A Quest for Cross Cultural Perspectives to Human Rights

Receptor Meeting with Prof. Abdullahi An-Naim

On the 8^thof March 2016, the Receptor Group had the opportunity of meeting with Professor Abdullahi An-Na’im, one of the most ardent and talented supporters of cross cultural views to human rights. An-Na'im, a Sudanese born scholar is currently  the Charles Howard Candler Professor of Law at Emory Law, Associate Professor in the Emory College of Arts and Sciences, and Senior Fellow of the Center for the Study of Law and Religion of Emory University. He is a recognized scholar of Islam and human rights and human rights in cross-cultural perspectives. An -Na'im’s work is of particular importance and relevance at this particular juncture in time, especially in light of the recent terrorist attacks in Paris, including the radicalization of terrorist groups such as ISIS. He has recently written an opinion piece on this issue for The Conversation 

(read here) https://theconversation.com/how-islamic-law-can-take-on-isis-50113

At the meeting that took place on the 8^th An-Na'im shared some of his insights with the Receptor Team, mainly on his view on human rights, attaining  its effective implementation and cultural legitimacy, its monopolization by powerful states and the effective relationship it can share with Islam.

An-Na'im  is mainly concerned with questions of  legitimacy of internationally recognized human rights standards in different cultural and contextual settings, which he believes, is not solely the responsibility of states per se but also depends on the broader efforts of individuals and groups that come into contact with human rights issues. He takes the view that states are not the sole protector of human rights especially because they are prone and susceptible to promoting their own competing interests and goals. Furthermore, the state as an entity cannot effectively be held accountable by the international  system for its failure to adequately protect human rights, essentially because the human rights treaties that they sign up to, are without any without any real 'teeth' and therefore cannot  effectively guarantee a state’s commitment and resolve to upholding such rights. Many states as a result, end up taking these obligations lightly and in some cases start showing an indifferent attitude as a result.  

Relatedly another reason as An-Na'im puts, is that in almost every instance the state is hijacked by the market mainly because trade or business treaties carry more weight than human rights treaties do. Thus, he concludes, the state is essentially “a-moral” and that those who act on behalf of it mostly do so with their own interests in mind.  He therefore believes that human rights can be best achieved through moving away from a “state centered system to a more people centered system," one in which people or groups of people might be in the best position to promote and defend human rights.  Some of these actors would include civil society organizations, social scientists, lawyers and judges, as well as community leaders who are regularly in contact with human rights and are therefore in the best position to do so.

Specifically in this regard, An-Na'im has emphasized the value and need for dialogue. For example, he suggests that there should be more internal discourse and cross cultural dialogue to encourage goodwill, mutual respect and equality with other cultural traditions.  Internal discourse would naturally feature at a national level and would include scholarly works as well as political action. An-Na'im has stressed the importance of cross cultural dialogue and internal dialogue in order to reach consensus on a “body of beliefs” within the human rights framework. This, according to him is only achievable through dialogue and respect, and a common form of reciprocity between various cultures, which he suggests, is treating others in the same way as one would like to be treated. An-Na’im, therefore takes the position that human rights can only gain legitimacy and subsequently can only be observed if it is sanctioned through a person’s own cultural identity. This is what he believes is necessary and crucial for the cultural legitimacy of human rights.

On the relationship between the North and South and their prevailing power relations, An-Naim has observed that this is another area disenfranchising the effective spread and legitimacy of human rights. Here he spoke of the role of the international donor system and northern type NGO’s that continuously criticize the South and create a type of human rights dependency system indicative of neo-colonialism . Initially the Universal Declaration of Human Rights was a treaty owned by all states but later subsequently became  hijacked by more powerful states to the detriment of weaker states, in his view. As a result, this created a top down system of human rights where a type of imperialism and domination is the resultant order of the day and where human rights are imposed rather than shared, agreed upon and genuinely believed in. This same ‘colonizer and colonized’ mentality which was internalized in the past by Africa through colonialism, continues to be internalized through the conduit of human rights nowadays, indicative of the current North South divide.

An-Na'im, as a result calls for agency and self-determination of disempowered groups that do not equally participate in human rights dialogue and debate. In his view “agency of the subject of human rights” is critical and necessary. Each society must struggle for their rights because transformation and liberation can only take place if there is struggle within and without one’s society for change to occur. In his view change is inevitable and will in each society, come with time, but it is necessary that people themselves lead it. It is therefore essential internally that people engage with their own communities as well as with other individuals and communities across cultures, so as to find common ground and consensus.

