Obligation to Surrender President Bashir to the ICC: A Critique of the ICC Decisions on State Parties’ Obligation to Cooperate

The following article was written by Phoebe Oyugi. Phoebe is a Kenyan scholar and is currently working at the ICC on the Ble Goude Case. This article also featured recently in the Midlands State University Journal

Phoebe Oyugi

1. Introduction

Predictably, the visit by President Bashir to South Africa on 14 June 2015 sparked a lot of furore around the world due to the two International Criminal Court (ICC) warrants of arrests pending against him.[1] In view of South African courts’ previously demonstrated zeal in fulfilling South Africa’s obligations under the Rome Statute,^[2] some thought that President Bashir would finally be arrested and surrendered to the ICC.^[3] Indeed the South African High Court lived up to its reputation and made an interim order prohibiting President Bashir from leaving the country until an application brought before it by the South African Litigation Center had been decided upon.^[4] However, this did not come to pass as Bashir ‘mysteriously’ left South Africa in the middle of the chaos.[5] The High Court then made a decision stating that the responsible authorities in the South African government were in breach of their duty under the South African Constitution and the Rome Statute by failing to take steps towards arresting and detaining President Bashir.^[6]

This issue is not unique to South Africa. As is well known President Bashir has visited other African States Parties to the Rome Statute, some repeatedly, since the warrants against him were issued. The reaction of these African States has been almost similar to that of South Africa. The consequence is that six years after the first warrant was issued against President Bashir, he is yet to be arrested and surrendered to the ICC. The ICC has advanced the same argument, almost verbatim, in the decisions against the African States Parties to the Rome which have refused to arrest and surrender President Bashir to the ICC: namely Djibouti,[7] Malawi,[8] Kenya,[9] Chad,[10] Congo,[11] and now South Africa.[12] The ICC’s position is inter alia that:

“… the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State have been implicitly waived by the Security Council of the United Nations by Resolution 1593(2005) referring the situation in Darfur, Sudan to the Prosecutor of the Court, and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary” (emphasis added). ^[13]

This article critiques this position on the basis that a United Nations Security Council (UNSC) Resolution, even when made under Chapter VII, does not suffice to waive the immunity of a sitting head of state vis-a-vis other states. This contribution argues that the obligation of a state to respect the immunities of the head of another state is such a fundamental pillar of international law and international relations that it cannot be implicitly waived by a UNSC Resolution. Furthermore, this article fronts the argument that article 98 of the Rome Statute requires a state party to the Rome Statute to respect the immunities of the head of a third state such as President Bashir.

The first part of the article contains the introduction. The second part discusses the impact of a UNSC Resolution, made under Chapter VII of the UN Charter, on the immunity of the head of state before the ICC as well as vis-à-vis other states. The third part discusses article 98 of the Rome Statute and its implications on the obligation of states to arrest and surrender President Bashir to the ICC. The fourth section deals with conclusions and recommendations.

2. The immunity of President Bashir as the head of a non-party state in view of UNSC Resolution 1593(2005)

The Situation in Darfur, Sudan was referred to the ICC by a UNSC resolution after being qualified as a threat to peace and security.[14] The prosecutor after conducting investigations instituted proceedings against five Sudanese nationals, among them the Sudanese President Omar Bashir.[15] The prosecution later applied for a warrant of arrest against President Bashir and three other accused persons.^[16] The Court granted the application for a warrant against President Bashir on the ground that it was necessary to ensure that he would appear for trial, that he would not  interfere  with  the  on-going  investigations  and  that  he  would  not  continue  with  the commission of crimes alleged.^[17]

While issuing the warrant, the Pre-trial Chamber stated that “the current position of Omar Al Bashir as the head of a state, which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case”.^[18]  The Court based this decision on the fact that the Darfur situation had been referred to it by the UNSC under Chapter VII of the UN Charter and on the provisions of Article 27 inter alia.^[19] 

2.1 The impact of UNSC Resolutions under Chapter VII of the UN Charter to immunity

Under Chapter VII of the UN Charter, member states of the UN empower the UNSC to take actions necessary in order “to maintain and restore international peace.”^[20] Although establishing international tribunals is not expressly provided for as a means of attaining this end, it is now generally accepted that it is within the UNSC’s discretion to decide what means to employ to this end including the establishment of international tribunals.^[21]  Due to the binding nature of the UNSC resolutions on member states^[22]  and the near-universal membership of the UN,^[23] tribunals created by the UNSC have jurisdiction over the citizens of almost all states of the world.^[24] The UNSC has by resolutions, under chapter VII of the UN Charter, established two international tribunals: the International Criminal Tribunal for the Former Yugoslavia (ICTY)^[25] and the International Criminal Tribunal for Rwanda (ICTR).^[26] It has been argued that tribunals established by the UNSC under Chapter VII powers, like the ICTY and ICTR, have jurisdiction over all citizens of   the  UN  member  states  even those who would ordinarily enjoy immunity from prosecution.^[27]

However, as is well known, the ICC is not a tribunal established under UNSC Chapter VII powers but through a multilateral treaty - the Rome Statute. Unlike international criminal tribunals established under Chapter VII powers of the UNSC which bind all members of the UN, those established by way of treaty bind only the states that have expressed their intention to be bound by signing and ratifying the relevant treaty. This is justified by the customary international law principle under which only parties to a treaty are bound by its provisions.^[28] It follows, therefore, that as a general rule, article 27 of the Rome Statute which excludes the application of immunities before the ICC, only removes the immunities of the officials of states parties to the Rome Statute. By ratifying the Rome Statute, a state is considered to have waived the immunity of its officials by virtue of article 27.^[29]

