Arresting Bashir: How the ICC has Violated its own Statute
This blog has presented many arguments as to how the International Criminal Court’s arrest warrant against President Bashir has become yet another obstacle to peace in Sudan. ICC officials usually counter such accusations with the glib line that their mandate is only justice; peace is the responsibility of other bodies. And yet those same officials invoke the deceptive “no peace without justice” siren to justify the Court’s actions, portraying advocates of a Security Council deferral as lily-livered appeasers.
But even within its narrow legal domain the ICC has failed to comply with its own mandate. In asking states other than Sudan to execute its arrest warrant the ICC is encouraging those states to violate international law, and in so doing has violated its own Statute too. This outcome was a possibility we pointed out in these pages prior to the warrant decision. Now that the Court has gone down this route, it is worth looking at the argument in close detail:
1. The Court must apply first and foremost the Statute that created it, the Rome Statute (art. 21(a) RS).
2. Article 27(2) provides that “˜[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’ The judges correctly point out that pursuant to this provision they are not prevented from exercising jurisdiction over the Sudanese President.
3. Yet the judges fail to mention the provision in the Statute that recognizes the rights of states that have not signed away their immunities to the Court, namely article 98(1): “˜The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’
4. How to read these two provisions so that both keep their effet utile, so that the interpretation of the one does not render the other meaningless? Easy:
a) In customary international law, heads of state enjoy immunity ratione personae, that is to say while they are in office heads of state cannot be prosecuted or arrested abroad for crimes they have allegedly committed, whether these crimes were committed before or during their taking office. Period. This position was upheld by the International Court of Justice in the Congo v Belgium case rejecting the Belgian argument that procedural immunity could not apply in the case of war crimes or crimes against humanity. The ICJ did in passing note that no such immunity exists before “˜certain international criminal courts’, among which is the ICC. In the case of the ICC, states parties to the Statute have agreed in Article 27 to waive their right to procedural immunities (the immunity of a head of state is a right vested in the state). This is a treaty-based deviation from customary international law. But according to the fundamentals of both treaty and simple contract law, that waiver has to be opted-into: it cannot be assumed on behalf of “third states”.
b) When drafting the Rome Statute, states were well aware of this rule and inserted article 98(1) to avoid a clash of obligations. This article recognises that states parties also have other obligations under international law by which they remain bound. In order to avoid putting a state in a position where it would both have to arrest and surrender pursuant to an ICC arrest warrant and article 89 on the one hand and have to comply with its other obligations under international law on the other, article 98(1) prevents the Court from putting states in that difficult position: “˜The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’
5. By issuing the arrest warrant for President Bashir and sending this to states other than Sudan, the ICC has ignored article 98(1). This is justified only if article 98(1) is not applicable in the present context. Since the judges make even no reference to the provision, we have no option but to guess why they considered it inapplicable:
a) One option is that they have developed the law so that head of state immunity no longer forms part of the “obligations with respect to the State or diplomatic immunity of a person … of a third State”. To attempt such a shift the decision would require at the least an explicit decision to that end, preferably with some decent reasoning. The judges’ decision provides nothing but deafening silence on this point.
b) Perhaps the Court believes that Bashir has no immunity because the UN Security Council referred the situation in Darfur to the ICC in a decision taken under Chapter VII of the UN Charter. However, that referral rendered the entire Statute applicable: article 27 and article 98. In the context of article 98(1), Sudan is still a “˜third state’; the referral has not made Sudan a state party. Sudan’s obligation to cooperate with the Court, for instance, stems from the Security Council resolution’s explicit provision to that end and not from the Statute. The Security Council’s resolution contains no provision that excludes the applicability of article 98. The judges’ only reasoning for the circulation of the arrest warrant among states other than Sudan cannot justify inapplicability of article 98 either:
“˜the Chamber highlights that, in relation to States other than Sudan, as well as regional and international organisations, the dispositive part of United Nations Security Council Resolution 1593 expressly states the following in relation to their cooperation with the Court: “While recognizing that States not party to the Rome Statute have no obligation to the Statute, [the United Nations Security Council] urges all States and concerned regional and other international organisations to cooperate fully.”’
