Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities

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As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.

On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that

because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)

Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that

The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)

In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. Doing so, I claim that, as a matter of lex lata and following from the legal nature of SC referrals, personal immunities of a sitting Head of State of a state not party to the ICC, such as those enjoyed by Sudanese President Bashir, apply and are opposable to the ICC itself as well as to national authorities enforcing the decisions of the ICC, unless the SC expressly removes such immunities.

The Legal Nature of UN Security Council Referrals

The jurisdiction of the ICC in case of a referral (involving states not party to the Rome Statute) is best conceptualized as a conferral of jurisdictional powers from the SC to the ICC.

This is because the foundational jurisdiction of the ICC generally stems from its states parties. The same applies to the ICC as an international organization (IO): it may only exercise powers conferred to it by states.

In case of a SC referral, the state concerned has not directly conferred its criminal jurisdiction to the ICC. Here, the ICC gains jurisdiction by virtue of a referral by the SC acting under Chapter VII of the UN Charter. This is necessary because states parties to the ICC cannot, as a matter of international law, confer powers (here criminal jurisdiction over a third state) that they do not possess.  Conceptually then, the referral is an indirect conferral of powers: The SC acting under Chapter VII of the UN Charter exercises powers conferred to it by UN member states collectively. In the exercise of these powers, the SC further confers (jurisdictional) powers to a separate IO, the ICC. The precedents of the ad hoc tribunals confirm that the SC may confer powers that it is unable to exercise itself (see Nico Krisch in UN Charter: A Commentary, OUP 2012, para 54). From the perspective of the state concerned, the decision to refer a situation to the ICC is therefore an indirect conferral of criminal jurisdiction from the state with primary jurisdiction.

As regards the obligations of the state not party to the ICC, the binding nature of acts of IOs equally derive from a conferral of powers (usually by their member states). It follows that for the ICC to lawfully issue binding decisions on a third state, these must also find its basis in a conferral of powers. The SC resolution containing the decision to refer a situation to the ICC must therefore be read as such a conferral of powers. This was confirmed by the ICTY Appeals Chamber in the Blaskic Subpoena case:

the obligation [on States] to lend cooperation and judicial assistance to the International Tribunal… is laid down in Article 29 and restated in paragraph 4 of Security Council resolution 827 (1993). Its binding force derives from the provisions of Chapter VII and Article 25 of the United Nations Charter and from the Security Council resolution adopted pursuant to those provisions. (para 26)

These obligations, by virtue of Article 103 UN Charter, prevail over a state’s other treaty obligations (see Dan Sarooshi, The United Nations and the Development of Collective Security, Clarendon Press 1999, 109).

However, for a conferral of powers from the SC to another, separate IO (as opposed to the establishment of subsidiary organs, as was the case with the ICTY/R) to be lawful a specific competence must be found in either express or implied terms in the UN Charter. This also raises difficult legal issues regarding the parameters and limits to such process, which cannot be addressed here (I develop this in my PhD thesis). Suffice it to say that from the perspective of the ICC, ie the IO receiving such powers, it is clear that it is not obliged to exercise them. Also, the ICC itself can only act on the basis of its constituent treaty, ie the Rome Statute, otherwise acting ultra vires.

One important consequence of the nature of SC referrals for present purposes is the fact that since it is a conferral of powers, we have to look at the SC referral itself to determine its scope and whether it removed personal immunities. In particular, it means that the SC referral has not turned Sudan into a state party (in any event, it is rather doubtful that the SC even possessed such a power).

