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

André 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).