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Head of State immunity: The ICC’s biggest impediment

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Indian Journal of International Law

Abstract

The ICC’s success has been questioned by many and the Al-Bashir situation has placed a major obstacle in ICC’s jurisprudence regarding immunity to heads of state. Article 27 of the Rome Statute states that no position of authority of an individual, shall bar the Court from exercising jurisdiction. However, Article 98 of the Rome Statute confers that the Court may not proceed with a request for surrender, if this would require the requested state to act inconsistently with international law obligations pertaining to immunity of officials in relation to a third state. Article 98 is interpreted such that it applies to non-state parties since the members have not ratified the Rome Statute and thus are not bound by the obligations created by Article 27. Secondly, immunity to heads of state is well recognized in international customary law. Putting the concerns into context, Sudan is not a party to the ICC. Bashir, the accused, has travelled to many countries within the African Union, wherein States have refused to extradite him to the ICC, due to the immunity his position confers on him. Since Sudan’s referral to the ICC is made by the UNSC, not only does Article 27 apply but also Article 98 (1) which would consequently, create serious doubts on the prohibition of head of state immunity for Al Bashir. Due to the lack of clarity of the situation, the AU have been looking at the option of an advisory opinion from the ICJ on the matter. This step in itself is a pandora’s box, since it is unclear whether the ICJ has the power to give an advisory opinion on the direct jurisdiction of the ICC, considering both are supra-national Courts. Some countries of the AU have even threatened to withdraw from the ICC which makes the matter extremely complicated.

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Notes

  1. The Rome Statute 2002, [27]

    “Irrelevance of official capacity:

    1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

    2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”

  2. The Rome Statute 2002, [98 (1)]

    “Cooperation with respect to waiver of immunity and consent to surrender:

    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.”

  3. The Prosecutor v. Omar Al-Bashir, Arrest Warrant I of 4th March, 2009 (ICC-02/05-01/09-1), [44]; The second arrest warrant included indictment for the crime of genocide, see Al-Bashir, Pre- Trial Chamber I, Arrest Warrant II, 12.7.2010 (ICC-02/05-01/09-95).

  4. UNSC Resolution 1593, Violations of International Humanitarian Law and Human Rights Law in Darfur, Sudan, adopted on 31st March 2005 at its 5158th meeting, UN Doc. S/Res/1593.

  5. UNSC Resolution 1593, ibid note.

  6. The Prosecutor v. Omar Al-Bashir, Arrest Warrant, supra note 3, at [44].

  7. Rome Statute 2002, [58].

  8. Rome Statute, 2002, [58(5)] ibid note; Rome Statute,2002, [87(7)], Rome Statute, 2002, [ 87(1) (a)]; Rome Statute, 2002, [112].

  9. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP, 2016) 1433.

  10. African union Backs Mass Withdrawal from the ICC, BBC News, 1st February 2017.

  11. Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 June 2015, ICC, Pre-Trial Chamber II(, ICC-02/05–01/09–242)

    Decision following the Prosecutor’s request for an order further clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender Omar Al Bashir.

  12. Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development and Others, High Court of South Africa (24 June, 2015) (Case No. 27740/2015) zagpphc [402].

  13. M. Ventura, Escape from Johannesburg? Sudanese President Al-Bashir Visits South Africa, and the Implicit Removal of Head of State Immunity by the UN Security Council in light of Al-Jedda, 13(5) JICJ (2015) 995.

  14. Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development and Others, supra note 12, at [402].

  15. Paul J Toner, Competing Concepts of Immunity: The (R)evolution of the Head of State Immunity Defense, 108 Penn St L Rev (2004) 899.

  16. James Miggins, From Immunity to Impunity: Charles Taylor and the Special Court of Sierra Leone, 16 DJLS (2007) 22.

  17. Antonio Cassese, When May Senior State Officials be Tried for International Crimes?, 13 EuR. J.INT'L L. (2002) 753, 862.

  18. Kerry Creque O'Neill, ‘A New Customary Law of Head of State Immunity?: Hirohito and Pinochet’, 38 STAN. J. INT'L L. (2002) 289, 291.

  19. R v. Bow Street Metropolitan Slipendiary Magistrate; ex parte Pinochet Ugarle (No.3), (1999) 2 ALL ER 97.

  20. Democratic Republic of Congo v. Belgium, Judgment of 14th February 2002, (2002 1.C.J. 121) [2].

  21. Democratic Republic of Congo v. Belgium, ibid note, at [55].

  22. Democratic Republic of Congo v. Belgium, ibid note, at [61].

  23. Prosecutor v. Slobodan Milosevic (Decision on Preliminary Motions), ICTY Trial Chamber, (8th November 2001) Case No ICTY-IT-02-54, [27-28].

