The Bashir Appeal at the ICC

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:

“More than any other international criminal tribunal, the International Criminal Court (ICC) has, in its early years, pursued cases against heads of state. The Court issued arrest warrants for President Omar al Bashir of Sudan and for Muammar Gaddafi while he was Libya’s head of state, and it charged Uhuru Kenyatta shortly before he became head of state of Kenya. These attempts to prosecute heads of states have not only led to tensions between the Court and the African Union, but also pit the desire to hold senior leaders accountable for grave international crimes against the customary international law principle that certain senior state officials—especially heads of state—have immunity from foreign criminal jurisdiction by virtue of their status, including immunity from arrestand their inviolability when abroad.

The institution of proceedings against Bashir and Gaddafi, as heads of states not party to the ICC Statute, has raised questions as to how the nature of the ICC as a treaty-based institution, whose Statute only binds parties to that treaty, should be reconciled with the Court’s exercise of jurisdiction in circumstances where the interests and/or legal rights of those non-party states are implicated.

The way in which the Court, states, and the Security Council have dealt with head-of-state immunity over the last decade has damaged the Court’s authority. Not only has the Court’s request for the arrest and surrender of Bashir not been respected by states, but the Court’s own actions on the issue have also been unsatisfactory. Although Pre-Trial Chambers (PTCs) have consistently concluded that the position of the accused as a head of state does not exempt the accused from proceedings before the Court or from arrest by states parties, they have offered different and inconsistent reasons. For the first time, the matter is before the Appeals Chamber, which has an opportunity to bring much needed clarity to the legal issues.”