ICC Issues New Decision on Al-Bashir’s Immunities ‒ But Gets the Law Wrong … Again

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André de Hoogh.croppedAbel Knottnerus.croppedAndré de Hoogh (pictured left) is a Senior Lecturer in International Law in the Faculty of Law of the University of Groningen. Abel S. Knottnerus (pictured right) is a PhD Researcher at the Legal Theory Department of the University of Groningen.

Last week Pre-Trial Chamber II (PTC) issued a new decision on the obligation of ICC States Parties to arrest President Omar Al-Bashir irrespective of his immunities as Head of State (here). The PTC found that the Democratic Republic of the Congo (DRC) failed to cooperate with the Court by not arresting the Sudanese President during his visit to the country earlier this year and decided to refer the matter to the Assembly of States Parties and the Security Council.

This finding does not come as surprise. The PTC established in previous decisions that all States Parties have an obligation to arrest Al-Bashir and found that Chad and Malawi failed to comply with this obligation by welcoming Al-Bashir on their territory in 2011. However, the motivation underlying the Court’s latest decision is novel. In contrast to the much debated rulings on the non-cooperation of Malawi (here) and Chad (here), the PTC did not base its new decision on an exception existing under customary international law to the personal immunities of Heads of State when they face prosecution before an international criminal tribunal. Instead, the PTC held that Security Council Resolution 1593, which referred the situation in Darfur to the Court, “implicitly waived the immunities granted to Omar Al-Bashir under international law and attached to his position as a Head of State” (para. 29).

As readers might recall from previous posts (here), Dapo Akande has advised the PTC to follow a similar “route” on this issue. In his posts and publications (here, for other commentators see here and here), he has maintained that the Court could decide:

“[that the Security Council’s referral] has the consequence that Sudan (or Libya) is bound by the Statute (including Article 27)… [T]his would therefore mean that those States are to be regarded as in the same position as a State party to the Rome Statute” (here).

In this post, we want to make a number of provisional – but already quite critical – observations on the Chamber’s new decision. Most importantly, this post is meant to give a kick-start to the discussion on the Court’s remarkable change of heart.

Articles 97 and 98(1) of the Rome Statute

In its submission to the Chamber, the DRC maintained that Al-Bashir’s visit placed the Congolese authorities in a “complex, ambiguous and bothersome situation” and that his arrest had been obstructed by “a series of legal constraints” (para. 12). Like Malawi in 2011, the DRC referred to the relevant decisions of the African Union (AU), which oblige the DRC to retain Al-Bashir’s immunities, and pointed in particular to Article 98(1) of the Statute (for the discussion and rejection of other arguments, including time constraints, see paras. 11-17). This provision states that “[t]he 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”. According to the DRC, its obligation to arrest Al-Bashir was subject to the application of this provision and the Court would thus be required to first obtain a waiver from Sudan, because as a non-party its Head of State would enjoy personal immunities under international law (para. 18).

In the first part of its response, the Chamber stressed that the DRC should have “consulted or notified the Court” of any problems with respect to the execution of the Court’s cooperation request “instead of deciding itself on [the] applicability” of Article 98(1) (para. 22). While the Chamber did not explicitly refer to the most relevant provision in this regard (i.e. Article 97) its counter-argument was spot-on. The DRC breached its obligations under the Statute by not consulting with the Court about the identified legal constraints. Moreover, as noted by the PTC, the Court is “the sole authority to decide whether or not the immunities generally attached to Al-Bashir … were applicable in the particular case” (para. 16). This is in line with Article 119(1) of the Statute which provides that “any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court”.

We can only concur with this first part of the Chamber’s response. Perhaps the PTC could even have stopped short at this point – as the same three judges apparently did in a previous decision (here, paras. 20-21, although that decision was taken without a submission of the concerned State Party, i.e. Chad).

