A Hidden Reading of the ICC Appeals Chamber’s Judgment in the Jordan Referral Re Al-Bashir

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. Let me however first clarify that although the Joint Concurring Opinion and Q&A were issued for the purposes of providing further analysis and explaining what the judgment holds, respectively, both reveal contradictions that were not within the Appeals Chamber’s Judgment.

Reading the Judgment in Light of the Joint Concurring Opinion

In the Jordan Non-Cooperation Decision, Pre-Trial Chamber II – reiterating the reasoning offered in the South Africa Non-Cooperation Decision – affirmed that Al-Bashir had an immunity under customary international law from the jurisdiction of other States. However, such immunity did not bar Jordan from arresting Al Bashir given that the Security Council in Resolution 1593 had obliged Sudan to ‘fully cooperate’ with the Court, entailing that Article 27 of the Statute applied to Sudan. As mentioned above, the Appeals Chamber found that the absence under customary international law of Heads of State immunity before international courts is also relevant at the enforcement phase.

The Joint Concurring Opinion explains that a State requested to arrest and transfer a person warranted by the ICC – such as was the case for Jordan here – ‘should not not be seen to be exercising the kind of jurisdiction that is forbidden of forum States under customary international law in relation to foreign sovereigns.’ (par. 444) In these judges’ view, the arrest and surrender process is not an exercise of domestic criminal jurisdiction as such – the requested States is exercising jurisdiction as a surrogate of the ICC.

This would entail any State requested to arrest and surrender the Head of State of another State as a surrogate to the ICC’s jurisdiction would not be to rely on Article 98 of the Rome Statute to prevent such request (and its execution). This is because that provision only debars the Court from requesting arrest and surrender where immunities would be violated, but in the view of the Court – at least from what the Appeals Chamber’s (main) Judgment seemed to suggest – the Head of State immunity of the third state would never be violated where the Court seeks arrest. Yet, the Joint Concurring Opinion states:

In the circumstance of article 98(1) of the Rome Statute, the difficulty presented to the assertion of immunity at the horizontal plane involves three scenarios: (a) in a relationship between States Parties to the Rome Statute, it is not plausible that the third State (party to the Rome Statute) may assert in relation to the requested State (also party to the Rome Statute) the immunity of the high state official of the third State who is a suspect or an accused at the ICC; (b) it is also not readily accepted that as between Member States of the UN, the third State (not party to the Rome Statute) may successfully assert the immunity of its official in relation to the requested State (that is a party to the Rome Statute), where the Security Council specifically requires the third State to cooperate fully with the ICC, pursuant to a resolution taken under Chapter VII of the UN Charter for purposes of conferring jurisdiction upon the Court through an article 13(b) referral; and, (c) as concerns two UN Member States not party to the Rome Statute, it should not be assumed that immunity may successfully be asserted in the context of a Security Council referral made under article 13(b) of the Rome Statute, where the resolution has only urged, rather than required, the concerned State to cooperate fully with the ICC (par. 451).

Let us first note that the Opinion omitted to mention a fourth scenario, which presents even more tensions: pursuant to Article 12(2)(a), the Head of State of a non-party State may be subjected to the Court’s jurisdiction for having committed a crime within the territory of a State party. I find the absence of this scenario from the Joint Concurring Opinion extremely troubling – especially when it is obvious that the judges attempt to be exhaustive in their ‘separate elaboration’. What is even more troubling is that the two scenarios addressing officials of non-party States – i.e. (b) and (c) – anchor the absence of immunity in the fact that there is a SC resolution underpinning the ICC’s exercise of jurisdiction.

The third scenario – two UN Member States not party to the Rome Statute but urged to cooperate with the Court – might be taken as relying on the alleged absence of a customary rule providing immunities when the ICC exercises jurisdiction. The (scenarios) paragraph ends as follows:

Where the Security Council has declared in good faith that there was a threat to international peace and security, then measures prescribed to confront those threats must create for all UN Member States the minimum of an expectation, if not an obligation, to comply with that declaration of emergency, while it endures.

