ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals

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The Appeals Chamber of the International Criminal Court (ICC) has, this morning, issued what seems to be an extremely controversial decision on Head of State Immunity. At the time of writing, the full written judgment is not yet available in the appeal by Jordan against the decision of the Pre-Trial Chamber referring that state to the UN Security Council for failing to arrest then President of Sudan, Omar Al Bashir when he attended an Arab League Summit in March 2017.  However, in the oral and written summary of the judgment, delivered this morning by the President of the Court, Judge Chile Eboe-Osuji, the Appeals Chamber appears to have held that under customary international law, heads of state have no immunity from criminal prosecution international criminal courts. The provision in Article 27(2) of the ICC Statute that “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person” , according to the summary of the judgment:

“represents more than a stipulation in treaty law. The provision also reflects the status of customary international law, as it concerns the jurisdiction that an international criminal court is properly entitled to exercise.”

In so holding, the Appeals Chamber, once again changes the basis on which the ICC has held that the Sudanese (now former) President was not immune from the arrest in ICC states parties that he visited (for a quick overview of the Court’s previous inconsistent decisions, see this AJIL Unbound piece). Indeed the Appeals Chamber appears to explicitly endorse the much criticised decision of Pre-Trial chamber I in the Malawi Decision. The Summary states that:

“39. In this regard, the Appeals Chamber is fully satisfied that the pronouncements made by the Pre-Trial Chamber I in the Malawi Referral Decision — and those made by the Appeals Chamber of the Special Court for Sierra Leone in the case of Charles Taylor (who was indicted before that international court when he was the sitting President of Liberia) — have adequately and correctly confirmed the absence of a rule of customary international law recognising Head of State immunity before international courts in the exercise of proper jurisdiction. 
40. The effect of absence of a rule of customary law recognising Head of State immunity, in relation to international courts, is not readily avoided through the backdoor: by asserting immunity that operates in the horizontal relationship between States, in a manner that would effectively bar an international court from exercising its jurisdiction over the person whose arrest and surrender it has requested. The law does not readily condone something to be done through the backdoor, if the law has forbidden the thing to be done through the front door.”

This is stunning and appears to be deeply misguided. It is also, in my opinion, a very dangerous and unwise move for the Court to make. This reasoning appears to assert that parties to the Rome Statute, have, by creating the Court, taken away the rights of non-party states under international law. Dangerous because this reasoning is likely to stiffen opposition to the Court by non-parties. The John Bolton’s of this world and many people far more reasonable will point to this ruling to set out precisely why it is important to oppose this court and other international criminal courts. As I stated here many years ago, the Malawi decision was a terrible one.  It was very poorly reasoned and roundly criticised by others as well (see Bill Schabas and Dov Jacobs). It is extremely disappointing to see it resurrected. Not least because the issue of the immunity of heads of state before international criminal courts is not what is at issue in these cases. What was is at issue is the immunity of heads of states from arrest by other states acting at the request of an international criminal court. That the head of state may not have immunity before the international criminal court does not, without more, say anything about whether he or she may have immunity before a foreign state.

I will wait for the full judgment before offering a proper analysis. For one thing, it is not yet clear how many judges subscribe to this reasoning. We are told that the Appeals Chamber is unanimous on the question of immunity but also told that there will be concurring opinions. It is also unclear whether the Appeals Chamber approved the view that Sudan was not, in any event, entitled to immunity in Jordan because of the effect of the SEcurity Council referral of the Darfur situation to the ICC. There is a hint of approval of that theory in the summary.

Although the Chamber was unanimous in holding that Jordan violated its obligation not to arrest Bashir, the majority decided not to refer Jordan to the UN Security Council and reversed the Pre-Trial Chamber on this point.

The ICC Appeals Chamber is unlikely to be the last word on this issue. It is likely that the African Union will press forward with its decision to ask the UN General Assembly to request an advisory opinion from the International Court of Justice on this question of immunity from the jurisdiction of the ICC.

