione personae).15 Functional immunity is attached to the conduct of a certain (State) representative and not to the person per se, whereas personal immunity is attached to the individual ‘as a whole’.16

Personal immunity is enjoyed by very few individuals whereas functional immunity is afforded to a much larger number of officials.17 Personal immunity is however strongly linked to incumbency, as these officials, when ‘stepping down’, retain only functional immunity for acts performed while in office.

15_{Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An Introduction to International}

Criminal Law and Procedure (4th edn, CUP 2014) 542.

16

ibid.

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5 Ultimately, it is the State – not the individual – that is the benefactor of both kinds of immunity, but the rationales behind them are, however, different.18

The telos behind immunity ratione materiae is the principle enshrined in the Latin maxim par

in parem non habet iudicum (or imperium), which means that one equal does not have the

power to sit in judgment over another equal – a derivation of the principle of State sovereignty.19 An official act of a State official is (pardon the repetition) considered an official act of that State, wherefore situations concerning such acts cannot be brought before domestic courts of other States.

The purpose behind immunity ratione personae follows a different logic. It is said that the value of such immunity lies in the enabling of the facilitation of international relations.20 It would be detrimental to the realm of international diplomacy would diplomats or other high ranking State representatives risk arrest or prosecution when travelling around the world – whether they were officially ‘on the clock’ or not.

Now, this thesis is most concerned with one variant of immunity termed Head of State immunity, since Omar Al-Bashir is the incumbent president of Sudan. There seems to be no real consensus as to the ‘conceptual foundations’ of this immunity, or exactly how it is to be defined, since there are no treaties or conventions on the matter and it does not fit neatly into any old established category.21 It seems however quite settled that Head of State immunity implies at least the same protection as diplomatic (ie ratione personae) immunity: ‘absolute personal immunity while in office, and afterwards functional immunity for official acts carried out while in office’.22

With this brief introduction to immunities, the thesis will now embark on an examination of the South Africa decision.

3 The South Africa Decision and the Minority Opinion

3.1 The Majority Decision

With the most elaborate decision pertaining to this specific topic to date, the Majority in their decision held with powerful words that South Africa had breached its international obligations by not arresting and surrendering the incumbent Sudanese president to the Court. It put 18 ibid. 19_{ibid 545.} 20_ibid. 21

ibid (especially at footnote 22).

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6 forward several points that are interesting for the purposes of this thesis, starting with perhaps the most important finding, worth spelling out in full, namely that:

the necessary effect of the Security Council resolution triggering the Court’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 has rights and

duties analogous to those of States Parties to the Statute.23

This finding that the SC Resolution put Sudan in a position analogous to that of a State Party was incredibly important since it brings with it consequences that would not otherwise have been necessary corollaries. Since the Majority made this finding, there were a few necessary implications: (i) all interactions between Sudan and the Court is governed by the Statute;24 (ii) Article 27 is the applicable Article, and it operates to remove all immunities of Al-Bashir;25 and (iii) Article 98(1) is not applicable on the horizontal plane between any other States Parties because Sudan is also classified as such in this situation.26 It did not matter whether it was the intention of the Security Council that this would be the effect of the Resolution, it was simply a necessary implication of its adoption.27 A further essential consequence of the applicability of Article 27 was the fact that it did not matter whether the resolution could be considered to provide any ‘waiver’, either explicit or implicit; such a waiver would be moot since there was no immunity to waive.28 A final point of note is that the Majority made clear that even if Article 98 had been applicable to the situation, it would not have relieved South Africa of its obligations to cooperate with the Court. This is so because that Article does not confer any discretion upon States to act or not to act, regardless of conflicting obligations.29 This issue will be returned to under chapter 5.

For all those reasons, the Majority concluded ‘that South Africa failed to comply with its obligations under the Statute by not executing the Court’s request for the arrest of Omar Al-Bashir and his surrender to the Court while he was on South African territory between 13 and 15 June 2015’.30

23_{Majority decision (n 10) para 88 (emphasis added).} 24_{ibid para 91.} 25_ibid. 26 ibid para 93. 27_{ibid para 95.} 28_{ibid para 96.} 29 ibid paras 99-106. 30_{ibid, Dispositif.}

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3.2 The Minority Opinion

3.2.1 Prelude

The South Africa decision was the first of the ‘Sudan non-compliance decisions’ that was not decided by unanimity. Judge Marc Perrin de Brichambaut appended a Minority opinion that was longer that the actual Majority judgment.31 The minority judge did not agree with the reasoning of the Majority although he did agree with the outcome. Rather than holding the Statute as the basis for the legitimacy of the arrest warrants and the removal of immunities against Al-Bashir, judge de Brichambaut held the Genocide Convention32 to be the relevant instrument in that regard. Let us first look at his dissection of the Majority’s argument and then examine his contention about the relevance of the Genocide Convention.33 de Brichambaut tackles the Majority argument in three stages. He begins with the ‘analogous position’ argument, then moves on to the ‘waiver’ argument, and lastly he looks at the ‘international court’ or ‘customary law’ argument. For the sake of simplicity, let us follow his structure. In this chapter what will mostly be presented – for the sake of brevity – are his findings, whereas a deeper analysis of the ‘customary law’ argument is reserved for chapter 3.