  24. Rome Statute, 2002, [27], supra note 1.

  25. Rome Statute, 2002, [98 (1)], supra note 2.

  26. Rome Statute, 2002, [27], supra note 1.

  27. Gué́naë̈l Mettraux, John Dugard, Max du Plessis, Heads of State Immunities, International Crimes and President Bashir’s visit to South Africa, 18 Int. Cr. L Rev (2018) 577.

  28. Nikolaos Pavlopoulos, South Africa’s failure to arrest President al-Bashir: an analysis of the Supreme Court of Appeal’s decisions and its implications, 49 CILSA (July 2016) 164.

  29. Mettraux, Dugard, Plessis, supra note 27, at 577.

  30. Vienna Convention on the Laws of Treaties 1969, [31 (1)],

    “General rule of interpretation

    1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

  31. Paola Gaeta, Partik Labuda, Trying Sitting Heads of State in The ICC and Africa, eds. Jalloh/Bantekas (OUP, 2017) 150.

  32. Al-Bashir, Pre-Trial Chamber II, South Africa Decision, 6th July, 2017 (ICC-02/05-01/09-302) [79].

  33. Al-Bashir, ibid note, [79-80].

  34. Vienna Convention on the Laws of Treaties 1969, [2 (1) (h)],

    “Use of terms

    1. For the purposes of the present Convention:…

    (h) "Third State" means a State not a party to the treaty;…”.

    As an example, the Vienna Convention recognizes that a ‘Third State’ with respect to a treaty is a State that is not a party to that treaty.

  35. Stensaeth, Hakkon Ronn, Head of State Immunity at the International Court: Legal Consequences of the UN Security Council Referrals for Personal Immunities (2018) UiO:DuO, available at https://www.duo.uio.no/handle/10852/62606.

  36. Mettraux, Dugard, Plessis, supra note 27, at 577.

  37. Otto Triffterer, Christoph Burchard, Rome Statute of the International Criminal Court: A Commentary (Beck/ Hart 2016) 1048.

  38. Dapo Akande, Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute, Ejiltalk, 12th November, 2018, available at https://www.ejiltalk.org/does-the-icc-statute-remove-immunities-of-state-officials-in-national-proceedings-some-observations-from-the-drafting-history-of-article-272-of-the-rome-statute/.

  39. Dapo Akande, ibid note

    ‘Complementarity’ refers to the primacy of States and their domestic Courts to prosecute individuals who are accused of committing international crimes that also come under the jurisdiction of the ICC. In context to immunity, that would mean removal of immunity to either prosecute domestically or submit accused to the ICC.

  40. Phillip Wardle, 'The Survival of Head of State Immunity at the International Criminal Court' 18 Austl Int'l LJ (2011) 181.

  41. Rome Statute, 2002, [13 (b)],

    Exercise of jurisdiction

    ‘The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:…

    (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;’.

  42. Rome Statute, 2002, [13 (b)], ibid note.

  43. AG Kiyani, Al-Bashir and the ICC, CJIL (2013) 481.

  44. Schabas, supra note 9, at 604.

  45. Vienna Convention on the Laws of Treaties, 1969, [34],

    “General rule regarding third States

    A treaty does not create either obligations or rights for a third State without its consent.”

  46. UN Charter 1945, [42],

    “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

  47. UN Charter 1945, [25],

    “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

  48. UN Charter 1945, [103],

    “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.”

  49. Fellmeth/Horwitz, “Ratione temporis,” in Guide to Latin in international law (OUP, 2009), See lege specialis derogate legi generali.

  50. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Provisional Measures, Order adopted on 14th April, 1992, (I.C.J. Reports 1992, p. 3) [39].

  51. Separate opinion of Judge Lauterpacht, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, , Order adopted on 13th September, 1993, (I.C.J. Reports 1993) 407.

  52. Separate opinion of Judge Lauterpacht, ibid note, at 407.

  53. UN Convention on the Law of the Sea, adopted on 10th December, 1982, (1833 UNTS 3) [100-7, 110].

  54. International Law Commission (ILC), “Fragmentation of International Law,” adopted on 13th April, 2006, (A/CN.4/L.682) [345]; Leiæ/Paulus, ‘The Charter of the United Nations: A Commentary’,, eds. Simma et al. (OUP, 2012) 2132-3.