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    Roger O’Keefe says

    May 6, 2019

    Fiat stultitia ruat caelum.

    Leila Sadat says

    May 6, 2019

    I believe the decision is properly reasoned, and not stunning at all. This is the ninth decision finding that Al Bashir does not have immunity and must be surrendered to the Court. Six from other ICC Chambers, one from Kenya and another from South African national courts. As I have written in a piece currently posted on SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3321998 finding that Al Bashir must be surrendered to the Court was the only reasonable interpretation of the Rome Statute. If States wish to change the rules of the Rome Statute so as to permit heads of state to have immunity before the Court (and presumably other government officials such as foreign ministers and even perhaps high ranking military officers), they should do so explicitly and not ask the ICC Judges to interpret the Statute in a novel and unprecedented manner. Perhaps an agora on this might be useful on EJILTalk! since there are evidently such disparate views on the subject.

    Dapo Akande says

    May 6, 2019

    Dear Leila,
    Many thanks for your comment. Just to be clear, it is not the conclusion that Bashir did not have immunity that I object to, nor do I object to the conclusion that Jordan had an obligation to arrest and surrender him to the Court. As I have written previously, I agree with those conclusions. It is the view that under customary international law heads of states are not entitled to immunity from the jurisdiction of international criminal courts that I disagree with and find so problematic. I have also written on this elsewhere so I will not, at least for now, enter into an extended analysis of why this is so problematic. I will refer back to my earlier post on the Malawi decision. For now, I will identify just 2 problems with the decision.

    First, one may ask whether this customary international law principle allows 2 states to establish an international court to prosecute the head of state of a third state. This seems to be so according to this decision. Where does this come from? In short, what is the definition of an international court? The definition given in par. 56 of the joint concurring opinion is this: "an adjudicatory body that exercises jurisdiction at the behest of two or more states."

    Second, how does a rule that there is no immunity under customary international law from the jurisdiction of an international court then mean that the there is no immunity at the horizontal level between states? Precisely what instrument removes the immunity that Bashir had from the jurisdiction of the Jordanian authorities. That he ordinarily had such immunity (absent an ICC arrest warrant) is not in doubt. Indeed there is virtually unanimous judicial practice on this point (see the Arrest Warrant case and all other cases on head of state immunity from the jurisdiction of the authorities of another state). Elementary notions of treaty tell us that this immunity, which is our starting point cannot have been removed by the Rome Statute in the case of a request by the ICC. Sudan was not bound by the Rome Statute. Is there a customary international law rule that says that when a state is acting at the request of an international criminal court, the immunity from the jurisdiction of the requested state is removed? Where does that come from? Only the Security Council resolution could have removed this immunity, if it was removed at all.

    Obiora Okafor says

    May 6, 2019

    This decision could not have been more poorly reasoned. Prof Akande's is exactly correct, and as such, I will not repeat his arguments here. I adopt them in total as mine while of course attributing the to him. While the ICC Appeal's chamber's decision may support the hopes of many for what the law ought to be, it fails rather woefully in its attempt to memorialize the current state of international law.

    Dov Jacobs says

    May 6, 2019

    Dapo,

    Fully agree with your initial thoughts. Look forward to the rest!

    Leila,

    I had not seen your piece and will read it eagerly! Although I do fear we might not be on the same page on this issue (I just posted some first comments here: https://dovjacobs.com/2019/05/06/you-have-just-entered-narnia-icc-appeals-chamber-adopts-the-worst-possible-solution-on-immunities-in-the-bashir-case/

    While I disagree on the interpretation of the Rome Statute, I do agree wholeheartedly with you on one point: as I pointed out in my recent EJILTalk! piece, these fundamental issues should have been better clarified in the Rome Statute and should not be left to the Judges.

    Dr Ayman Salama says

    May 6, 2019

    Dr Ayman Salama

    I really thank the author for this expeditious comment on the ICC ruling today but I think waiting for more details from the full judgement enhanced by various grounds will be a better idea .

