International Law and Head of State immunity ratione personae The crystallization of an exception?
Supervisor: Prof. dr. Leena Grover Second Reader: Prof. dr. Nikolas Rajkovic
Claudia Grau Cadiñanos 781023 Tilburg Law School LLM International Law and Global Governance Master Thesis August 2020
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Table Of Content
Statement of Integrity………………………………………………………………...………..3 List of Abbreviations………………………………………………………………...…….…..5 CHAPTER 1: INTRODUCTION……………………………………………………………..6 1.1 Background……………………………………………………………………………...6 1.2 Purpose of the thesis and research questions……………………………………………7 1.3 Previous research……………………………………………………………………..…8 1.4 Methodology and perspective…………………………………………………..……….9 1.5 Materials……………………………………………………………..…………………10 CHAPTER 2: LEGAL FRAMEWORK………………………...…….....………...…..…….11 2.1 Theories of Head of State Immunity……………………………………………...……12 2.2 Personal and Functional Immunity………………………………………………….…13 2.3 Immunity ratione personae and Human rights……………………………………...…14 CHAPTER 3: HEAD OF STATE IMMUNITY NORM EVOLUTION: SHARED UNDERSTANDING………………………………………………………..………………..15 3.1 International Courts and Tribunals………………………………………………..……15 3.2 International community ………………………………………………………………17 3.3 Head of state immunity before international courts…………………………………....18 3.3.1 Post WW1 and WW2: The Treaty of Versailles and the Nuremberg Tribunals....18 3.3.2 International courts established by the UNSC………………………………...... 19 3.3.3 Hybrid Courts and Tribunals…………………………………………….……….20 3.4 Head of State immunity before the ICC……………………………………..…………21 3.4.1 An international court?…………………………..…………………………..…...23 3.4 Conclusion …………………………………………………………………..…………25 CHAPTER 4: ICC DECISIONS IN THE AL BASHIR CASE AND THE CUSTOMARY ROUTE: PRINCIPLES OF LEGALITY………………………………...…28 4.1 Security Council Route ………………………………………………………………..29 4.2 Genocide Convention Route and War Crimes…………………………………...…….31 4.3 Customary Law Route………………………………………………………………….33 4.3.1 Analysis of Article 27 and Article 98 and General Principles of International Law………………………………………………………….…..35
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4.3.2 Exception Rationale …………………………………………………………..…37 4.3.3 Customary law Route and Lon Fuller’s eight principles of legality……………..41 4.4 Conclusion ………………………………………………………………………….….43 CHAPTER 5: PRACTICE FOLLOWING THE AL BASHIR CASE: PRACTICE OF LEGALITY………………………………………………………………………….……….44 5.1 The Rome Statute and National Legislation………………………………………...…45 5.2 Most affected states and international response…………………………..……………46 5.2.1 Sudan………………………………………………………………….………….48 5.3 Practice of International Organizations……………………...…………………………49 5.3.1 UNSC and Statements by Member States………………………..………………49 5.3.2 AU and Statements by Member States……………………………………...……52 5.4 Non-state Actors…………………………………………………………………..……52 5.5 Conclusion…………………………………………………………………………...…54 CHAPTER 6: CONCLUSION………………………………………………………….……55 CHAPTER 7: BIBLIOGRAPHY…………………………………………………….………57
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Statement of Integrity
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List of Abbreviations
ACJHR African Court of Justice and Human Rights
ASP Assembly of Parties
AU African Union
DRC Democratic Republic of the Congo
EAC Extraordinary African Chambers
ECCC Extraordinary Chambers in the Courts of Cambodia
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ICT’s International Criminal Tribunals
ILC International Law Commission
IMT International Military Tribunal at Nuremberg
IMTFE International Military Tribunal for the Far East
IOs International Organizations
NGO Non-Government Organizations
SALC Southern Africa Litigation Centre
SCSL Special Court for Sierra Leone
STL Special Tribunal for Lebanon
UNGA United Nations General Assembly
UNSC United Nations Security Council
VCLT Vienna Convention on the Law of Treaties
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CHAPTER 1: INTRODUCTION
1.1 Background The ICC was created to fight against impunity over war crimes, crimes against humanity, genocide and the crime of aggression1. However, the Court has encountered key challenges during the years especially concerning Head of State immunity afforded by customary international law. This issue has resulted in States withdrawing from the Rome Statute and refusing to comply with the Court’s requests in allegation for such immunity. There is an ongoing challenge to balance stable international relations, fostered by immunity and state sovereignty but also being able to ensure that international criminals are held accountable for their actions. The recent decision of the ICC Appeals Chamber on the Al Bashir case has developed political and legal debate over the issue of jurisdiction, non-cooperation and especially immunity. The significant relevance of the Prosecutor v. Omar Hassan Ahmad Al Bashir case relies on the fact that it was the first case to be referred to the ICC by the UNSC through Resolution 15932 on 31st March 2005. Secondly, it was the first ICC investigation on the territory of a non-State Party to the Rome Statute3. In 2019 Al Bashir became the first sitting president to be indicted by the ICC. The Appeals Chamber confirmed that Jordan did not cooperate with the Court by not arresting the former Sudanese president in his visit to the Arab League Summit in Jordanian territory in March 2017. Jordan, being a state party to the Rome Statute, had “failed to accompany the obligations by not arresting Mr Omar Al-Bashir”4. The Appeals Chamber held that Art 27(2) of the ICC Rome Statute, stipulating that immunities are not a bar to the exercise of jurisdiction, reflects the status of customary international law. The key controversy relies on the Appeals Chamber’s findings concluding that “under customary international law, states not party to the Rome Statute have no head-of-state immunity when an arrest is sought by the ICC for international crimes, regardless of whether the case was referred by the Security Council”5.
1'About The International Criminal Court' (Icc-cpi.int, 2020)
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There is extensive criticism on the Court's finding, especially from the AU’s legal position that “incumbent heads of non-party states are entitled to immunity from arrest in third states under customary international law”6.
1.2. Purpose of the thesis and research questions This thesis will provide an overview of the evolution of the concept of immunity in international law and will analyse the possible existence of an exception to the rule on immunities and the lawfulness of the ICC decisions. The analysis will focus on the head of State immunity ratione personae, as it will focus on sitting heads of States. The impossibility of prosecuting a head of State when in office may encourage the head of State to stay in office for a longer period of time, fearing prosecution and perpetuating crimes. That is why focusing on personal immunities is key to deal with these situations and reduce impunity.
The preliminary argument holds that there is a crystallization of an exception to the customary norm on immunities concerning head of State immunity ratione personae with effect in the vertical and horizontal levels. This thesis also upholds that the Jordan decision is the tipping point of such an exception.
In order to satisfy the stated purpose, this thesis will enlarge on the following research questions. The primary research question is formulated as follows: To what extent has an exception to customary rule developed on Heads of States immunity vis-à-vis an international court? To answer the primary research question, some secondary research questions are necessary. The secondary research questions are formulated as follows: What is considered an international court? Are there conflicting norms on Head of State immunity between the ICC ruling and general principles of international law? Is there consistent state consensus, state practice and opinio juris for the crystallization of an exception on state immunity?