What the Opinion is trying to convey is far from clear. On the one hand, it seems that it is trying to raise a SC resolution urging States to fully cooperate to the level of a sort of obligation to comply with the ICC’s request. If this is the correct reading, then we may certainly affirm that the Court is making the absence of immunities at the horizontal level dependent on whether or not the requested State and the third State are obligated to cooperate fully with the Court. Yet, by qualifying the SC prescription as ‘an expectation, if not an obligation’, the Opinion somehow refrains from saying that UN Member States not party to the Rome Statute but urged by the SC are required to fully cooperate.

On the other hand, the Joint Concurring Opinion seems to suggests that by referring under Chapter VII of the UN Charter the situation to the Court, the SC has created the possibility that the ICC will charge any Head of State of the world and, most importantly, that States should expect that there might be no immunity from arrest and surrender under customary international law in such proceedings. Yet, the emphasis that the absence of a customary rule of immunities will be deployed to non-party States because the SC had declared the situation at stakes a ‘threat to international peace and security’ makes one wonder how the Opinion would have dealt with a scenario involving Article 12(2)(a).

This brings us to the Q&A regarding the Appeals Chamber Judgment where the claim that the judgment dangerously postulates that immunities do not exist before any ‘international court’ – including courts established by only two states – is addressed as follows:

This is an erroneous understanding of the Appeals Chamber’s judgment. […] The judges wrote that there is no immunity before an international criminal court in its exercise of ‘proper jurisdiction’ does not mean the court in question has that ‘proper jurisdiction’ to begin with. […] [T]he jurisdiction of an international court is prescribed in a written instrument. If that instrument is a treaty, then that treaty binds only those that are party to it. The Rome Statute is a treaty that binds the parties to it. But the written instrument that prescribes the jurisdiction of an international court can also be a Security Council resolution adopted under Chapter VII of the UN Charter, such as was the case here. In conclusion, it was made clear that in the absence of applicability of the Rome Statute or the presence of Security Council resolution, the ICC would have no jurisdiction. All this was actually made very plain in the Joint Concurring Opinion

The Q&A seems to infer that the ICC jurisdiction is only ‘proper’ when it concerns a State party to the Rome Statute, or if it goes beyond those States, when it is underpinned by a SC referral under Article 13(b). Could it be that the Joint Concurring Opinion took the view that Article 12(2)(a) is not an exercise of ‘proper’ jurisdiction, and should therefore be written out? The Q&A seems to refer to paragraphs 447-448 of the Joint Concurring Opinion. The latter paragraph is worth quoting in full:

For the ICC, the international instrument concerned is primarily the Rome Statute (where the suspect or accused is the high official of a State Party), together with the relevant Security Council resolution and the UN Charter (where the suspect or accused is the high official of a UN Member State that is not party to the Rome Statute, in a situation referred under article 13(b) of the Rome Statute).

The Joint Concurring Opinion once again omits to mention that the Rome Statute also asserts jurisdiction over nationals (including Heads of States) of non-party States when they commit crimes in the territory of a State party to the Rome Statute. Given that writing out Article 12(2)(a) as a sole ground of jurisdiction seems to be an absurd result, the only other plausible reading of the Appeals Chamber Judgment and Joint Concurring Opinion is that the Court has found that Head of State immunity applies at the horizontal level, and that for such immunity not to fall within the prism of Article 98, there must be a SC resolution displacing it.

Conclusion

In this post I have argued that in addition to holding that there is no Head of State immunity under customary international law from the Court’s adjudicatory jurisdiction, the Appeals Chamber’s judgment must be understood as having held that States are not barred from surrendering the Head of a non-party State to the ICC, only when the arrest warrant emerges from a situation referred by the UN Security Council. While making the immunities of all Heads of State (even those of non-party States simply urged to cooperate with the ICC) irrelevant at the horizontal level when the SC refers a situation is quite a stretch, this is still more consistent with the Rome Statute than the other possible reading of the judgment. Indeed, if one does not read the judgment as such it means, that the Chamber has ruled, on the one hand, that there is no rule of customary international law providing Heads of States immunity from the jurisdiction of international courts and States acting as surrogates of the Court, and, on the other, that Article 12(2)(a) of the Statute, providing territorial jurisdiction, is not a proper basis for jurisdiction over nationals of non-party states. The latter finding would be extremely disconcerting. It might be that this latter finding is only an ambiguity of the Joint Concurring Opinion, which is improperly emphasised by the Q&A. If this is the case, then it cautions against such type of institutional reaction to the writings of academics in the social media.