3.2.2 The ‘analogous position’ argument

The judge agreed with the Majority on a number of points before their views diverged, inter

alia that: (i) the Security Council referral activates the entirety of the Statute and as such it is

applicable as a whole;34 (ii) Articles 98 and 27 are not inconsistent with one another since they apply to different situations;35 (iii) the status of Sudan (as a State Party or as a non-State Party) would have decisive (and opposite) effects on the applicability (or not) of the immunity of Al-Bashir and the opposability of that immunity towards requested States or the Court.36 However, engaging in an encompassing examination of both the Prosecutor’s submissions (that Sudan is to be treated as analogous to a State Party) and South Africa’s submissions (that it is not), and finding that both parties had merit in their arguments, de Brichambaut was unable to concur with any real certainty with the Majority’s decision. The undeniable and

31_{By mentioning the length of the opinion the author simply wants to emphasize the thorough and elaborate}

nature of it, whilst still recognizing that the length of a work does not automatically speak to its elaborateness or meticulousness.

32_{Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entry}

into force 12 January 1951) 78 UNTS 277.

33_{The minority judge does this in the reverse order.} 34_{Minority opinion (n 13) para 41.}

35

ibid para 44.

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8 uncontested fact that the whole Statute – including Article 98(1) – becomes applicable in the event of a referral,37 and the fact that the exercise of jurisdiction does not ipso facto remove any and all immunities from said jurisdiction,38 presents (correctly) according to de Brichambaut enough of an indeterminacy in the state of the law with the effect that no firm conclusion could ‘be reached with regard to the question of whether or not Sudan is analogous to a State Party’.39

It appears that there might be a gap in the Rome Statute in this regard in so far as it does not explicitly specify how it is to be interpreted when the Security Council has referred a situation concerning a non-party State. The answer that the ‘whole’ Statute applies does not solve the problem because both Article 27 and 98 are part of that whole; and since there is no getting around that Sudan is a non-party State, it would be somewhat presumptuous to simply assume that Article 27 trumps Article 98. Perhaps this issue will be solved with time, either by the Appeals Chamber or by scholarship. Or perhaps what is needed is an amendment to the Statute which specifies how situations such as these are to be handled in the future.

3.2.3 The ‘waiver’ argument

Because of this indeterminacy in the state of the law regarding whether or not the Security Council resolution placed Sudan in an analogous position to a State Party, de Brichambaut moved on to examine whether the Resolution could be interpreted as waiving, either explicitly or implicitly, the immunities of Al-Bashir. Put another way, did the decision of the Security Council that Sudan ‘shall cooperate fully’40

with the Court entail that any immunities attached to its citizens must be considered removed or waived by virtue of Article 103 of the Charter of the United Nations?41, 42

Having established that the Court indeed was divested with the competence to interpret Resolution 1593 (2005),43 de Brichambaut went on to examine what effects it would have on the immunities of the Sudanese president. Applying different interpretative methods, he

37

ibid para 54.

38_{ibid paras 55-57. See also Paola Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7}

JICJ 315, 324.

39_{ibid para 58.}

40_{UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593, Operative paragraph 2.}

41

Minority opinion (n 13) para 60.

42_{UN Charter (n 14) Article 103 reads: ‘In the event of a conflict between the obligations of the Members of the}

United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’.

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9 examined in turn the ordinary meaning of the text of the Resolution,44 the context in which it was adopted,45 and the object and purpose of the Resolution.46 He furthermore looked at statements made by the members of the Security Council who adopted the Resolution,47 compared it to other resolutions,48 and examined subsequent relevant State and UN practice.49 However, this analysis – which is rather elaborate and in depth, and the judge definitely deserve praise for embarking upon it – yielded, at each and every section as well as in total, ‘either contradictory outcomes or indistinct results’.50

As a result of this – and once again – he found that ‘the law does not allow a definite answer to be reached’, wherefore also this argument – the waiver argument – failed to provide a ground for the removal of the immunity of Al-Bashir.51

3.2.4 The ‘international court’ argument

Next, de Brichambaut ventured to examine ‘whether the involvement of an international court affects the application of the rule of customary international law regarding the personal immunity of Heads of State in the relationship between States’.52

It should be noted that the Majority also briefly discussed this issue but did not find that there existed such an ‘international court’ exception to the customary international law rules on Head of State immunity.53

The Minority judge turned first to State practice on the issue and then to the nature of international courts, examining whether any determinative and coherent conclusions could be drawn on the issue. Unsurprisingly, he found no such thing. Regarding State practice he concluded that:

[T]he conflicting positions adopted by States reveal that it remains undecided whether the existing rule of customary international law regarding immunities enjoyed by

44 ibid paras 66-68. 45_{ibid paras 69-72.} 46_{ibid paras 73-75.} 47_{ibid paras 76-78.} 48_{ibid para 79.} 49 ibid paras 80-82. 50_{ibid para 83.} 51_ibid. 52 ibid para 84.

