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
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| Phoebe Oyugi |
- 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.
- 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.
3. The implications Article 98 (1) of the Rome Statute on states parties’
duty to cooperate with the ICC
Article 98 (1) of the Rome Statute requires the ICC to seek
the cooperation of a third state, like Sudan, for the waiver of immunity before
requesting for the arrest and surrender of a person bearing such immunities. It
provides that:
“The Court may not proceed
with a request for surrender or assistance which would require the requested
State to act inconsistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or property of a third
State, unless the Court can first obtain the cooperation of that third State
for the waiver of the immunity” (emphasis added).
It seems difficult to reconcile the fact that article 98 (1) prohibits
the ICC from requesting a state to cooperate by arresting a person if the state, by that arrest and surrender, stands to breach its
immunity obligations towards a third state; with the fact that article 27 of
the Rome Statute provides that both
national and international law immunities are irrelevant to prosecution before the ICC.
If article
27
is interpreted to remove
all kinds
of immunities, both national and
international, of officials of both state parties to the Rome Statute and non-parties this would
render article 98 (1) redundant; on the other hand if
article 98 is interpreted to prohibit the ICC
from requesting states to arrest and surrender all persons bearing immunity, the purpose of the Rome Statute would be defeated.[43] This provides some insight as
to why there has been so much
debate concerning the relationship between articles 27 and 98 of the Rome Statute.
The debate culminated with the ICC’s request of state parties to cooperate by arresting and surrendering President Bashir to the ICC. The contentious
issue is whether the ICC goes against article
98 by requiring states
to arrest and surrender the Sudanese President. As is
well known, the African
Union (AU)[44] and some Africa states like Chad,[45] Malawi,[46] and
Congo[47] have refused cooperation relying on Article 98
(1).
Their
argument
is that arresting
and
surrendering President Bashir would
constitute
a
violation of international and national law on immunities enjoyed by a sitting head of
state. The ICC made decisions against these
states holding that they failed to fulfil their obligations and referring their
failure to the UNSC as mentioned in part 1 of this article.
3.1 ICC interpretation of Article 98 (1) of the Rome
Statute
The ICC has argued that the decision as to whether the article 98 (1) exception would apply to a particular request lies entirely with the ICC and not the requested state.[48]
This is based on an interpretation of article
97 of the Rome Statute which precedes the controversial article 98. Article 97 provides that:
“Where a State Party receives a request under this Part in relation to which it identifies problems
which may impede or prevent the execution of the request, that State
shall consult with the Court
without delay in order to resolve the matter.”
Similarly, Rule 195 of the Rules of Procedure and
Evidence provide that:
“When a requested State notifies the Court that a request for surrender or assistance
raises a problem of execution in respect of article 98, the requested State
shall provide
any
information relevant to assist the Court in the
application of article 98. Any concerned third State
or
sending State may provide additional information to assist the Court.”
According to these provisions, it is clear that it is not for the requested state to decide on its own
whether the reasons that exist warrant denial of the ICC’s cooperation request under article 98.
Concerning this issue, Sluiter says
that:
“Party states conceded to the ultimate interpretation of the extent of the duty to cooperate when they ratified the Statutes and accepted article 119[49] in particular. This ratification included their concession to the interpretation of the duty to arrest and surrender war criminals to the requesting
side, which is typically the ICC.”[50]
The fact that the court alone is
charged with the responsibility of deciding on the applicability of article 98
(1) further underscores the importance of the discussion as to whether the
Court has applied the most justifiable interpretation to this article. The Court
reserves the right to determine whether presenting a particular request to a state will put a state in a position
of conflicting obligations in view
of article 98 (1).[51] Therefore
when the Court errs in its interpretation of the article, as it has in the view
of the author, it is the duty of academics to point out this error.
In the ICC decisions
on
the cooperation of states
parties, the Court states that article 98 cannot be used by states parties to deny the request to arrest and surrender President Bashir but does not state under what circumstances the controversial article may be used.[52] The
Court further states
that when a state arrests
an
accused person pursuant to a request by the ICC, the state is not acting in its own right but as a representative or agent of the Court therefore immunities do not apply.[53] The Court barely
discusses the relationship between the controversial articles 27 and 98. Instead the Court holds that the fact that
article 2 of UNSC Resolution 1593 (2005) requires Sudan to “cooperate fully
with and provide necessary assistance to the ICC”; effectively means that the
requirement of article 98 (1), that the ICC should not require cooperation “unless the Court can
first obtain the cooperation of that third State for the waiver of the immunity”, has been dispensed with.[54]
In other words the ICC states that the UNSC Resolution 1593 (2005) implicitly
waived the immunities applicable to Sudan therefore article 98 (1) cannot
apply.
