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?

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.

The argument that the SC has implicitly derogated from Al-Bashir’s immunities by referring the situation in Darfur to the ICC and requesting Sudan to ‘cooperate fully’ with the Court was initially put forward by Professor Dapo Akande in an article published in 2009. His original idea was that the said referral necessarily implied that the Rome Statute would become applicable to Sudan, putting it in an analogous position to that of an ICC state party, at least when it comes to cooperation with the Court. This would mean that the exclusion of immunities provided for in Art. 27(2) of the Statute would also apply to Sudan. Crucially, it was argued that this exclusion covers not only immunities before the Court’s own jurisdiction, but also and necessarily, immunities from the (domestic) adjudicative and enforcement jurisdiction of any state party, given, inter alia, the reference to ‘national law’. Accordingly, no state party could refuse to surrender Al-Bashir to the Court by claiming to be acting inconsistently with their obligations to grant immunities under international law, as foreseen in Art. 98(1) (or possibly Art. 98(2)). This argument was later picked up by the Office of the Prosecutor (OTP) and upheld by PTC II in the Decision on Jordan’s Non-compliance (paras. 38-40), as well as in its earlier Decision on South Africa’s Non-compliance (paras. 74-97). It became known as the ‘Security Council route’ or ‘avenue’ and it has been reaffirmed by the OTP and some of the amici in their written and oral submissions before the Appeals Chamber (see all case records here). Moreover, one slightly modified version of this argument has come up in the course of the hearings (see here, at pp. 29-36). This variant or version of the ‘Security Council route’ is based on the idea that the SC need not apply the Rome Statute to Sudan, putting it in a position analogous to a state party, in order displace any personal immunities that might attach to its officials. Rather, the Council has directly displaced any such immunity by requiring Sudan to ‘cooperate fully’ with the Court, without any detour via the Rome Statute, particularly Art. 27(2) (see PTC II’s DRC Cooperation Decision, paras. 29-30). Both of these versions of the ‘Security Council route’ are grounded on the idea that the Council can implicitly or by necessary implication remove existing personal immunities, which has been hotly contested by, in particular, Jordan, the African Union and Professor Roger O’Keefe.

All parties and participants have presented a series of strong and persuasive arguments either in support or against the contention that the Council can implicitly derogate from personal immunities (see here, at pp. 34–36, 39, 68–71, 91, here, at pp. 46–47, 60, 80, 110–113, 119–127, 131–134, here, at pp. 27-30, 108, 122, 126, and here, 43, 49, 54-56, 61, 93). However, there is one point which seems to have been neglected in this debate: the requirement that the SC adopt explicit language when derogating from existing treaty or customary obligations only seems to arise in the context of human rights. This is because the SC cannot, at least in principle, breach human rights, as their promotion is one of the fundamental purposes of the UN Charter (see Art. 1(3)). Thus, in accordance with the European Court of Human Rights (ECtHR) in Al-Jedda, para. 102, and Al-Dulimi, paras. 139-140, 146, there is a strong presumption that the SC does not intend to derogate from fundamental human rights. This is why any derogation from those rights calls for clear and explicit language. Indeed, Jordan (para. 70) and Professor O’Keefe (para. 13) have referred to these ECtHR cases as authorities for the proposition that any derogation from immunities by the Council must be explicit. However, as all the parties and participants seem to agree, immunities are not fundamental human rights. It is true that personal immunities are an important aspect of the principle of sovereign equality of states, upon which the UN Charter is also founded (see Art. 2(1)). Yet, unlike limitations of human rights, limitations on state sovereignty are the very purpose of Chapter VII resolutions, which are meant to impose coercive measures on UN member states. In sum, there is a difference between human rights and other rules of international law when it comes to the limits to the SC’s powers.

It has been rightly pointed out that limitations to pre-existing treaties and general international law should not lightly be assumed in the context of treaty obligations (see Art. 34 VCLT). But even in the context of treaty law, the requirement is only that there is a clear intention to depart from prior obligations (see ICJ Judgment in the ELSI case, para. 50, and a Joint Dissenting Opinion in the ICJ’s Preliminary Objections Order in Immunities and Criminal Proceedings (Equatorial Guinea v France), para. 14). Thus, in the Tadić Appeal Judgement, the Appeals Chamber of the ICTY has stated, in para. 287, that:

‘it must be presumed that the Security Council, where it did not explicitly or implicitly depart from general rules of international law, intended to remain within the confines of such rules’ (emphasis added).

Accordingly, explicit or express wording is not required for derogations by the SC from pre-existing international law, but only a clear enough intention to do so. As Jordan and Professor Kress have remarked in the context of the use of force, the authorisation to use ‘all necessary means’ has been clearly understood to refer to the use of military force (see here, at pp. 34 and 119). Therefore, it seems that an obligation to ‘cooperate fully with the Court’ is also clear enough to cover a derogation from all possible impediments to the exercise of the Court’s jurisdiction, including immunities from foreign domestic jurisdiction (see excellent remarks by Daryl Robinson et al. here, at pp. 79-84, and here, paras. 4-10). And this is either by virtue of applying the Rome Statute and, in particular, Art. 27(2), to Sudan, or by directly displacing any personal immunities. Any more precise legal terminology would be too much to ask from a political body, especially one who makes constant use of constructive ambiguity.