Bashir’s Immunities

What does this mean for Bashir’s immunity? The answer is found in the source of the power for the ICC, ie the referral.  The referral requires Sudan to “cooperate fully” with the ICC. Dapo Akande reads this as implicitly removing Bashir’s immunity. And here is where the legal nature of the SC referral points to a different conclusion: Recall that when the SC confers jurisdictional powers to the ICC, the SC itself is exercising powers conferred to it by its member states (see Art 24 UN Charter). To then further confer powers to an external IO the scope of these powers must be expressly stated and circumscribed in the respective resolution. In the case at hand, the SC merely obliged Sudan to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” (emphasis added). The question is whether this includes the application of Article 27(2) of the Rome Statute which removes personal immunities. The wording “pursuant to this resolution” is relevant because it omits any reference to the Rome Statute. This is telling since Article 86 of the Rome Statute dealing with the obligation of state parties to “fully cooperate” with the ICC adds the qualifier “in accordance with the provisions of the Statute”. Thus, if the Security Council wished to deviate from the customary rule of personal immunities for Heads of States, it would have made an express reference to the provisions of the Statute (Article 27). The same was true with respect to the ad hoc tribunals. Here, the SC expressly laid out the scope of the tribunals’ jurisdiction by adopting their respective Statutes. It is difficult to see how customary law immunities would have been removed without express provisions in the respective Statutes to such an effect (it is debatable whether the Statutes of the ICTY/R in fact removed not only immunity ratione materiae but also immunity ratione personae). The requirement to expressly remove personal immunities is also confirmed mutatis mutandis by the ILC, which stated that “when applied to a serving Head of State […] a waiver of immunity should be explicitly stated” (see ILC, Third Report on immunity of State officials from foreign criminal jurisdiction, by Roman Anatolevich Kolodkin, Special Rapporteur, A/CN.4/646, para 55, to which also Judge Brichambaut refers). Also, a presumption exists that the SC does not intend to deviate from international law and equally does not intend to force members to violate international law when carrying out SC resolutions.

Furthermore, this conclusion is also warranted by a teleological interpretation. The issue of immunity of State officials from criminal jurisdiction concerns not only State officials’ smooth functioning but also the very core function of the SC, namely the peaceful relations between states and stable international relations (see Article 1 UN Charter). In fact, the ICJ described the inviolability of diplomatic envoys, which is to be seen as analogous to the present issue, as the most fundamental prerequisite for the conduct of relations between States in the Case concerning United States Diplomatic and Consular Staff in Tehran (para 91). Also, it must be stressed that personal immunities do not shield individuals from criminal responsibility but merely provide for a procedural bar that is removed once the official leaves office.

Conclusion

There is no question that those responsible for international crimes should be brought to justice. However, the involvement of the SC means that when referring a situation to the ICC the SC is acting in the interest of international peace and security. And personal immunities serve that interest. To read into the referral the removal of personal immunities without considering the consequences for international peace and security seems to ignore the SC’s primary responsibility. Just consider the political consequences of such legal proceedings: Let’s say Bashir is indeed arrested and transferred to The Hague to stand trial. And then what? Let’s not forget that Bashir is still the incumbent President of Sudan, controls the Army and enjoys considerable popular support. Such arrest would very likely cause dangerous political instability in a country with a history of brutal conflict.

This doctrinal argument might also be preferable for purely practical reasons. Without the express commitment of the SC to such prosecution, practical limitations of going after a Head of State are significant and possibly insurmountable, as evidenced by the failed trials against Kenyatta and Ruto in Kenya.

Granted, this is a very unsatisfactory result but at least it is laying bare an inconvenient truth about international criminal justice: The ICC is an over-ambitious project that cannot meet the expectations it has created. In other words, what we witness here is that “[t]he idea of universal justice … has met with the reality of power politics.” (Hans Köchler, Chinese JIL)

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    Kevin Jon Heller says

    July 24, 2017

    I don't think I'll ever be accused of being antiformalist, but this argument seems excessively formalistic to me. Your argument depends on the fact that the Security Council, though invoking Chapter VII to require Sudan to cooperate fully with the ICC, did not specifically refer to Art. 27 of the Rome Statute, the immunity-stripping provision. It is very difficult to believe that the Security Council thereby intended to leave the personal immunity of Sudanese officials intact, given that the referral was directed precisely at government crimes. In that regard, it is important to emphasise that your reading of Res. 1593 would not simply insulate Bashir from the ICC's jurisdiction. Personal immunity applies to Foreign Ministers, as well -- and likely extends, as Dapo has discussed, to other senior government officials. So it may well be that demanding an explicit reference to Art. 27 deprives the ICC of jurisdiction over a wide range of Sudanese officials -- precisely the individuals most responsible for international crimes in Darfur. Such an outcome is difficult to reconcile with the categorical language of Res. 1593.