This kind of interpretation is not
backed by the doctrine of immunity of states. Immunity belongs to the state
itself but since a state does not act by itself but only through its agents,
state immunity logically extends to heads of state and other senior state
officials.[55]
Immunity can therefore not be waived except by the consent of the state to
which it belongs. Consequently, a UNSC Resolution cannot be considered to have
implicitly waived the immunity of Sudan merely because it decided that “Sudan,
and all other parties to the conflict in Darfur, shall cooperate fully and
provide necessary assistance to the Court.”
3.2
Scholarly Interpretation of article 98(1)
Some commentators argue that there is no conflict between articles 27 and 98 of the Rome statute.[56]
For example, Broomhall opines that:
“…it is important to note
that articles 98 (1) and 27(2) are
not
necessarily contradictory. Rather Article 27(2) makes clear that immunities under national or international law ‘shall not bar the
Court from exercising its jurisdiction….’ Article 98 (1) instead pertains to the obligations under international law of the requested state as well as the
exercise of jurisdiction by such states, rather
than by the Court.”[57]
However, other
commentators
argue that
there is
some tension between
the two
articles and the
arguments espoused by
this group of scholars may be loosely classified into two categories. The
first group argues that the scope of immunities has shrunk considerably over time therefore article 27 should be interpreted
to have a wider scope as it embodies the new position
of international
criminal law
that immunities are not applicable in relation to international crimes.[58] According to this view, therefore, article 98 should be
given a narrow interpretation to cover only non-party states so that cooperation may be favored over immunity.
One of the scholars who belong to this school of thought, Akande, opines that the UNSC referral
of the Darfur situation to the ICC put Sudan in an “analogous position to a party to the Rome Statute” therefore the Rome Statute is binding to it as it is to a state party to the Rome Statute.[59]
As a result, all the provisions of the Rome Statute are applicable to Sudan including article 27 which concerns the irrelevance of both national and international law immunities. [60] This not
only
gives the ICC jurisdiction over President Bashir, the head of a non-party
state, but also permits
states
parties to
cooperate
by arresting
and
surrendering him
to
the
ICC
without triggering the immunity exception under article 98 (1).[61]
The second group of scholars opposes this view. The general argument is that although the mandate of
the ICC is vital to international criminal justice, immunities are just as important as
cooperation
is, and
should not be eroded
easily.[62] Gaeta, for example,
views the conflict
between article 27 and article 98 as a clash between two conflicting values,
namely[63]on one hand,
the need to protect state sovereignty and inter-state relations; and, on
the other hand, the need to prosecute the most serious crimes of international concern.[64]
The former should be held up and above the latter, she argues, since personal immunities are not permanent but are terminated as the person’s term of office is terminated. This, she says, creates the need to respect personal
immunity since “quashing of
personal immunities would be extremely dangerous for inter-state
relations.”[65] She opines, elsewhere, with
regard to the request to arrest and surrender President Bashir that:
“The steps taken by the ICC in this respect are ultra vires and at odds with
Article 98(1).
