Jens Iverson is a researcher for the Jus Post Bellum Project at the Grotius Centre for International Legal Studies, University of Leiden, the Netherlands.
On 9 January 2012, the African Union (AU) Commission issued a press release responding to the decisions (see here and here) issued by Pre-Trial Chamber I of the International Criminal Court (ICC) last December regarding the “alleged” failure by Chad and Malawi to comply with the cooperation requests with respect to the arrest and surrender of President Al Bashir of Sudan (For previous EJIL:Talk! Commentary on the ICC decisions and the AU response see here and here). In the press release, the AU makes the assertion that the decision has the effect, inter alia, of:
“Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless.”
There has been much discussion (including by Dapo Akande on this blog and elsewhere) regarding the meaning and effect of Article 98 of the Rome Statute. Paragraph 1 of that provision states that:
”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.”
Unfortunately, the following points are often not emphasised in discussions or rulings on Article 98(1) and are entirely overlooked by the AU Commission:
i. Article 98(1) only covers “State or diplomatic immunity of a person or property of a third State”;
ii. Head of state immunity is not the same thing as either a) state immunity or b) diplomatic immunity; and
iii. Head of state immunity is the relevant immunity in this case.
Nowhere does the Rome Statute explicitly recognize head of state immunity as a reason not to comply with obligations under the Statute. As is well known, Article 27(2) clearly and unambiguously states that immunities which may attach to the official capacity of a person do not bar the Court from exercising jurisdiction over such a person. Particularly in light of Article 27(2) and the obvious importance of the question of head of state immunity, if the framers of the Rome Statute intended Article 98(1) to apply to heads of state, one might have expected that explicit language to that effect would have been negotiated at the Rome Conference. It was not. Rather, as this analysis will briefly elaborate, it appears that Article 98 was crafted not to interfere with States qua States and with the efficient performance of the functions of diplomatic missions, while retaining the capacity to hold heads of state to account.
As pointed out by Prof. Paola Gaeta in her 2009 JICJ article Does President Al Bashir Enjoy Immunity from Arrest?, it is important to distinguish between the question of what is legal for the ICC under the Rome Statute (i.e., Is the ICC authorized to issue to States Parties a request for surrender of the President of Sudan?) and the question of whether it is legal for states other than Sudan to enforce the warrant against Al Bashir under customary international law (i.e., Would a state commit a wrongful act vis-à-vis Sudan should it decide to arrest and surrender President Al Bashir?). Prof. Gaeta argues forcefully that the ICC is not authorized to issue such a request for surrender, and that a state would commit a wrongful act should it decide to honour the request. The authors of the AU press release clearly concur, although perhaps for different reasons. I respectfully disagree with both Prof. Gaeta and the authors of the AU press release, particularly with respect to the first question (regarding the effect of Article 98). The second requires a more extensive review of the evolution of customary international law than is possible in this brief post, and has been attempted by Pre-Trial Chamber I in the decisions at issue.
Regardless of how one interprets laws or secondary materials on particular national viewpoints, the burden of persuasion clearly lies with those who would read an immunity into Article 98(1) which is not explicitly present in the language of the Article. Such an argument, to be persuasive, must demonstrate that under contemporary customary international law either a) diplomatic immunity necessarily includes head of state immunity or b) state immunity necessarily includes head of state immunity, not merely the selective incorporation of head of state immunity into domestic legislation meant to cover diplomatic or state immunity. I have yet to see such a demonstration.
In an LJIL article written in 1999, Jürgen Bröhmer helpfully notes that state immunity, diplomatic immunity, and head of state immunity are separate concepts. (Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator; see also here). Perhaps Article 98(1) could have been written more explicitly to clearly indicate that it did not include head of state immunity. Of course, listing one excluded type of immunity might imply that it was the only excluded immunity, which I do not believe is the case. For example, Article 98(1) also makes no mention of and does not cover privileges and immunities relating to International Organizations or Institutions. This is a pertinent example in the light of the (in my mind) ultra vires attempt to pre-emptively extend immunity to United Nations peacekeepers (see UNSC 1422).