    Sitting heads of states enjoy no immunity is a landmark and settled principle of both public international law and criminal international law as well .

    The IMT trials are garlant and concrete evidences in this regard .All defences of Nazi major criminals ( Including German Predident and several ministers )
    Of their immune status unanimously considered null and void by the court judges.

    This bacame a cardinal and cornerstone of Criminal International Law .
    The Nazi military and political commanders were accused of the same counts that raised by the former Chief Prosecutor of ICC and and confirmed by both the 2 chambers of the ICC : Pre-trial chamber in 2009 and appeal chamber in 2010 against Albashir.

    All different international , internationalized and ad hoc courts have been adopting the IMT jurisprudence and judgements as a lighthouse .

    When we talk about the former tribunals we start from Tokyo tribunal in 1946 till the newly eatablished international criminal mechanism established by the UNSC two years ago .

    In my opinion , the court correctly designated today the basic distinction between the dereliction of Jordan to cooperate with tge court whish is clear for any observer and the Pre-Trial Chamber lacking of discretion to refer Jordan to either any of ICC Assemble States Parties or UNSC .

    It is invaluable in the same vein to refer to yhe historic judgement of ICC in 2002 in tge case of DRC against Belguim which confirms the deep-rooted principle of International Law : Official capacity of the accused is not a bar from stating his or her responsibility and accountability .

    We have to take into our regard that the same court ICC has had the same approach addressing any case or situation when any sitting head of state is accused of perpetrating genocide , war crimes , crimes against humanity or aggression .

    The two concrete examples are the two cases of the current president of Kenya and former vice president of DRC

    Udoka Owie says

    May 6, 2019

    Thank you, Prof Akande for the well thought out elucidation of the issue on whether there is immunity for heads of state from the jurisdiction of international criminal courts under customary international law.

    The reasoning of the ICC, flies in the face of international law. The ICJ is clear on the issue as evident in its Judgment in the Arrest Warrant Case and even the ILC (at least on a reading of Draft Article 3 on the Immunities of State Officials from Foreign Criminal Jurisdiction and the Preliminary Report of the Special Rapporteur documenting the study of customary international law on the issue).

    The basis of jurisdiction of an international court over a head of state must be founded upon the extent to which the constitutive instrument of the international court grants it, or permits it, such jurisdiction and in the case of the ICC, either as a party to the Rome Statute or by the Security Council.

    Not only does the poor reasoning lead to practical absurdity, decisions, like this one, undermine the ICC especially in the face of its current challenges. Perhaps the ICC should have asked itself what the need was for including Articles 27 and 98 in the Rome Statute. Better still, it should ask itself whether, based on its understanding of customary international law on head of state immunity, it can assert jurisdiction over the US president or whether an international court established by a regional organization in West Africa, for example, can assert jurisdiction over the UK prime minister!

    Leila Sadat says

    May 7, 2019

    As I have expressed on two posts (one just going up) on the UCLA ICC Forum, there are many concerns about the patterns of jurisprudence emerging from ICC Chambers, including this judgment, which has a majority and then a four person concurrence and then a partial dissent which has not yet emerged. This pattern of fractured and seriatim opinions is problematic. That said, I think this judgment of the court was correct in the result on the question of immunity, that the reliance upon customary international law was appropriate, and that the essence of the judgment is correct and unsurprising. I have not fully digested the concurrence and will not react to specific criticisms of it, other than to say, as I said about Bemba, that the issuance of multiple opinions on the same issue is especially unfortunate (for reasons I elaborate on further in my post on the UCLA ICC Forum, which I believe is just about to be released). At the same time, we have a stable jurisprudence from the Court on this question, and we can move on from there. Now I understand that there is a move to push for a 10th decision on this question, this time from yet another Court, the ICJ. And if the ICJ says the same thing (using different words, and perhaps with multiple and confusing opinions as well, which is its wont), will that settle the question? I don’t think so, because the root of the dispute in my humble view is not legal, it is political and so it can’t be settled by Courts. Obviously very reasonable minds differ on these questions, and it might be useful to have a deeper look, once the dust has settled, about this case (or others)! Thank you for a very edifying debate already!