Lastly on the issue of human rights and Islam, An-Na'im observes that secularization and religion are currently part and parcel of Islamic tradition. This, in his opinion should not be the case as it creates friction. Rather, it is necessary to separate the state and Islam but only to the degree that the state allows an individual freedom enough to practice his/her faith without fetter. While it is essential is that this type of model of separation, should allow for neutral decision-making by the state, it should not resemble the French model of laicity, where religion is accorded lower rights than for instance freedom of speech. So, while An-Na'im believes that separation of state and religion is necessary, it is necessary that it be done is a culturally and religiously sensitive way. This is because rights are not absolute and therefore need to be properly balanced for the good of the society concerned. On the adjacent  issue of terrorism and radicalization and the rise of ISIS, An-Na'im suggests that the roots of Islamic violence needs to be re-traced in order to understand the emergence of radical terrorism. In his opinion only Muslims can defeat ISIS, by exposing the fallacy of their religious claims. So Islamic dialogue is not only necessary, it is essential in combatting terrorism. On a personal level and from the side of his activist fervor and passion for the effective spread of human rights An-Na'im  eventually hopes to see Islam become a catalyst for social justice, equality and human rights.

Posted by Ingrid Roestenburg-Morgan

Religion, Culture and Radicalization

Zaineb Somra

There is a big difference between radicalization paired with violence and radicalization in general. Being a radical does not necessarily mean that you will have to bear any legal consequences. In a democratic society or country an individual is allowed to live as he wants, but of course within the boundaries of law. Every citizen belonging to a democratic society, has a right of freedom of expression. If a person is of the opinion, that only those Muslims who pray five times a day, are ‘true Muslims, then there is nothing wrong with such a statement or such a belief. As long as such radical thoughts and opinions do not lead to violence. For millions of people around the world, religion plays an important part in their daily lives, but due to such over zealous involvement such persons might sometimes forget the rational line between the moral and immoral, and that is what essentially leads to violence and radicalization. This is exactly what is happening in current day Europe, as well as many other countries, where people are using violence in the name of their religion as an unfortunate outcome.

Several academics, such as Frey (2004) and Gupta (2008) (Volintiru, 2010), have researched on the acts and beliefs of terrorists from a rational perspective. They state that the actions of terrorists are based on the well-being and economic status of their families. But other researchers have come to different conclusions, namely that the process of radicalization, is caused by a combination of several factors. Bakker and Veldhuizen (Veldhuizen ; Bakker, 2007) have divided the most common factors for radicalization, into three different categories. These three categories are, individual, social and external factors. Individual factors are related to psychological health and personal experiences, which play a significant role in the radicalization process. Some people experience a situation where they, including those that they love are being mistreated, marginalized or discriminated against by a dominant group within society, and thus perceive such a group to be their enemies. For example, for many radicalized individuals, the western world is seen as their enemy. As a consequence they believe that by becoming a member of a powerful group that is fighting against such an enemy, one is able to speak out and take revenge. The psychological health of that particular person determines how far he is willing to go, to seek revenge.  Another factor that contributes to the process of radicalization, is social surroundings, where some individuals prioritize their entire life in such a way so as to obtain a particular identity. They are, in other words, willing to accept any consequences, as long as they obtain their end goal and thus see joining the Jihad as one of the ways to achieve these goals. The last category of common factors is, external factors namely, politics, economics and culture. These factors can also play a role and increase the chances of radicalization, especially for vulnerable persons who might be economically, politically or culturally disadvantaged in each of their particular societies.

Picture Courtesy of Finn Church Aid

As was reiterated earlier, there are many existing factors at play, that influences the process of radicalization in general. This happens to be the case with regard to the Muslim community in the Netherlands as well. Many young Muslims in the Netherlands are unemployed and feel discriminated against. In addition, they grow up in a hybrid world of two separate cultures, namely the Dutch culture, which is the dominant and the most accepted culture, in opposition to their minority culture, which is the practiced culture at home and which has been taught and inculcated by their parents. This makes many young Muslims uncertain and confused about their identity in Dutch society, especially because they owe allegiance to two separate cultures both of which have entirely different norms and values and thereby making allegiance to one or the other a very difficult decision. Next to this, many young Muslims feel that they are second-class citizens in Dutch society. Amongst the Muslim population in The Netherlands, it is also striking to note that generally speaking the poverty level is high, whilst the educational level low, which is quite visible through deficiencies prevalent in the spoken language of Dutch. All these problems coupled together leads to frustration and disappointment within Muslim communities in The Netherlands, thereby increasing the chances of radicalization.

Radical groups, give an opportunity to disappointed and disengaged young Muslim- Dutch men, to obtain recognition and a desired identity. Furthermore, exacerbating the problem is that in certain cases, young men learning about the Muslim faith, are not properly educated by good Islamic scholars, which inevitably leads to incomplete and fragmented knowledge about Islam. The opportunity to deepen knowledge and awareness about the true Islamic faith is often scarce or lacking. Radical groups therefore take advantage and influence such individuals easily. They promise paradise in the after life, and such a martyr identity is well respected in radical surroundings.