Therefore, states parties to the Statute
are not obliged to execute the ICC request for surrender of President Al Bashir,
and can lawfully decide
not
to comply with it.”[66]
While commenting on the ICC’s
decision on cooperation of states Parties, Tladi opines that:
“The fundamental flaw
of the Court’s
approach
is thus that
it treats
the subject of the unavailability of immunity as a defense before the ICC under Article 27 of the Statute as co- extensive with the
question of immunity as a limit to cooperation under Article 98(1). The subject
of
Article 98(1), to the extent that it refers to immunities, is obviously related to the
subject of
Article 27 but it is not the same. There is obvious tension between the two provisions, which the Court concedes. However, instead of addressing the
tension between Articles 98(1) and
27, the
Court simply proceeds to decide
the case as if Article
27 is dispositive of the issue, ignoring
completely Article
98(1). The
Court asserts, for example, that the
requested states cannot raise immunities as they ratified Article
27 of the Statute, as if the requested states did not, at the same time, ratify Article 98.[67]
In this authors view, article 98 should be interpreted
to mean that the ICC should not request states parties to arrest and surrender
President Bashir unless it “can first obtain the waiver of immunities” from
Sudan. The fact it would be impossible to obtain such waiver from Sudan, in
this particular case, does not then entitle the ICC to go through a “back door”
by holding that the immunities applicable to Sudan were waived by UNSC
Resolution 1593 (2005). Waiver of immunity, except by the consent of the state
concerned, is impossible for the reasons given above. Although the goal to try
and punish perpetrators of crimes in Darfur is important, the need to respect
international law principles while accomplishing this is equally vital. There
can be no justice unless the Court rightly applies the applicable legal
principles. The Court’s dismissal of the application of article 98 (1), without
proper justification, could reinforce the notion that the ICC is prejudiced
against African leaders; a view which is detrimental to the ever deteriorating
ICC-Africa relationship.[68]
4.
Conclusion and Recommendation
It cannot be disputed that
crimes have been committed in Darfur especially against the Fur, Zangawa and Masaalit
communities.[69]
There is a general consensus that the violence in Darfur is unacceptable and
the perpetrators thereof should not go unpunished. The contentious issue,
however, is how this should be accomplished. Currently, the issue has turned
into a tag of war with President Bashir, the AU and some African states on one
side, and the ICC on the other side. President Bashir keeps daring the ICC by defiantly
visiting states parties who refuse to arrest him in spite the numerous ICC
decisions made in a vain attempt to the cooperation of these states. Six years after
the first warrant was issued, no progress has been made in the case against
President Bashir and in the redressing crimes committed in Darfur. However, according
to some commentators, the fact that President Bashir can no longer freely
travel without the fear of arrest and that he always has to depart prematurely
from the events he attends is in itself a sign of progress.[70]
Be that as it may, it is highly
unlikely that President Bashir will be arrested while he is the sitting
Sudanese President. His arrest and surrender would inevitably result into a
massive political and diplomatic storm and the head of the arresting state, if
African, would be a pariah among his/her peers in the AU Assembly. The state concerned
might even face AU sanctions.[71] Due to the complexity
of the matter, it is no wonder that states have been reluctant to arrest and
surrender President Bashir to the ICC. The political consequences
of cooperating with the ICC seem, in the view of individual states, to outweigh
the possible benefits thereof. Therefore, the stalemate ensues.
One possible way to
dissolve the impasse is to have deeper negotiations and cooperation between the
AU, the UNSC and the ICC. The three institutions, all stakeholders who have
separately contributed in one way or another towards the peace and justice
process in Darfur, need to work together to ensure that the crimes committed in
Darfur are redressed. Firstly, the UNSC has made several Resolutions directed
towards resolving the conflict in Darfur including the Resolutions referring
the Darfur Situation to the ICC and creating United Nations Mission in the
Sudan (UNMIS).[72]
Secondly, the AU has played an important, often overlooked role, in the complex
peace negotiations between the government of Sudan and the Sudanese resistance groups.[73] Thirdly, it goes without
saying that the ICC has made its contribution, or attempted to do so, by
conducting investigations and indicting persons suspected to bear the highest
responsibility for the crimes committed in Darfur. The fact that all these
three institutions share the mission to resolve the conflict in Darfur is
therefore not an overstatement.
From the foregoing, it is
reasonable to conclude that if the three institutions would make a concerted
effort towards addressing the peace and justice concerns in Darfur, better
results would be achieved than have so far been produced by them working
separately. Perhaps the League of Arab States and the Organization of Islamic
Cooperation could be consulted and be offered the opportunity to make
meaningful contribution towards the resolution of conflict and attainment of
justice, not just in the Darfur region but in Sudan in general. For that
reason, undertakings such as the 14 August 2015 visit by the President to the
Assembly of State Parties to the Rome Statute, to the Chairperson of the AU
Commission, with a view “to restore trust between the Court and African States
Parties to the Rome Statute”;[74] should be highly
encouraged and the decisions reached be followed up on. Tackling the current
deadlock, in the manner suggested in this article may greatly assist in
repairing the AU-ICC relationship and at the same time improve the chances of
delivering international criminal justice in Darfur.