Reading clause 2 of Resolution 1593 as a whole, the word “˜urges‘ stands in marked contrast to “˜decides‘. The Security Council “˜[d]ecides that the Government of Sudan … shall cooperate fully with and provide any necessary assistance to the Court” but only “urges all States…to cooperate fully.’ In Security Council lingo, an obligation is created by a “requires“ or a “decides“, not a mere “urge“.
If states were obliged to cooperate with the Court by the Resolution, there would be scope for the argument that the ICC’s writ should prevail. Article 103 of the UN Charter provides that Charter obligations prevail over obligations under other international agreements (although it is silent on obligations under customary international law). But Resolution 1593 has not obliged states to cooperate and the obligation under customary international law comes out on top. The ICC even acknowledges this point implicitly in its decision: it refers to Article 103 vis-í -vis Sudan’s obligation to co-operate. It tellingly makes no such reference for the other states to whom the warrant is sent. Resolution 1593 has neither explicitly nor implicitly rendered article 98(1) inapplicable. In referring the situation of Darfur to the ICC, the Security Council no more removed Bashir’s head of state immunity than it authorised other states to enforce the warrant by using force against Sudan. Both are within the Security Council’s powers, but both require explicit authorisation.
In sum, by referring the situation in Darfur to the International Criminal Court in a resolution under Chapter VII of the UN Charter, the Security Council has made the Court’s Statute applicable to a state that is not party to it. As a result, Bashir’s procedural immunity does not bar the Court from exercising its jurisdiction (article 27(2)), but the Court may not proceed with a request for surrender which would require states other than Sudan to act inconsistently with their obligation under international law to respect Bashir’s immunity (article 98(1)). Without any explanation or justification, the Pre-Trial Chamber has disrespected the latter rule and hence violated its own Statute. On these grounds, for as long as Sudan insists on the immunity of its President, no other country may execute the warrant.
Perhaps the ICC judges in their wisdom have found new law.(1) Perhaps. But the least one might expect of professional judges of a purportedly exemplary court after eight months of deliberation is that they justify their development of a body of law that reflects the fundamental tension between state sovereignty and international justice. By totally glossing over one of the most fundamental issues in international law, they have placed States – and themselves – in an impossible position.
This contribution is not an argument for the maintenance of procedural immunity of heads of state in the event of international crimes. It is an analysis of the law and a call for intellectual honesty on the part of the ICC. If the message of the judges’ decision is that no one is above the law, not even a President, they should not place themselves above their own Statute. When judges base decisions on an assumed moral high ground rather than law and reasoning, what hope for others to respect the rule of law?
(1) See for starting points for such a development S. Nouwen, “˜The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued’, 18(3) Leiden Journal of International Law (2005), 645-669.
The ICC left the realms of justice along time ago,this duplicityand double standards put the ICC firmly in the political realm.
You make it clear what you see as the obligations and non-obligations of states that are not parties to the Rome Statute. But it’s not clear to me whether States Parties are obliged to execute an ICC arrest warrant against a head of state. Or would they only be bound to do so if the arrest warrant were against a head of state of a state party to the Rome Statute? Or never?
Alex, thank you for your question.
In fact, states parties rather than non states parties are the ones in a difficult position as a result of the arrest warrant.
States not parties to the ICC have no obligations under the Rome Statute. Since Security Council resolution 1593 merely “urges” them to co-operate with the Court, they have no obligations pursuant to this resolution either, hence they can obey the law on immunities.
States parties to the Rome Statute face the dilemma. On the one hand, they are obliged to cooperate with the Court in the execution of the arrest warrant since the Statute obliges them to do so. On the other hand, international customary law obliges them to respect the procedural immunity of a Head of State. The Security Council’s resolution has not lifted this obligation explicitly. Since the Council merely “urges” states other than Sudan to co-operate, the Security Council has not overruled this obligation either. Finally, the referral as such does not overrule the obligation to respect immunity either, since the referral makes the Rome Statute applicable, article 27 AND its lex specialis, article 98.