    Moreover, although far from dispositive, it is worth noting that the Security Council knew full well how to exempt individuals from the ICC's jurisdiction. After all, paragraph 6 of Res. 1593 specifically states (ultra vires, in my view) that the ICC will not have jurisdiction over non-Sudanese nationals. If the Council intended to exempt Bashir and other Sudanese officials from the Court's jurisdiction, it is thus reasonable to assume it would have said so explicitly -- not simply imposing on Sudan a categorical obligation to cooperate with the Court.

    Kriangsak Kittichaisaree says

    July 24, 2017

    Perhaps para. 6 of Res. 1593 should be seen in its proper context: a standard clause inserted as a result of the pressure from the US, a non-State Party to the ICC Statute, to shield US nationals from the ICC's jurisdiction whenever a UNSC resolution refers a situation in a non-State Party to the ICC Statute. See, e.g., para. 6 of UNSC Res. 1970 of 26 Feb. 2011 regarding the situation in Libya.

    This does not mean I agree or disagree with either of the arguments above. In my humble opinion, Res. 1593 involves more than one specific issue of IL, and debates in the past have shown conflicting views among international lawyers re: each of the issues raised.

    Matthias Zechariah, Lecturer, Puublic International Law, Faculty of Law, University of Jos, Jos, Nigeria, West Africa. says

    July 24, 2017

    I agree totally with KJ Heller's argument. The first question is why the referral (in Res. 1593)in the first place, if there was no, at least, implied intention that President al-Bashir be stripped of his personal immunity, to be investigated an/or prosecuted by the ICC? On this ground alone, Dr Lentner's argument is unconvincing to me. Don't forget that in contemporary international law, the regime of personal immunities is drastically waning, giving way to a regime of virtually 'no immunity'. This is what we have seen in the cases of international criminal tribunals,for example ones set up by virtue of SC resolutions. In essence, a 'counter-customary' rule of international law,if you like, and I dare add, a rule of jus cogens, is developing, whereby the immunitiies of Heads of State and Government mean nothing before international criminal courts/tribunals. This is the more so where the alleged crimes committed are ones over which universal jurisdiction can be exercised (though I am not unmindful of the controversy over the question of universal jurisdiction in respect of crimes apart piracy). Secondly,Our friend, Lentner, appears to have ignored the provisions of article 13b of the ICC Statute, which confers statutory basis for the exercise of the SC referral power, in addition to Chp VII provisions he has rightly cited. Third, trying alleged perpetrators of crimes against humanity, war crimes, and genocide (such as al Bashir)will deal with impunity and not threaten international peace and security, as opposed to Lentner's view to the contrary. We should, collectively, support the effort to end criminality and impunity in the world.What we see in Sudan and in some other parts of Africa is sheer egregious violations of human rights that cannot be restrained by the international community. Surprisingly, whereas victims of human rights are being 'harvested' their thousands, African leaders are busy working out ways to opt out of the ICC, alleging that that court targets only Africans for prosecution. Shockingly,as this is going on, the Malabo Protocol 2014, which set up the African Court of Justice and Human Rights has been crafted in such a way as to grant procedural immunity to Heads of State and Government! I cherish Lentner's fine, scholarly argument, but I doubt that he wants Africa to go back to the dark days of impunity, perpetrated in large scale by the leaders, by other state-actors and by indeed non-state actors. Does he?

    Kriangsak Kittichaisaree says

    July 25, 2017

    All African States which are loyal supporters of the ICC agree that any regional mechanism like the one envisaged by the Malabo Protocol can only be complementary to, and cannot replace or be a substitute for, the ICC.

    However, there is one difficulty with the argument that Res 1593 implicitly waives any immunity Al Bashir might have. Many of the UNSC members at the time of the adoption of that Res. have unequivocally expressed their positions re the ILC's topic Immunities of State officials from foreign crim. jurisdiction that even commission of jus cogens crimes cannot strip the immunity ratione personae the (accused) perpetrators might have, citing the distinction between substantive law and procedural law made by the majority of the ICJ in the Arrest Warrant case. See, e.g., the UK statement in the Sixth Committee last Nov.