6Eki Yemisi Omorogbe, 'The Crisis Of International Criminal Law In Africa: A Regional Regime In Response?' (2019) 66 Netherlands International Law Review. p.288
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What are the legal rationale and resulting state obligations regarding personal Head of state immunity under international customary law? Does it apply in the horizontal relationship between states?
1.3. Previous research There has been abundant literature dealing with the developments in the Al Bashir case concerning head of State immunity and the ICC decisions. This research can be divided between authors exploring the legality and implications of the UNSC referral and authors that have addressed the issue of immunities in customary law and the Court’s practice. This thesis will focus on the second group of literature, especially in light of the Appeals Chamber Jordan decision. One of the most relevant and recent articles was made by Dapo Akande7” where the author highlights the inconsistent decision with the previous Malawi decision that confirmed the absence of a rule of customary international law. Secondly, according to Akande, this would mean that parties to the Rome Statute have taken rights of non-parties under international law. By referring to the basis of treaties, the head of State immunity of a non-party cannot be removed at the request of the ICC. He finalized by asserting that the decision was “very dangerous and unwise8”. Ben Bartros has also addressed the conflicting ruling by agreeing with the outcome but not with the unusual means9. It highlights the Court's authority not on behalf of the 122 state parties but as the international community, exceeds the jurisdiction of the members. Thus, the author believes this conclusion is “a violation of the principle that a treaty affects only the rights and obligations of its parties (pacta non tertiis)”10. On the other hand, Leila Sadat has argued the correctness of the ICC decision confirming the existence of a new customary norm concerning head of State immunity11. She argues that there were consistent previous ICC decisions and other courts case law that uphold such decisions. She
7 Dapo Akande, 'ICC Appeals Chamber Holds That Heads Of State Have No Immunity Under Customary International Law Before International Tribunals' (Ejiltalk, 2019)
9 also argues that Article 27(2) of the Rome Statute codifies a customary rule whereby officials immunity cannot be pled as an obstacle for criminal responsibility before the court in relation to jus cogens crimes. Moreover, she argues that the Court, taking a step further from the alleged Security Council Route, is a way of “reaffirming the autonomous nature of international criminal law” before the Court12. Similarly, Professor Claus Kreß supports the notion that Customary law avenue is applicable in relation to the Court13. He analyses the legality of a new customary rule and introduces it as part of a coherent theory of criminal justice and vis a vis international courts. He introduces nuances to the debate by saying that the customary law avenue is “open for the enforcement of the ius puniendi of the international community only when an international criminal court with universal orientation has been made available by States for such enforcement.”14.
1.4. Methodology and perspective This thesis will use the traditional black letter methodology along with Brunée and Toope’s Interactional account analytical lenses which bring together the legal theory of Lon Fuller and constructivist approaches of International Relations15. The constructivist theory focuses on the dynamic formation of norms as it understands norms and actors as socially constructed and mutually constitutive. Interactionism also helps to explain the traditional formation of customary law arising from state practice and opinio juris. Traditionally, extrapolation is used when the practice is consistent and widespread enough then the opinio juris can be presumed. However, interactional theory defends the unsatisfactory explanation. According to the interactive legal theory, the process whereby a social norm, reflecting a shared understanding, that meets the criteria of legality is upheld through practice is an enriched form of traditional opinio juris. Therefore, it is not only practice that upholds obligation but practice that is rooted in criteria of legality16. This theory provides a “more objective, less mystical, account of how customary legal norms become binding”17. This thesis supports the interactional perspective that there is a tipping point at which practice becomes required and legally
12 Ibid. 13Claus Kreß, 'Preliminary Observations On The ICC Appeals Chamber’S Judgment Of 6 May 2019 In The Jordan Referral Re Al-Bashir Appeal' (Toaep.org, 2019)
10 bound. The theory departs from the “formalistic” account of legality towards the added value of the sense of obligation that comes from the perception that the law is legitimate. This thesis will analyse head of State immunity through the 3 interactional elements for the creation of legal legitimacy. States and other actors must build a shared understanding of what they want to accomplish through law. Secondly, international actors must ensure that the criteria of legality are met. Thirdly, they must be reinforced by a practice of legality. The theory widens the capabilities of other actors in shaping international law. It includes other actors at the international level, not as consumers but active agents in law-making through the elevation of custom, treaty and soft law18.
1.5.- Materials This thesis will refer to legal documents that include the Rome Statute, the Vienna Convention on the Law of Treaties and the Rome Statute, especially Articles 27(2) and Article 98(1). This research will provide its findings from the analysis of case law, court decisions and State practice. It will focus on heads of State prosecuted by international courts and especially on the Al Bashir case. It will also consider the response of the international community to determine the State practice and opinio juris.
18 Ibid., p 55
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CHAPTER 2: LEGAL FRAMEWORK
The purpose of this chapter is to determine the legal context surrounding head of State immunity and its place in international law. Immunities come from the sovereignty and equality of states19. To respect such sovereignty, states are granted some form of immunity that is relied upon by its representatives, including immunity from interference by foreign states and immunity from a foreign jurisdiction. However, immunities of heads of States are less defined than other immunities such as diplomatic immunities, codified in the Vienna Convention on Diplomatic Relations 1961. There is no codified convention on Head of State immunity and state practice involving cases of head of State prosecution are limited, due to state reluctance to interfere with foreign heads of States20.
Immunities are granted by customary international law21. Customary international law is a primary source of international law22 and can be defined as consistent rules of law derived from the consistent conduct of States acting out of the belief that the “law required them to act that way”23, it is the only source of law that binds all States, with the limited exception of the persistent objector rule. The persistent objector consists of a State that has objected consistently during the formation of a customary norm and, consequently, is not binded by it as long as the objection is maintained24. However, the persistent objector rule does not apply in relation to jus cogens norms25. Article 38 (1)(b) of the ICJ Statute recognizes international custom as a source of international law. The elements of customary law include a widespread state practice and opinio juris, requiring the belief of a legal obligation to do so26. However,
19 Rosanne van Alebeek, The Immunities Of States And Their Officials In International Criminal Law (Oxford University Press 2008). p. 66. and Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,I.C.J. Reports 2002. para 51 20 Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, 2014, An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2014. p 425 21Antonio Cassese, International Criminal Law (Oxford University Press 2003). p.264 22Jack L. Goldsmith and Eric A. Posner, 'A Theory Of Customary International Law' (1999) The Chicago Working Paper Series NO . 63 SSRN Electronic Journal. p.1113 23James J. Busuttil, Practice and Methods of International Law, by Shabtai Rosenne (9 Md. J. Int'l L. 211, 1987)
12 the distinction between state practice and evidence of opinio juris in the analysis of custom has often been blurred27. State practice must be taken by a significant number of States and can be derived from their executive, legislative, judicial or other functions28 and followed “commonly, consistently and concordantly”29. Still, the number of States and how much time is required depends on the circumstances and inconsistent practice does not necessarily eliminate obligations of customary international law30. Moreover, the practice by international organizations such as the United Nations bodies decisions can be considered evidence of a custom rule31. However, as interstate practice is scarce in the area of international criminal law, international courts and tribunals have often resorted to national legislation and domestic decisions.