Security Council Resolution 1593 and Al-Bashir’s Immunities

In the second part of its response, the PTC explained the rationale behind Article 98(1) in relation to Article 27(2). The latter provision stipulates that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national law or international law, shall not bar the Court from exercising its jurisdiction over such a person”. In line with most scholarly interpretations, the Chamber determined that the Court’s jurisdiction as provided in Article 27(2) “should, in principle, be confined to those States Parties who have accepted it” (para. 26, referring to Article 34 of the Vienna Convention on the Law of Treaties). Indeed, when the Court prosecutes a serving Head of State of a non-party, “the question of personal immunities might validly arise” (para. 27). In that case, Article 98(1) could provide a solution because it “directs the Court to secure the cooperation of the third State for the waiver or lifting the immunity of its Head of State” (para. 27). In effect, the Chamber agreed that Article 98(1) is aimed at preventing a requested State (i.e. the DRC) from acting inconsistently with its international obligations towards the non-party (i.e. Sudan) with respect to the personal immunities of its Head of State. So far, so good …

However, the Chamber goes on to say that Article 98(1) does not apply in the present case. According to the three judges, Resolution 1953 would have “implicitly waived” any immunities that a State official of Sudan might enjoy under international law (para. 29). So there simply would not exist any “impediment at the horizontal level between the DRC and Sudan”. Any conflicts that would still exist between the Council’s Resolution and resolutions of the AU, which oblige the DRC to respect Al-Bashir’s immunities, would be resolved by virtue of Articles 25 and 103 of the UN Charter (para. 30).

Basically, the PTC claims that the obligation of cooperation imposed upon Sudan constitutes an implicit waiver of the personal immunities that Al-Bashir may benefit from as a Head of State of a non-party. As such, the PTC retreats from the position it took in the Malawi and Chad decisions that customary international law allows for an exception to his immunities.

In our opinion, this second part of the Chamber’s response to the DRC’s submission is feeble, as it is based on an implausible reading of Resolution 1593.

First, the PTC mixes up the concept of waiver of immunities with an actual removal of immunities by the Council. A waiver of immunities can only be issued by the legal person holding such immunities, i.e. Sudan. The Statute itself testifies to this, since Article 98(1) stipulates that the Court shall turn to the third State concerned to obtain a waiver of immunities. No mention is made of the Security Council actually substituting for that third State. Since, as far as can be told, Sudan has not waived the immunities of its President, the PTC’s decision amounts to a claim that the Council removed his immunities. However, the wording of Resolution 1593 does not provide a textual basis for such a claim. Neither paragraph 2 of Resolution 1593 nor the statements in the relevant Council meeting (available here) make any reference to immunities in relation to Sudan. We believe that Akande’s related claim, that Resolution 1593 places Sudan in a position of a State Party, fails on similar grounds.

Secondly, the PTC claims that “[c]ooperation envisaged in said resolution was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities. Any other interpretation would render the SC decision requiring that “Sudan ‘cooperate fully’ and ‘provide any necessary assistance to the Court’ senseless” (para. 29). This particular claim would be valid only if all prosecutions before the Court would be barred in relation to the situation in Darfur. However, if the position were taken that only personal immunities constitute an obstacle before an international criminal tribunal rather than functional immunities, then only a rather limited group of persons holding “high-ranking office in a State” would escape prosecution and only for a limited time (ICJ, Arrest Warrant case, para. 51 and also paras. 58 and 61).

Thirdly, the obligation to cooperate is imposed on Sudan and hence the Court will have to turn to Sudan for a waiver of immunities. As far as we know the Court has never approached Sudan for a waiver of Al-Bashir’s immunities in relation to any of his visits to foreign States. In a related manner, the PTC’s interpretation would deny Sudan the possibility to decide either to perform its obligation or to violate it. The PTC is essentially saying that Sudan’s legal obligation to cooperate entails a legal impossibility to invoke its President’s immunities. However, legal obligations entail that specified acts or omissions are required by law, but such acts or omissions do not necessarily occur in fact. Any subject of law may engage in acts or omissions in violation of its legal obligations, for which it will then have to bear responsibility. The PTC’s interpretation – to the effect that Sudan’s cooperation as a third State for a waiver of immunities required under Article 98(1) is ensured by the obligation to cooperate under Resolution 1593 (para. 2) – constitutes an inadmissible subordination of (non-)fact to law.

Finally, the PTC’s interpretation is a-contextual in that it zones in on Sudan’s obligation to cooperate while ignoring the wording used in relation to other States. Directly after imposing an obligation on the government of Sudan, in fact in the same paragraph, the Council “… while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully”. Clearly, the wording imposes only obligations for Sudan (and parties to the conflict in Darfur) and not for any other States. But if the imposition of the obligation to cooperate on Sudan had implicitly waived any relevant immunities, the Council could have used stronger language than ‘urges’ for States Parties.