    International criminal justice still has a long way to go, even after 1 July 2002 when the ICC Statute entered into force.

    Alexandre Skander Galand says

    July 25, 2017

    Dear Gabriel,

    Thank you for this interesting post. You have a great point on personal immunities serving the interest of international peace and security. However, we ought to keep in mind that the SC declared the situation in Darfur to constitute such threat against peace and security. Hence, Resolution 1593 flips the coin; it brings Sudan within the ICC’s jurisdiction and obliges it to fully cooperate with the Court although Sudan did not ratify the Statute. One could argue that the law of treaties also serves the interest of international peace and security and that resolution 1593 goes against its fundamentals; in particular the pacta tertiis principle. But, indeed, Chapter VII powers are made exactly for such extraordinary situations where normal international law would forbid certain actions that are now required. There is no doubt to me that a threat to international peace and security may sometimes necessitate that the personal immunities of high ranking officials be removed. Should such exception to CIL be made explicit in SC referrals?

    Erika de Wet argued in JICJ (2015) 13 (5), p. 1061:

    “the submission that the Security Council must stipulate all deviations from international law explicitly in the text of the resolution is not in accordance with the established and accepted practice of the Security Council, which supports the opposite conclusion. Instead of explaining the extent to which states must deviate from international law under a Security Council resolution, resolutions under Chapter VII indicate what states may not do when deviating from international law in accordance with the resolution.”

    While I am not sure whether Sarooshi would agree with you, it is clear that de Wet - the other expert on Chapter VII powers - disagrees.

    While you concede that the ICC is bound by its own Statute, you argue that since SC Res 1593, para. 2, does not refer to the Statute, CIL on personal immunities is not waived. I agree with Kevin that your argument is too formalistic. It also seems that a logical point is missing from your analysis. To be sure, you write:

    ‘the SC merely obliged Sudan to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” (emphasis added). The question is whether this includes the application of Article 27(2) of the Rome Statute which removes personal immunities. The wording “pursuant to this resolution” is relevant because it omits any reference to the Rome Statute. This is telling since Article 86 of the Rome Statute dealing with the obligation of state parties to “fully cooperate” with the ICC adds the qualifier “in accordance with the provisions of the Statute”.’

    Does the SC need to specify ‘pursuant to this resolution and the Rome Statute’ in its paragraph where it requires full cooperation with the Court so that personal immunities are removed? As you mentioned, the Court is bound by its Statute (Article 1 of the Rome Statue makes it clear). This central point is also acknowledged in Article 2 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Hence when the SC requires Sudan to cooperate fully with the ICC it is evident that the obligation of article 86 ‘in accordance with the provisions of the Statute’, which includes article 27 (2), will become applicable. The wording ‘pursuant to this resolution’ alludes to the fact to that the situation in Darfur is referred to the ICC (para 1 of Res. 1593), an IO that is bound by its own Statute. In other words, a reference to the Statute in SC 1593, para 2 was not necessary to make Article 27 (2) applicable to Sudan.

    In any event, I think your argument on whether the immunity of Al-Bashir has been waived needs to be updated. The South Africa Decision does not argue that Al-Bashir’s personal immunity has been waived but that it is simply irrelevant as Sudan is in an analogous position to the States parties to the Rome Statute (an argument that draws significantly from Dapo Akande's article in JICJ (2009) 7 (2) without acknowledging it at least in the footnote). I wrote about this distinction here: http://opiniojuris.org/2017/07/20/33215/ and Dov Jacobs also provide a good summary of why he considers this new theory criticisable https://dovjacobs.com/2017/07/06/the-icc-and-immunities-round-326-icc-finds-that-south-africa-had-an-obligation-to-arrest-bashir-but-no-referral-to-the-unsc/ .

    Although I do not agree with your view on the legal nature of SC referrals, I have to concede that your argument is very clear. Thanks again for revealing it.

    Kind regards,

    ASG

    Darryl Robinson says

    July 25, 2017

    I agree with Kevin - both (i) in his substantive conclusion and (ii) in his general approach of being receptive to formalistic and technical arguments and yet finding this argument is perhaps excessively formalistic.

