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

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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.

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Rui Marques Pinto says

March 31, 2016

Thanks for your excellent approach on behalf of Bashir Case. I think also that beyound of politic justifications that is more about African against west, who is the right and finaly decision about African continent, African have a chance to review is moral views about crimes against humanity, genocide and agression and about imunity of states head. It is a question of how states could reach a peacefull disput between them as a stone of international law because ICJ has no compulsory jurisdiction. This means, it can only adjudicate those disputes that states have referred to it. On the other side Our international legal system has a voluntary and consensual character. When we say that international legal system is consent-based, this means that state cannot be bound by international law against their will.

Rui Marques Pinto

Raymond Savadogo says

March 31, 2016

Excellent idea Dapo! On other fronts of attacks, the AU Commission, through Charles Jalloh, tries to intervene increasingly in the proceedings of the Court as an amicus curiae. This could eventually provide henceforth a platform of direct confrontations of ideas between ICC and the AU. But I also agree with you that an advisory opinion of the International Court of Justice will be more than necessary. Obviously,what is missing here are not the legal arguments. The challenge is rather to have a neutral, impartial and non-partisan opinion which is at the same time legally robust to move forward and get out of this quagmire. As you know, it is already a very old debate that is constantly renewed according to Bashir's travel agenda... And the International Court of Justice can sometimes play this game with impartiality, even if its judgments are not always exempt from serious criticism.

Will Worster says

April 4, 2016

Just to play devil's advocate - I wonder if it might be a bad idea. With Simma gone from the ICJ, are there sufficient votes to really get the result the ICC might want? You might be too confident in assuming that the ICJ would decide in the way the ICC wants - it might not. Considering the generally conservative approach the ICJ takes in immunity cases to date, you might not like the result. And then we would be stuck with a very persuasive opinion against the ICC! If I was ICC counsel, I would advise against this course of action. The ICC has ruled. That should be the end of the matter. And, with the recent South African case, there might be some traction towards a result in the ICC's favor. Why turn the matter over to the ICJ and risk an unfavorable outcome?

Pierre d'Argent says

April 12, 2016

Dear Dapo,

Many thanks for this post.

Frankly, if it is for the ICJ to reach the same conclusion as the one of the ICC, I doubt that it is in the interest of the AU to push for such an advisory opinion.

This being said, I agree that requesting an advisory opinion is a good idea, both politically and legally.

However, I think it should not be about the subject-matter you suggest. After all, the Arrest Warrest is unlikely not to be repeated by the ICJ and what it said on immunity ratione personae is perfectly clear (I am the villain who argued the case on behalf of the DRC).

But because customary international law is pretty clear regarding acting heads of States (true, the customary rule is derogated from between State parties by Art. 27 ICC Statute, but between State parties only), the issue is to know whether State parties must respect the ratione personae customary immunity vis-à-vis non-State parties. Article 98 ICC Statute says in substance that a State party may avail itself of the customary immunity obligations it owes vis-à-vis non-State parties and not cooperate with the ICC without breaching its obligations under the ICC Statute -- but such obstacle (or legal excuse) disappears if the third State waives immunity.

The ICC has interpreted the UNSC referral resolution as implying such waiver. In my humble opinion, such interpretation is highly disputable and very difficult to justify in light of the interpretation guidelines of UNSC resolutions set out by the ICJ in the Kosovo opinion (strangely enough, the ICC decisions do not refer to the ICJ case law on UNSC resolution interpretation...) and in light of the very words of Article 98.

Therefore, my suggestion is not to seek an ICJ advisory opinion on immunities under customary international law (because the Arrest Warrant is clear), nor on the meaning of Article 98 (because the ICJ would consider that it is for the ICC to interpret its Statute and Art. 119 ICC Statute would most likely constitute a "compelling reason" to decline exercising advisory jurisdiction).

Rather, my suggestion is to seek an advisory opinion on the meaning of Resolution 1593(2005). The latter is an act by a UN organ, of which the ICJ is the principle judicial organ; if the question is carefully drafted, it might be possible to avoid falling into "compelling reasons" black hole.



Pierre d'Argent says

April 12, 2016

PS: Let me add that the interpretation issue that I suggest to raise about Resolution 1593(2005) would indirectly raise a serious issue about the powers of the UNSC -- the ICC assumed that the Security Council had the power to waive customary immunity on behalf of Sudan when it ruled that the UNSC "implicitly" did so.
Maybe some States will not like a judicial finding on such issue and will therefore resist putting the issue to the ICJ.