[1] The Prosecutor v Hassan Omar Ahmad Al Bashir, “Warrant of
arrest for Hassan Omar Ahmad Al Bashir”, 04- March 2009, ICC-02/05-01/09-1 and The Prosecutor v Hassan Omar Ahmad Al Bashir,
“Second Warrant of arrest for Hassan Omar Ahmad Al Bashir”, 12 March 2010,
ICC-02/05-01/09-95.
[2] South Africa
was among the first state parties to pass a national legislation implementing
the Rome Statute see Implementation of The Rome Statute of The International
Criminal Court Act 27 of 2002. See also National Commissioner of the South
African Police Service v Southern African Human Rights Litigation Centre (485/2012)
[2013] ZASCA 168.
[3] A de Waal
“What if South Africa Arrests al Bashir?” African Arguments 14 June 2015 http://africanarguments.org/2015/06/14/what-if-south-africa-arrests-al-bashir-by-alex-de-waal/ (accessed 09
August 2015).
[4] Southern
African Human Rights Litigation Centre v the Minister of Justice and
Constitutional Development and others (27740/2015), 14 June 2015 http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2015/06/Interim-interdict.pdf (accessed 09 August 2015).
[5] N ONISHIJUNE
“Omar al-Bashir, Leaving South Africa, Eludes Arrest Again” The New York Times 15 June 2015 http://www.nytimes.com/2015/06/16/world/africa/omar-hassan-al-bashir-sudan-south-africa.html?_r=0 (accessed 16
August 2015).
[6] Southern
African Human Rights Litigation Centre v the Minister of Justice and
Constitutional Development and others (27740/2015), 21 June 2015 http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2015/06/Judgement-2.pdf (accessed 09
August 2015).
[7] “Decision
informing the United Nations Security Council and the Assembly of the States
Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti”,
12 May 2011, ICC-02/05-01/09-129.
[8] “Decision
Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of
Malawi to Comply with the Cooperation Requests Issued by the Court with respect
to the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir”, 12 December 2011,
ICC-02/05-01/09-139.
[9] “Decision
informing the United Nations Security Council and the Assembly of the States
Parties to the Rome
Statute about Omar Al-Bashir's
presence in the territory of the Republic of Kenya”, 27 August 2010, ICC-02/05-01/09-107.
[10] “Decision
informing the United Nations Security Council and the Assembly of the States
Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic
of Chad”, 27 August 2010, ICC-02/05-01/09-109; 12 May 2011,
ICC-02/05-01/09-129; “Decision pursuant to article 87(7) of the Rome Statute on
the refusal of the Republic of Chad to comply with the cooperation requests
issued by the Court with respect to the arrest and surrender of Omar Hassan
Ahmad Al-Bashir”, 13 December 2011, ICC-02/05-01/09-140-tENG; “Decision on the
Non-compliance of the Republic of Chad with the Cooperation Requests Issued by
the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir”,
26 March 2013, ICC-02/05-01/09-151.
[11] “Decision on
the Cooperation of the Democratic Republic of the Congo Regarding Omar Al
Bashir’s Arrest and Surrender to the Court”, 09 April 2014,
ICC-02/05-01/09-195.
[12] “Decision
following the Prosecutor’s request for an order further clarifying that the
Republic of South Africa is under the obligation to immediately arrest and
surrender Omar Al Bashir”, 13 June 2015, ICC-02/05-01/09-242.
[13] Ibid.
[14] Resolution 1593 (2005) Adopted by
the Security Council at its 5158th meeting on 31 March 2005 S/RES/1593 (2005).
[15] See “the Situation in Darfur Sudan”
[16] Ibid.
[17] The Prosecutor v Hassan Omar Ahmad Al Bashir, Warrant of
arrest for Hassan Omar Ahmad Al Bashir, 04- March 2009, ICC-02/05-01/09-1.
[18] The Prosecutor v Hassan Omar Ahmad Al Bashir, Decision on
the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad
Al Bashir, 04 March 2009, ICC-02/05-01/09-3 para 41.
[19] Ibid
[20] Articles 39 and 41 of the UN Charter.
[21] Prosecutor v
Dusko Tadic Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) para 31-36 http://www.icty.org/x/cases/tadic/acdec/en/51002.htm
(accessed 23 April 2013). See also WA Schabas The UN International Criminal Tribunals the Former Yugoslavia, Rwanda
and Sierra Leone (2006) at 48-53.
