ICC Issues Detailed Decision on Bashir’s Immunity (. . . At long Last . . . ) But Gets the Law Wrong

This week the ICC issued two decisions regarding whether Sudanese President Omar Al Bashir is immune from arrest in ICC parties (see here and here). The decisions were issued in the context of proceedings considering whether Malawi and Chad had breached their obligations of cooperation under the Rome Statute by failing to arrest Bashir when he visited those countries in late 2011. The Malawi decision, issued a day before the Chad decision, is the first detailed decision regarding the immunity of Bashir. In summary, the Pre-Trial Chamber held that:

“Chamber finds that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes. There is no conflict between Malawi’s obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply.” (para. 43)

The Chamber therefore held that Malawi (and Chad) by failing to arrest and surrender Bashir had failed to comply with their obligations to cooperate with the ICC. Moreover, the Chamber held that it has “the sole authority” to decide whether immunities are applicable in a particular case (para. 11) and that by failing to bring the issue of immunity to the ICC for determination there had been a further breach of the obligation of cooperation.

As readers will surmise from my previous posts on the issue (here, here, here, and here), I agree with the result reached by the Pre-Trial Chamber (that Bashir is not immune from arrest) but I disagree with the reasoning. In particular, I think the Court is wrong to suggest that there is a general exception to Head of State immunity in prosecutions before international courts. Also, even if that were true, as Paola Gaeta has demonstrated, it would not follow that as a matter of international law national authorities were then free to depart from the immunity which customary international law grants to heads of States from arrest by national authorities.

Better Late than Never

Before I get to the substance of the decision, I would like to say that it has taken far too long for the ICC to issue a detailed decision on the immunity issue. The decisions of this week come nearly three years after the ICC Pre-Trial Chamber first issued an arrest warrant for Bashir in March 2009 and after the ICC has on several occasions reported States to the UN Security Council for failing to cooperate with regard to Bashir’ arrest and surrender (see previous post here). In previous posts (see here and here) over the last couple of years I have argued that it was most unfortunate that the ICC judges had chosen to avoid dealing with the immunity issue since: there was a reasonable argument that Bashir was immune from arrest as a head of State of a non-party; the African Union (AU) had made this precise argument in issuing several decisions calling on AU members States not to cooperate with the Court; the resulting tension with African States was proving somewhat damaging to the Court; and most importantly Article 98 of the Court’s Statute requires the Court to deal with the issue of immunity. In the decision of the Pre-Trial Chamber on Bashir’s arrest warrant (and in the decision regarding the Gaddafi Arrest Warrant), the Chamber had stated that:

“the current position of Omar Al Bashir as Head of a state which is not a party  to the Statute, has no effect on the Court’s jurisdiction over the present case.” Para.  41

So it had addressed the question of the position of heads of State but it had failed to deal head on with the customary international law of immunity and the interplay between Articles 27 and 98 of the ICC Statute which both deal with immunity and appear, at first glance, to be contradictory. Better late than never. But getting there late is not really good enough. Ignoring this sensitive issues has itself contributed to the tensions with African States and to the feeling that the position of those States is just being ignored.

Articles 27 and 98

Malawi argued that it had failed to arrest Bashir, despite the arrest warrant issued for him by the ICC, because as the head of a State not party to the ICC Statute, he was immune from arrest under customary international law. Also Malawi argued that it had not arrested President Bashir because, as a member of the African Union (AU), it had aligned itself with “the position of adopted by the African Union with respect to the indictment of sitting Heads of State and Government of countries that are not parties to the Rome Statute.” In making this argument, Malawi was referring to the decisions of the AU Assembly of Heads of States calling on AU members not to cooperate with the ICC with respect to the Bashir case.

In its arrest warrant decisions on Bashir and Gaddafi, the Pre-Trial Chamber had only referred to Article 27 of the Statute which provides (1) that official capacity as Head of State or Government shall not exempt a person from criminal responsibility under the statute and (2) that immunities which may attach to the official capacity of a person under national or international law shall not bar the Court from exercising jurisdiction. However, in the current decision, the Pre-Trial Chamber referred, I think for the first time, to Article 98(1).  That provision states that:

“The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

The Chamber accepts, as the academic literature has suggested that , “acceptance of article 27(2) of the Statute, implies waiver of immunities for the purposes of article 98(1) of the Statute with respect to proceedings conducted by the Court” (para. 18). However, the critical issue in this case was of course, what is the position of the Head of a State that is not party to the Rome Statute and therefore has not accepted Art. 27. The chamber held that international law does not afford immunity to Heads of States in respect of proceedings before international courts. In its view, this mean that even Heads of States not party to the Rome Statute are not immune from the jurisdiction of the ICC. More importantly, the Pre-Trial Chamber went on to say that all national authorities arresting and surrendering the Head of State to an international tribunal would not act be inconsistently with their obligations under international law. Thus Art. 98(1) was not even engaged.

