It has been widely reported that the ICC's Prosecutor has told the Security Council that no further investigative action would be undertaken in the Darfur situation. This is apparently owing to the Council's failure to act on securing the arrest of the suspects in that situation, including the Sudanese President, Omar Al Bashir. Notwithstanding that 'shelving' prosecutions, which seemingly stops short of a formal withdrawal of the charges but incorporates a formal strategy of non-action, is unforeseen by the Statute, this declaration certainly comes as a shock, especially so soon after the charges were dropped in the Kenyatta case. It means that, in the space of less than a fortnight, two sitting heads of state facing charges before the International Criminal Court have effectively found themselves off the hook, at least for the immediate future.
The Prosecutor's frustration is understandable, given that every single decision in the case for the past four years has concerned Bashir's travel to other states, apparently unhindered by his arrest warrant. While invariably in these decisions, the Pre-Trial Chamber has found that states have an obligation to transfer the accused, its approach to has changed over time. Most notably, in my opinion, the emphasis placed on the Security Council has diminished somewhat. Two 2010 decisions informed the Security Council and Assembly of States Parties of Bashir's presence in Kenya and Chad 'in order for them to take any measure they may deem appropriate'. In the controversial decisions on Bashir's travel to Malawi and Chad issued in 2011, the Pre-Trial Chamber found that the two states had failed to cooperate with the Court and ordered the Registrar to transmit the decision to the Security Council, but the 'action' proviso was missing. More recent decisions on Ethiopia and Egypt invited the states to arrest Bashir, and ordered the Registrar to communicate with the state in question, without any mention of the Security Council. A 2014 decision on the Democratic Republic of the Congo referred the decision to the Security Council pursuant to Article 87(7), but no request for action was included with the referral. In other words, the Pre-Trial Chamber has not expressly called the Security Council to act on the non-compliance of states since 2010.
We might ask, then, what the ICC's Prosecutor expects the Security Council to do. Her aim in announcing a halt to the investigations was allegedly to 'shock this Council into action'. The common position will be that the Security Council will not act because of China's close relationship with Sudan, but in my opinion, each of the possible actions pose significant legal, as well as political, problems. Let us examine each of the options in detail.
(a) The Security Council declares that there can be no Head of State immunity for international crimes
This option is obviously politically impossible, not least in the wake of the torture report issued earlier this week. For the sake of argument, however, this hypothetical would arguably not stand up to legal scrutiny either. By virtue of Article 25 of the UN Charter, states are under an obligation to carry out the decisions of the Security Council, and Article 103 states that their obligations under the Charter will prevail when there is a conflict between those obligations and their obligations under any other international agreement. This, in theory, solves the issue of the conflicting obligations of African Union member states that are also state parties to the ICC Statute. However, the 'international agreement' aspect of Article 103 of the Charter means that Charter obligations cannot automatically override contrary customary international law in the same manner. Given that the International Court of Justice has held Head of State immunity to be a principle of customary international law, this avenue would clearly be problematic.
(b) The Security Council either obliges Sudan to waive Bashir's immunity, or expressly revokes that immunity itself
The Prosecutor might hope, then, that the Security Council will demand that Sudan hands Bashir over to the ICC and/or place an obligation on UN Member States to arrest and transfer him to the ICC. Aside from the customary international law problem mentioned above, and the fact that this is likely to be ultra vires the Security Council's mandate, there are a number of additional problems raised by this approach.
First, the ICC has relied on Resolution 1593 (2005) as an existing basis for requiring action in transferring Bashir to the Court. The resolution decided that the Government of Sudan and other parties to the conflict 'shall cooperate fully with and provide any necessary assistance to the Court', and urged all states to cooperate fully, while recognising 'that States not party to the Rome Statute have no obligation under the Statute'. According to the Pre-Trial Chamber:
By virtue of said paragraph, the SC implicitly waived the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State.
Following this reasoning, there should be no need for the Security Council to take any further action in demanding cooperation from states.
Second, even if we accept the argument that SC Resolution 1593 impliedly waived Bashir's immunity, or if a later SC Resolution were to more explicitly revoke his immunity, that action by the Security Council does not relieve the ICC of its obligations under Article 98(1) of the Statute. Pursuant to that provision, the Court would need to obtain a waiver from Sudan of Bashir's immunity before it could proceed with a request for surrender or assistance.
Third, and related to the above point, such a move would challenge the independence of the ICC as an institution. Just as Security Council referrals cannot restrict the application of jurisdiction to any specified crimes or change the operation of the Statute, nor can express or implied waivers of Head of State immunity override the Court's obligations under its own Statute, particularly Article 98.
Fourth, there is clearly an issue with the discriminatory nature of any Resolution waiving the immunity of one head of state under international law, but not others. Discrimination of this sort is already found in Resolution 1593 which included (on the insistence of the United States) the following provision:
6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;
As Goran Sluiter has argued, this paragraph goes against the principles of equality before the law and non-discrimination. If the case were to proceed on the basis of a Security Council Resolution that explicitly targeted Bashir, the Prosecutor could find herself in difficulty. As stated in the Celebici Trial Judgment:
The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.
Fifth, the obligation to cooperate with the Court is a treaty obligation, applicable only to States Parties to the Statute. Likewise, by signing up to the Rome Statute, States Parties have waived immunities for their own nationals before the ICC, by virtue of Article 27 of the Statute. If a SC Resolution were to extend such obligations to States that are not party to the Rome Statute, it risks violating the principle of pacta tertiis nec nocent nec prosunt, or that treaties cannot impose obligations upon states without their consent.
Thus, we might wonder whether the solution that the Prosecutor seeks from the Security Council can really be offered at this time. She might have been better placed to wait until after April 2015, when Bashir might no longer be the Head of State after the upcoming Sudanese elections. Regardless of the absence of any real progress in the case, we might argue that keeping the Bashir prosecution active had both a declaratory value, in that it showed that sitting Heads of State could be prosecuted by the ICC, and a practical value, insofar as it raised some difficulties for Bashir's travel to certain states. It is difficult to see what positive implications this latest move will bring for the case.