Is the Rift between Africa and the ICC Deepening? Heads of States Decide Not to Cooperate with ICC on the Bashir Case

Disclosure: I have acted as consultant to the Commission of the African Union on the question of the relationship between African States and the ICC. Note: This is a long post. If you’re interested in whether Bashir is entitled to immunity under the ICC Statute I try to provide answers at the end.

As I discussed in a previous post (see here) there has been tension between African States and the ICC regarding the indictment of Sudanese President Omar Al Bashir. It is reported (here and here) that the Assembly of the African Union (which meets at the level of Heads of States and Governments), has adopted a resolution calling on all African States not to cooperate with the International Criminal Court on the Bashir case.  In the resolution:

“(The African Union) decides that in view of the fact that a request of the African Union (to defer al Bashir’s indictment) has never been acted upon, the AU member states shall not cooperate persuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of Sudanese President Omar al Bashir to the ICC,”

 This, of course, means that the AU Assembly is calling on States not to take steps to arrest Bashir and not to allow the ICC to conduct investigations on their territory (eg interviewing victims) relating to the Bashir case. The resolution arises out of anger not just at the fact that a sitting head of State has been indicted but because the UN Security Council has failed to take up the African request for deferral of the case under Art. 16 of the Rome Statute. In some ways, the resolution takes a middle position among the range of views that have been taken by African States. Some States have taken a hardline position and would have liked to push for African States to the ICC Statute to withdraw or at least consider withdrawing from the Rome Statute. At the other end of the spectrum, others would have preferred a reiteration of the request for deferral.

There is some confusion in press reports about whether the text of the current resolution was adopted unanimously or not. As I noted in my earlier post, there is significant support for the ICC among African States. It is noteworthy that  this resolution confines its call for non-cooperation solely to the Bashir case.  ICC investigation of the other situations before the ICC continues to have the support of the countries (Uganda, Democratic Republic of Congo, Central African Republic) where those situations arise from. Also on the same day that the AU adopted this resolution, Kenyan officials met with the ICC Prosecutor (see here and here) and agreed that if the Kenya Parliament is unable to adopt legislation to establish a tribunal to deal with 2007 post election violence in that country, the government would refer the situation to the ICC.

The point that African States are not to be seen as rejecting the ICC as an institution or the Rome Statute as a treaty can also be seen from the fact that the AU has sought to use mechanisms within the Rome Statute in order to halt the Bashir case. First, there was the attempt to use an Art. 16 deferral. Now, this resolution justifies the call for non-cooperation on the basis of Art. 98 dealing with immunity. This leads to the question whether Art. 98 does indeed permit States parties to the Statute to refuse cooperation on the basis of the immunity of a Head of State. Para. 1 of Article 98 provides 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.

Note that this provision is addressed to the Court. It is the Court that must not request the arrest and surrender where this would cause other States to violate immunity. I continue to be astounded that the Pre-Trial Chamber in the Bashir Arrest Warrant failed to address Art. 98, a provision directly applicable to the precise situation that was before them. This was nothing short of a deriliction of duty on the part of the judges. I really am hard pressed to think of a decision of an international tribunal where the tribunal simply ignores – does not even mention – what is perhaps the key provision which deals with the case at hand. I may be wrong but I don’t think the Office of the Prosecutor raised the issue of Art. 98 either. Should they have been obliged to do so? I think so. But then again, one may argue that it is the accused person or the States concerned (either the State whose immunity is at issue or the State that is requested to arrest and surrender) that should bring the issue to the attention of the Court. Art. 97 of the Statute and Rule 195 of the Rules of Procedure and Evidence allow a State to whom a request for arrest or cooperation is directed to bring potential problems under Art. 98 to the attention of the Court. Sudan has failed to do this.

