The Unresolved Questions of Omar Al Bashir’s Immunity before the International Criminal Court

*Nidhi Pratap Singh

INTRODUCTION

Omar Al Bashir (Bashir) is the first incumbent State of Head who has been indicted by the ICC for war crimes, crimes against humanity and genocide. The indictments hold Bashir criminally responsible as an indirect co-perpetrator. He along with other political and military leaders in the Government of Sudan (GoS), had allegedly planned to execute a counter-insurgency campaign against rebel forces in collaboration with their allied Janjaweed militia, government police and armed forces. This resulted in a civil war, with a death toll between 200,000 to 400,000 and displacement of over 2.5 million people in Darfur. 

The UNSC Resolution 1593 (2005) referred the situation in Darfur to the ICC, becoming the first situation to be received by the court through a Security Council referral.  It is out of this referral that the case against Bashir has arisen. Two arrest warrants, one on 4 March, 2009 and the other on 12 July, 2010 were issued to President Bashir and thereby, simultaneously, obligated ICC State Parties to arrest and surrender Bashir if he was found on their territory. Since the ICC does not have a police force, it relies on state cooperation to arrest indicted persons. Article 27(2) of Statute explicitly removes immunity attached to official positions, as bar from exercising its jurisdiction.

Naturally, the question then is: whether Bashir’s removal of immunity before the ICC also removes such immunity before domestic courts of foreign states assisting the ICC. Simply put, the fact that ICC can lawfully exercise jurisdiction over heads of states may not mean that states can lawfully arrest individuals, entitled to personal immunity, and thereby violate customary international law to that extent.

In February, 2020 the Sudanese government agreed to hand over Bashir to the ICC, thereby putting an end to a long controversy surrounding the state of head immunity and international law. This blog analyses the inconsistencies in the decisions by the Pre-Trial Chamber (PTC) of the ICC regarding Bashir’s immunity and attempts to resolve these inconsistencies in favour of a coherent position in line with international law.

CONTRADICTIONS IN THE ROME STATUTE PROVISIONS

The two most important provisions under the Rome Statute in order to examine Bashir’s immunity are –

  1. Article 27(2) of the Rome Statute provides that ‘immunities which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (This has been reaffirmed by the ICJ in the Arrest Warrants Case.)
  2. Article 98(1) provides that the Court may not proceed with a request for surrender and assistance if compliance with it would require the requested state to act inconsistently with its obligations under international law with respect to immunities of a person or property of a third state.

Akande argues that the issue of personal immunity arises at two levels, vertically and horizontally. The former is regarding ICC with respect to the accused person or his state and horizontally is in relation between the state requested to arrest and the accused’s state. PTC II has settled this by stating that if the states mention immunity as a reason for not arresting and thereby refuse to cooperate with ICC’s request then it would bar the court from exercising jurisdiction, thereby rendering Article 27(2) meaningless.

However, the problem arises because there is a clear contradiction between the application of Article 27(2) and 98(1). An effective interpretation to Article 27(2), that ICC’s objective is to end impunity and therefore, state parties like Africa are obliged to arrest Bashir, disregarding Africa’s obligation to abide by customary international law principles of personal immunity to heads of state, renders Article 98(1) futile. What further exacerbates this situation is Rome Statute’s application to non-state parties which offends the principle of pacta tertiis, enshrined under Article 34 of Vienna Convention on Law of Treaties, which provides that any treaty cannot create either obligations or rights for a third State, without its consent.

IMMUNITY UNDER CUSTOMARY INTERNATIONAL LAW

State immunity was first created to ensure sovereign equality between states. There are two main types of immunity granted to state officials under international law: immunity rationae materiae and immunity rationae personae. The former applies to official acts, protecting officials for acts done in official capacity on behalf of the state. The latter applies to a particular office and protects them from foreign criminal jurisdictions for any act performed, until they remain in office.