Ambiguity and Uncertainty

In light of the above, we find the PTC’s new decision unconvincing. While the Chamber contended that there has never been the “slightest ambiguity” about the legal position regarding the immunities of Al-Bashir (para. 22), its reversal of the Malawi and Chad decisions demonstrates the continuing uncertainty about this complex issue. As things stand, not only States and commentators but also different Chambers disagree about the correct interpretation of Article 98(1) in relation to Article 27(2), customary international law, and Resolution 1593. Much more will and needs to be said about the Chamber’s new decision. We are therefore very eager to learn the reactions of readers as well as the response of African States and in particular of the AU to this curious turn in the jurisprudence of the Court (see here for the livid response of the AU Commission on the Malawi and Chad decisions).

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Ekaterina says

April 18, 2014

Dear André and Abel,

Thank you very much for your very insightful post. I personally would say that Resolution 1593 required Sudan to waive immunity - this is my reading of the obligation to cooperate fully and to provide any necessary assistance to the Court and Prosecutor. Waiver of immunity must be express and failing the relevant declaration on the part of the Sudanese competent authorities President Al-Bashir keeps enjoying it under international law in his capacity as incumbent Head of State. This is therefore for the Court to seek waiver of Al-Bashir's immunity from Sudan relying on the SC Resolution.


Dimitrios Kourtys says

April 18, 2014

The issue at stake, as aptly posed by the learned authors (who must be congratulated on the thorough and objective analysis of the theme), is no other than the power of an international tribunal to dismantle the old maxim (equivalent to a general principal pursuant to Art. 38(1c) of the World Court’s Statute) of ‘pacta tertiis nec prosunt nec nocent’. The problematic on the supremacy of the UN SC resolutions vis-à-vis general PIL (and subsequently the ultra vires façade), as accurately expressed within the present post, does not arise, even though the PCT/ICC directly (§30 & passim) referred to Arts. 25 & 103 of the Charter. The ‘privity’ of international contractual régimes proves to be the focal point of the debate in question, alongside with the personal immunities of the heads of States or other high-ranking officials, a chorus of governmental authorities already elaborated in the Arrest Warrant Case. It is highly contestable whether a UN SC resolution, even under the Chap. VII of the Charter, may render a privilege stemming directly from the principal of sovereign equality (and, finally, national sovereignty tout court) inactive. But, and that is even more controversial, to accept that a mere ‘recommendation’ (… urges …) amounts to a waiver proper of the Al-Bashir’s immunity or even effectively introduces a novo contractual(?) obligations to a State non-party to the Rome Statute, clearly converges the boundaries between lex lata and ‘lex desiderata’, far away from the classic doctrines of positivism. The powers of the SC come to balance the repudiation of other (admittedly arguable, and more grotian) solutions, such as the piercing of the immunity veil on the event of acts/omission violating obligations arising from primary norms of a jus cogens (peremptory nature). On a different, though relevant, legal and factual background the ICJ stalled the development of this parameter of the problematic via the majority judgment in the Jurisdictional Immunities Case.

Jordan says

April 18, 2014

There is no immunity under international law, at least, with respect to prosecution of international crimes before an international criminal tribunal. Dictum, ICJ; IMT at Nuremberg; IMT for the Far East; Control Council Law No. 10; 1950 UN Principles of the Nuremberg Opinion and Judgment; ALL relevant internations criminal treaties that set forth proscriptions with respect to "any person who" or similar language; ICL treaties that expressly recognize nonimmunity for heads of state or other public officials; and so forth.

Jordan says

April 18, 2014

p.s. The Presecutor v. Milosevic, ICTY (also recognizing that nonimmuniity is part of customary international law).

Jens Iverson says

April 22, 2014

Excellent post. A brief comment - mention is made of Article 97. Article 97 does indeed discuss notification if there is a problem with a "pre-existing treaty obligation". I don't know if that (as opposed to a pre-existing customary law obligation) is alleged here. What is alleged is a difficulty under Article 98. As the Court notes, there is a rule for that: Rule 195. The DRC failed to follow Rule 195. The text of that Rule is below, as is a link to my GoJIL article which discusses Rule 195, Article 98, Article 119, notice, and the Malawi decision in greater detail.

Rule 195
Provision of information
1. When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court.