    Göran Sluiter says

    May 7, 2019

    I agree with Dapo's analysis, that this judgement is poorly reasoned and will do very little in advancing the law and settling this matter.

    In addition, two other elements of the judgement are quite troubling.

    1. what happened to the starting point of achieving unanimous decision making, as the obligation is under 74.3 of the Statute? I know that a long time ago an unfortunate practice has developed which fully ignores this part of the Statute, resulting in a proliferation of individual opinions which quite often appear unnecessary and do not help in increasing the legitimacy and authority of the Court. However, this is a stark example.
    There is a judgement here which should contain the findings and reasoning, but it is accompanied by a joint concurring opinion of 4 out of the 5 judges. Any observer would raise the question why, with 4 judges subscribing this, this is not part of the judgement itself. If it is not important, it should simply not have been published; if it is important, it should be in the judgement. To make matters worse, the judgement repeatedly refers to the concurring opinion, for further reasoning, or explanation, which makes the concurring opinion also part of the judgement. Bizar.
    Another disturbing aspect of the decision making process, although not unique to this case, is that the parties and the public still await the dissenting opinion. This should be available at the moment of publication, in my view. Not only is that a problem in and of itself, but it also raises the question to what degree these judges, in the process of deliberations, get to see each other's individual opinions. I think the parties, states parties and the public are entitled to a court which embraces collegiate decision making and if individual opinions are inevitable at least judges should well in advance be mutually fully informed about them with a view to improve their own views and opinions.

    2. I have already argued elsewhere (JICJ) that the referral to the ASP of non-cooperation, when the Prosecution deems it important enough to trigger the 87.7 procedure, should be automatic. While until now the ASP has proven to be quite powerless in enforcing cooperation, at least this highly political side of cooperation is being dealt with where it belongs, namely the ASP (or SC).
    I still find it very difficult to discern the precise criteria that would save a State from referral to the ASP. It is true that the difference in treatment in first instance between South-Africa (referral to ASP) and Jordan (non-referral) was unreasonable. But the error was made earlier when the AC built in discretion as far as the referral under 87.7 goes. But what grounds should govern such discretion? That cooperation is not always important for the Court, or that the ASP is also quite powerless in enforcing cooperation, so why bother to refer? These are not the signals the Court should send.
    The discretion as the AC read in art. 87.7 referrals is in my view unnecessary, arbitrary and dangerous if you take cooperation and authority of the Court seriously. It has been a missed chance that the AC has not reversed this. Who knows the dissenting judges say something about this.

    Rayhan Rashid says

    May 7, 2019

    Judges have a duty not just to uphold or interpret the law, but also to do so in a manner that will not destabilise the very foundation of the institution they are entrusted to preside. In that respect, I have a feeling that Prof Akande's concern will be shared by many. Still waiting to read the full judgment though.

    Xavier Aurey says

    May 7, 2019

    I think there is a clear problem in this judgement, as well as in others related to article 27, on the distinction between the imputation of a crime and immunity. I've discussed this briefly in French elsewhere (https://www.fondamentaux.org/2019/bref-rappel-sur-la-notion-dimmunite-des-personnes-en-droit-international/) and will try to translate it quickly.

    In law - and in particular in international law - the notion of "official capacity" makes it possible to distinguish between those who can legally represent the public authority and those who act "in a purely private capacity" or who do not act "on behalf of the State". It is the corollary of the attribution of the official acts of this individual to the State of which he is the organ, and to the State alone. The State therefore, as a matter of principle, screens the individual organ from any implementation of his responsibility [see Roberto Ago, « Le délit international », RCADI, vol. 68-2, 1939, p. 480]. In this sense, the individual organ cannot be held liable for such official acts, since they are not attributable/imputable to him.

