The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

• In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
• In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
• In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. This post serves as a follow-up to an EJIL:Talk!-post from 2014, in which André de Hoogh and I argued that the DRC decision wrongly assumed that the Council can remove immunities in an implicit manner and mistakenly conflated the obligation to waive immunities with their actual removal.

The South Africa decision is more sophisticated than the DRC decision by taking up the suggestion of Dapo Akande to treat Sudan like a state party. In my opinion, however, the Chamber’s new decision still does not resolve the matter of al-Bashir’s immunity in a legally convincing manner.

Two different turns to the Security Council

As a starting point, it is important to highlight the key differences between the two decisions. Both decisions turn to the Security Council, but in a slightly different manner.

In the DRC decision, the Chamber argued that the Security Council ‘implicitly waived [al-Bashir’s] immunities under international law’ (para. 29). When the Council referred the situation in Darfur, it obliged Sudan ‘to cooperate fully with and provide any necessary assistance to the Court’ (para. 2 of Resolution 1593). According to the Chamber, this cooperation requirement ‘was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities’, because any other interpretation would render Sudan’s obligation to cooperate fully ‘senseless’ (para. 29). Al-Bashir would not enjoy immunity because the Council removed his immunities by using its powers under Chapter VII of the UN Charter.

In the South Africa decision, the Chamber stated that the ‘necessary effect’ of the Security Council’s referral is that ‘for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of states parties to the Statute’ (para. 88). According to the Majority of the Chamber (with Judge de Brichambaut dissenting), Article 27(2) ‘applies equally with respect to Sudan’, which would mean that the immunities of al-Bashir ‘do not apply vis-à-vis states parties’ (paras. 91-93). The Chamber added that ‘it is immaterial … whether the Security Council intended – or even anticipated – that … al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest’ (para. 95). Unlike the DRC decision, the Chamber did not see ‘a waiver in the Security Council Resolution’ (para. 96). Such a waiver would also not be necessary, because Article 27(2) applies to Sudan.

In short, both decisions turn to the Security Council, but do so in a slightly different manner. In the DRC decision, the Chamber based itself directly on the powers of the Council under the UN Charter. The Council would have implicitly waived al-Bashir’s immunity and for this reason Article 98(1) would not apply. In the South Africa decision, the Chamber reasoned that the Council created obligations for Sudan under the Charter, which are similar to those of a state party under the Statute. Al-Bashir would not enjoy immunity, because the application of Article 27(2) would remove that immunity.

From a legal point of view, both approaches raise different questions. The DRC decision triggers questions about the powers of the Council and about the interpretation of Resolution 1593:  Does the Council have the power to deviate from customary international law or to remove immunities in an implicit manner? Does Resolution 1593 contain an implicit removal of al-Bashir’s immunity or only an obligation to waive his immunity, and can the Court invoke an obligation to waive al-Bashir’s immunity under the UN Charter against its own states parties?

For the South Africa decision these questions are less relevant, because if Sudan is placed in a similar position as a state party under the Statute, it does not matter whether the Council can implicitly remove immunities or whether there is a textual link in Resolution 1593 for an implicit removal. The inapplicability of al-Bashir’s immunity would not follow directly from the text of the Resolution, but from the applicability of the Statute as imposed by the Council on Sudan. This approach is more elegant than the reasoning in the DRC decision in the sense that it envisages a scenario in which there are no meaningful differences between a ‘real’ state party and a non-party that is obliged by the Council ‘to act like’ a state party. Yet, the South Africa decision does raise a number of other questions – and problems.

The problems of the South Africa decision

The key assumption of the South Africa decision is that the Court must treat Sudan like a state party. In considering this assumption it is important to note that the ICC’s legal framework is not explicit on how the Court should act when the Council refers a situation in a non-party to the Prosecutor under Article 13(b). Presumably, the effect of a Security Council referral is that the Statute applies in its entirety (Article 1 of the Statute). However, if the whole Statute applies, does this necessarily mean that a non-party like Sudan should in all ways be treated as a state party? – No, not necessarily!

A problem with the Chamber’s assumption is that it turns a blind eye to the numerous provisions in the Statute that explicitly distinguish the legal position of a state party from that of a non-party. When the Statute only refers to a state party, or to a non-party, why would Sudan have to be treated by the Court as a state party? There is no textual argument in the Statute for treating Sudan as a state party. A referral does not transform a non-party into a state party, it only triggers the Court’s jurisdiction. As acknowledged in the minority opinion of Judge de Brichambaut, if a Security Council referral triggers the applicability of the entire Statute, it logically follows that the referral ‘also activates provisions relevant to non-state parties’, and that ‘such a referral need not necessarily render a non-state party analogous to a state party’ (para. 56).