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10 incumbent Heads of State functions in the same manner if one of the States involved is acting pursuant to its obligations towards the Court.54

Regarding the nature of international tribunals, he found that ‘no clear practice can be identified establishing that the international nature of a tribunal is sufficient to lift the personal immunities of State officials’;55

providing further examples to show that ‘the matter is not entirely clear’ and that it is ‘not possible to make a firm finding on the matter’.56

Having regard to his previous findings, the concluding sentence further expresses the utter indeterminacy of the state of the law:

Accordingly, it is not possible to determine, at this point in time, whether the scope of senior officials’ immunity from arrest is restricted when the arresting State is acting in compliance with its obligations towards the Court or whether the rule of customary international law applies in the same manner in these circumstances as it would in the horizontal relationship between States.57

3.2.5 The ‘Genocide Convention’ argument

Having thus found that none of the previous arguments sufficed to remove the Head of State immunity of president Al-Bashir, de Brichambaut moved on to explain why instead the Genocide Convention could legitimately fill this gap as a basis for the warrants and removal of his immunity.

Why de Brichambaut’s opinion is termed ‘Minority’ and not ‘Dissenting’ is because he still agrees with the outcome of the Majority’s finding, but not with the arguments that led them there. While the Majority believes the Articles in the Rome Statute together with the Resolution from the Security Council legitimately remove the immunity of Al-Bashir, the Minority opinion sees the Genocide Convention as the proper base for this removal.

de Brichambaut starts by establishing that both Sudan and South Africa are parties to the Genocide Convention, and notes that one of the warrants for Al-Bashir’s arrest concerns charges of the crime of genocide.58 The analysis then moves on to whether that convention is applicable to the situation at hand. First de Brichambaut finds that the Court (ie the ICC) does

54

Minority opinion (n 13) para 91 (emphasis added).

55_{ibid para 93.} 56_{ibid para 95.} 57

ibid para 96.

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11 constitute an ‘international penal tribunal’ within the meaning of Article VI59

of the Genocide Convention.60 This must be considered correct. The Court is by nature international and it has

ratione materiae jurisdiction over the crime of genocide.61

Next, the judge went on to examine whether Sudan could be considered to have accepted the jurisdiction of such an international tribunal, which in this case is the ICC. de Brichambaut held that this must surely be the case, since (i) the situation in Darfur is referred by the Security Council by force of Article 13(b) of the Statute, (ii) Sudan is a member of the United Nations, and (iii) Article 25 of the UN Charter obliges members to carry out the decisions of the Security Council. Thus Sudan is obliged to accept the jurisdiction of the Court.62 This argument is solid and must be considered correct. Note that this does not create any internal inconsistency in the Minority judge’s argumentation. It is one thing to conclude that Resolution 1593 (2005) conferred jurisdiction on the Court over the situation in Darfur; it is another thing entirely to claim that it also removed the immunity of Sudan’s Head of State. Those matters need to be clearly separated and the second claim is not a necessary corollary of the former.

The third and final issue regarding the applicability of the Genocide Convention is whether Al-Bashir fulfils the condition of being a person ‘charged with genocide’ under Article VI. This examination was necessary because Al-Bashir is strictly speaking not ‘charged’ under the rules and definitions of the ICC.63 de Brichambaut circumvents this problem by declaring that the ICC definition of ‘charged’ is a peculiarity, and in any event, what is necessary to examine is whether Al-Bashir fulfils this condition under the Genocide Convention, and not under the ICC Statute.64 He then moves on look at practice from the European Court of Human Rights (ECtHR), where a charge has been defined as ‘the official notification given to

59_{The Article states: ‘Persons charged with genocide or any of the other acts enumerated in Article 3 shall be}

tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.

60_{Minority opinion (n 13) para 13.} 61_{Rome Statute (n 3) Articles 5 and 6.} 62

63_{According to the ICC regime a person cannot be considered ‘charged’ until the confirmation of charges}

hearing before a Pre-Trial Chamber (see Article 61 of the Rome Statute). A person only subjected to arrest warrants is not considered charged.

