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).
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.
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)