Immunity Before International Tribunals

I addressed the issue of whether Heads of States (or other State officials) have immunity in proceedings before international tribunals in an article in the American Journal of International Law some years. The Pre-Trial Chamber in reaching its decision makes reference to the provision of the Statutes of the Nuremberg tribunal, the Tokyo Tribunal, the ICTY and ICTR which all say that the official position of the accused shall not relieve him from criminal responsibility. This is supposed to be impressive evidence for a rule of customary international law that the heads of states are not immune from the jurisdiction of international tribunals. This is not at all the case.

In the first place, the provisions in question relate to the question whether the Head of State or official bears criminal responsibility. To say that official capacity does not exclude criminal responsibility is not necessarily to say that the person may not be immune from the jurisdiction of particular tribunals. No one today asserts that official capacity itself excludes criminal responsibility. Secondly, and more importantly, with the Nuremberg tribunal, the Tokyo Tribunal and the ICTR and ICTY, the instruments in question, to the extent that they can be construed as removing immunity, were binding on the relevant States. The States which might have argued for the immunity of their officials were bound by the legal instrument which arguably removed the immunity. Those States could not contest the lack of immunity. With the ICTY, one may argue that tribunal indicted the then head of State of the Federal Republic of Yugoslavia (Slobodan Milosevic) at a time (in 1999) when there was doubt about the FRY’s membership of the UN. However, it should be remembered that by the time Milosevic was surrendered to the ICTY, the FRY had been admitted to the UN. More importantly, it should be remembered that the FRY had argued throughout the entire period that it was a UN member as a successor to the Socialist Federal Republic of Yugoslavia.

In short, the precedents referred to by the Pre-Trial Chamber do not establish that the Head of a State not party to (or not bound) by the instruments establishing an international tribunal will not be immune from the jurisdiction of that tribunal. Moreover, the ICJ’s decision in the Arrest Warrant case does not say this either. The ICJ only stated that foreign ministers may be subject to criminal proceeding in certain international courts, where they have jurisdiction. The only precedent that makes the point the Pre-Trial Chamber makes is the decision of the Special Court for Sierra Leone in the Charles Taylor case. But the logic of that decision is just as flawed as that of the ICC Pre-Trial Chamber.  It is also worth noting, as I pointed out in my American Journal of International Law article, that the ICTY in Prosecutor v. Blaskic (Objection to Issue of Subpoenae duces tecum, 1997) did recognise that immunities do not disappear simply because the tribunal is international, as did Judge Shahabuddeen in his dissenting opinion in Prosecutor v Krstic (ICTY, 2003).

The Pre-Trial Chamber in citing the practice for the rule it comes up with fails to mention the practice of States parties to the ICC Statute. Many of these States have national legislation, implementing the ICC Statute, in which they draw a distinction between the immunity of States parties to the Statute and the immunities of those States not party. Recognising the former have waived their immunities via Art. 27 but that the latter have not.

The basic argument for a lack of immunity in international tribunals is that the international law immunity of foreign heads of States from national authorities is necessary to prevent national interference in the ability of a foreign State to engage in international action but that this  danger does not arise with international courts since they are independent of States and act impartially. This argument is adopted by the Pre-Trial Chamber, which cites Antonio Cassese on this point (para. 34). This is quite an odd argument to make given that international courts are often created by States. The basic distinction being made between international and national courts fails to stand up to scrutiny as it would appear that what a State cannot do individually, it can do by agreement with one other State (two other States, ten other States?) No definition is offered of an international court but the Pre-Trial Chamber appears to be suggesting that if two States agree to establish by treaty a tribunal to prosecute the officials of a third state, international law would allow this. Or perhaps the agreement could be between 15 States to prosecute officials of other state. Or perhaps 60 states agreeing to prosecute officials of other States. To allow this is to allow the subversion of the policy behind international law immunities. What is even more amazing is that the Pre-Trial Chamber does not even say for what offences the person may be prosecuted. The decision of the Pre-Trial Chamber would allow the prosecution by an “international tribunal” for any offence permitted by the States which establish the tribunal. It may be asserted that the decision is restricted to international crimes. But why so when we know that immunity ratione personae is not removed because of allegations of international crimes (Arrest Warrant case). If the principle put forward by the Pre-Trial Chamber is right the reason for it is not the nature of the crime but the nature of the tribunal, viz the fact that it is international.