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12 an individual by the competent authority of an allegation that he has committed a criminal offence’65 and concludes that:

The warrant of arrest thus qualifies as an official notification of charges as defined by the ECtHR. In light of this, Omar Al-Bashir can be considered a “person[] charged with genocide” for the purposes of article VI of the Genocide Convention.66

Here, luck runs out. This argument cannot be accepted. It would be unsuitable, to put it mildly, to ‘lower the threshold’ of what it means to be ‘charged’ in this way. Even if the Rome Statute is a peculiarity in this respect, that instrument is still the constitutive instrument of the Court where the suspect is intended to stand trial, ie the ICC. It would be inapposite and unfortunate to deviate from the explicit provisions of the Statute just because they in this case create a hurdle to the exercise of jurisdiction. Furthermore, the implication of this approach is impossible to square with the principle of legal certainty; it simply cannot be allowed to soften the standard in this way – to the detriment of suspects and accused. In this sense, while the Genocide Convention does provide for certain international tribunals to prosecute persons for the crime of genocide, it seems that the ICC is unfit for this purpose, since its regime seemingly does not provide for its jurisdiction to be based on another instrument. This is moreover entirely in line with the view of the Majority which explains that ‘the only legal regime in which this Court may exercise the triggered jurisdiction is the one which is generally applicable to it, its Statute in primis’.67

de Brichambaut continues his analysis and ultimately concludes that the Genocide Convention in fact does function to remove the immunity of Al-Bashir. However, having already established why that convention is not applicable in the first place, it is not necessary here to delve into that part of his analysis, or to dwell on this issue any further.

3.3 Interim Conclusions

What can be concluded thus far is that de Brichambaut is correct insofar as he disarms the Majority argument, but incorrect insofar as to the applicability of the Genocide Convention. What de Brichambaut’s analysis shows – and why he is right – is that it is not possible to draw any firm conclusions as to what the law is regarding the situation of Sudan and the

65

Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (criminal limb) (Council of Europe/European Court of Human Rights, 2014) 7; Salov v Ukraine App no 65518/01 (ECtHR, 6 September 2005) para 65.

66

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13 validity (or not) of Al-Bashir’s immunity. Because of this indeterminacy in the current state of the law he seemingly feels obligated to adopt a restrictive stance, following what can only be considered a version of the in dubio pro reo principle. It would be wrong – both morally and legally – to rule to the detriment of a suspect when the law does not provide a clear affirmative answer.

Where de Brichambaut is wrong is in his application of the Genocide Convention to the case at hand. He makes a mistake in believing the threshold for what it means to be ‘charged’ with genocide can be lowered without compromising the integrity of the entire proceedings. Moreover, it does not appear that the ICC is equipped or able to deal with a process where jurisdiction is based on another instrument than its own Statute. Furthermore, and as pointed out by van der Wilt, basing the jurisdiction on the Genocide Convention may have curious effects on the case, since only one of the warrants issued towards Al-Bashir concerns the crime of genocide.68

Accordingly, the necessary implication of what has been established so far is that: (i) Sudan is not in a position analogous to a State Party to the Rome Statute, (ii) Security Council Resolution 1593 (2005) does not in any way waive or remove the Head of State immunity of the incumbent president Omar Al-Bashir, (iii) the Genocide Convention is not applicable and therefore cannot remove his immunity. It is however too early at this stage to pronounce on whether this ipso facto entails that South Africa did not violate its international obligations under international law by failing to arrest and surrender Al-Bashir; this issue will be examined more in depth in chapter 5. What will now follow is a more in depth examination and explanation of why Al-Bashir’s immunity is not removed by customary international law either.

4 Issues With the ‘Customary International Law’

Argument

4.1 Prelude

The ‘customary international law’ argument for the removal of immunities is actually a multifaceted argument, and as such, analysing the problems with that argument must be done

68_{Harmen van der Wilt, ‘Immunities and the International Criminal Court’ in Tom Ruys, Nicolas Angelet, and}

Luca Ferro (eds), Cambridge Handbook on Immunities and International Law (CUP 2018) (forthcoming – page numbers not yet available).

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14 in consequent constituent steps, in order not to mischaracterise or oversimplify either the issues or the solutions. In addition to the ‘international tribunal exception’ we have to add the ‘international crimes exception’. Furthermore, it is also in our interest to highlight the ‘inconsistent reasoning’ problem, and the ‘recurrent refusal’ problem. This chapter serves to dissect and analyse these multiple aspects of this problem in an attempt to demonstrate why the ‘customary international law’ argument is riddled with problems and logical fallacies and must therefore ultimately be rejected. Making this analysis is relevant because showing that there is no mechanism that removes the immunity of Al-Bashir is a vital step in the argument for why the warrants are unlawful and need to be quashed.

4.2 The problem (or not?) with inconsistent reasoning

Let us first look at the problem with inconsistent reasoning. The South Africa decision is at the time of writing, even though not the latest, the most refined ICC decision on non-compliance regarding the situation in Darfur. It is the most refined decision not because it is one of the latest or because it is the longest, or not even because it has a minority opinion, but because it advances the most convincing and coherent argument (which was nevertheless debunked in the previous chapter).