So, what happens if the Court fails to make a  decision under Art. 98, do the States parties have any recourse.  Are they allowed as a matter of law to ignore the request for surrender or cooperation and to give effect to their obligation to accord immunity under general international law. This is a classic case of a conflict of obligations. The requested State party would have the obligation under the Rome Statute to cooperate but an obligation under general international law (or another treaty) to accord immunity and therefore not arrest. Neither obligation prevails over the other. The requested State simply has to choose which it will obey. In this case, African States have chosen the immunity obligation under general international law with the risk that they act in violation of their obligations under the Rome Statute. There is of course another option. They could have chosen, can still choose perhaps, to raise the Art. 98 issue before the ICC so as to obtain the stay of a request for surrender that they desire. There is a question as to whether the issue may be raised in the appeals proceedings in the Bashir case. Leave has been given to the Prosecutor to appeal the genocide question (see Kevin Jon Heller’s discussion at Opinio Juris). President Bashir has not chosen to appeal but perhaps the Appeals Chamber can be persuaded by African States to take up the Art. 98 question at this stage. This of course means that one of those States, or perhaps the AU itself, has to raise the issue before the Appeals Chamber. They should try to do this.

All of this leads to the question whether Art. 98 does indeed allow the Court to refuse to request arrest of President Bashir on the basis of the immunity he would ordinarily be entitled to as a head of State. I have discussed this question in earlier posts (here and here). Others and I have noted the tension between Art. 27 and Art. 98 of the Rome Statute on the question of immunity. I have argued elsewhere that the only way to give meaningful effect to both provisions is to interpret Art. 98 as requiring the ICC and national authorities to respect immunities accruing to non-parties. On the other hand,  Art. 27 is to be taken as removing immunities accruing to ICC parties. So the key question is whether Sudan is to be considered analogous to a party in the case of the Security Council referral. Remember that though Security Council Res. 1593  imposes an obligation on Sudan to cooperate with the Court, it does not explicitly make the Statute binding on it nor does it explicitly deal with the question of immunity. So, what one needs (in order to permit arrest of Bashir by parties) is an argument that says that Sudan is to be considered as bound by the Statute and by the removal of immunity in Art. 27.

In an article which is due out this month in the Journal of International Criminal Justice, I make the argument that the immunity of Sudanese officials are removed by the Statute and the SC referral. The article is titled: “The Legal Nature of Security Council Referrals to the ICC and its Impact of Al-Bashir’s Immunity”. The key parts of the article are set out below (footnotes omitted):

Applying the distinction between the immunities of parties and that of non-parties with respect to the ICC to the case of President Bashir is complicated. The problem in the Bashir case is that though Sudan is not a party to the ICC Statute, the case arises out of a Security Council referral. The key point is whether Sudan is to be considered as being in the position of a party to the Statute. It can only be considered as being in an analogous position to a party if the provisions of the Statute (including those relating to immunity) are binding on it with regard to the ICC referral. The Security Council in Res. 1593 decided that Sudan must cooperate fully with the Court but did not explicitly make the Statute binding on it nor did it expressly address the question of immunity. The PTC was right to hold in the Bashir Arrest Warrant decision that the Security Council has accepted that investigations and prosecutions from the Darfur situation “will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.” This is because the Security Council, in referring the situation regarding Darfur to the ICC, was taking advantage of a provision in the ICC Statute (Art. 13(b)) which permits such referrals and must therefore be deemed to have expected the Statute of the Court to provide the governing framework. In the case of the Darfur referral, this expectation can also be implied from the various references in Res. 1593 to the Statute of the Court. More generally, given that the Security Council, in referring a situation to the ICC, intends the Court to take action (to investigate and prosecute as appropriate), and given that the Council itself provides no procedure by which the investigation and prosecution is to take place the Council must be taken as expecting the Statute to be the governing law. In order for the decision to refer a situation to the Court to be effective, one must imply a decision that the Court take such action as it can take. The Court can only act in accordance with its Statute since Article 1 of that Statute provides that “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.” [Art. 1, ICC Statute] As this is the case, a decision by the Security Council that the Court may act implies a decision that it act within its Statute. This implication arises unless the Council were to provide otherwise. And if the Council were to provide that the Court should act otherwise than in accordance with its Statute, it is doubtful that the Court would be competent to do so, in spite of the Security Council decision. Therefore, there would appear to be little need to provide in the Security Council resolutions providing for referrals that the Court is to operate in accordance with its Statute as the Court could not do otherwise. The very decision to refer a situation to the Court is a decision to bring whatever individuals may be covered by the referral within the jurisdiction of the Court and therefore within the operation of its Statute. The very decision to refer also affects the position of parties to the Statute indirectly in that it raises the possibility the obligation of parties under the Statute (to cooperate) will be invoked by the Court.