2.1. Theories of Head of State Immunity Head of State immunity, although not yet been codified, has experienced an evolution marked by the development of immunity theories. The absolute theory is found in the beginning of state history, where a head of state could not be judged in another state because of jurisdiction32. It considered immunity as a right derived from the sovereign equality principle. The restrictive theory comes from the division between jure imperii and jure gestionis that arose from the increasing commercial relations between states33. Finally, the normative hierarchy theory on Head of State immunity aims to solve the conflict between immunity and accountability for international crimes34. Such development was strongly influenced by the introduction of central principles of international criminal law, individual
must feel that they are conforming to what amounts to a legal obligation.’ See North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), (1969) I.C.J. Reports 3. p. 3 para 44 27Harmen van der Wilt, 'State Practice As Element Of Customary International Law: A White Knight In International Criminal Law?' [2019] International Criminal Law Review. p.18 28 Forms of State practice include, but are not limited to: diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct “on the ground”; legislative and administrative acts; and decisions of national courts. See ILC “Draft conclusions on identification of customary international law adopted by the International Law Commission”,(30 April–1 June and 2 July–10 August 2018) A/73/10 p.13 para 34 29ILC, “Second report of the Special Rapporteur of the International Law Commission on identification of customary international law” (22 May 2014) UN Doc. A/CN.4/672 p.38 footnote 168 30 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), Merits, Judgment, ICJ Reports 1986, p. 99 31ILC, “Second report of the Special Rapporteur of the International Law Commission on identification of customary international law” (22 May 2014) UN Doc. A/CN.4/672 . p. 26 - 28 32 Xiaodong Yang, State Immunity In International Law (Cambridge University Press 2013). p.7 33 Ibid., p.11 34 Lee M. Caplan, 'State Immunity, Human Rights, And Jus Cogens: A Critique Of The Normative Hierarchy Theory' (2003) 97 The American Journal of International Law. p.741-755
13 criminal responsibility and irrelevance of official capacity35. This theory considers that jurisdictional immunity is not applicable if states violate norms considered as jus cogen which prevail over all other norms36.
2.2. Personal and Functional Immunity Head of State immunity can be divided into two main groups: the representative character theory that related to the sovereignty of the state (immunity ratione personae) and the functional necessity theory that related to the conduct of their work (immunity ratione materiae)37. Functional immunity provides a substantive defence for official acts and conduct carried out on behalf of the state38. This capacity is also called immunity ratione materiae. Therefore, immunity is provided on behalf of the official character attributed to the state and not the individual itself, ensuring state officials with defence from criminal proceedings in another state39. Nevertheless, this thesis agrees the Pinochet case40 findings whereby international crimes such as genocide and crimes against humanity can not be considered official acts41 since no lawful State would authorise it42. Personal immunity, immunity ratione personae, provides a larger scope of protection, providing immunity over official acts and also immunity over personal acts. Heads of states possess immunity from coercive acts and criminal proceedings from foreign states jurisdiction for both acts in official and private
35Ibid., p.741-750 36Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,ICJ. Reports 2002. Para 190 37 Philippa Webb and Hazel Fox, 'Introduction To: The Law Of State Immunity' (King's College London Law School Research Paper No. 2016-16, 2016)
14 capacity43. The rule of immunity including private acts is justified also by “symbolic sovereignty and the principle of non-intervention”44, attached not to the function but the symbolic representation. Customary international law grants immunity to officials45 because of the office they hold but only as long as the person is in office46. Both immunities are justified for the effectiveness of international relations and cooperation between states which enables them to negotiate between them without harassment by other states47. This thesis agrees with scholars48 suggesting that it is precisely due to the purposes of personal immunities, in facilitating relations between States, that they do not apply to the relation with international courts and tribunals.
2.3. Immunity ratione personae and Human rights As all acts are protected, also international criminal acts are equally protected49. Human rights encounter therefore an enforcement crisis when protecting immunities and often act as obstacles for an effective system of human rights and accountability50. This paper upholds that there are limitations to this extent when the prosecution of international crimes is done by an international court. The aim to protect human rights has lead to the contested notion of the universal jurisdiction approach51 over violations of jus cogens norms as all states have a legal interest to protect them52.
43 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,ICJ. Reports 2002. p.26 44Dapo Akande and Sangeeta Shah, 'Immunities Of State Officials, International Crimes, And Foreign Domestic Courts' (2011) 21 European Journal of International Law p. 818 45 These absolute immunity applies to a reduced number of officials that include “diplomatic and consular agents [and] certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs” See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,ICJ. Reports 2002. p.21 para 51 46Dapo Akande and Sangeeta Shah, 'Immunities Of State Officials, International Crimes, And Foreign Domestic Courts' (2011) 21 European Journal of International Law p.819 47 Dapo Akande and Sangeeta Shah, 'Immunities Of State Officials, International Crimes, And Foreign Domestic Courts' (2011) 21 European Journal of International Law p. 819 48Gaeta Paola, 'Does President Al Bashir Enjoy Immunity From Arrest?' (2009) 7 Journal of International Criminal Justice. P.321 and Michiel Blommestijn and Cedric Ryngaert, 'Exploring The Obligations For States To Act Upon The ICC’S Arrest Warrant For Omar Al-Bashir' (Zis-online.com)
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CHAPTER 3: HEAD OF STATE IMMUNITY NORM EVOLUTION: SHARED UNDERSTANDING
In this chapter, international courts will be analyzed to determine emergent trends on head of State immunity. After WW1, WW2 and the Cold War there has been a proliferation of international courts and especially characterized by their ad hoc nature.
In order to assess the debates and practices surrounding the head of State immunity, it is necessary to deal with the historical construction of the customary norm that will provide a shared understanding of the concept. Shared understandings are collective knowledge, norms or practices. The idea of norm entrepreneur and epistemic communities will be used to define promoters of particular standards of appropriate behaviour that are promoted between states or international organizations53. The tipping point is reached when a number of states embrace this norm. Such internationally shared understanding can be promoted by states, other governmental or non-state actors. In order to address the possibility of an exception, this chapter will address the abstract legal concepts of international court, international community and the evolution of rejection of head of state immunity.
3.1.International Courts and Tribunals The notion of international criminal tribunals concerning immunities has been of growing importance to establish international criminal responsibility for certain crimes. Such relation was marked by the ICJ finding in the Arrest Warrant case which held that international tribunals and courts were an alternative means to avoid impunity where national courts could not exercise jurisdiction54. The ICJ held that immunities are not a bar “before certain international criminal courts, where they have jurisdiction”. Therefore, the elimination of personal immunities lies on whether the court is an international court in nature and if it has jurisdiction over the international crime that the official is charged with55.
53Jutta Brunne and Stephen J Toope, Legitimacy And Legality In International Law (Cambridge University Press 2010). p.57 54Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,I.C.J. Reports 2002.para. 61 55Paola Gaeta, and Patrick Labuda, 'Trying Sitting Heads Of State: The African Union Versus The ICC In The And Cases' (Chapter The International Criminal Court and Africa, Oxford Scholarship Online, 2017)
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International courts and tribunals (ICT’s) can be described as “judicial bodies made up of independent judges who are entrusted with adjudicating international disputes on the basis of international law according to a predetermined set of rules of procedure and rendering decisions which are binding on the parties”56. In the International Law Commission draft on customary international law upheld that the ICJ was “the only standing international court of general jurisdiction”57. However, it also included as “international courts and tribunals” specialized courts, such as the International Criminal Court58.