That being said, the Council has created obligations for Sudan which are in some ways similar to that of a state party. Sudan has to cooperate fully with the Court. It has an obligation under the UN Charter to arrest al-Bashir, to waive his immunity and to cooperate in any other way that is requested by the Court in accordance with the Statute. When Sudan fails to fulfil this obligation, the Court can refer Sudan, as it has done, to the Council.

However, the question at hand is whether the Court is allowed, under the Statute, to treat Sudan as a state party.  Both the Statute and the Council’s Resolution (which accepts the distinction between states parties and non-parties) indicate that Sudan remains a non-party. As a non-party, Article 27(2) does not apply to Sudan in the same way as it does to a state party. The Court can invoke Article 27 vis-à-vis Sudan to exercise jurisdiction and issue arrest warrants against Sudanese state officials (i.e. on a vertical level). Yet, while Article 27(2) completely removes the immunities of states parties, the immunities of non-parties continue to exist on a horizontal level for as long as these immunities have not been waived by the concerned state (for a more detailed analysis on this point, see our previous post).

For as long as Sudan has not waived al-Bashir’s immunity, the Court is bound by its own Statute in the sense that states parties are able to invoke Article 98(1). The reason for this is that Article 98(1) specifically addresses the legal position of a ‘third state’, which refers to a state that is not a party to the Statute (see South Africa decision, para. 82). The Security Council referral creates obligations for Sudan, but these obligations do not amount to a complete removal of al-Bashir’s immunity and do not turn Sudan into a state party.

To argue that Article 98(1) does not apply, even if Sudan has to be treated in this respect by the Court as a non-party, one of the following propositions needs to be proven:

• Al-Bashir’s immunity has disappeared because of an exception under customary international law (as argued in the Chad and Malawi decisions);
• The Council has somehow removed al-Bashir’s immunity from arrest (as argued in the DRC decision);
• The Court can hold Sudan’s obligation under the UN Charter to waive al-Bashir’s immunity against states parties (as suggested by Erika de Wet, see here);
• Article 98(1) does not cover the immunity of Heads of State (as argued by Jens Iverson, see here);
• Sudan is a party to another treaty (Genocide Convention) that includes a permanent waiver for al-Bashir’s immunities (as argued by Judge de Brichambaut in his minority opinion).

The Chamber did not defend any of these propositions in the South Africa decision. The Chamber acted solely and without proper explanation on the assumption that it had no choice but to treat Sudan as a state party. This assumption ignores provisions like Article 98 that explicitly distinguish the legal position of a state party from that of a non-party. In the application of these provisions, the Court should treat Sudan as a non-party. This means that Article 98(1) continues to apply, unless his immunities are waived, removed or made inapplicable in some other way.

The need for new solutions

Looking forward, there are several ways for the Court and its states parties to clarify the ICC’s rules on immunity in general and the matter of al-Bashir’s immunity in particular. A first option is a decision from the ICC’s Appeals Chamber. The hope was that South Africa would appeal the Chamber’s ruling (see here), but the Government of Jacob Zuma decided not to. Other states parties that have hosted al-Bashir, such as Jordan, and who will be subjected to non-cooperation proceedings ought to consider requesting the Appeals Chamber to settle the matter of al-Bashir’s immunity in a more conclusive manner.

A second option is the rendering of an advisory opinion of the ICJ. While a proposal for a request from the UN General Assembly to the ICJ previously failed to gain momentum, there is no doubt that the Court could help to clarify the rules on state and diplomatic immunity under customary international law (for a detailed analysis of this option see here).

Finally, a last option for the Court’s states parties is to specify the rules for the implementation of Article 97 and 98. Amending these provisions may not be realistic at this point in time, but recent discussions in the ASP have shown a willingness of states parties to specify the rules on the consultation procedure of Article 97. Discussions on this matter could form the first step in a longer political dialogue on the ICC’s immunity regime as a whole.

For the time being, however, Article 98(1) and the specific question of al-Bashir’s immunity remain surrounded by ambiguity and uncertainty. The Court’s judges have left many fundamental questions unanswered. In the absence of a judgement from the Appeals Chamber and/or an advisory opinion of the ICJ, lawyers and states can reasonably disagree on the scope of Article 98(1) and the obligation of states parties to arrest al-Bashir. In this sense, the ICC’s immunity regime remains ‘unresolved’.