    Various authors and judges describe this process of imputation with the name of substantial, organic or ratione materiae immunity. However, such an approach does not correspond to the definition of immunities. Legally, immunity makes it possible to exclude its beneficiary from the jurisdiction of public authorities; it prohibits the holder of a power from using it against the beneficiaries of immunities. In this sense, "the law of immunity is essentially procedural in nature" [ICJ, Arrest Warrant Case, § 60], so that immunity is a ground for inadmissibility, not incompetence. With regard to the powers of the courts, immunities then only have meaning because the judge has previously qualified his jurisdiction over the person - in addition to his material, temporal and territorial jurisdiction [ICJ, Arrest Warrant Case, § 61; also ICC, South Africa case, Opinion of judge Marc Perrin De Brichambaut, §§ 55-56].

    As rightly pointed out by authors who nevertheless use the expression "immunity ratione materiae", « immunity ratione materiae is thus not conceived as a procedural bar to the exercise of jurisdiction but as a substantive defence aiming to divert responsibility » [Ramona Pedretti, Immunity of Heads of State and State Officials for International Crimes, Brill/Nijhoff, 2015, p. 25]. The said "immunity ratione materiae" is in fact part of the process of qualifying the judge's ratione personae jurisdiction. Therefore, maintaining this qualification of immunity is at best confusing - as shown by the confusions on the subject - at worst a theoretical nonsense.

    Such a problem emerges in the various decisions related to the Omar Al Bashir case. In 2009, the judges thus assimilated accountability and immunity into a single argument relating to the Court's jurisdiction when they stressed that "Omar Al Bashir's current functions as head of a State not party to the Statute do not affect the Court's jurisdiction over this case". The same problem arises in 2011 when they convene the precedents of Versailles, Nuremberg, Tokyo, former Yugoslavia or Rwanda - dealing only with the question of accountability for crimes under international law - to support their arguments on the irrelevance of the personal immunity of a sitting head of state.

    The imputability of official acts to the State is therefore not immunity - and it would be preferable to retain the term immunity ratione materiae only in cases where it is the State itself that invokes it before foreign courts for so-called de jure imperii activities.

    Xavier Aurey says

    May 7, 2019

    My second problem with the 2019 judgement is the absence of justification by the judges of the international character of the ICC, and thus its equivalence with the ICTY and ICTR with regards to immunities.
    Within art. 13(a) and (c) cases, the ICC is just an inter-State court, not a "fully international" one. Only a SC decision according to art. 13(b) can internationalise its jurisdiction.
    In the judgment, there is something like such a justification when the Court says that "Article 13(b) puts the ICC at the disposal of the UN Security Council as a tool to maintain or restore international peace and security, thus obviating the need for the UN Security Council to create new ad hoc tribunals for this purpose", but this is far too late (at § 135) and only in relation with the applicability of article 27(2) to Sudan.