The distinctive nature of international criminal justice makes ICT’s different from domestic courts59. Firstly they are composed of international elements such as international staff and funding, with strict rules on the independence of the judges. Secondly, they have a “vertical” relationship with states60 as opposed to the unidimensional horizontal relation between states and their national courts. Thirdly, cooperation and judicial assistance are needed due to the lack of enforcement mechanism. There is no customary rule that establishes a duty of states to cooperate with international courts making them dependent on such assistance and often relying on multilateral agreements to foster cooperation61. These differences imply that national and international courts are intrinsically different and may, therefore, have an effect on immunities.
56 Christian Tomuschat, 'International Courts And Tribunals' (Oxford Public International Law, 2019)
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3.2. International community The Appeals Chamber describes the concept of an ‘international court’ as an adjudicatory body that exercises jurisdiction at the behest of two or more states62. It also addresses the international jurisdiction of such courts “when adjudicating international crimes, do not act on behalf of a particular State or States. Rather, international courts act on behalf of the international community as a whole”.
The term international community can be defined as “countries of the world considered collectively”63. However, there is ongoing debate on its full scope and meaning in legal terms as it has also undergone a historic evolution64. Moreover, there is also no consensus on the composition of such a community “as a whole” and the restricted state perspective or inclusion of international organizations and non-state actors as suggested by ICJ in the Barcelona Traction Case65 and the ILC in its Draft Articles on State Responsibility66. What is clear from experience is that there is no need for complete consensus of such a community for action, as it has often acted before this is accomplished. Experts have therefore established the requirement of “international community” as “an overwhelming majority composed of a great number of States from diverse legal, religious, and ideological backgrounds-originally the overwhelming majority of the three ‘blocks’ West, East, and South-with the exception of a few persistent objectors”67. The universal membership to the United Nations suggests that it is the institutionalization of the international community. Other authors have gone a step further upholding that the United Nations and the United Nations Charter is the constitution of the International Community68.
62Prosecutor v. Omar Hassan Ahmad Al-Bashir, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, 6 May 2019,ICC-02/05-01/09-397-Anx1 Para 56–60. 63 Shorter Oxford English Dictionary (6th edn., 2007) 64Andreas Paulus, 'International Community' (Oxford Public International Law, Max Planck Encyclopedia of Public International Law [MPEPIL], 2013)
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3.3 Head of state immunity before international courts 3.3.1 Post WW1 and WW2: The Treaty of Versailles and the Nuremberg Tribunals The understanding of head of State immunity has changed drastically over time. It was first seen as a core principle of sovereignty, an extension of the State enclosed in the phrase of “l’etat c’est moi”69. With the experiences of the first and second World War and the Nuremberg Trials, the concept of individual criminal responsibility became central to international criminal law. In the last decades, there has been an international rejection of the bases of immunities due to the emphasis of human rights and accountability for crimes70. The Treaty of Versailles71 marked the beginning of international criminal responsibility for head of States. Articles 227 and 228 even established the aims to set up a special international tribunal of Allied and Associated Powers that would try Kaiser Wilhelm II72, for “a supreme offence against international morality and the sanctity of treaties”. However, the trial was never established due to the United States opposition73. Although unsuccessful, France and Great Britain could be seen as norm entrepreneurs and driving forces to include the prosecution of heads of State before international criminal courts in the “new international law”74. After WW2 the International Military Tribunal (IMT) was established in Nuremberg in 1945 and the IMT for the Far East (IMTFE) was set up in 1946. During the trials, high ranking state officials were tried and held individually responsible for crimes committed while in office75. It marked the progressive rejection of national criminal jurisdiction towards claiming
69 Herbert H. Rowen, '"L'etat C'est A Moi": Louis XIV And The State' (1961) 2 French Historical Studies. p.83 70 Rosanne van Alebeek, The Immunities Of States And Their Officials In International Criminal Law (Oxford University Press 2008). p. 10 71 Before the Treaty of Versailles, the Commission on the Responsibility of the Author of the War and Enforcement of Penalties proposed the establishment of a “high tribunal” for the trial of criminals, including the Head of States. The commission explicitly noted that rank should not be a bar when that responsibility has been established before a properly constituted tribunal. This extended even to the case of Heads of states#. The Tribunal was intended to be established by an international agreement called the Treaty of Peace, and the enemies, by signing such a treaty would have made their immunities inapplicable. See 'Commission On The Responsibility Of The Authors Of The War And On Enforcement Of Penalties' (1920) 14 American Journal of International Law. p.116 72'Treaty of Versailles 1919 Articles 227-230 73Claus Kreß, 'Preliminary Observations On The ICC Appeals Chamber’S Judgment Of 6 May 2019 In The Jordan Referral Re Al-Bashir Appeal' (Toaep.org, 2019)
19 extraterritorial jurisdiction for international crimes. In the Nuremberg Charter, Article 7 included a provision where Head of states was not to be considered free from responsibility or punishment76. Similarly, the IMTFE included Article 6 dismissing official positions77. During the trials, the tribunal rejected the argument that the acts were committed on behalf of the state and explicitly stated that authors of crimes could not shelter under their official position in appropriate proceedings78. In the case of the IMT and the IMTFE, the erosion of head of State immunity came from the consent of the defeated countries, Japan signed a surrender and German surrendered unconditionally and was occupied by the Allies79, not from a Treaty.
3.3.2 International courts established by the UNSC The end of the Cold War and end of the deadlock in the UNSC, along with the growing importance of human rights, resulted in the establishment of ad hoc international criminal tribunals by the UNSC. The UNSC in 1993 established the ICTY under Resolution 82780 and in 1994 ICTR was set up by Resolution 95581, acting under Chapter VII Article 39 of the Charter82. The broad powers enjoyed by the UNSC is evident in its obligation to maintain peace and security under Article 24 and Article 39 of the Charter empowers the Council to determine a breach to this situation and establish subsidiary organs83. Under this framework, the Council established the Tribunals to further the purposes of the UN and did not violate general principles of international law. The validity of the Council’s powers determine the legitimacy of the tribunals and therefore affect the trend of Head of State immunity.
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Moreover, Both tribunals were assisted by the extensive proposals made by States and by a number of non-governmental organizations (NGOs) that reflect, according to interactional law84. Article 7(2) of the ICTY Statute held that "the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court”85. Similar language is found in Art 6(2) of the ICTR Statute. Slobodan Milosevic and Milan Milutinovic were both prosecuted and had arrest warrants while they were sitting heads of States of Yugoslavia and Serbia. Although both were arrested and judged when they were no longer head of states, the aim of the international community to arrest them while in office supports the shift towards the existence of an exception in customary law. The Trial Chamber of the ICTY explicitly noted that Article 7(2) was reflective of customary international law and followed the precedents of the Nuremberg trials and Pinochet case86.
