1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Mr. Manuel Monteagudo Valdez on “The Singularity and Limitations of Contemporary International Economic Law” and on “Perspectives on International Economic Law: Searching for an Anthropological Approach” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.
Announcements: UN Audiovisual Library of International Law; Professor of International Law and Human Rights, Lund (Sweden); ILaW Discussion on ICC Decision in the Al-Bashir Case; CfP Exploratory Workshop on Constitutions of Value
On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC) issued the Judgment in the Jordan Referral re Al-Bashir Appeal. It found that Jordan had no ground to refuse to execute the request by the ICC for arrest and surrender of Omar Al-Bashir, the then Head of State of Sudan – a State not party to the Rome Statute. In this highly controversial judgment, the Appeals Chamber held that ‘[t]here is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court.’ (par. 1, 113) Endorsing the ICC Pre-Trial Chamber I’s 2011 Malawi Non-Cooperation Decision, the Appeals Chamber furthermore held that ‘[t]he absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant […] also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’ (par. 114)
The Chamber could have ended its judgment on the issue of immunities there, as this finding on customary international law, if correct, would seem to dispose of the matter. However, it decided to also consider the position taken by Pre-Trial Chamber II in the Jordan Non-Cooperation Decision, that the immunity of the Sudanese President was removed by virtue of the Security Council (SC) resolution referring the situation in Darfur to the ICC.
In this post, I will argue that the Chamber not only confirmed the legal validity of what has been termed the ‘Security Council route’ – as developed in the Jordan & South Africa Non-Cooperation Decisions – but actually upheld that it is such reasoning that must be applied at the horizontal level to displace the immunity of a Head of State of a non-party State. I will show that this conclusion flows from the Joint Concurring Opinion of 4 of the 5 Appeals Chamber judges (Judges Eboe-Osuji, Morrison, Hofmański and Bossa) – constantly referred to in the main Judgment for further elaboration – and the recently issued Q&A regarding the Appeals Chamber Judgment. (more…)
Busy day today – Ecuador has expelled Julian Assange from its embassy in London, revoking the diplomatic asylum it had given him previously (without basis in international law vis-a-vis the UK). Assange was arrested by British police. More consequentially, the president of Sudan, Omar al-Bashir, appears to be in the process of being deposed by the Sudanese military, after escalating street protests against his 30-year rule. He may end up before the ICC, or not.
On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘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’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.
Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. (more…)
The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?
Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.
The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.
However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. (more…)
This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.
In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: (more…)
On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:
- In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
- In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
- In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.
In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. (more…)
Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities
As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.
On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that
because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)
Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that
The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)
In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. (more…)
Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.
The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. (more…)
André de Hoogh (pictured left) is a Senior Lecturer in International Law in the Faculty of Law of the University of Groningen. Abel S. Knottnerus (pictured right) is a PhD Researcher at the Legal Theory Department of the University of Groningen.
Last week Pre-Trial Chamber II (PTC) issued a new decision on the obligation of ICC States Parties to arrest President Omar Al-Bashir irrespective of his immunities as Head of State (here). The PTC found that the Democratic Republic of the Congo (DRC) failed to cooperate with the Court by not arresting the Sudanese President during his visit to the country earlier this year and decided to refer the matter to the Assembly of States Parties and the Security Council.
This finding does not come as surprise. The PTC established in previous decisions that all States Parties have an obligation to arrest Al-Bashir and found that Chad and Malawi failed to comply with this obligation by welcoming Al-Bashir on their territory in 2011. However, the motivation underlying the Court’s latest decision is novel. In contrast to the much debated rulings on the non-cooperation of Malawi (here) and Chad (here), the PTC did not base its new decision on an exception existing under customary international law to the personal immunities of Heads of State when they face prosecution before an international criminal tribunal. Instead, the PTC held that Security Council Resolution 1593, which referred the situation in Darfur to the Court, “implicitly waived the immunities granted to Omar Al-Bashir under international law and attached to his position as a Head of State” (para. 29).
As readers might recall from previous posts (here), Dapo Akande has advised the PTC to follow a similar “route” on this issue. In his posts and publications (here, for other commentators see here and here), he has maintained that the Court could decide:
“[that the Security Council’s referral] has the consequence that Sudan (or Libya) is bound by the Statute (including Article 27)… [T]his would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute” (here).
In this post, we want to make a number of provisional – but already quite critical – observations on the Chamber’s new decision. Most importantly, this post is meant to give a kick-start to the discussion on the Court’s remarkable change of heart. (more…)