[22] Article 25 of
the UN Charter provides that members of the UN agree to accept and carry out
the decisions of the UNSC in accordance with the UN charter.
[23] Out of the 196
States of the world, 193 are members of the UN. See http://www.un.org/en/members/index.shtml (accessed 23
April 2013).
[24] D Akande
“International Law Immunities And The International Criminal Court” (2004) 98 AJIL 417; C C Jalloh “The Contribution
of the Special Court for Sierra Leone to the Development of International Law”
(2007) 15 African Journal of
International and Comparative law 165 at 187.
[25] Security Council Resolution on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Law and Humanitarian law Committed in the
Territory of the Former Yugoslavia http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/827%281993%29 (accessed 22 April 2013).
[26] UNSC Resolution 955 of 1994 http://daccess-dds
ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf?OpenElement (accessed 22
April 2013).
[27] S Wirth
“Immunities Related Problems, and Article98 of the Rome Statute” (2001) 12 Criminal Law Forum 442.
[28] Articles 34-38
of the Vienna Convention on the Law of Treaties, 23 May 1969.
[29] Akande 2004 AJIL 417; S Wirth “Immunity for Core
Crimes? ICJ’s Judgment in the Congo v Belgium Case” (2002) 13 EJIL 882; Wirth 2001 Criminal Law Forum 429.
[30] Akande 2004 AJIL 417.
[31] J Needham “Protection or Prosecution for Omar
Al Bashir? The Changing State of Immunity in International Criminal Law”17
(2011) Auckland University Law Review
219.
[32] D Akande
"The Legal Nature of Security Council Referrals to the ICC and its impact
on Al Bashir's
Immunities" (2009) 7 JICJ 333.
[33] P Gaeta
"Does President Al Bashir Enjoy Immunity from Arrest?" (2009) 7 JICJ 315 at 324-325.
[34] P Wardle “The
survival of Head of State Immunity at the International Criminal Court”
(2011)18 Australian Journal of
International Law 181 at 196. See also a different argument from D Mainak
“Presidential Immunity and the International Criminal Court’s ‘Exception’- A
Critique” (2012) Juris Gentium Law Review
19 at 20.
[35] Wardle 2011Australian Journal of International Law
196.
[36] A G Kiyani
“Al-Bashir & the ICC: The Problem of Head of State Immunity” (2013) 12 Chinese Journal of International Law
467.
[37] See also for
example Akande 2004 AJIL 417.
[38] Article 34 of
the 1969 Vienna Convention on the Law of Treaties.
[39] Case Concerning the Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo V Belgium) 2002 3 ICJ paras 19 and 61.
[40] See
ICC-02/05-01/09-195 para 25.
[41] See the sentiments expressed by the delegate from Sudan
at the UNSC’s 6887th Meeting on 13 December 2012 “United Nations Meetings and
coverage press Releases” http://www.un.org/press/en/2012/sc10855.doc.htm (accessed 16
August 2015). See also discussions in
relation article 16 deferral power of the UNSC in WA Schabas An Introduction to the International
Criminal Court 2ed (2004) 82.
[42] See the letters addressed to the UNSC president over the renewal of Resolution 1422 by countries such as Brazil, Canada, DRC, Argentina, South Africa and the EU as well as non-governmental organizations such as the Coalition for the International Criminal Court (CICC) and Human Rights Watch (HRW) all available at http://www.iccnow.org/?mod=res1422&idudctp=13&show=all#13 (accessed 08 March 2014).
[43] See D Akande “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s
Immunities” (2009)7JICJ333 at
337-339; Van der Vyver2011 African Human Rights Law Journal 691.
[44] See for
example “Decision on The Progress Report of the Commission on the
Implementation of the Assembly Decisions on the International Criminal Court
(ICC)”, 29-30 January 2012, Doc. EX.CL/710(XX).
[45] ICC-02/05-01/09-140
paras 13-14.
[46]
ICC-02/05-01/09-139 para 13.
[47]
ICC-02/05-01/09-195 para 18.
[48]
ICC-02/05-01/09-195 para 16. See also Broomhall International Justice and the International Criminal Court 145; S Wirth 2001 Criminal Law Forum 454.