One can detect through the years of non-compliance decisions a certain change and evolution in the Court’s arguments. The most apparent examples of this evolution can be found when looking at the 2011 Chad and Malawi decisions, then moving on to the Democratic Republic of the Congo decision, and then finally arriving in the (somewhat) present decisions regarding South Africa and Jordan.

In the Malawi decision the PTC argued that customary international law was the basis for the removal of Al-Bashir’s immunities. After analysing a number of provisions, statutes, principles and case law, the Chamber found

that the principle in international law is that immunity of either former or sitting Heads of State can not be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not parties to the Statute whenever the Court may exercise jurisdiction.69

The Chamber thus used the ‘customary international law’ argument for the removal of Al-Bashir’s immunities, more or less implicitly declared Article 27 of the Statute to be custom,

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15 but seemingly and importantly70 only mentioned Resolution 1593 (2005) as an instrument conferring jurisdiction.71

In the Congo decision, a differently constituted PTC instead made the ‘implicit waiver’ argument. First of all, in contrast to the Chamber in Malawi, the Congo decision explicitly stated that Article 27(2) did not automatically apply to third states without their consent.72 The Chamber then however moved on to hold that by virtue of the Resolution, and specifically the phrase ‘cooperate fully’ in its operative paragraph 2, ‘the SC implicitly waived the immunities granted to Omar Al Bashir under international law attached to his position as a Head of State’ since ‘[a]ny other interpretation would render the SC decision … senseless’.73

Finally in the South Africa (and subsequently in the Jordan) decision(s) yet another differently constituted Chamber refined the ‘implicit waiver’ argument into the ‘analogous position’ argument. This position has already been sufficiently elaborated on above, so it need not be reiterated here. Suffice it to say that it is very easy to see when looking at these decisions how the Court’s argumentation has evolved or been refined over the years (‘evolved’ or ‘refined’ may perhaps be quite euphemistically put, as it would indeed be just as easy to say that is has ‘changed its mind’ or ‘desperately tried different routes’).

Does this inconsistent reasoning by the Court undermine the legitimacy and authority of the past or more recent decisions? It is quite difficult to see how this inconsistency in itself presents a problem to, or undermines, the overall quality of the ‘customary international law’ argument. However, although there is in general nothing wrong with changing one’s arguments and trying different solutions to solve a persistent problem; and while the author personally would not in principle outright refute the tactic of ‘throwing stuff against the wall and see what sticks’, that tactic does perhaps not strike one as the most appropriate for an international court of law. Whether or not this undermines in and of itself the strength of the argument under consideration is ultimately not of the highest importance, since this thesis argues that all of the different arguments advanced, while maybe edging closer to ‘solving the problem’, in the end does nothing but dance around it.

70

Important if for no other reason than because it explicitly contradicts the later Congo decision, creating some serious internal inconsistency.

71_{Malawi decision (n 5) para 36.} 72

See footnote 62 and accompanying text.

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16

4.3 The Problem with Recurrent Refusal of Cooperation

Despite a growing number of decisions of non-compliance, no State has to date arrested or surrendered the elusive president of Sudan, and in fact, their foremost argument for not doing so is that it would be contrary to international law, because they believe he still affords Head of State immunity. This fact in and of itself is quite interesting as it casts legitimate concern on the ICC’s continuing proclamations that Al-Bashir does not enjoy any such immunities in the present situation.

While it is self-evident that States cannot invoke their national law as an excuse to legitimately disregard their international law obligations,74 there is still another problem with this recurrent refusal of cooperation. That is the problem of the formation and creation of custom. If it is one thing the South Africa decision (including the Minority opinion) shows, it is that there is no consensus as to what the law is on this point. The issue is tremendously complex as shown by the large amount of scholarly and judicial literature it has generated,75 and Judge de Brichambaut put it quite eloquently when he stated ‘that the question of Omar Al-Bashir’s immunity is situated at the crossroads of different legal principles, regimes, and goals…’.76

It hence does not seem very controversial should one say that there has not yet crystallized a customary law rule that removes all immunities even for Heads of State when they are suspected of international crimes, even before international courts. Assuming this is true, what does the current refusal of cooperation mean?

Customary law, broadly speaking, is formed, or consists of, two elements: State practice and

opinio juris sive necessitatis.77 Given the current state of affairs, neither condition appears to be fulfilled. The Malawi decision that so firmly proclaimed the ‘customary international law’ argument, relied on a whole plethora of statements and conventions that (it claimed) indicated international consensus that this was the case. All of that material shall for the sake of time and space not be analysed here, but it does suffice to mention three examples: the ICTY Statute, the ICTR Statute, and the post-WWII IMT Statutes.

74_{Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155}

UNTS 331, Article 27.