    To clarify, it's not that the SC "turned Sudan into a party", but rather that the SC imposed a set of cooperation obligations that are the same as those of a party ("to cooperate fully"). The cooperation obligations are not just in Part 9 of the ICC Statute, they are sprinkled throughout...including Art 27(2), which removes immunity claims (for states subject to that obligation).

    The view that an express reference to Art 27 would have been needed in the resolution is certainly a view that has its adherents. But: (1) As two commenters above have noted, that view neglects the point of referring the situation, which involved mass crimes organized at the highest level of the state. (2) The policy arguments against pursuing high officials would have been reasons for the UNSC to carve out high officials, but it didn't do so; it let the whole Statute regime apply. (3) When a state gets obliged to 'cooperate fully' 'in accordance with the Statute', well, the Statute already includes Art 27, so it is imported right there. (4) Why is Art 27 singled out as needing an additional special shout-out? Other provisions also affect important state rights and interests, but it is understood that the whole statute applies.

    (5) Most scholars seem to agree that the UNSC removed immunities in creating the ICTY and ICTR... and interestingly the UNSC used the EXACT SAME TECHNIQUE. It ordered states 'to cooperate fully' with a statute that contains the equivalent of Art 27. Whether the UNSC appends the Statute to its resolution, or whether the UNSC itself created the tribunal/court, is not relevant to interpreting the meaning of the express obligation imposed.

    Anyway, grateful to the poster for contributing on these obviously tricky and controverted questions. This debate will of course continue on for a while to come.

    Bryce Adamson says

    July 26, 2017

    I also wonder if Gabriel's approach focuses narrowly on the Security Council powers instead of the interplay between the Rome Statute and UN Charter, which involves a cross-conferral of (two) powers.

    The first from the State Parties to Security Council under article 13(b) of the Rome Statute to refer situations to the Prosecutor such that the ICC's jurisdiction is activated for a situation.

    Article 13(b) is neutral on what situations can be referred by the Security Council. I believe this is for obvious political as well as legal reasons as it would require an exercise of the Security Council's own power under the UN Charter, including regarding ICC non-party situations via Chapter VII. In fact, arguably Art 13(b) exactly has in mind situations involving non-parties as situations involving state parties can be investigated proprio motu or referred by a state party.

    This gives context to the second conferral of powers that Gabriel is examining. That of the Security Council to the ICC under SC Res. 1593. But SC Res. 1593 invokes both the Rome Statue and the UN Charter together; it is not simply an exercise of Chapter VII powers, but an exercise of powers conferred under Art 13(b) - which had in mind non-state situations.

    So SC Res. 1593 should be interpreted in light of both the UN Charter and the Rome Statute. Given article 13(b) is neutral on referrals by the Security Council and does not differentiate between a Security Council referral and the propiro motu investigation by the Prosecutor or State Party, why read in a need for specific references, as Darryl suggests, to Article 27?

    The Security Council can be presumed to have full knowledge of the rights and obligations of relevant parties under the Rome Statute and for Sudan to "cooperate fully" when it exercised its referral power under Art 13(b).

    Gabriel M. Lentner says

    July 26, 2017

    Thanks everyone for the interesting comments!
    My main point is this: when conferring powers to a separate IO and imposing obligations on a third state, the SC must clearly circumscribe the extent of such authorization, and this conferral of powers should therefore not be interpreted too broadly absent clear language– especially when involving such a fundamental (and highly controversial) issue as personal immunities. So this warrants a more careful approach to interpretation, especially when the teleological argument goes both ways (as I have suggested). And I am not suggesting an interpretation of SC resolutions as put forward by the ECtHR in Nada v Switzerland (and more recently Al-Dulimi v Switzerland) where it is clear what the SC wanted.
    Also personal immunities are a procedural bar and not a question of jurisdiction, so the para 6 exemptions address a different matter.
    Regarding the cross-conferral of powers: that’s an interesting thought, but I view Art 13(b) not as a conferral of powers to the SC but rather as an authorization of ICC members to exercise the powers conferred to the ICC by the SC (without Art 13(b) it would be difficult to find a constitutional basis for the ICC to act on such conferral of powers). Also as a matter of international law, State Parties cannot confer powers to the SC that they do not possess (vis-á-vis third states).