In sum, it will certainly not be easy to solve the problem of radicalization, simply because of the numerous factors that influence this problem. It is important however, that Dutch society while professing tolerance, genuinely become more accepting of its own citizens who happen to practice the Muslim faith by assisting minorities like its Muslim youth with the problem of their divided identities and uncertain futures. It’s imperative that an atmosphere develops, where Muslim youth receive a fair chance in both social and professional spaces to improve their shortcomings, and hence become more accepted as part of Dutch society. This will help erase doubts and give more clarity on their role and identity in Dutch society and is bound to speed up the integration process, which in turn will decrease the chances of radicalization.  Currently, young Muslims are of the opinion that many people within The Netherlands, despise their religion and culture. This train of thought can only be stopped, if everyone feels at home and accepted in The Netherlands, regardless of his or her religion or background.

Guest Post by Zaineb Somra (Zaineb is a Dutch Scholar at the Hague University of Applied Sciences where she studies Public Management as well as a Member of the Receptor Team. She has also written a related piece in Dutch for the NRC Newspaper on Integration and Freedom of Speech in The Netherlands.  To access the piece follow the link below)

http://www.nrc.nl/handelsblad/2014/12/04/integratie-leidt-tot-verbod-op-antiwesterse-menin-1444034

SIM Summer Courses 2016

The Netherlands Institute of Human Rights will be offering three short summer school options in the coming summer months. These include:

International Human Rights Law: An Introduction (one week course)

http://www.utrechtsummerschool.nl/courses/law-economics/international-human-rights-law-an-introduction

International Law from a Gender Perspective (one week course)
http://www.utrechtsummerschool.nl/courses/law-economics/international-law-from-a-gender-perspective

Human Rights and Gender (two week combined course)
http://www.utrechtsummerschool.nl/courses/law-economics/human-rights-and-gender

For more information please visit the respective websites outlined above!

Posted by Ingrid Roestenburg-Morgan 

IJR Side Event 14 th ASP Session: Prosecuting Sexual and Gender Based Crimes

For those interested in issues of sexual and gender based crimes, The Institute for Justice and Reconciliation (IJR) based in Cape Town South Africa will be hosting an interactive side event on the 25th of November 2015, at the 14th Session of the Assembly of State Parties of the ICC. The event will be held at the Antarctica Room, at the World Forum Centre in The Hague and will take place between 1.30 pm to 3 pm. Some of the speakers will include Ms Gloria Atiba-Davies, Head, Gender and Children’s Unit, Office of the Prosecutor of the ICC; Ms Shamila Batohi, Senior Legal Advisor to the Prosecutor of the ICC, as well as Ms Kelly-Jo Bluen, Project Leader, International Justice, Institute for Justice and Reconciliation.

For more information on registration and attendance please visit 

 http://ijr.org.za/news-and-events.php?nid=274&type=news

The IJR is one of South Africa's leading institutes in transitional justice on the African Continent. It is unique, in that it is a hybrid- type, policy based, research institute, on the one hand, as well as a non-governmental organisation on the other. It was launched at the aftermath of South Africa's Truth and Reconciliation Commission, and is aimed at ensuring that lessons learnt from South Africa's transition from apartheid to democracy, would be taken into account in other contexts of transition as well. The IJR's uniqueness also stems from the fact that it operates from a deep position of knowledge and experience drawing on the lessons and experiences emanating out of the African transitional context. In other words, it thoroughly understands and effectively gauges the African context. Currently, the IJR shapes national approaches to transitional justice and reconciliation in Africa by drawing on community intelligence as well as macro-trend research and comparative analysis. Part of the IJR's objectives is to gain and use knowledge about justice and reconciliation in order to influence change. It's Justice and Reconciliation in Africa Programme operates in key areas of engagement such as,The Great Lakes (Rwanda, Burundi and DRC); The Greater Horn (South Sudan and Uganda), Southern Africa (Zimbabwe) and Kenya.

In 2008, the Institute was awarded UNESCO’s International Prize for Peace Education. It's patron is Archbishop Emeritus Desmond Tutu.

Desmond Tutu -Patron IJR

For more information on the IJR please visit their website:

http://www.ijr.org.za/index.php

Posted by Ingrid Roestenburg-Morgan

A Culturally Receptive Approach to Wartime Rape in the Democratic Republic of the Congo

Diewertje Wapstra

The Democratic Republic of the Congo (DRC) has been denounced ‘worst place on earth to be a woman’ and has received the infamous reputation of ‘rape capital of the world’. Ever since the Rwandan genocide in 1994, an overspill of refugees and armed rebels into the Congolese neighboring country has sparked continuous conflict and wide employment of rape as a weapon of war. Mass rapes are often accompanied by unparalleled levels of violence and torture since victims are subjected to intentional transmission of HIV/AIDS and STD’s, unwanted pregnancies and genital mutilation, leaving women permanently unable to engage in penetrative sex or conceive children.

