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Home Posts tagged "Bashir"

Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute

Published on November 12, 2018        Author:  and
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Following oral hearings held in September, the Appeals Chamber of the International Criminal Court (ICC) is currently deliberating in Jordan’s Appeal of the Pre-Trial Chamber’s decision holding that it had failed to cooperate with the ICC by refusing to arrest and surrender Sudan’s President, Omar Al-Bashir, when he visited Jordan. Central to the determination of whether Jordan, a party to the ICC Statute, failed to comply with its obligations of cooperation under the Statute is the issue of whether Jordan was obliged to respect the immunity ratione personae that the Sudanese President would ordinarily be entitled to as a serving head of state.

As is well known, when the ICC seeks to exercise its jurisdiction over a state official who ordinarily possesses immunity under international law from foreign criminal jurisdiction, the question of immunity may, potentially, arise at two levels. First, the issue of international law immunity with respect to the ICC may possibly arise at the so-called ‘vertical level’, i.e in the relations between the ICC, on the one hand, and the accused person and his or her state, on the other. The question that arises here is whether the accused person (as a state official entitled to international law immunities) or his or her state, may plead those immunities before the ICC itself, such as to prevent the Court from exercising jurisdiction over him or her. Second, and more commonly, the issue of immunity will arise at the so-called ‘horizontal level’, i.e in the relations between a state that is requested by the ICC to effect an arrest or surrender, on the one hand, and the state of the accused person, on the other. Here, the question is whether a state that is requested by the ICC, to arrest or surrender the official of another state, may do so, where to do so would require the requested state to violate the immunities that the foreign state official ordinarily possesses under international law. In particular, the question at this horizontal level is whether there is something about the ICC’s request for cooperation that would mean that the obligations which a state ordinarily owes to another to consider inviolable the person of a serving foreign head of state no longer apply. This is the main question that the Appeals Chamber is called upon to resolve in the Bashir case. In this post, we do not propose to examine the range of arguments put to the Chamber on this question. Rather this post will consider one specific question that is critical to the Court’s assessment and to the more general question of how the ICC Statute affects the immunity of state officials.

The post considers whether the provision of the Rome Statute that removes immunity – Art. 27(2) – only removes immunity at the ‘vertical level’ (before the Court itself) or whether it does so at the ‘horizontal level’ (before national authorities) as well. In particular, the post throws new light on this question through an examination of the drafting history of that provision. Consideration of the drafting history shows that the drafters of the provision considered, throughout the period of elaboration of the Statute, that what would become Art. 27 was to have effect not just in proceedings before the ICC itself but also in national proceedings related to the ICC’s exercise of jurisdiction. Read the rest of this entry…

 

South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?

Published on October 22, 2016        Author: 
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The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]

South Africa’s Reasons for Withdrawal

The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:

“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”

The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:

“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.

Does the ICC Statute Require States to Violate the Customary International Law of Immunity?

I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. Read the rest of this entry…

 
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An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Published on March 31, 2016        Author: 
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Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political. Read the rest of this entry…

 
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