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Home Posts tagged "Head of State Immunity"

The ‘Security Council Route’ to the Derogation from Personal Head of State Immunity in the Al-Bashir Case: How Explicit must Security Council Resolutions be?

Published on September 19, 2018        Author: 
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Last week, the Appeals Court of the International Criminal Court (ICC, the Court) held hearings in relation to Jordan’s Appeal from a decision of Pre-Trial Chamber (PTC) II holding that it has failed to cooperate with the Court in the arrest and surrender of Sudan’s President, Omar Al-Bashir. As is well known, Al-Bashir is presently subject to an ICC Arrest Warrant for committing war crimes, crimes against humanity and genocide in Darfur, following the referral of the situation by the Security Council (SC) to the Court. He has made a series official visits to Jordan and other states parties to the ICC Statute (the Rome Statute). However, none of those states has dared to arrest him to date. Their principal argument is that Al-Bashir enjoys personal immunities from foreign domestic jurisdiction under treaties and customary international law, that these are not covered by the removal of immunity in Art. 27(2) of the Rome Statute, and are thereby safeguarded by Art. 98 of the Statute.

The hearings, together with the Appeals Chamber’s decisions leading to them, represent a unique moment in the history of international criminal law for two main reasons. First, this is the first time in which the ICC has invited, accepted and heard submissions from leading international law scholars as amici curiae, as well as engaged in direct (and sometimes heated!) oral discussions with them. Secondly, some of the legal and policy issues discussed in the hearings are of fundamental importance to international criminal law and public international law in general. They include questions such as the extent of the SC’s powers, a possible customary international law exception to personal immunities before international criminal tribunals, and the practical importance of preserving such immunities for international peace and security. Thus, watching the hearings online has certainly kept some of us entranced during the entire week.

However, aside from the special role attached to academic commentary and from the systemic issues discussed in the hearings and in the written observations, one question seems to have been at the heart of the debates on Al-Bashir’s immunities. This question is whether the SC can implicitly derogate from personal immunities otherwise applicable under treaties or customary international law, or whether it must do so explicitly. Indeed, all parties and participants seem to agree that the SC has the power to displace personal immunities and other rules of treaty or general international law, except for jus cogens norms. Yet they disagree as to how clear the Council must be in order to do so. Read the rest of this entry…

 

The Bashir Appeal at the ICC

Published on September 10, 2018        Author: 
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This morning, the ICC Appeals Chamber of the International Criminal Court (ICC) begin its hearings in the appeal of Jordan against the decision of the Pre-Trial Chamber that Jordan failed to comply with its obligations under the ICC Statute by failing to arrest Sudanese President Omar Al-Bashir when he visited Jordan. The hearings raise the question whether a party to the Statute must respect the immunity of the head of state of a non-party to the statute when the arrest of the latter is sought by the ICC. These are issues that have been discussed with respect to President Bashir from the moment when the warrant for his arrest was issued by the ICC. They have also been the subject of four (conflicting) decisions by the Pre Trial Chambers. It is now hoped that the Appeals Chamber will issue a decision that will settle the position of the ICC with respect to this issue. Over the course of this week, the Appeals Chamber will hear not only from Jordan and the Prosecutor but also from the African Union, the League of Arab States, and a number of academics that have been permitted to make submissions to the Chamber.

In July, AJIL Unbound, the online supplement to the American Journal of International Law, published a symposium on “The Rome Statute of Twenty”. That symposium, edited by Judge Theodor Meron & Professor Maggie Gardner, is composed of essays mostly by serving and past judges of the ICC and the ad hoc tribunals. It was a pleasure to be asked to contribute to that symposium. In my contribution, titled, “The Immunity of Heads of States of Non-Parties in the Early Years of the ICC”, I chose to write on the issues that have arisen in the Bashir Appeal. I have written on these issues before and summarise my views in the limited space I had in the AJIL Unbound essay. My introduction to the essay is as follows: Read the rest of this entry…

 

The ICC’s immunity debate – the need for finality

Published on August 11, 2017        Author:  and
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In a judgment given last month, on 6 July, the Pre-Trial Chamber of the International Criminal Court (ICC) confronted the vexed legal question of immunities for heads of state who are alleged to have committed international crimes. It did so in a case involving South Africa’s failure to arrest President Bashir of Sudan when he attended the AU heads of summit meeting in Johannesburg in June 2015.

While Judge Marc Perrin de Brichambaut wrote a separate opinion, the three-panel Pre-trial Chamber (PTC) reached the unanimous conclusion that South Africa had failed to comply with the request that had been issued by the ICC to arrest Bashir for serious crimes allegedly committed in the Darfur region of Sudan. The PTC found that states parties to the Rome Statute, such as South Africa, are required to arrest and surrender Bashir to the ICC where he is found in their territory.

We are not here debating the merits or otherwise of the PTC decision. It is enough to stress that the judgment comes at a fraught political time for the ICC, and its relationship with African states and the AU. The impetus for this joint piece arises from the legitimate and expressed concerns of African states parties (like South Africa) regarding their obligations to cooperate with the ICC in surrendering heads of states of non-state parties (like Sudan) to the Court in the light of, inter alia, the rules of customary international law on immunities.

The technical legal issues relate to the relationship between Articles 27 and 98 of the Rome Statute, which has been raised by a number of African states, particularly South Africa in relation to the Bashir case, as well as the African Union (AU). The subject has been a central concern of the AU as well as ICC member-states seeking measures to reform and improve the ICC. The concern, in a nutshell, is how to balance the obligations owed to the ICC to arrest heads of state, with the customary international law immunities that are ordinarily accorded to such officials. African states have felt the brunt of what have been described as “competing obligations” – being pulled in one direction to assist the ICC, and in the other direction by customary international law duty to respect official immunities. In recent times, Jordan, regarded by many as a friend of the ICC and the first Arab state to ratify the Rome Statute, has also had to confront the tension between the Rome Statute duty to arrest Al Bashir and the duty under customary international law to respect his immunities.

In the lead-up to the PTC’s finding on 6 July, South Africa had been invited by the ICC to make submissions to the PTC explaining its reasons for failing to arrest Bashir. The Prosecutor of the ICC filed submissions in response. And the PTC also admitted the Southern Africa Litigation Centre (the NGO that had brought cases in South Africa’s courts successfully challenging the government’s failure to arrest Bashir) to make submissions [all available here].

We were on opposing sides as lawyers in that dispute (with Tladi acting for the government, and du Plessis acting as counsel for SALC). We nevertheless now write jointly (and in our personal capacities) because of a shared belief that there remains a need for the dispute to be resolved finally through judicial means.  Read the rest of this entry…

 
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The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?

Published on March 29, 2016        Author: 
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Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.

The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. Read the rest of this entry…