An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political.

First, the ICC Pre-Trial Chambers decisions on the issue have either been roundly criticized or not been sufficiently reasoned (see previous commentary here and here). The ICC jurisprudence has changed from the assertion that under customary international law heads of states do not possess immunity from the jurisdiction of international tribunals and from the criminal jurisdiction of national authorities acting in support of those tribunals, to a holding that the immunity of President Bashir was removed implicitly by the UN Security Council resolution referring the Darfur case to the ICC. I accept that it is possible for the ICC Appeals Chamber to sort this issue out but that leads me to my next point.

The second reason why moving the issue to the ICJ would be useful is political. There is such distrust, on this issue, between the AU and the ICC that it seems unlikely that African states will accept any ICC decision on the matter. They have thus far refused to accept the correctness of the ICC decisions and there does not seem to be change on that issue coming over the horizon.

A third reason for thinking that an ICJ opinion would be useful is legal. An advisory opinion from the ICJ would potentially address the whole range of international law arguments made by the AU rather than just the position under the ICC Statute. The AU has made a number of arguments regarding the immunity of Bashir and heads of states. Although it hasn’t always made this clear, it seems to have argued that Bashir is immune both before the ICC and also from the jurisdiction of national authorities seeking to cooperate with the ICC. With regard to immunity from the ICC, the argument seems to be that customary  international law provides immunity from the jurisdiction of international tribunals. With regard to immunity from national authorites, at least 3 arguments seem to have been asserted over the years: (i) that there is immunity under customary law;  (ii) that AU decisions, AU treaties (such as the OAU General Convention on the Privileges and Immunities of the OAU), or bilateral treaties confer immunity on Bashir; (iii)  that these immunities are preserved by Art. 98 of the Rome Statute and should be given effect to rather than any arrest warrant issued under the ICC Statute.

To be sure, the ICC is competent to address whether or not immunity exists either under customary international law or under applicable treaties. This is because Article 98 provides that the Court may not proceed with a request for surrender where the requested State would be required to act inconsistently with its obligations under international law with respect to state or diplomatic immunity. However, these questions should have been considered when the ICC initially made its request for arrest and surrender of Bashir (back in 2009 and 2010). Regrettably, the ICC Pre-Trial failed to consider the operation of Art. 98 at that stage. More recently, it has, in the decisions regarding DRC and South Africa, discussed Article 98 but this comes in the context of decisions regarding non-cooperation with the Court. In those decisions, the ICC is considering whether or not the relevant state has acted in breach of its obligations under the ICC Statute. So consideration of other international law obligations is made en route to determing what for the ICC is the botttom line: has there been a breach of the ICC statute?

Moving the matter to the ICJ would allow for the obligations under these separate sources of law to be considered separately and then allow the ICJ to consider what the overall position is under general international law. The ICJ may still find that by failing to arrest Bashir there has been a breach of the ICC Statute but the hope of African states is that the ICJ might also found that they were obliged to not to arrest Bashir under other applicable sources of law. The ICJ would then have to say something about what the consequences of the obligations under these separate sources of law.

In truth, the ICJ should not reach decisions different from that which the ICC would reach, given that Art. 98 of the ICC Statute is intended to provide a mechanism by which the obligations of ICC parties under the Statute can be reconciled with their obligations under other sources of law. However, there might be a feeling, justified or not, that the ICC is likely to prioritise the obligations under its Statute rather than provide a balanced consideration of the possible range of obligations. This is an unfortunate state of affairs but it might well be that the authority of the ICJ as a court not tied to the Rome Statute and which is the principal international tribunal on matters of general internatioanl law is the key to making progress on this contentious issue.