African States have traditionally been among the strongest supporters of the International Criminal Court. But since the proceedings began against President El Bashir of Sudan, just one year ago, the wind has changed. A few days ago, the African Union agreed by consensus to a resolution declaring that ‘The AU member states shall not co-operate... relating to immunities for the arrest and surrender of Sudanese President Omar al-Bashir to the ICC.’ The statement is not available on the AU website, but I have managed to obtain a copy: http://www.mediafire.com/?oiz295lpz0r.
President Mills of Ghana (which has a judge at the Court) told the media yesterday that 'he was convinced by the argument that the court's case against President al-Bashir differs from cases against former Congolese rebel leader Jean-Pierre Bemba and Ugandan rebel leader Joseph Kony'. It seems clear that by prosecuting an African head of State, some sort of qualitative change took place. The issue of immunity is not a simple one, and unfortunately the Bashir arrest warrant decision of March 2009 completely glossed over the nuances.
According to the Pre-Trial Chamber in the arrest warrant, Bashir has no immunity before the Court because article 27 of the Statute says there is no immunity before the Court. The problem – which the Pre-Trial Chamber did not address – is that article 27 may only apply to States that have joined the Court. Immunity of heads of State results from customary international law, and it seems it can only be taken away from a State if it agrees. That is what article 27 does. By ratifying the Rome Statute, States agree that their head of State enjoys no immunity before the Court. And that is why article 27 only applies to States that have joined the Court, and not to States that have. A day or two after the arrest warrant against Bashir was issued, the Guardian editorialist perceptively noted that the Americans, in their glee about the arrest warrant, should understand the consequence: their president too is subject to prosecution by the Court. Like most provisions in the Statute, there is more than one plausible interpretation. But the judges of the Pre-Trial Chamber might have addressed the difficulty and not ignored it.
Many commentators answer that Bashir has lost his immunity because of the Security Council resolution. The case comes to the Court not by the consent of Sudan but by resolution of the Security Council. But that argument is not straightforward either. First, the Security Council did not strip Bashir of his immunity in any explicit manner. So the theory that its resolution removes his immunity is based upon implication. Here’s the problem: the Security Council only triggers prosecutions at the Court, it does not change the Statute. The Security Council cannot add crimes to the Statute, or change the age limit for prosecution, or require it to deal with cases prior to 2002. I think the Security Council takes the Statute as it finds it. It is in no different a position than a State Party that refers a situation to the Court. And if a State Party cannot refer a situation to the Court by which a head of State is stripped of immunity, then how can the Security Council do it?
Whatever the legalities – and these legal problems are raised in the African Union resolution – the real problem is a political one. The Court hardly needs this antagonism from Africa. When the Prosecutor declined to go after the British with respect to war crimes perpetrated in Iraq, many found his explanations to be unconvincing. It was often said that the decision was ‘political’, because it would be reckless to bite off such an ambitious case in the early years of the Court. And that made some sense. If the United Kingdom were to be angry with the Court, then that might have serious consequences, especially in its fragile, early years.
Instead, the Prosecutor has chosen ‘soft targets’, compliant African States. But it looks like the Court may have bitten off more than it can chew. If the Court is going to be ‘political’ about NATO States, and about its wealthy supporters, then it needs to show the same kind of deference to African States. Otherwise, they will react just as they have done. We all want a Court that is free of these political concerns. But as it flexes its muscles and shows that it is not afraid to go after even a head of State, maybe it should have started with a European instead of an African?
1. Not all Security Council referrals are equal. The Darfur referral is carefully worded to impose obligations only on Sudan and not on any other State. This should affect the scope of the waiver which can be implied from the referral.
2. Arguably, the Sudan's UN membership includes an acceptance of Security Counsel measures under Chapter 7 of the Charter, which Yugoslav and Siere Leone SC resolutions demonstrate may include a waiver of jurisdictional immunity for a head of state. (Both Milosevic and Taylor were arrested after leaving office, so they only set a precedent for waiver of immunity from jurisdiction and not from execution). Under international law, immunity from jurisdiction is separate from immunity from execution. And it is not as easy to imply waiver of immunity from execution because of the obvious adverse affects on international relations if property of a foreign state were subject to forceful execution. The Security Council did not intend to bind any State other than the Sudan, so they could not have intended to waive immunity from execution, which would have imposed a positive obligation upon States other than the Sudan. I would think that so long as Bashir is in office, even if there has been implied waiver of immunity from jurisdiction Chapter 7 of the UN Charter, the Sudan retains its immunity from execution.
The politicization of the ICC may be the fact and it is sad...but this is another concern of the African leaders:the continuation of prosecutions of 'sinior state officials'(8.vi)!!!!...I understand their concern: the list is endless. So in the future I'll do everything to be a sinior state official in order to avoid any prosecution!!!
Well, well, it seems the decision-making procedure at the UNSC is not the only one being questioned here, since as the Press Release issued by Botswana claims http://www.mmegi.bw/index.php?sid=2&aid=12&dir=2009/June/Wednesday17 the decision of the AU was not really quite taken by "consensus" as portrayed, and it is not quite surprising. The AU had also other issues in its agenda, like the Lyibian intent in giving the AU considerable powers to achieve the establishment of an african supragovernment, a proposal that was not received well.
This means that the AU decision on the ICC not only was not taken by consensus, but also remains as a non binding resolution. Still significant of course from the political point of view, this is why today and in the coming days more Statements from States Parties to the Rome Statute are expected, given that some of them have (in addition to the legal obligations of cooperation) particular "moral" obligations towards the ICC, such as hosting the future Review Conference... or cooperating concerning the other investigations/cases.