3.3.3 Hybrid Courts and Tribunals Hybrid tribunals are characterised by having a combination of national and international elements. Hybrid courts include the SPSC, Regulation 64 Panels, ECCC, SCSL, STL and EAC. This thesis is mainly going to focus on the ECCC and SCSL to analyse the 2 types of hybrid courts, one essentially domestic and one internationalized by means of a treaty. The ECCC was established by the Cambodian government in 2001. In 2003 an agreement was reached between the government and the UN to establish the treaty-based Khmer Rouge Tribunal87. The Chambers removed immunity pursuant to Article 29 of the Law on the ECCC providing criminal responsibility irrespectively of position and rank88. Samphan Khieu, head of state, was charged with war crimes and crimes against humanity. In Sierra Leone, the Security Council adopted Resolution 131589 in 2000 which resulted in an agreement for a “treaty-based sui generis mixed jurisdiction and composition court”90. The SCSL also included Article 6(2) stating that official capacity did not bar criminal
84UNGA “Report of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991” (1994) A/49/342 S/1994/1007. para 55 85Prosecutor v Charles Ghankay Taylor, Case No. SCSL-03-01, Indictment, 3 March 2003, para. 52 86Prosecutor v. Milosevic, Trial Chamber Decision on Preliminary Motions, 8 November 2001. para 28 and 33 87The Chambers are under the legal basis of the Law on the ECCC and applied both national and international law and staff. 88Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea 2004 (NS/RKM/1004/006) 89UNSC Res 1315 (14 August 2000) UN Doc S/RES/1315 90UNGA “Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone”, (2000), UNDoc.S/2000/915, para 9
21 responsibility91. Charles Taylor, head of state of Liberia, was indicted for crimes against humanity. An arrest warrant was issued but he was not arrested during his visit to Ghana. However, he exiled to Nigeria where, due to political pressure, he was released to Liberia in March 2006, even though there was no extradition agreement between the two countries. During the trial, the Prosecutor highlighted that under customary international law, serving heads of State could be indicted by international criminal courts even in the absence of Chapter VII powers92. The Special Court reasoned that the difference between an international court and a national court derived from the international community. Based on the Arrest Warrant case93, the Taylor Case concluded that “the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community”. Accordingly, state immunity was not relevant to international criminal tribunals as the principle of equal sovereignty did not apply. With regards to cooperation, in June 2006, the Security Council, invoking Chapter VII, issued Resolution 1688 requesting all states to cooperate with the Court under Paragraph 494.
3.4 Head of State immunity before the ICC The ICC was created by the adoption of the Rome Statute by 120 States on the 17th July 1998. On 1 July 2002, the Statute was ratified by 60 states and officially established the Court, with no retroactive jurisdiction. The creation of the Court was decided in 1998 during the UN Conference of Plenipotentiaries on the Establishment of an International Court. The ICC investigates and tries individuals charged with the “gravest crimes of concern to the international community”95, known as core cromes, which include genocide, war crimes, crimes against humanity and the crime of aggression. These crimes have the status of jus cogens, which “protect fundamental values of the international legal community” and “articulate a ius puniendi of that community”96.
91Statute of the Special Court of Sierra Leone 92Prosecutor v Charles Ghankay Taylor, Case No. SCSL-03-01, Indictment, 3 March 2003, pag 7 93Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,I.C.J. Reports 2002. 94UNSC Res 1688 (16 June 2006) UN Doc S/RES/1688 95'About The International Criminal Court' (Icc-cpi.int, 2020)
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In the negotiations of the Rome Statute in 1993, the concept of “irrelevance of official position” was already building a shared understanding97. States ratifying the Rome statute and Article 2798 “accepted the common understanding of removing Head of State immunities in front of the Court”99. Signing states have relinquished their personal immunities to the Court in its jurisdiction over serious international crimes100. States have to cooperate with the Court in surrendering individuals, with the irrelevance of their capacity, amending it in domestic legislations. Article 27 addresses the “vertical” legal relationship between the Court and the state of the accused101. However, the provision must be read in accordance with Article 98(1) 102. Article 98(1) established that States have to respect immunities of a person of a “third state”. This thesis agrees with the interpretation of other experts103 that third state refers to non-state parties to the Rome Statute as established in Articles 34-38 VCLT. In the horizontal level, state parties as having accepted Article 27, do not have inconsistent obligations and therefore have the obligation to arrest and surrender nationals from state parties. Therefore, this interpretation is a non-conflictual interpretation for member states. Consequently, tension rises only when the Arrest Warrant is addressed to a national from a non-state party, where his immunities have not been waived by the Statute nor waived by the non-member State. The effects of Article 98(1) in relation to non-state nationals will be addressed in the next chapter.
97Ibid., p.30 98 Article 27 of the Rome Statute 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules 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 99Leila N. Sadat, 'Heads Of State And Other Government Officials Before The International Criminal Court: The Uneasy Revolution Continues' (Washington University in St. Louis Legal Studies Research Paper No. 19-01-12, 2019)
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The exception set in the Arrest Warrant case104 is the manner used to remove Laurent Gbagbo’s immunities. Côte d’Ivoire, a non-state member, explicitly accepted the jurisdiction of the Court on two occasions. Article 12(3) of the Rome Statute enables the application of article 27(2) to Gbagbo, waiving the immunities enjoyed in customary law. The acceptance by Côte d’Ivoire of the ICC jurisdiction can support the shared understanding that international courts constitute an exception in customary law with regards to immunities.
In the case of Darfur and under Article 13(b) of the Rome Statute, the Security Council issued Resolution 1593 in 2005 referring the situation to the Court105. Similarly, in the case of Libya, the Security Council issued Resolution 1979 referring the situation to the court for investigation and prosecution in 2011106. The legality of the jurisdiction of the Court and effects on immunities in such circumstances will be analysed in the next chapter.
3.4.1 An international court? The ICC has 123 state parties107 from all regions108, around 60% of the world's countries, thus not universally accepted. Nevertheless, 155 states, nearly 80% of world countries signed the Statute meaning that such states are obliged to refrain from “acts which would defeat the object and purpose” of the treaty109. Party and signatory States make up 54% of the total population110, a high percentage considering that non signatory states are among the most populated countries of the world111. Moreover, pursuant to Article 12(2) of the Rome Statue, non-member states can accept the Court's jurisdiction. Although there have been several withdrawals, the Court continues to have continuous support as shown by recent accession112. Nevertheless, countries like Sudan unsigned the treaty in 2008 and thus has no legal obligation from the previous signature.
104Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,I.C.J. Reports 2002. 105UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 106UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 107'INTERNATIONAL CRIMINAL COURT' (Coalition for the International Criminal Court)
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It is also important to acknowledge the significant involvement of a range of global civil society actors in ICC negotiations. Scholars, practitioners and NGOs all participate in diplomatic efforts to build a permanent court and culture of accountability and enforcement113 . The participation of civil society groups was broad, with different political interests and represented civil groups from around the world.
The Court is based on the complementarity principle and the dependency on states to arrest and surrender suspects114. The Rome Statute obliges member states to implement national legislation under Part 9 of the Statute to ensure cooperation. The jurisdiction of the Court is codified in Article 13 and includes three situations: referrals by a state party pursuant to Article 14 to the Prosecutor, by the referral by the UNSC under Chapter VII of the UN Charter or by the Prosecutor under Article 15.
