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?

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(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.