The position of non-party states is more complicated. As a general rule, the provisions of a treaty do not usually apply to non-party states. In this regard, Akande says:

“... since only parties to a treaty are bound by its provisions, a treaty establishing an international tribunal cannot remove immunities that international law grants to officials of states that are not party to the treaty. Those immunities are rights belonging to the non-party states and those states may not be deprived of their rights by a treaty to which they are not party.”^[30]

This informs the unending debate sparked by the indictment of President Bashir at the ICC flowing from a referral by the UNSC under Chapter VII. Scholars are divided on the issue of whether the immunity of President Bashir would apply before the ICC. Some scholars argue that President Bashir’s immunity do not apply before the ICC, however, it is noteworthy that these scholars espouse different arguments to arrive at this conclusion.^[31] For example, Akande argues that UNSC referral of the Darfur situation to the ICC under Chapter VII of the UN Charter effectively removes the immunities that would otherwise apply to President Bashir as a sitting head of state.^[32] While Gaeta argues that the UNSC merely serves to trigger the jurisdiction of the ICC but the immunity of President Bashir is removed by the fact that the provisions of article 27 of the Rome Statute represent a new position of customary international law that immunities cannot apply in prosecutions before international criminal tribunals.^[33]

On the other hand, some scholars argue that President Bashir as the head of a non-party state is immune, despite the UNSC referral, from prosecution at the ICC. Members of this school of thought also present different reasons for arrival at this conclusion. To name a few, Wardle opines that although the UNSC has the power to abrogate immunities under Chapter VII of the UN Charter this cannot be accomplished impliedly by the referral of an entire conflict situation to the ICC and not a particular case.^[34] He argues that the removal of immunities must be done in an explicit and  unequivocal  manner  which  was  not  the  case  during  the  UNSC  referral  of the  Darfur situation.^[35] While Kiyani states that the UNSC referral of a situation to the ICC cannot remove the immunities applicable to the head of a non-party state since “the Security Council itself does not have the authority to revise the rules of public international law in order to negate al-Bashir’s immunity”.[36] 

The ICC agrees with the first school of thought that the immunities of President Bashir are inapplicable before the ICC. This is shown through the issuance of two warrants of arrest against him, cooperation requests to states parties and the judgments against states parties that have refused or failed to comply with the requests referred to in part 1 above.  The Pre Trial Chamber (PTC) stated, as mentioned above, that the position of President Bashir as a sitting head of state does not interfere with the jurisdiction of the ICC over him.

As stated above, the ICC, as a tribunal established by way of treaty, does not ordinarily have jurisdiction over citizens and heads of non-party states. However, as an exception, citizens of non-party states to the Rome Statute, who are non the less member states of the United Nations (UN), may be subjected to the jurisdiction of the ICC following referral by the UNSC, which is provided for by article 13 of the Rome Statute and backed by UNSC Chapter VII. In this author’s view, the applicability of immunity before a particular tribunal depends on the manner of establishment of a tribunal and the provisions of its constitutive statute.[37] In this regard, tribunals established by the UNSC under Chapter VII of the UN Charter have jurisdiction to try the heads of UN member states while those established by treaty can only have jurisdiction over heads of states parties. The exception in the latter case can occur by referral of a situation in a non-party state, like Darfur, to the ICC by the UNSC under Chapter VII of the UN Charter. Such referral gives the ICC jurisdiction over all the persons allegedly responsible for the crimes committed including heads of state like President Bashir.

Be that as it may, this author argues for a narrow interpretation of this exception because it limits at least two cardinal principles of public international law. The first is that states are ordinarily not bound by treaties to which they are not party;[38] and second one being that heads of state are ordinarily immune from prosecution except under certain exceptions.[39] The ICC takes note of both points in the decision against Congo, for its refusal to surrender President Bashir, and states as follows:

“At the outset, the Chamber wishes to make clear that it is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court. Such personal immunities are ensured under international law for the purpose of the effective performance of the functions of sitting Heads of States.”[40]

The second justification for a narrow interpretation of this exception is the composition of the UNSC and the politics that result from it. The fact that the UNSC, a political body, is able to render the immunity of the head of a non-party state inapplicable before the ICC is disconcerting. This is especially because three out of the five permanent members of the UNSC; China, Russia, and the US, are not parties to the Rome Statute. The UNSC involvement with the proceedings at the ICC has been viewed, by some, as an interference with the independence of the ICC and the dispensation of justice.[41] Furthermore, the UNSC has in the past been accused of abusing its powers with regards to article 16 of the Rome Statute,[42] and a narrow interpretation of article 13 could guard against similar occurrences in future.  

From the foregoing, the fact that ICC, as a treaty based international tribunal, has jurisdiction over President Bashir, as the head of a non-party state due to a UNSC referral, should be treated as the exception it is. This informs the author’s critique of the ICC decision in which the Court concludes that the fact that the ICC has jurisdiction over president Bashir, implies that immunity that is ordinarily available to a head of state, vis-a-vis other states, is no longer applicable. This kind of extrapolation is unprecedented and lacks the backing of general principles of international law and article 98 of the Rome Statute as discussed below.