However, it is important to consider, when assessing immunities (particularly ratione personae), the nature of the international tribunal and the distinction between UNSC Resolutions and those established by treaties115. Some authors argue that due to the universal membership of the UN, the provisions of such tribunals (ICTY AND ICTR) are capable of removing immunities of all states116. The SCSL emphasised its international dimension not only by means of a treaty but also by the agreement and involvement of the UN117, making it “truly international”118. This made the Arrest Warrant case119 exception applicable, expanding Article 6(2) and cooperation obligations applicable to all members of the UN. Moreover, the Agreement between the ICC and the UN, recalls that the Rome Statute reaffirms the purposes and principles of the UN Charter120. It can be argued that, similar to
113M. Cherif Bassiouni, 'The Proscribing Function Of International Criminal Law In The Processes Of International Protection Of Human Rights' (Yale Law School Legal Scholarship Repository, 1982). p.193 114Dapo Akande, 'International Law Immunities And The International Criminal Court' (2004) 98 The American Journal of International Law. p.417 115Ibid., p.417 116Ibid., p.417 117“The Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community. The Special Court established in such circumstances is truly international.” Prosecutor v Charles Ghankay Taylor, Case No. SCSL-03-01, Indictment, 3 March 2003, parag. 38 118 Sarah M.H. Nouwen, 'Return to Sender' (2019) 78 The Cambridge Law Journal. p. 599 119Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002 120Preamble of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. ICC-ASP/3/Res.1
25 the SCSL, Courts set up with the support of the UN, not created by it, may have effects on all UN members and provide an international status to the court.
The Rome Statute itself refers to the Court’s “distinct nature”121. It has international elements such as international staff and funding. With regards to the vertical relationship with states, the ICC is based on cooperative compliance but in practice, it is “difficult to speak of a reciprocal and equal co-operation regime”122 as cooperation is mainly directed to States. In relation to its verticality, the Court has differences with national courts. One of the distinctive vertical elements is the Court’s ability under Article 99(4) to carry out investigations on the territory of member states without explicit authorization. Moreover, the “raison d’etre” of the Statute is to end impunity and such a goal would be difficult to achieve without having the necessary means to achieve it. This relates to the “superior international interest” which serves as a crucial justification for the verticality of international criminal justice which is more important than competing horizontal obligations123.
3.4 Conclusion This chapter has analysed the trend on Head of state immunity before international courts, based also in domestic cases, to erase immunities for grave human rights violations. Before WW1 there was consistent and widespread state practice and opinio juris of not prosecuting heads of states over international crimes as represented by the absolute theory of immunities and “l’etat ce moi”. However, there is a clear paradigm shift and a change in understanding regarding head of state immunity since WW1. This gives legitimacy of the enforcement of the ius puniendi, acknowledging that heads of State are the most responsible for the
121Article 91of the Rome Statute of the International Criminal Court 122Frederic Megret, 'In Search Of The 'Vertical': An Exploration Of What Makes International Criminal Tribunals Different (And Why)' (2008) p. 12 123“Accordingly, the risk of disrupting the orderly conduct of foreign relations inherent in the complete rejection of immunities for ICC crimes would be outweighed by the need to mete out justice against the perpetrators of the most heinous crimes under international law.” Luisa Vierucci, 'The European Arrest Warrant' (2004) 2 Journal of International Criminal Justice. p.281 And ‘the vertical model presupposes that an international criminal tribunal has supremacy over states’ Geert-Jan Alexander Knoops, Theory And Practice Of International And Internationalized Criminal Proceedings (Kluwer 2005). P.310 Aso see Frederic Megret, 'In Search Of The 'Vertical': An Exploration Of What Makes International Criminal Tribunals Different (And Why)' (2008)
26 commission of crimes124. It shows the emerging trend in international law to uphold accountability before the State and the increasing protection of the rights of individuals125. In the SCSL Nigeria released Taylor to Liberia before Resolution 1688, implying that was a sense of legal obligation irrespective of head of State immunities by Nigeria and by the international community that pressured the country to cooperate with the Court. There was no objection to arresting Slobodan Milošević by the ICTY even if he was still a serving head of State where neither Resolution 827 nor the tribunal basis expressly removed his immunities. ICTY and ICTR in not recognizing traditional immunities, serve as a base for evidence of a norm “in flux”126 while also recognizing the ability of such courts to contribute in the shift. This flux moves away from an absolute status of Head of State ratione personae towards the inclusion of exceptions. The ICC can be considered an international court as belonging to “certain” international tribunals where immunities are not applicable127. This international status is also provided by the involvement of the UN in its creation and the wide representation of the international community among its member states128. Due to the discussed historical evolution, Rome Statute and the inclusion of Article 27 can be interpreted as codifting an innovation, designed to change the rule. Moreover, the fact that a large number of states agreed on a treaty provision, it is already an important element of State practice129 by complying with the elimination of their head of state immunities provides a sense of legal obligation. In addition, the fact that other states not party to the Treaty, such as the case of Côte d'Ivoire, have accepted the treaty provision, can support Article 27 to “quickly become part of customary international law”130.
124Claus Kreß, 'Preliminary Observations On The ICC Appeals Chamber’S Judgment Of 6 May 2019 In The Jordan Referral Re Al-Bashir Appeal' (Toaep.org, 2019)
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The increased reference to the international community and the protection of common interests emphasises the constructivist notion change of norms through interaction and perception of reality. This chapter underlines that concepts such as sovereignty and the representative form reflected in immunities are not objectively true “but is the product of states constantly defining and redefining it through social interactions”131. The progressive disregard of immunities can lead to the construction of an exception deeply rooted in the morality of norms, upholding the protection of human rights. However, not all social norms are legal norms, what distinguishes law is not the traditional conceptions of pedigree, hierarchy or force but adherence to specific criteria of legality which will be analysed in the next chapter.
131Jutta Brunnée and Stephen J. Toope, 'Interactional International Law: An Introduction' (International Theory, 307–318, 2011)
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CHAPTER 4: ICC DECISIONS IN THE AL BASHIR CASE AND THE CUSTOMARY ROUTE: PRINCIPLES OF LEGALITY
In 2009 Pre-trial Chamber issued the first decision confirming the application of an arrest warrant for Al Bashir, a sitting head of state. The Court based its jurisdiction on the UNSC referral Resolution 1593132 under Chapter VII of the Charter of the United Nations133. However, the PTC failed to consider whether Bashir’s immunity must be respected at the national level, disregarding Article 98(1). Such a failure to clarify the legal obligations of member States towards immunities of non-member states has generated significant jurisprudence through ICC decisions. There have been nine judgements since the Arrest Warrant in 2009134 and 2010 at the Pre Trial level, Malawi in 2011135, Chad in 2011136 and 2013137, Nigeria in 2013138, DRC in 2014139, South Africa in 2015140, Uganda in 2016141 and Djibouti in 2016142. The Jordan decision is the first to be decided at the Appeals Chamber level aiming to end the debate of non-compliance143. The numerous decisions represent what
132 UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 133It considered firstly, the preamble of the statute setting the goal to put an end to impunity. Secondly, Article 27(1)(2) ground irrelevance of official capacity principles. Thirdly, the referral pursuant to article 13(b) stating the UNSC acceptance of the investigation in accordance with the Statute’s framework. See Prosecutor v. Omar Hassan 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 04 134 Prosecutor v. Omar Hassan 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 04 135 Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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, ICC, 12 December 2011, ICC-02/05-01/09-139 136Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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 137Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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 138Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision Regarding Omar Al-Bashir's Visit to the Federal Republic of Nigeria ICC-02/05-01/09-157 15 July 2013, Decision, ICC-02/05-01/09-157 139Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, 2014, ICC-02/05-01/09 140Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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 141Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision on the non-compliance by the Republic of Uganda with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute, 11 July 2016, ICC-02/05-01/09-267 142Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision on the non-compliance by the Republic of Djibouti with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute, 11 July 2016, ICC-02/05-01/09-266. para 11-13 143Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision under article 87(7) of the Rome Statute on the noncompliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir, 11 December 2017, ICC-02/05-01/09-309
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Goldsmith called the “travelling dictator exception” and one of the main flaws of the Rome Statute144.