    Abdollah Abedini says

    May 8, 2019

    I agree with Prof. Leila Sadat for her reasoning that this was “the only reasonable interpretation of the Rome Statute”.
    From the perspective of the law of treaties, State parties of the ICC’s Statute have agreed to formulate Art. 27 on not affording immunity of “all persons without any distinction based on official capacity”. This is the belief of 123 member States of the ICC. This belief as a basic rule has a root in the criminal proceeding in Nuremberg, Tokyo, ICTY, and, ICTR which have properly prepared the crystallisation of a new customary law regarding immunity of the State officials.
    The Arrest Warrant case before the ICJ has confirmed this rule as “…the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances… Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts”. The ICJ’s statement here has two points: first, the officials of a state have no immunity for criminal proceedings. Second, the criminal proceedings are limited to certain international criminal courts not all of them, that is, criminal courts created by, or, under the auspices of, the UN or, are at essence, internationally, including the ICC.
    From the outlook of the ICC’s function as an independent organisation, the main function is ‘to put an end to impunity…’. Impunity is a term which magnifies when it comes to States officials because the officials of a State might mainly afford or perpetrate the crimes under the jurisdiction of ICC. On the one hand, the ICC can apply its jurisdiction on the member States such as Jordan in the said case; on the other and, the member States have accepted through the Statute that ICC be able to consider the referred situations including non-member States cases by the UN Security Council (UNSC) through the judges of the Court. Particularly, by engaging the UNSC alongside the Court, it seems the Statute contemplates a creeping jurisdiction to achieve the wide scope in fulfilling its function. The UNSC has now reflected positive responses to this matter especially by referring the Al-Bashir case to the Court.
    The question arises here is whether the ICC can do its function, impunity as a raison d être of the Court’s Statute, without not having the necessary means to gain the goal. Certain points should be considered.
    Firstly, the ICC’s Statute is a constitutive instrument of an international organisation which the scope and meaning of its functions may evolve during the time. Secondly, as the ICTY’s judges have discussed on the UNCS competences in establishing an international criminal court for a special situation and ultimately described the UNCS competences by saying ‘In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law)’. Why one cannot say the ICC’s judges have the power to describe the nature and extent of a member states obligations on the officials' immunity by interpreting the Statute. In fact, the requirement of a criminal proceeding is that the Court, here the ICC, has access to the accused person(s) and if one challenges the immunity of State officials before another States, how it can possible to do its function; because every member State may recourse to immunity rule and refuse eventually to arrest the accused person.
    The picture may be seen from the other way: if any member State engages in arresting the accused person, it will breach the immunity rule. In other words, a member State has an obligation to cooperate to the ICC and on the other hand, has an obligation to not violate immunity rule. Therefore, it seems the doubt on the existence of a conflict between two obligations discussed here is not real, plausible. The consent of a member State to fulfill the obligations assumed in the Statute including the obligation to cooperate (part 9), the obligations arising from Art. 103 of the UN Charter in obeying of UNSC decisions and the interpretation rendered by the judges of the ICC in acquiescence of the member States are the factors which justify the judgment of the Appeals Chamber in the Prosecutor v Al-Bashir.

    So it could be safe to draw this conclusion that member states of the ICC have agreed to the provisions of the Statute including to not afford immunity of official States before the ICC and cooperate ‘fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’.

    Linda Mushoriwa says

    May 10, 2019

    Thank you Professor Akande for this well reasoned argument. I fully concur with your assertion that the Decision is controversial. Judging by the robust debate here, I would say the Decision has done little to settle the contentious issue of Head of State immunity before the Court.

    Ben Ferencz says

    May 12, 2019

    Law must apply equally to everyone. Ambiguities should be interpreted liberally to protect the fundamental human rights of people everywhere. Legal hair-splitting and equivocation designed to protect wrong-doers should be condemned as a repudiation of justice that should not be sustained.
    BEN FERENCZ

    Fadi El Abdallah says

    May 15, 2019

    Dapo Akande’s leading blog post was made when he had not read the Appeals Chamber’s judgment. Had he waited to read it, he would have seen that the Appeals Chamber had addressed the specific concern that was troubling him. It was specifically recognised in the Joint Concurring Opinion of four out of the five judges (incorporated by reference in the main judgment) that immunity and jurisdiction are not the same thing. It was specifically recognised that to say 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. The existence of jurisdiction depends on its own source. Since customary international law is not known to confer jurisdiction on international courts, it means that the 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 the Rome Statute or the Security Council resolution, the ICC would have no jurisdiction.

    So, if you don’t have jurisdiction to begin with, you will not get to the question of immunity from that jurisdiction. But, when you do have jurisdiction - as in this case, through a combination of Security Council resolution and the Rome Statute - and there is claim of immunity from it, then it becomes necessary to examine the basis or source of that claim of immunity.

    The International Court of Justice has already said that in the Arrest Warrant Case. There, the ICJ made a defining pronouncement about the absence of immunity before ‘certain international criminal courts, where they have jurisdiction’. Those who read that judgment do not always pay sufficient attention to what is meant by ‘where they have jurisdiction’, when we speak of absence of immunity before an international criminal court. What was done in the Jordan Referral appeal judgment was to elaborate on this question in the context of the jurisdiction of the ICC - as discussed above.