75_{Just a simple search for “Al Bashir” limited only to the Journal of International Criminal Justice reveals a}

stunning 104 hits (2018-05-15), from contributors such as inter alia Dapo Akande, Paola Gaeta, Dire Tladi, Göran Sluiter and Erika de Wet (titles not included for the purpose of space) <https://tinyurl.com/yaqeascv>.

76_{Minority opinion (n 13) para 2.} 77

Malcolm Shaw, International Law (7th edn, CUP 2014) 53. See also Continental Shelf (Libyan Arab

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17 Article 7 of the Nuremberg Charter stated: ‘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’.78

Article 6 of the Tokyo Charter was drafted in a similar vein although with the caveat that an official position could serve as a mitigation of punishment.79 In addition, both the ICTY Statute (Article 7(2)) and the ICTR Statute (Article 6(2)) both in exactly the same terms state: ‘The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment’.80

Ignoring for a moment that neither of these provisions at all mentions immunities,81 none of them are even evidence of State practice. As Prosper Weil so brilliantly argued already some 35 years ago, the beautiful and precarious equilibrium of custom is threatened if we allow it to mean ‘the domination of the minority by the majority’, and that ‘while a provision of treaty law might find a place in the formation of a customary rule, in which the essential element was the conduct of states, it could never, on its own, be any substitute for that conduct’.82

Considering these mentioned statutes and provisions are all examples of ‘majority establishments’ (the post-WWII tribunals were established by the Allied Powers of UK, US, France, the USSR and to some extent China; the two ad-hoc tribunals were established by the Security Council, ie, at most, by active participation of only 15 States), they cannot be considered evidence of settled State practice and as such not of customary law. Articles 25 and 103 of the UN Charter do not change this. Since there is a clear lack of positive State practice, and much less any ‘constant and uniform usage’, there can be no custom to speak of.83 For the spirit of completeness and transparency, mention deserves to be given to

Nicaragua, where the International Court of Justice did

not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule … [T]he Court deems it

78_{Charter of the International Military Tribunal (adopted 8 August 1945, entered into force 8 August 1945) 82}

UNTS 279, Article 7.

79

Charter of the International Military Tribunal for the Far East (adopted and entered into force 19 January 1946, as amended 26 January 1946) Article 6.

80_{Statute of the International Criminal Tribunal for the Former Yugoslavia (adopted 25 May 1993, amended 17}

May 2002) established by SC Res 808 (1993), Article 7(2); Statute of the International Criminal Tribunal for Rwanda (adopted 8 November 1994, amended 13 October 2006) established by SC Res 955 (1994) Article 6(2).

81

They mention only that such status shall not relieve persons of responsibility, which is a matter imperative to distinguish from removal of immunity.

82_{Prosper Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 AJIL 413, 434-435.} 83

Asylum Case (Colombia/Peru) (Merits) [1950] ICJ Rep 266, 277. See also Minority opinion (n 13) para 89 (and accompanying footnotes 123 and 124).

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18 sufficient that the conduct of States should, in general, be consistent with such rules, and

that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule….84

In the present case, it is true; instances of State conduct have indeed been treated as breaches (at least by the ICC) of a rule. However, equally true, States themselves have not treated this conduct as a breach of customary rules, but on the contrary, have treated their conduct as

opinio juris sive necessitatis. For this reason, the ICC’s recurrent findings of non-compliance

cannot serve as support that State conduct has been treated like breaches of the customary rule, and the Nicaragua clarification cannot be invoked to ‘save’ or ‘justify’ the customary law argument for the removal of immunities.

Moving on, even if there was an emerging State practice or consensus to speak of, surely the fact that more or less a whole continent is persistently objecting to this rule is of relevance here.85 If what Shaw states is true – ‘for a custom to be accepted and recognised it must have the concurrence of the major powers in that particular field’ – certainly the support of the African continent would be necessary on issues such as that under examination.86 Not only was one of the two international criminal tribunals established by the Security Council pertaining to an African situation (that affected more States than just Rwanda), the majority of situations and cases before the ICC (past and current) concern African countries,87 and they also form the largest number of States Parties to the Rome Statute, sorted by continent.88 This large and important group of States have together showed their express displeasure and dissension to the view adopted by the Court regarding Al-Bashir’s immunities. Not only have many of them refused to cooperate with the Court (ie by not arresting and surrendering him), but the African Union (AU), of which 55 African States are parties,89 in 2014 adopted the so called Amendment Protocol, containing a provision that provides:

84_{Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America)}

(Merits) [1986] ICJ Rep 14 para 186 (emphasis added).

85_{Weil (n 82) 434. See also Fisheries case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 116, 131.} 86

Shaw (n 77) 57.

87_{Of the 11 situations currently under investigation, 10 are pertaining to Africa;}

<https://www.icc-cpi.int/pages/situation.aspx> accessed 2018-05-14.

88

<https://tinyurl.com/jxrtbuv> accessed 2018-05-14.