This chapter will analyse the different rationales using relevant ICC decisions dealing with personal immunities. Although there is no doctrine of binding precedent in international law and decisions are only binding to the parties to the specific case145, most international tribunals make use of past cases as a guide to the content of international law146. Moreover, Article 38(1)(d) of the ICJ does not distinguish between decisions of international and national courts as a source of subsidiary international law147. The rationales will be divided into different routes, analyzing their legality and legitimacy. The Customary Law route will be further analysed in detail taking into consideration the Rome Statute and general principles of international law. Conclusions on the customary law route will be further established using the interactional law theory applying Lon Fuller’s eight principles of legality.
4.1 Security Council Route The Security Council route is based on the Agreement between the UN and the ICC148 and paragraph 2 of UNSC Resolution 1593 providing that Sudan “shall” cooperate fully with the Court149. Particularly the ICC decisions of DRC and South Africa deal with Al Bashir’s immunities through this route.
Both ICC decisions waive immunities through the UNSC referral but in distinct ways. In the DRC immunities are implicitly waived by Resolution 1593 by obliging Sudan to cooperate, eliminating any procedural obstacle. Under Article 103 of the UN Charter150, such obligations prevail over other international agreement, solving the horizontal level impediments, also erasing the obstacles set by the membership to the AU151. This perspective was also found in
144Jack Goldsmith, 'The Self-Defeating International Criminal Court' (2003) 70 The University of Chicago Law Review. p. 89–104 145Article 59 of the Statute of the International Court of Justice 146 Christopher Greenwood, 'Sources Of International Law: An Introduction' (Legal.un.org, 2008)
30 the Ugandan and Djibouti decisions152. This exposes a number of problems, firstly that the UNSC referral language does not explicitly waiver Al Bashir’s immunities. Secondly, clause 2 of the Resolution153 uses the word “urges” and according to experts, such lingo does not imply an obligation as “requires or “decides” would154. On the other hand, in South Africa, immunities are also eliminated through the referral but as a result of putting Sudan at the same position as member states to the Rome Statute and therefore applying Article 27(2) to remove the immunities155. This interpretation deals better with state consent as it does not directly impose the Rome Statute to third parties, rather, the Resolution only confers jurisdiction to the ICC by means of Article 25 of the UN Charter156. Nevertheless, it still relies on the abstract language of the Resolution and does not acknowledge the political aspect of the UNSC powers addressed below.
This thesis holds that the main objection to the Security Council Route and its interpretation of Article 103 of the UN Charter is that it fails to consider the restrictions of the UNSC by customary international law. It may imply that Chapter VII can override custom and would be against the agreement-custom distinction. Consequently, it may be argued that UNSC referral can only disregard immunities if it does not contradict customary law, therefore implying the possibility of an exception. It also raises the question on the legal powers of the Council to invoke Chapter VII set in Article 39. The Tadić case recognized that the Council does not have absolute power and it is not legibus solutus, unbound by law157. Article 13(b), conferring referral powers on the UNSC, also raises the question of the legality of the Article in triggering the ICC’s jurisdiction on non-state parties and its relationship as a political body to the Court. By including Article13(b), the Rome Statute imposes obligations to non-state parties concerning crimes under Article 5 without their consent and violating Article 34 of the
152Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision on the non-compliance by the Republic of Djibouti with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute, 11 July 2016, ICC-02/05-01/09-266 para 11-13 153“while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully” See UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593 154 Sarah Nouwen and Mogogo Albanese, 'Arresting Bashir: How The ICC Has Violated Its Own Statute - African Arguments' (African Arguments, 2009)
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VCLT. This is more apparent as the US, China and Russia, permanent members of the Council are not ICC members yet have the power to bind third states to the Statute while individually stating that this would not apply to their nationals.
4.2 Genocide Convention Route and War Crimes In the South African decision, another route was identified by Judge Brichamaout in his minority opinion158. It is based on Sudan’s ratification of the Genocide Convention and jurisdiction of the Court as an international penal tribunal applicable to Sudan. The second arrest warrant of 2010 was issued to arrest Al Bashir for criminal responsibility under Article 25(3)(a) of the Statute for genocide pursuant to Article 6(a)(b)(c)159. The jus cogens status of genocide is especially important as such a rule will prevail over inconsistent rules of customary international law. The central question on immunities is present in Article IV of the Genocide Convention160 stating that such a person shall be punished, whether “they are constitutionally responsible rulers, public officials or private individuals”. This suggests that official capacity is irrelevant when dealing with a charge of genocide and its extension to “constitutionally responsible rulers” reflecting the removal of personal immunities of Head of States while in office. Moreover, the travaux préparatoire of the Convention also reveals that “States were committed to bringing even the highest officials to justice”161. Article 1 of the Convention also confirms the aim to prevent and punish such crimes. Article VI of the Convention provides that “a person charged with genocide” shall be tried by an “international penal tribunal”. The ICJ held that an international penal tribunal covered all international criminal courts created after the Genocide convention of “potentially universal scope and competent to try the perpetrator of genocide”162.
158Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Minority Opinion of Judge Marc Perrin de Brichambaut, 6 July 2017 ICC-02/05-01/09-302-Anx 159Prosecutor v. Omar Hassan 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, p. 28 160 Article IV of the Genocide Convention: “Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals” 161Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Minority Opinion of Judge Marc Perrin de Brichambaut, 6 July 2017 ICC-02/05-01/09-302-Anx para 28 162Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits), ICJ Judgment of 26 February 2007 para. 445.
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Therefore, the ICC arrest warrant against Al Bashir may be argued to constitute the notification by the Court of his charges of genocide and therefore is considered “a person charged with genocide”. Secondly, the Court is considered an inernational penal tribunal and has jurisdiction over the crime of genocide persuant to article 5 and 6 of the Statute. Moreover, Article V of the Genocide Convention may also be interpreted as requiring to include national legislation lifting personal immunity from genocide perpetrators. Thirdly, Article VI According to the ICJ, Article VI of the Convention poses the obligation to cooperate, including the arrest and surrender of the accused person to the tribunal163. Consequently, the Genocide Convention erodes Al Bashir immunities concerning another member of the Genocide Convention that has obligations to arrest him when presented in his territory.