While the laws on diplomatic immunity and state immunity are complex, the short answer to the application of Article 98(1) to President Al Bashir can be summarized as follows: he is neither a state, nor a diplomat. The trend in authority, particularly since the demise of the Soviet Union, is towards a restrictive view on State Immunity. The Restatement (Third) on Foreign Relations Law of the United States has dropped any reference to State immunity covering anything other than states or state instrumentalities (see Foreign Relations Law of the United States, Restatement of the Law Third § 451 (1987), including Comment A). Diplomatic immunity can cover more than recognized diplomats—for example, it can cover the family of diplomats. Domestic legislation may combine several types of immunity under one statute or understanding, but as a matter of principle, diplomatic immunity and head of state immunity should be kept separate from one another. One type of immunity does not attach to the object of another type of immunity. Diplomats are not heads of state, nor (unless specifically recognized as such) heads of state diplomats. As well put by Jürgen Bröhmer’s 2000 LJIL article, Immunity of a Former Head of State General Pinochet and the House of Lords: Part Three: “Diplomatic immunity is enjoyed by (former or present) diplomats only, head of state immunity is tied to being or having served as head of state and state immunity is tied to being a state.”
To determine whether President Al Bashir is covered by diplomatic immunity, one can look at Article 1 of the Vienna Convention on Diplomatic Relations, widely considered to codify customary international law on diplomatic immunity. Particularly helpful are Article 1(e) (“A ‘diplomatic agent’ is the head of the mission or a member of the diplomatic staff of the mission”) and Article 31(1) (“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.”).
What is the purpose of diplomatic immunity? There are a variety of potential answers, but perhaps the most widely accepted answer is present in the Chapeau of the Vienna Convention on Diplomatic Relations, namely: “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions” (emphasis added).
There is no evidence that President Al Bashir was formally recognized as a diplomat by Chad or Malawi. This is unsurprising, as his presence would not be necessary to ensure the efficient performance of the functions of diplomatic missions. The accredited Sudanese diplomatic corps can do that for Sudan without President Al Bashir’s personal presence. Neither the letter nor the spirit behind diplomatic immunity supports lending President Al Bashir such immunity.
One can clearly imagine what the actual text of Article 98(1) might mean in practice without an overbroad interpretation. Article 98(1) does not refer to all “obligations” or all “obligations under international law” but rather specifically “obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State[.]” The phrase “with respect to the State or diplomatic immunity of a person or property of a third State” must have had meaning, or it would not have been included. That meaning is readily explainable. For example, one might suggest that the ICC may not order that the bank accounts and other property of states and diplomats would be subject to seizure, if that violated the specific obligations under international law in question. Any attempt by the Court to request the arrest or surrender of accredited diplomatic agents of a third state (widely interpreted as a non-State Party) would be subject to a legitimate objection under Article 98(1).
The burden must remain on those claiming that Article 98 applies to Chad and Malawi’s failure to comply with cooperation requests to explain specifically how it applies. They must persuasively explain how, under Article 98(1), President Al Bashir is either a diplomat or a state, or how, under Article 98(2), he is covered under obligations under specific international agreements. One can understand how confusion may arise given the arguably unsettled state of the law, and the muddled roots of head of state immunity as customary international law. Head of state immunity may be ultimately rooted in—while still distinguishable from—state immunity or diplomatic immunity, depending on the national tradition.
Article 98(2) does not discuss customary law but instead “obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court[.]” The language of “sending State” implies that agreements which use similar language such as the Vienna Convention on Diplomatic Relations or perhaps Status of Forces Agreements were in the minds of those who drove the adoption of Article 98(2) at Rome. It has no applicability to the customary law norms regarding head of state immunity. Neither Chad nor Malawi has a specific agreement requiring the consent of Sudan before honouring their obligations to the Court.
The split between the AU and the ICC, and the great confusion surrounding the proper interpretation of Article 98 makes a clear analysis of immunity under Article 98 an important and pressing matter. This issue will certainly return. It would be desirable for a consensus on Article 98 to emerge as soon as possible‑particularly a consensus that reflected the text of the Article, the intent of the framers as reflected in other Articles, and the stated goals of the Rome Statute.