It appears that Uganda is not ready to abide by the AU pronouncements to for all African countries to defy the ICC. According to the newspaper http://www.sudantribune.com/spip.php?article31802
Uganda will arrest President Bashir on his next visit to Kampala scheduled for the 27th.
This can only demonstrate that Colonel Gadaffi's arm twisting of other African Leaders to achieve his own agendas can not work.
Uganda's position will definitely complicate its already strained relationship with Sudan. Uganda has been and is still accusing Sudan of aiding the Lord's Resistance Army (LRA) a rebel group that has been fighting the Ugandan Government since late 80s. The rebel leader Kony is also on ICC’s wanted people for crimes against humanity and war crimes. Could we brace ourselves for a renewed and vigorous military support of the LRA by the Khartoum Government?? I hope not as the entire region will plunge back into another humanitarian disaster.
In my view, Article 27 does not create any new obligations or changes situations for States internally; it only establishes that for the purpose of the ICC exercising its jurisdiction, Heads of States have no immunities. Thus, this provision refers to the Court’s ability to exercise its jurisdiction over heads of states in all situations in which the Court may have jurisdiction (Article 13). In that sense, I see no difference between situations referred to the ICC by a State Party or by the UNSC; as Prof. Schabbas rightly mentioned: “the Security Council takes the Statute as it finds it”.
I tend to agree with VC Lindsay’s comment regarding the difference between immunity from jurisdiction and immunity from execution, and that is precisely why Article 98 (1) exists. This is, even if a State Party is unable to surrender a person to the ICC because such action would be inconsistent with its international obligations regarding State or diplomatic immunity (immunity from execution), that does not mean that the ICC does not have jurisdiction (immunity from jurisdiction). In fact, in my opinion, the AU resolution express reference to Article 98 means that they recognize the Court’s jurisdiction over the case in question but have decided not to execute the arrest warrant because of what they think are international obligations with respect to State or diplomatic immunity.
But with regards to Article 98(1) there are a couple of issues:
Firstly, Article 98 refers to surrender, not arrest. So in principle, a State Party may in any case be obliged to detain the suspect before raising Article 98(1) before the Court.
Finally, Article 98 cannot be raised in the abstract (as done in the AU resolution). There is a procedure in Rule 195 for raising issues in relation to this provision before the ICC.
The view that the referral doesn’t not amend or alter the Statute is well taken and likely is the correct position.
Put it this way; the referral was not directed against Al Bashir as a person but against the situation in Durfar.
The immunity qtn in my view is not for UNSC but ICC. It is not UNSC but rather ICC that found a sitting Head of State culpable and hence (if it did – then it) investigated whether, its operative statute bestows upon it (ICC) the required legal efficacy to override the immunity of a sitting heads of state of a country not party to the ICC statute –––which rather came into its operation by way of “a statutorily recognised” trigger mechanism.
My qtn therefore would be, does the ICC statute affect the immunity enjoyed by non state parties? or simply; what is the effect of article 27 on a seized non-state parties ?
Now, if the referral, lawfully infer jurisdiction upon ICC over non state parties, it would follow that article 27 is operative in situation in which the ICC partakes pursuant to this referral, hence it follows that it is effective against a sitting head of state, of a non state party , such as Al Bashir.
The immunity qtn has effectively been overridden by ICC's statutory provision and does not arise before the ICC but rather Sudan could approach the ICJ for interpretation of the ICC statute regarding the international customary law of immunity. The ICJ already made clear its position on this in the Arrest Warrant case, that certain international Courts or tribunal are bestowed with this power
I agree with Prof Schabas entirely in his analysis. Some have suggested that somehow the UNSC can do more than merely trigger the jurisdiction of the ICC, and that the removal of President Al Bashir's immunity can be implied in UNSC Res 1593. This analysis wrongly assumes that the power of the UNSC is unlimited, beyond reproach, and that it cannot be questioned: that Sudan, as a UN member is bound to obey (art 25 UN Charter).This assumption is wrong. To do what commentators suggest - remove immunities recognised in the Statute, would be making a new treaty, which it cannot. Further, UNSC cannot change custom (art 98) willy-nilly by way of resolution. Its own legislative history shows deference for customary norms....in the end, the AU's stan,a nd its invocation of art 98 is legally sound. The question is whether that decision not to cooperate should be reserved for states parties, rather than an intergovernmental body that congregates more that ICC states parties...
I have a question related to this topic. I am a student studying law in South Africa. I have a limited understanding of international law, so I apologize in advance if my question has an obvious answer.
Setting aside the immunity issue (which is obviously complex and relevant), if al-Basher landed in South Africa would South Africa be obliged to arrest him? The reason I ask this is that South Africa, as a member state of the AU, would be bound by the resolution that was issued holding that al-Basher should not be arrested, pursuant articles 7 and 23(2) of the AU's constitutive Act. At the same time South Africa has signed and ratified the Rome Statute.
My question thus relates to what I consider to be a clash in international law obligations. Which treaty should prevail under the circumstances?
My comment is on the piece by Prof Schabas. I think an important aspect of the UNSC referral of the Darfur situation to the ICC is that it raises the issue of "to what extent is the ICC able to end impunity given its constitutional design?" I pose this question simply because if UNSC referrals is the only path that the ICC is able to take to establish a wider jurisdictional reach (that is other than personal and territorial jurisdiction), then its design, by definition, curtails it from ending impunity. UNSC referrals would never happen in the event that the ICC wishes to indicte one of the permenant members of the Security Council or any of their allies. Unless ending impunity is synonymous with trying cases in developing countries, it remains an unrealistic goal barring innovative initiatives by the court.
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