    For further details, please see the Court’s ‘Q&A REGARDING APPEALS CHAMBER’S 6 MAY 2019 JUDGMENT IN THE JORDAN REFERRAL RE AL-BASHIR APPEAL’
    https://www.icc-cpi.int/itemsDocuments/190515-al-bashir-qa-eng.pdf

    Dapo Akande says

    May 15, 2019

    Dear Fadi,
    Many thanks for your comment and also for pointing readers to the Court's Q&A. I have read the judgment and unfortunately my concern about the points made by the Chamber about immunity under customary international law are not assuaged but remain the same. As i have pointed out in my earlier comments and as I think is fairly clear from my previous writings, including those that I linked to in my post, my concern is about the reasoning of the Chamber on lack of immunity rather than its conclusion. And it relates to the reasoning with regard to customary international law and also to the judges view about the basis on which this Court is established and where it derives it powers.

    If the reasoning was just about a case such as this one where jurisdiction over a head of state of a third party arose out of a Security Council referral then that would be one thing. However, as you know, the Court also has jurisdiction on the basis that the act was committed in the territory of a state party. Those parts of the Chamber's decision dealing with customary international law suggests that if the head of state of a non-party were to be accused of committing a crime on the territory of a party, then he or she would not only not be immune from the jurisdiction of the Court but also not from arrest by other states parties. In short, though none of those states would have the power to arrest that head of state, they have the ability to create an international court that can then give them the power to do what they could otherwise not do. What is also concerning about this is that the reasoning is not even confined to the ICC. It is expressed on the basis of a general rule of customary international law applicable to international tribunals. That class is then, in the concurring opinion, defined incredibly broadly. From this decision is it not clear why Latin American states could not set up a tribunal to prosecute the US president or the head of any state of the world. And then, they can confer on themselves the power to arrest such a person. A power which is it clear they do not have if they did not set up that tribunal.

    The Pre-Trial Chamber had set out a narrower and much more justifiable path based exclusively on the removal of the immunity by the Security Council resolution that refers the Darfur situation to the Court. That path is actually approved by the Appeals Chambers (and one can leave aside for now whether the approval of the Security Council route was actually necessary in the light of what was said about customary international law). However, by (also) going down the customary international law route the Appeals Chamber has in my view opened up the Court to criticism from non-parties who will then assert that it is arrogating to itself the power to remove rights that those non-parties have under international law.

    Segun Jegede says

    May 15, 2019

    When Dapo swiftly commented on the judgment delivered last Monday by the Appeals Chamber on the question of Al-Bashir’s immunity from prosecution for international crimes, I had no doubt in my mind that the end of the world had come for international criminal justice!

    However, having had the benefit of reading the judgment and the Joint Concurrent Opinion of four out of the five Judges, characterizing the judgment as ‘stunning’ ‘deeply misguided’ and ‘extremely controversial’ is acutely misleading and amounts to using language which went far beyond the facts. He needed only have tarried a little longer and he could have come to a less combative and hair-raising conclusion.

    In my view, there is nothing stunning or ‘deeply misguided’ in the Appeals Chamber’s decision upholding the Pre-Trial Chamber’s finding that Jordan had failed to comply with its obligation to cooperate with the Court ,nor, can the same be said of the Appeals Chamber’s confirmation of the Pre-Trial Chamber’s interpretation of articles 27(2) of the Rome Statute as well as of the effect of UN Security Council resolution 1593 (2005) on Sudan’s position vis-à-vis the Court, which had led the Pre-Trial Chamber to this conclusion.

    The only part of the decision that may engender some debate, as often happens when strong statements of the law are laid down, is the Appeals Chamber’s important clarification that,in any event, Al-Bashir did not enjoy immunity as a Head of State vis-à-vis the ICC under customary international law, including in respect of an arrest by a State Party to the Rome Statute at the request of the ICC.