[49] Article 119 deals with
the settlement of disputes and provides that:
“Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”
[50] Sluiter The Library
of Essays in International Law: International Criminal Court 291.
[51] ICC-02/05-01/09-139, para 46.
[52] ICC-02/05-01/09-139, para 41.
For a critique of this decision see C Gevers
“The ICC Pre-Trial
Chamber's Non-Cooperation Decision
on Malawi” 16
Feb 2012
http://warandlaw.blogspot.com/2012/02/icc-pre-trial-chambers-non-cooperation.html (accessed 22 April 2014).
[53] Ibid para 46.
[54] ICC-02/05-01/09-195
para 29.
[55] Wirth 2001 Criminal Law Forum 431; Wirth 2002 EJIL 882.
[56] See Broomhall
International Justice and the International
Criminal Court
141. See also A Dworkin &
K Iliopoulis
‘The
ICC,
Bashir, and
the
immunity
of
heads of
state’ Crimes of
war 3 http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of- state/#sthash.LWgK6lsL.dpuf (accessed
21
August
2013). They say “It
would appear
at first glance
that this provision conflicts with Article 27. However Article 27 is concerned with the question of the Court’s jurisdiction, whereas Article 98 is concerned with international co-operation and judicial assistance.”
[57] Broomhall International Justice and the International Criminal
Court 141.
[58] See Van der Vyver 2011 African Human Rights Law Journal 693. He argues that precedence should be given to article 27 since unlike article 98 it
endorses a “salient norm of international criminal law”.
[59] Akande 2009
JICJ 342. See also D Akande “The Bashir Indictment: Are Serving Heads of State
Immune from ICC Prosecution?” Oxford
Transitional Justice Research Working Paper Series
http://otjr.csls.ox.ac.uk/materials/papers/40/Akande.pdf (accessed 21 August
2013). For a contrary view see S Williams and L Sherif “The Arrest Warrant for
President al-Bashir: Immunities of Incumbent Heads of State and the International
Criminal Court” (2009) 14 Journal of
Conflict & Security Law 71 at 81.
[60] Akande (2009)
JICJ 342
[61] Akande (2009) JICJ 342.
[62] See for example VM Blommestijn and C Ryngaert “Exploring the Obligations
for States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashir: A Legal
Conflict between the Duty to Arrest and the Customary Status of Head of State
Immunity” (2010) 6 ZIS 428 at 428-430.
[63] P
Gaeta “Official Capacity and Immunity” in A Cassese, P Gaeta and J Jones (eds) The Rome Statute of the
International Criminal Court: A Commentary (2002) 985-986.
[64] Ibid.
[65] Ibid.
[66] Gaeta 2009 JICJ 329.
[67] D Tladi “The
ICC Decisions on Chad and Malawi on Cooperation, Immunities, and Article 98”
(2013)11 JICJ 207.
[68] ibid.
[69] “Massive
Atrocities in Darfur: Almost One Million Civilians Forcibly Displaced in
Government’s Scorched-Earth Campaign” Human
Rights Watch 3 April 2004 https://www.hrw.org/news/2004/04/02/sudan-massive-atrocities-darfur (accessed 16
August 2015).
[70] D Kiwuwa
“South Africa: Al-Bashir - South Africa's Moment of Glory and Shame” All Africa 19 June 2015 http://allafrica.com/stories/201506191598.html (accessed 16
August 2015).
[71] The AU has
made a number of decisions urging member states not to cooperate with the ICC
and Article 23 of the AU Constitutive Act enables the AU to impose sanctions of
a member state that does not comply with AU decisions.
[72] See UNSC
Resolutions 1556 (2004), 1564 (2005), 1574 (2004), 1590 (2004), 1591 (2005),
1593 (2004), 1663 (2006), 1665 (2006) and 1679 (2006) and 1706 (2006).
[73] A Sarjoh
Bah “The African
Union In Darfur:
Understanding The Afro-Arab
Response To The
Crisis”
http://fride.org/download/OP_Responses_arab_world_ENG_feb10.pdf
(accessed
17 October 2014).
[74]“The President
of the Assembly of States Parties meets with the Chairperson of the African
Union Commission and with the Bureau of the Committee of Representatives” 14
August 2015, ICC-ASP-20150814-PR1138.
Guest Post by Phoebe Oyugi
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