In the Yerodia decision, the ICJ had to decide whether Belgium had violated customary international law by issuing an arrest warrant for the Democratic Republic of Congo’s then incumbent Minister of Foreign Affairs, Abdulaye Yerodia Ndombasi. In that decision, the Court held that the arrest warrant did violate Belgium’s international obligations towards the Congo. At the same time, in obiter, the court held that former and incumbent Heads of State may be subject to criminal proceedings before certain international courts “where they have jurisdiction”.

PRE TRIAL CHAMBER'S INCONSISTENCIES

The PTC has, on multiple occasions, held that Bashir is not entitled to immunity. However, it has offered inconsistent legal reasoning behind the same. PTC I in its decision relating to Malawi and Chad held that heads of states did not enjoy immunity under customary international law. PTC II in its decision relating to the DRC, Djibouti, Uganda, and a request from South Africa seeking clarification on whether it was obligated to arrest Bashir, held that Bashir did not enjoy immunity because of its explicit removal under Para 2 of the UNSC Resolution 1593. Further, the PTC II in its 2017 decision, holding that South Africa violated the Rome Statute by failing to arrest and surrender Bashir to the Court, the court noted that the UNSC resolution did not waive any immunity because there was no immunity to be waived off in the first place. It reasoned that the UNSC resolution resulted, in effect, for the Rome Statute’s application to the Darfur situation and made Sudan bound to Article 27(2), thereby rendering any immunity attached to official offices inapplicable. Therefore, Sudan had been made analogous to a state party to the Rome Statute through the UNSC resolution as the UN can impose obligations on its members, under the UN Charter.

SCHOLARLY POSITIONS

Authors have taken different positions regarding the UNSC referral of the Darfur situation and its powers. For example, Dr. Paola has taken the position that a UNSC referral only triggers the ICC jurisdiction pursuant to Article 13(b) of the Rome Statute and only binds state parties of the Stature to comply with requests of cooperation. Since the UNSC referral only “urges” UN member states to cooperate with ICC, therefore it does not impose a legal obligation on member states. Dr. Paola contends that a UNSC referral cannot turn a non-state party, Sudan, into an analogous state party to the ICC because ICC was established out of a treaty, based on state consent, and UNSC does not have the power to put non state parties into an analogous position as state parties to the ICC.

Dr. Akande differs from this position and states that the UNSC’s decision, in fact, adopts the Rome Statute provisions and renders them binding on Sudan not as treaty obligations but as obligations upon UN member states under the United Nations Law. Consequently, a combined reading of Article 25 of the UN Charter and the UNSC Resolution 1593 puts Sudan into an analogous position as a state party to the ICC.

THE WAY FORWARD

One argument is that development in international human rights law provides that immunity does not apply to international criminal proceedings involving crimes of jus cogens nature. Jus cogens norms are pre-emptory norms, which are accepted by the international community, as norms from which no derogation is permitted (non-derogable norms). This finds support in Judge Al-Khasawneh’s dissenting opinion in the Yerodia decision, who argues that the need for greater accountability for international crimes overrides rules protecting personal immunity. One of the main concerns regarding disregarding personal immunity comes from violation of equal national sovereignty. However, concerns on sovereign equality are irrelevant before international criminal tribunals.

In order to create a new customary rule, there must be state practice and opinio juris in support of the rule. There are two examples of state practice supporting a new customary rule towards removing personal immunity for international crimes- the Special Court of Sierra Leone’s decision to deny immunity on the basis of sovereign equality to Charles Taylor and the lack of protest when the International Court Tribunal for Yugoslavia issued an arrest warrant against the incumbent Head of State, Slobodan Milosevic.

In conclusion, while the question of whether states can be obliged to act contrary to international principles of law, for effective prosecution of indicted persons before the ICC, remains unsettled, the ICC has previously in Lubanga has expansively interpreted provisions based on “humanitarian considerations and common sense”. It is also important to note that Articles 27 and Article 98 were drafted independently, in separate committees without giving much consideration to consistency. Therefore, keeping this in mind along with the court’s objective of ending impunity especially for grave crimes like genocide, the ICC can oblige state parties to arrest indicted persons for criminal prosecution before the court.

Nidhi Pratap Singh is a third year law student at National Law University, Delhi.

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