2. The Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court.


Abel S. Knottnerus says

April 23, 2014

Thank you for the valuable comments, which raise a number of interesting issues. A quick response:

(1) We agree with Ekaterina that Security Council resolution 1593 obliges Sudan to waive the immunities of President Al-Bashir, and that for as long as Sudan has not expressly waived his immunities, Al-Bashir keeps enjoying them under customary international law in his capacity of serving Head of State.

(2) The comment of Dimitrios raises a difficult – but hypothetical – question, namely whether the Security Council would actually be allowed under the UN Charter and general international law to remove the immunities that serving Heads of State enjoy under customary international law? In this post, we did not want to take a position on this issue, since we believe that Security Council resolution 1593 has not removed the immunities of Al-Bashir, but has ‘only’ created an obligation for Sudan to waive his immunities.

However, even if we were to assume that the Council has this power under the Charter and if we were to take for granted that the Council would have explicitly removed Al-Bashir’s immunities, we are not certain whether this would actually relieve the Court of its duty under Article 98(1) to ask Sudan to waive the immunities of its Head of State. In this hypothetical scenario, all UN member States would have an obligation to ‘ignore’ the immunities of Al-Bashir under customary international law (under Article 25 and arguably 103 of the Charter), but this does not imply that these immunities disappear. With respect to Article 98(1), they still have to be waived by Sudan on the request of the Court. As long as that would not have happened, States Parties like the DRC could invoke Article 98(1) – in relation to Article 97 and Rule 195 – before the Court; even if this would be a violation of their (hypothetical) obligations under the UN Charter.

(3) Jordan argues, in line with the PTC in the Malawi and Chad decisions, that there are no personal immunities under (customary) international law with respect to the prosecution of international crimes before an international criminal tribunal. We respectfully disagree. As has been pointed out before, the quoted jurisprudence concerns the prosecution of former and not serving Heads of State. For a further discussion on this issue, we refer readers to the previous post of Dapo Akande (see the hyperlink in the post).

(4) Finally, Jens responds to our reference to Article 97 and questions whether this provision is applicable in the present case. In the post, we call Article 97 “the most relevant provision” when the Court finds that the DRC should have “consulted or notified the Court” of any problems with respect to the execution of the Court’s cooperation request “instead of deciding itself on [the] applicability of Article 98(1) (para. 22). As noted, the Chamber itself does not explicitly mention Article 97 at this point, but earlier in the decision the judges do observe that:

“the Congolese authorities should have consulted or notified the Court in accordance with article 97 of the Statute and rule 195 of the Rules of the existence of a problem related to article 98(1) of the Statute which prevented it from discharging its obligations as a State Party” (para. 15).

Jens argues in his comment that Rule 195 would be the relevant rule and suggests that Article 97 (only) applies when there is a problem with a “pre-existing treaty obligation”, and not with a pre-existing customary law obligation.

We do not deny the relevance of Rule 195 in this context (and yes, we might have stated that in the post), but we do want to point out that this Rule finds its legal basis in Article 97 (concerning the consultation obligation) as much as in Article 98 (concerning the conflict of obligations). Moreover, although Article 97 lists a “pre-existing treaty obligation” as one of the possible problems that a State Party may identify as impeding the execution of a cooperation request, the “inter alia” construction in Article 97 clearly indicates that it also applies with respect to problems that are not explicitly mentioned in this provision, such as a pre-existing customary law obligation.

Jordan says

April 23, 2014

I would be interested in your interpretation, for example, of Article IV of the Genocide Convention (i.e., "whether they are..."), Article III of the Apartheid Convention,and Article 6(1)(a) of the International Convention for the Protection of All Persons from Enforced Disappearance.

Jens Iverson says

April 23, 2014

Thanks for the response. I agree, Article 97 does apply; it's just that Rule 195 is more precisely on point, and I thought it might be of interest. Sorry if I was unclear.

Dimitrios Kourtys says

April 24, 2014

Most esteemed Sir, Abel S. Knottnerus,
Allow me to congratulate you once more, this time on the ‘rebuttal’ of the comments and the further commentation, both lucid and –as always– to the point. I totally concur with the expressed opinion on the competence (if any) of the SC to pierce the immunity veil and also the doctrinal repudiation of the inexistence of personal immunities vis-à-vis incumbent State authorities.
I hope that an opportunity shall appear to discuss this matter thoroughly and in person, given the forthcoming ESIL 10th anniversary conference in Vienna.
For the time being please do accept my sincerest felicitations.