 Despite the fact that the very decision to refer a situation regarding a non-party implies a decision that the Court act in accordance with its Statute, the question remains whether the Statute is binding on that non-party. At a minimum, the referral of a situation to the ICC is a decision to confer jurisdiction on the Court (in circumstances where such jurisdiction may otherwise not exist). That decision is made under Chapter VII of the United Nations Charter and by Article 25 of the Charter “Members of the United Nations agree to accept and carry out the decisions of the Security Council . . .” The decision to confer jurisdiction on an international tribunal does not of itself necessarily require members to do anything (though the Council may, of course, require cooperation). Nonetheless, the decision to confer jurisdiction must be accepted by the members. They are legally bound to accept that the Court has jurisdiction in the circumstance in which the Security Council has conferred jurisdiction. Art. 25 estops them, as a matter of law, from taking a contrary position. Moreover, since the jurisdiction and functioning of the Court must take place in accordance with the Statute a decision to confer jurisdiction is a decision to confer it in accordance with the Statute. Thus, all States (including non-parties) are bound to accept that the Court can act in accordance with its Statute. In this sense, at least, a non-party to the Statute is bound by the Statute in the case of a referral – in the sense that it is bound to accept the jurisdiction of the Court and legality of the Court’s operation in accordance with its Statute.

 In the present context, there is a further reason for regarding the Council as subjecting Sudan to the Statute and for regarding the whole of the Statute as binding on that State. By requiring Sudan to cooperate fully with the Court, the resolution explicitly subjects Sudan to the requests and decisions of the Court. Since the Court must, under its own Statute, act in accordance with the Statute, making the decisions of the Court binding on Sudan is to subject Sudan to the provisions of the Statute indirectly.

 For the reasons stated above, the Statute, including Article 27, must be regarded as binding on Sudan. The Security Council’s decision to confer jurisdiction on the ICC, being (implicitly) a decision to confer jurisdiction in accordance with the Statute must be taken to include every provision of the Statute that defines how the exercise of such jurisdiction is to take place. Article 27 is a provision that defines the exercise of such jurisdiction in that it provides that ” immunities . . . which may attach to the official capacity of a person, whether under international law or national law, shall not bar the Court from exercising jurisdiction over a person.” The fact that Sudan is bound by Article 25 of the UN Charter and implicitly by SC Res. 1593 to accept the decisions of the ICC puts Sudan in an analogous position to a party to the Statute. The only difference is that Sudan’s obligations to accept the provisions of the Statute are derived not from the Statute directly but from a United Nations Security Council resolution and the Charter.

 Since Sudan is to be treated as bound by the Statute and as if it were a party to it, then the tension between Articles 27 and 98 become easier to resolve. In accordance with analysis above, an interpretation of Article 98 which bars the Court from requesting the arrest and surrender of officials of State parties or States bound by the Statute under a Security Council resolution would be to deprive that part of Article 27(2) which refers to international law immunities of practically all meaning. In line with earlier analysis, the only way to give meaningful effect to the statement in Article 27(2) that international law immunities shall not bar the Court’s exercise of jurisdiction is to hold that that provision not only removes immunity with respect to the Court but also with respect to national authorities, acting to support the exercise of the Court’s jurisdiction. Thus, the international law immunities of Sudanese officials (including the immunity of the head of State) are removed as a result of the Statute and the referral by the SC. This lack of immunity then means that under Article 98, a State party to the Statute would not be acting “inconsistently with its obligations under international law” by arresting and surrendering Bashir to the ICC. Without the potential bar to cooperation present in Art. 98, States parties are under an obligation under Article 89 to comply with the request for arrest and surrender issued by the Court.