Multiple explanatory theories have been formed on the phenomenon of wartime rape, including combatants’ need for sexual gratification from a biological perspective and militarized conceptions of masculinity from a socio-political point of view. However, a key factor that is often overlooked lies in the local cultural belief in magic. Of the various rebel groups active in the DRC, the Mai-Mai are among the most powerful armed forces active in the Kivu regions. They distinguish themselves from other armed groups by their strong belief and engagement in magical practices, which play a dominating role in their warfare strategies. Although the use of magic is characteristic for Mai-Mai soldiers, the belief has spread fast with the absorption of former combatants of rebel groups into the Congolese national army (FARDC). Deemed of high importance is a liquid potion called Mai, which is believed to protect soldiers during battle. Soldiers who wash themselves with the Mai potion are believed to become inviolable to their enemy’s ammunition, as bullets will instantly turn into water upon coming into contact with the liquid. In order to activate the magical properties, a strict behavioral code needs to be observed by the user. One such requirement calls for sexual intercourse prior to entering the battlefield. Since combatants are often stationed far from their wives, women of local communities have come to serve as substitute. These sexual encounters happen without mutual consent and are accompanied with force and violence, resulting from soldiers’ sense of entitlement since the sexual act serves the greater good. This entitlement sprouts from a militarized mindset in which men and women are expected to use their qualities in such ways as to advance and serve the nation and its warriors, including the requirement to make personal sacrifices. Women are thus expected to serve militaries with their bodies in order to provide them with the protection of the Mai potion on the battlefield. In this context, soldiers are provided with a justification for rape as they merely follow the rules of the Mai code. In the meantime, an own conception of justice is created in which the unwillingness of women to have sexual intercourse with a soldier is considered to be an injustice toward the safety and well-being of the combatant.

Present-day formal court systems of the DRC are reluctant to recognize cultural beliefs in legal procedures, as the acknowledgement of magic would violate the legal principle of due process under the rule of law notion. However, ignoring the belief in magic creates a gap between the perception of justice held by Congolese militants and the trial outcomes served by courts. Where formal verdicts are not perceived as ‘just’ because they are at odds with culturally determined world views, civilians will renounce from going to court as they are certain of receiving an unsatisfactory and even unfair outcome. Promotion of formal legal systems among the local population can be achieved through interaction and involvement from both sides: courts must acknowledge the role of cultural concepts in creating a sense of justice and vice versa civilian must be provided with a better understanding of the law. The inclusion of local authorities who are fully aware of and adept in cultural customs and beliefs, would provide formal courts with a higher legitimacy under the local population, for it displays the court’s acknowledgment of the role of socio-spiritual concepts in criminal acts. A similar construction forms the foundation of indigenous sentencing courts in Australia, also commonly referred to as Koori courts, where indigenous Aboriginal elders partake in criminal trials involving indigenous perpetrators. Instead of using customary law, Koori courts form a hybrid as they follow the Australian criminal code, yet with the addition of having respected elderly from the aboriginal community partake in the sentencing process. Application of this concept to the DRC by including well-respected authorities on the workings of the Mai potion in criminal trials of perpetrators of rape, creates a justice system that resonates with cultural beliefs while upholding national criminal laws. The inclusiveness of courts is likely to bring about a greater sense of accountability, attributing to verdicts being perceived as fair by the local population. Nonetheless, the acknowledgment of local beliefs must not be equated with the acceptance of cultural defenses leading to acquittal of charges, as perpetrators still need to be tried according to national legislation to provide victims with sufficient protection.

In conclusion, local beliefs in the magical qualities of the Mai potion form an important ulterior motive behind wartime rape in the Democratic Republic of the Congo. The magic practice has been embraced by a large number of soldiers and armed rebels, creating an own interpretation of justice in which women are expected to engage in sexual conduct for the protection of the warriors. This belief implicitly serves as a justification ground for rape of civilians and leaves perpetrators without remorse. Formal courts have largely ignored the sociospiritual factors behind rape and focus on delivering justice through sole application of the law. The courts’ disregard of cultural beliefs creates a narrow sense of justice which does not resonate with the civilian population. With the involvement of local authorities on the Mai potion in criminal procedures, a sense of acknowledgment of customary values is created, thereby reducing the gap between justice conceptions.

Guest Post by Diewertje Wapstra (Diewertje is a Dutch scholar and is currently completing at LL.M in Public International Law at Utrecht University)

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.