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19 No charges shall be commenced or continued against any serving AU Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.90

Two things need to be said about this. First, this provision concerns the African Court of Justice and Human Rights, and as such does not concern the ICC (at least not explicitly or directly).91 Second, as stated above, resolutions, conventions or provisions adopted by an international organisation, whether regional or quasi-universal, do not without more constitute ‘State practice’ for the purpose of creation of customary law. What it does show however, is the mentality amongst many, if not most, African States that incumbent Heads of State cannot be prosecuted.

It thus follows that, considering the lack of any real State practice supporting removal of immunities, together with the recurrent refusal of several States, and a whole continent acting as a persistent objector, the ‘customary international law’ argument (if there is one) is severely undermined, and, as it currently looks, not in any event applicable to Africa.

4.4 The ‘International Tribunals’ Problem

One of the more un-nuanced arguments one can make is that immunities normally opposable before national courts ceases to be effective before international courts, simply because of said international courts’ international nature. This was the argument advanced by the Appeals Chamber in the Taylor case,92 before the Special Court for Sierra Leone. The Chamber boldly stated 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’.93

This decision has been refuted by Cryer et al for conflating the different purposes of functional and personal immunities respectively,94 but it has also been supported by scholars such as Claus Kress.

Kress argues that actual State practice may be in short supply (in fact he concedes that there only is one such concrete example, ie the ICTY Milošević case), but that this ‘does not

90_{Article 46(A)bis, 2014 Draft Protocol on the Amendments to the Protocol on the Statute of the African Court}

of Justice and Human Rights, AU EX.CL/846 (XXV).

91_{It deserves to be mentioned that those AU States Parties that have signed the Rome Statute would probably}

find themselves in quite the precarious situation should one of their Heads of State become subject to ICC prosecution.

92_{Prosecutor v Charles Ghankay Taylor, Decision on Immunity from Jurisdiction (Appeals Chamber) 31 May}

2004, SCSL-2003-01-I (Taylor).

93

ibid para 52.

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20 necessarily refute the customary law argument’.95

What Kress does is that he first analyses paragraph 51 of the Taylor decision which he believes is the most important part of that judgment.96 He recites that paragraph verbatim in his commentary and for the sake of clarity it is valuable to do the same here:

A reason for the distinction, in this regard, between national courts and international courts, though not immediately evident, would appear 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.97

Although this statement prima facie appears to be flawed, Kress still defends it, arguing, notwithstanding the maxim nemo plus iuris transfere potest quam ipse habet, one should not be too quick to dismiss the idea that an international court can have enforcement powers exceeding that of its constituent creators.98 The argument becomes that because (certain) international courts are exercising the collective will of the international community and are set up to protect the values of that same community, ‘it is by no means exceptional that an international community organ may have wider powers to enforce an international community obligation than (groups of) states’.99 This is not a bad argument, and the author here supports Kress. There is nothing wrong with the argument that, in principle, a product can be more than the sum of its parts. His argument must fail for another reason however.

Kress goes on to conclude his point on this topic by stating that ‘[a]s a result, the explanation for the distinction between the powers of national and “truly” international courts alluded to by the SCSL in paragraph 51 of the Taylor decision is by no means logically flawed and can be based on principles’.100

However true this statement might be, it does not explain why an explanation that is ‘based on principles’ and ‘not logically flawed’ (which quite frankly appears to be quite a low standard) can serve as a substitute for actual State practice and

opinio iuris. According to this author, it cannot; and here is why.

95_{Claus Kress, ‘Commentary’ in André Klip and Göran Sluiter (eds), Annotated Leading Cases of International}

Criminal Tribunals: The Special Court for Sierra Leone 2003-2004, vol 9 (Intersentia 2004) 205.

96

ibid 206.

97_{Taylor (n 92) para 51 (emphasis added).} 98_{Kress (n 95) 206.}

99

ibid 206 (footnote omitted).

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21 Kress is simply distorting the process through which custom is formed and what counts as State practice. He is proceeding from a flawed premise. He rejects the classical (which he diminishingly calls ‘orthodox’) process of how custom is formed (elaborated by the ICJ in

inter alia the North Sea Continental Shelf cases)101 in favour of a more ‘modern positivist approach’ based not only on hard, but also soft-law, including eg mere pronouncements by States as well as judicial decisions.102 Granted, Kress himself calls this a modern and positivist approach, but, as already elaborated above, this is not a sustainable position. It would be inapposite to dilute the process of creation of custom in this way, and, needless to say, just because a progressive approach to a problem generates a more favourable outcome, it does (sadly) not make that specific approach legitimate or correct.