It is the Court that has violated the Statute by ignoring article 98, which prohibits THE COURT to “proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”
The Court COULD have developed the law by arguing that procedural immunity for heads of state in the case of accusations of war crimes, crimes against humanity and genocide is no longer part of a state’s “obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State” and that therefore article 98(1) does not apply. Although probably not yet customary law, there are starting points for this position. Yet, the Court dodges the issue entirely.
If the ICC does not dare addressing the vexing question itself, it may be an option for the OIC, AU and G77 to convince the UN General Assembly to ask the International Court of Justice for an advisory opinion along the following lines:
a) do accusations of war crimes, crimes against humanity and genocide deprive heads of state of their immunity ratione personae?
b) may states decide that a court that they establish by treaty may disrespect the immunities of states that are not parties to the treaty?
c) does a referral by the Security Council as a result of which a Court may exercise its jurisdiction in accordance with a Statute pursuant to which on the one hand (cite article 27(2)) and on the other hand (cite article 98(1)) lift the immunity of the head of state of a state not party to the treaty? If yes, why?
If the answer to the question sub c is no, the ICJ has implicitly established that the ICC has violated international law. Then the difficult question arises to what extent the states parties incur state responsibility for violations committed by the ICC. I leave this for the experts on the accountability of (member states of) international organisations.
Um. Wow. I really hope neither or you are lawyers. Where to begin? How about with the irony of you mocking “professional judges of a purportedly exemplary court” for “totally glossing over one of the most fundamental issues in international law” when neither of you can read or interpret simple treaty language. The judges didn’t ignore 98(1) because they weren’t being “intellectually honest,” as you suggest, they don’t deal with it b/c 98(1) is completely inapplicable to the present context.
First, art. 98 concerns “requests for surrender or assistance,” not art. 58 arrest warrants. In fact, when the court issues an arrest warrant, it “MAY,” per art. 58, “request the provisional arrest or the arrest and surrender of the person under Part 9, which contains 98. In other words, just because you get an arrest warrant doesn’t mean the Court starts calling around asking for the guy to be arrested.
Second, even if the Court had made a request for the arrest of Bashir from someone — which country are we talking about, by the way?? — you’re misreading the text of 98. “Its obligations” under international law are, when we’re dealing with this issue, most explicitly those that are in the Rome Statute — the most explicit intl obligations that country has. How you get to some customary intl law loophole here is beyond me.
So, yeah, don’t throw stones at glass houses and all.
The arrest warrant decision isnâ€™t a request for surrender. It is just an arrest warrant for the sake of academic interest.
Wrong. In the decision the Court:
“DECIDES that, as soon as practicable, the Registry:
(i) shall prepare a request for cooperation seeking the arrest and surrender of Omar Al Bashir and containing the information and documents required by articles 89(1) and 91 of the Statute, and by rule 187 of the Rules; and
(ii) shall transmit such request to the competent Sudanese authorities in accordance with rule 176(2) of the Rules and to the following States:
(i) All States Parties to the Statute;
(ii) All United Nations Security Council members that are not States Parties to the Statute.”
Looks a lot like a request for surrender, wouldnâ€™t you say? The words â€œrequest for cooperation seeking the arrest and surrender of Omar Al Bashirâ€ are a bit of a giveaway on that front.
As for your second point, article 98 is rendered totally meaningless if the â€œobligations under international lawâ€ to which it refers are the obligations under the Rome Statute. If the Statute provides a carve-out for Statesâ€™ obligations under international law, we have to look at the entire corpus of international law, which includes customary law.
Now what was that you were saying about stones and glass houses?
Interesting debate. Surely, the issue is not exempt of difficulties and its analysis and study is just beginning. What about the following proposition: As the UNSC resolution (under Ch VII) activates the jurisdiction of the Court vis-a-vis Sudan and mandates it to cooperate, it could be argued that the immunity that may apply pursuant to article 98 has been in effect waived.