  55. UNSC Resolution 1593, supra note 4.

  56. UNSC Resolution 1593, supra note 4.

  57. UNSC Resolution 1593, supra note 4.

  58. Namibia Advisory Opinion, supra note 53, [114].

  59. Namibia Advisory Opinion, supra note 53, [114].

  60. Vienna Convention on the Laws of Treaties 1969, [31 (1)], supra note 30.

  61. UNSC Resolution 1593, supra note 4.

  62. Gaeta Labuda, supra note 31, at 156; Antiono Cassese, “Giustizia impossibile,” LaRepubblica.it, 5th March, 2009, available at https://www.repubblica.it/2009/03/sezioni/esteri/bashir-mandato-cattura/cassese-bashir/cassese-bashir.html.

  63. DRC v Congo, supra note 20, at [41-45].

  64. UN Charter 1945, [25], supra note 47.

  65. Kreicker, “Der Präsident des Sudan vor dem Internationalen Strafgerichtshof”, Humanitäres Völkerrecht-Informationsschriften (2008) 161-2.

  66. The Rome Statute 2002, [98 (1)] supra note 2.

  67. The Rome Statute 2002, [98] supra note 2.

  68. Knottnerus/Hoogh, “ICC Issues New Decision on Al-Bashir’s Immunities” EJIL:Talk!, 18.4.2014 , available at https://www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs-immunities-%E2%80%92-but-gets-the-law-wrong-again/.

  69. Rome Statute, 2002, [86]; Rome Statute, 2002, [89].

  70. Rome Statute, 2002, [97].

  71. Rome Statute, 2002, [87 (7)].

  72. Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC, Pre-Trial Chamber I, Corrigendum to the 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, (ICC-02/05-01/09) [43].

  73. Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 December 2011, ibid note, at [43].

  74. Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 December 2011, ibid note, at [43].

  75. Prosecutor v. Omar Hassan Ahmad Al Bashir, 26th March 2013, ICC, Pre-Trial Chamber II, 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, (ICC-02/05-01/09).

  76. Prosecutor v. Omar Hassan Ahmad Al Bashir, 9 April 2014 , ICC, Pre-Trial Chamber II, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court ( ICC-02/05-01/09) [22].

  77. Prosecutor v. Omar Hassan Ahmad Al Bashir, 9 April 2014, ibid note, at [25, 33].

  78. Prosecutor v. Omar Hassan Ahmad Al Bashir, 11 July 2016 , ICC, Pre-Trial Chamber II, 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 the State Parties to the Rome Statute, (ICC-02/05-01/09) [11].

  79. Prosecutor v. Omar Hassan Ahmad Al Bashir, 11 July 2016 , ICC, Pre-Trial Chamber II, 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, (ICC-02/05-01/09) [12].

  80. Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 June 2015, supra note 11, at [88].

  81. Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019 , ICC, Appeals Chamber, Judgmentin the Jordan Referral re Al-Bashir Appeal, (02/05-01/09 OA2) [113].

  82. Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, ibid note, [113].

  83. Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, ibid note, [55].

  84. Prosecutor v. Omar Hassan Ahmad Al Bashir, 13 December 2011, supra note 73; Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, supra note 82.

  85. Dissenting Opinion of Judge Shahabuddeen, Prosecutor v. Radislav Krstic, Decision on Application for Subpoenas, 1 July 2003 (it-98–33-A) [11].

  86. Prosecutor v. Omar Hassan Ahmad Al Bashir, 9 April 2014, supra note 77.

  87. Vienna Convention on the Laws of Treaties, 1969, [34], supra note 45.

  88. Schabas, supra note 9, at 604.

  89. Southern Africa Litigation Centre, supra note 12.

  90. AG Kiyani, supra note 43.

  91. Vienna Convention on the Laws of Treaties, 1969, [34], supra note 45.

  92. Tim Murithi, Ensuring Peace and Reconciliation while Holding Leaders Accountable: The politics of ICC cases in Kenya and Sudan 14 (2) Africa Development (2015) 73-97.

  93. Prosecutor v. Omar Hassan Ahmad Al Bashir, 9 April 2014, supra note 77.

  94. Prosecutor v. Omar Hassan Ahmad Al Bashir, 9 April 2014, supra note 77.

  95. Convention on the Prevention and Punishment of the Crime of Genocide, 1948, [IV].

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    Yash Singhi

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Singhi, Y. Head of State immunity: The ICC’s biggest impediment. Indian Journal of International Law 59, 391–410 (2021). https://doi.org/10.1007/s40901-020-00118-9

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