Does this mean Kress’ argument has no merit? Of course not, because it of course has. With the emergence of international human rights law and international criminal law (and consequently expanding the subjects of international law to include individual human beings) it is not entirely nonsensical to argue that also these new subjects and areas of law can and must play a part in the formation of custom. The purposes of these areas are after all to strengthen the protection of individuals and ending impunity for criminal perpetrators respectively, and these purposes are prima facie extremely hard to square with the continued effective validity of personal immunity. However, the only place where this view has been advanced is in doctrine by a few (albeit brilliant but somewhat radical) scholars, and cannot without further recognition by the major international tribunals or new treaties alter the formation and meaning of perhaps the most ‘international law concept’ and source we have, namely customary international law. This issue may ultimately boil down to differences of opinion as to how custom is formed, but in such an event, it should be quite clear where the current author stands.

After all this, Kress also moves on to demonstrate why the SCSL is a ‘truly international’ tribunal (which is questionable), but since the first branch of his argument, ie the ‘international community mandate’ has already been examined and rejected, it need not here and now be conducted an additional analysis about the ‘truly’ international (or not) nature of the tribunal. This is so because that analysis pertained to the particularities of that situation and did not concern the specific issue dealt with by this thesis.

101_{North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of}

Germany/Netherlands) (Merits) [1969] ICJ Rep 3 para 77.

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22

4.5 The ‘International Crimes’ Problem

It is possible to distinguish between functional immunity (ratione materiae) and personal immunity (ratione personae). Immunities can also be afforded for civil claims or criminal claims (or both). This must be said to be mostly uncontroversial, although surely it is not without its problems.103 What is not possible, however, is to claim that immunities are, or can be, relative to the seriousness of the act or crime in question. Such an argument is logically fallacious. This is exactly the problem with the ‘international crimes’ (or ius cogens) exception to immunities.

The Jurisdictional Immunities of the State104 case serves a perfect example to elucidate this

problem. Germany brought Italy before the ICJ alleging that the latter had breached certain international obligations owed towards her by allowing civil claims against her in Italian domestic courts, and by extension not affording her the jurisdictional immunity she was entitled to.105 Italy contested this by claiming that such jurisdictional immunity could not apply, but instead had to concede, ‘when that State has committed serious violations of the law of armed conflict’.106

The Court did not however accept that defence, and explained, correctly, that such an argument in fact presented a logical problem.107 Part of what the Court said deserves to be restated in full:

If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction. If, on the other hand, the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skilful construction of the claim.108

Granted, that case and statement regard State immunity for civil claims before a national court, and as such could not be more different from the Al-Bashir situation, which concerns

personal/individual immunity for criminal allegations before an international court. However,

103_{For instance determining where the line is to be drawn between private and official conduct is by no means}

always a walk in the park.

104

Jurisdictional Immunities of the State (Germany v Italy) (Merits) [2012] ICJ Rep 99.

105_{ibid para 16.} 106_{ibid para 81.} 107

ibid para 82.

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23 the specifics of the case are not what are important. What is important is the logical problem that emerges when qualifying immunities on the specific act or crime under consideration. It ends up being essentially a reversal of the presumption of innocence. That is as much a logical as a legal impossibility. It is moreover difficult to imagine a more serious infringement on the principle of legal certainty and due process than the reversal of the presumption of innocence. Proceeding from this basis, not only is the above-mentioned argument applicable to the Al-Bashir scenario, it applies a fortiori.

States are abstract entities whereas human beings are real. If what the Court here states regarding State immunity is true, it must certainly apply a fortiori to the immunity of persons, since an interference with a person (whether of a civil, administrative or punitive nature) is

ipso facto under any and all circumstances more severe than any interference with a State

(which furthermore cannot be – as the lex lata currently stands – criminal or punitive in nature, and are therefore by definition more lenient).109 Such immunities (attaching to persons) therefore require in all circumstances at least the same standard of protection and not under any circumstances a lesser standard of protection, than State immunity.

Therefore, denying immunities for international crimes because of their severity is not a sustainable argument. Even should crimes or acts be regarded or classified as ius cogens do not change this fact. Granted, this may be mostly relevant for national courts, since international courts in general and the ICC in particular is set up for the specific purpose of prosecuting international crimes. Still, only using the argument that international crimes are of a different nature than ordinary crimes cannot in this author’s opinion, without more, suffice to remove ratione personae (including Head of State) immunity before international criminal tribunals. It is simply too arbitrary, in addition to being logically fallacious. Neither is there any conflict between immunities and ius cogens norms because the former rules are procedural, whereas the latter are of a substantive nature.110 As the ICJ held in the Arrest

Warrant case, ‘[i]mmunity 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’.111

109_{International Law Commission, ‘Draft articles on State Responsibility for Internationally Wrongful Acts, with}

commentaries’ in Yearbook of the International Law Commission, 2001, vol 2, Part Two, as corrected (United Nations Publication 2007) 111 paras 5-7.

110_{Jurisdictional Immunities (n 104) para 93.} 111

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) [2002] ICJ Rep 3 (Arrest Warrant case) para 60.

Making the Argument: Why the ICC Should Rescind the Arrest Warrants Against Omar Al-Bashir