    Overall, I commend the Appeals Chamber for delivering a well-reasoned judgment and putting its imprimatur on a recondite and topical issue in the realm of international law.

    Dapo Akande says

    May 15, 2019

    Dear Segun,

    Many thanks for your comment. Just to be clear, I do not disagree with the entire decision. In fact as I have written on many occasions, including since the arrest warrant was first issued back in 2009, I agree with the conclusion that Bashir was not immune from arrest by states parties to the ICC. think I have been very clear on this point over the years.

    However, it is precisely the part of the decision that you say "may engender some debate" that is, and remains in my view, very controversial and misguided. This is the view that under customary international law there is no immunity from the jurisdiction of international tribunals and that also under customary international law the effect of this immunity is that there is also no immunity from arrest by states acting at the request of international tribunals. My words related only to that part of the decision.

    Ľuboslav says

    May 16, 2019

    Greetings.
    Correct me if I am missing something, but what I fail to understand is why at all did the Appeals Chamber feel the necessity to deal with the onerous "no immunity before international tribunals" issue, when they reached the same verdict (that is no immunity) by the much safer "Security Council referral path of reasoning" anyway.

    Marko Milanovic says

    May 16, 2019

    Dear Fadi,

    I must say that I find it rather odd - even unprecedented - for the official spokesperson of the Court to engage in what is a proper academic debate with scholars like Dapo who have (rightly or wrongly) criticized the Court for the reasoning of its Bashir judgment. I frankly can't remember ANY spokesperson of any international tribunal acting in that way. I'm not saying necessarily that this is inappropriate, but it is definitely unusual. So, bearing that in mind, could you please answer the following questions:

    1) Was your comment on this blog post made in your official capacity as the spokesperson of the Court? Or is it your private view, in your own personal capacity, and if so shouldn't you have said so?
    2) Did you write that comment and the Q&A you referred to on your own initiative, or were you instructed to do so by someone else, e.g. the President of the Court?

    Thanks!

    James Sweeney says

    May 18, 2019

    Marko's point is spot on.

    Given that elements of the 'Q&A' are identical to the comment made here, we can infer that the Q&A is a lengthier reaction to Dapo's OP.

    With that in mind, I find the following elements of the Q&A quite extraordinary:

    'Hastily made comments ... may wholly misrepresent the decision or judgment'.

    'Lawyers engaging in public commentary should exercise particular caution and remain mindful of the cardinal principles that guide the conduct of lawyers, including that of honesty, integrity and fairness'.

    'There is an ethical obligation to reflect facts and circumstances accurately and fairly'.

    Whether one agrees or not with Dapo's critique of the reasoning of the Appeals Chamber (and I do; and have for a long time on this point generally) the suggestion that commentators making rapid assessments of available materials (and clearly labelling that assessment as provisional) somehow are acting unethically is absurd.

    Therefore, for me, it is not just the novelty of the spokesperson commenting here and publishing the Q&A, but also the content of their comments that is profoundly troubling.

    JAS

    James Sweeney says

    May 18, 2019

    Hi again,

    That picture next to my previous comment isn't me :(

    While I'm here, I'll say on the substance that it's para. 114 of the judgment where things go awry, for me: it does not explain precisely *why* the rule permitting an international court to issue a warrant for someone otherwise (currently) entitled to head of state immunity ratione personae also extends to the horizontal dimension (immediate (?) arrest by relevant national authorities at the request of an international court). The next two paras. do not elaborate: they only stress, with varying degrees of success, that there is no head of state immunity before an international court - which was not the issue.

    The concurrence doesn't help by proceeding on the basis that Arts 27 and 98 ICC must somehow be 'reconciled' (para. 404). It seems to me that there is no conflict. Art 27 is about immunities per se. Art 98 (first para) is very specifically about the Court respecting the obligations of States Party vis a vis third states, when a third state suspect is on their territory - which will not always be the case.

    Just a hasty thought.

    JAS