Even if the Pre-Trial Chamber were right that there is no immunity from prosecution before international courts, it fails to explain how this means that as a matter of customary international law national authorities are entitled to arrest in support of request from an international court. In other words, even if Bashir has no immunity were he to be before the ICC, how does it follow that he does not have immunity from arrest by Malawi or Chad? Paola Gaeta would agree with the Pre-Trial Chamber that there is no immunity before international courts but she says this does not remove the immunity from the acts of national authorities.

The biggest weakness in the Pre-Trial Chambers decision is that it fails to explain why Art. 98 is there at all. If under international law, there can be no immunities when an international court wants someone for prosecution, why did the parties to the Rome Statute insert Art. 98? The Chamber even goes on to say that it “is of the view that the unavailability of immunities with respect to prosecutions by international courts applies to any act of cooperation by states which forms an integral part of those prosecutions.” (para. 44) In short national authorities may never raise the immunity of a State as an obstacle to cooperation with the ICC! How astounding! Article 98 has been made redundant by the Pre-Trial Chamber’s decision. This is contrary to a basic principle of treaty interpretation.

Security Council Referrals and Immunity

There was another route that could have been taken by the Pre-Trial Chamber. It could simply have said that the effect of the referral of the situation by the UN Security Council has the consequence that Sudan (or Libya) is bound by the Statute (including by Art. 27). The effect of this would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute. I set out the argument here. Taking this route would have built on the Pre-Trial Chamber’s decision in the Bashir Arrest Warrant decision where it stated that (para. 45)

“by referring the Darfur situation to the Court, pursuant to article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole”.

In short, it is the Security Council referral which makes relevant Article 27 of the Statute in this case. Sudan is bound by that decision (implicit though it is) that the statutory framework applies to it.

The Pre-Trial Chamber stated in para 40, that

“Even some States which have not joined the Court have twice allowed for situations to be referred to the Court by United Nations Security Council Resolutions, undoubtedly in the knowledge that these referrals might involve prosecution of Heads of State who might ordinarily have immunity from domestic prosecution.”

I think the United States, Russia and China will be surprised to learn that they are regarded as supporting the principle that Heads of States not party to the ICC Statute are not immune from the jurisdiction of that Court or of national authorities acting in support of the ICC.

Towards the end of its decision, the Chamber makes the grandiose statement (para. 46) that

“it is the view of the Chamber that when cooperating with this Court and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise  has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within its jurisdiction.”

This is somewhat true but the Chamber should also recall that is not the entire international community that has entrusted jurisdiction to the Court, less than two thirds of the States of the world have done so. The other one third cannot simply be ignored.

UPDATE: Readers may also be interested in the view of Dov Jacobs on the decision. You can find his post A Sad Hommage to Antonio Cassese: The ICC’s confused pronouncements on State Compliance and Head of State Immunity on his Spreading the Jam blog

UPDATE: See also Bill Schabas’ view (also criticising the decision) at this blog here. In his post he makes a point that has also troubled me about the decision. This is the fact that the decision was made without detailed legal argument by those most directly affected by it. I am surprised that the Pre-Trial Chamber was content to reach a decision on a difficult issue without the benefit of counsel’s legal argument. Rarely is a decision improved by the absence of counsel’s argument and often bad decisions reflect the poor arguments put to a court. Bill Schabas says that “The decision reads like a lawyer’s brief, in that it is entirely one-sided. The Chamber does not address the difficulties or the arguments that go against its position. This is regrettable, but perhaps to be expected when it is a decision is issued in the absence of representations from the defence. Can it be a wise practice for the Pre-Trial Chamber to attempt to address serious and difficult matters of international law in the absence of detailed argument. Under such circumstances, shouldn’t a Chamber at least make an effort to confront the inconvenient arguments that stand in its way.”