Following the same analysis, a similar conclusion may arise whereby non-state parties to the ICC have the obligation to cooperate from the Geneva Convention and Additional Protocol I pursuant to commun Article 1164 setting obligation to “respect and ensure respect” for IHL “in all circumstances”. The ICC has also jurisdiction over war crimes as stated in Article 8 of the Rome Statute, which constitute grave breaches of the 1949 Geneva Conventions165. Nearly all countries have ratified or acceded the Geneva Convention and have become part of customary international law166. Norms of customary international humanitarian law also
163Ibid., para. 443. 164Article 1 of the International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31, 1949, Article 1 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 UNTS 85,1949, Article 1 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 UNTS 135, 1949, Article 1 of the IGeneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287, 1949, Article 1 of theProtocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3, 1977 165Article 3 common to the four Geneva Convention and grave breaches defined in Article 50 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31, 1949, Article 51 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 UNTS 85,1949, Article 130 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 UNTS 135, 1949, Article 147 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287, 1949 and Articles 11 and 85 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3, 1977 166Claus Kreß, 'Preliminary Observations On The ICC Appeals Chamber’S Judgment Of 6 May 2019 In The Jordan Referral Re Al-Bashir Appeal' (Toaep.org, 2019)
33 provide further non reciprocal167 respect and comply with IHL168 and obligation to prosecute war crimes169 including universal jurisdiction170 by all countries. This was reinforced by the ICJ ruling in the Nicaragua case171. Most importantly, customary international humanitarian law provides for individual criminal responsibility over war crimes172. The ICC was established to pursue violations of the Conventions, non-state parties have the obligation to “ensure respect” by cooperating with the ICC or at least not obstacle action to prevent or punish violations. This may include disregard of personal immunities when an arrest warrant is issued.
4.3. Customary Law Route The ICC Pre Trial Chamber’s reasoning in the decisions of non-compliance by Malawi and Chad in 2011 and the most recent decision of non-compliance by Jordan found that heads of State immunities are not a bar before international courts based on customary law. Nevertheless, there are significant differences between them. The Malawi decision found that “customary international law creates an exception to heads of State immunity when international courts seek a Head of State arrest for the commission of international crimes”173. The Jordan decision held that there is an “absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts”174 as “there is neither State
167Rule 140. The obligation to respect and ensure respect for international humanitarian law does not depend on reciprocity. See Jean-Marie Henckaerts, Louise Doswald-Beck and Carolin Alvermann, Customary International Humanitarian Law (Cambridge University Press 2005). p. 498 168Rule 139. Each party to the conflict must respect and ensure respect for international humanitarian law by its armed forces and other persons or groups acting in fact on its instructions, or under its direction or control. Ibid., p.495 169Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects. Ibid., p.607 170Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes. “States must exercise the criminal jurisdiction which their national legislation confers upon their courts, be it limited to territorial and personal jurisdiction, or include universal jurisdiction, which is obligatory for grave breaches.” Ibid., p.604-607 171 ‘‘There is an obligation on the United States Government, in the terms of Article 1 of the Geneva Conventions, to ‘‘respect’’ the Conventions and even ‘‘to ensure respect’’ for them ‘‘in all circumstances,’’ since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression.” and ‘‘The United States is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four Geneva Conventions’’ See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), Merits, Judgment, ICJ Reports 1986, p. 114, para. 220. 172 Rule 151. Individuals are criminally responsible for war crimes they commit. See Jean-Marie Henckaerts, Louise Doswald-Beck and Carolin Alvermann, Customary International Humanitarian Law (Cambridge University Press 2005). p. 551 173Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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, ICC, 12 December 2011, ICC-02/05-01/09-139 paras. 22 43. - 174Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, Appeals Chamber, (‘Judgment’) 6 May 2019, ICC-02/05-01/09-397-Corr. para 114
34 practice nor opinio juris that would support the existence of Head of State immunity under customary law vis-à-vis an international court”175. The conclusion is fairly ambiguous as it is the result of a change of the burden of proof, instead of an analysis of the merits of State practice and opinio juris. Some authors have criticized such method, calling it an “easy trick” to establish that there is, in fact, no immunity before international courts without any legal basis176.
In the Malawi and Chad Decisions, the Chamber concluded that Article 98(1) does not apply firstly, due to the rejection of immunity in relevant history177 and the increased Head of State prosecution178. Secondly, immunities are waived by the signatory parties acceptance of Article 27(2) and non-signatory parties acceptance of UNSC referral allowing the persecution of “heads of state who might ordinarily have immunity from domestic prosecution”179. Finally, the existence of an exception results in the non-applicability of Article 98(1), as the rule extended to the state-state relationship. The exception is extended to the horizontal level because states when arresting and surrendering a person sought by the ICC are acting on behalf of the Court180.
The ambiguous Jordan Decision181 building on previous decisions found that the three routes were, in fact, correct, the Security Council route whereby states are analogous to member states, the Genocide convention route and finally the Customary law route. The Appeals Chamber decision on Jordan held that Article 27(2) is considered to be more than a stipulation in treaty law but reflects the absence status of head of state immunity before an
175According to Kreß, the “scope of the recognized customary Head of State immunity rule has never developed up to the point to include international criminal courts” Claus Kreß, 'Preliminary Observations On The ICC Appeals Chamber’S Judgment Of 6 May 2019 In The Jordan Referral Re Al-Bashir Appeal' (Toaep.org, 2019) p.7 176Sarah M.H. Nouwen, 'Return To Sender' (Cambridge Law Journal, 2019) p. 608 177 Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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 p. 7-8 178 Charles Taylor case, Muammar Gaddafi case, Laurent Gbagbo case and the present case 179 Interpreting Article 98(1) as a justification not to surrender Al Bashir would contradict the purpose of the treaty. See 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 p.19 180Prosecutor v. Omar Hassan Ahmad Al-Bashir, 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, ICC, 12 December 2011, ICC-02/05-01/09-139 para 46 181 The Jordan decision was marked by the participation and diverging views between Jordan, the African Union, the League of Arab States and 16 law professors and amici. The result was also ambiguous taking into consideration the Joint Concurring Opinion with 4 or of 5 judge's signatures.
35 international court in customary law, affecting not only vertical but also horizontal immunity using the surrogacy argument. The “surrogacy argument”182 explains how Al Bashir cannot benefit from immunities before the Court and also be deprived of them in relation to Jordan. This is argued because state parties are exercising the Court's jurisdiction, not their own, and therefore the “ordinary law on immunities”183 don't apply. This issue is deal through the combination of Article 4(2)184 that enables the court to exercise its functions on member state territories and Article 59185 which ensures that this exercise is done respecting domestic legal order.
The vexed question186 and surrogacy argument do not need the SC Referral but the Jordan decision relied on the Security Council Route for the relationship between member states and non-member state parties. This may mean that the customary law route ultimately is not applicable without a SC Resolution as it mentions that “this conclusion, as it specifically concerns Resolution 1593 (2005), depends on the unique circumstances of that resolution as a Chapter VII measure”187.
4.3.1 Analysis of Article 27 and Article 98 and General Principles of International Law Article 98(1) can be said to represent two pre-existing norms, the prohibition of imposing treaty obligations to third states and the recognition of a customary norm on immunities. A priori, countries, therefore, have competing obligations of surrendering a person under an Arrest Warrant while having to respect their obligations under customary rules, if first, the ICC has not obtained a waiver of the immunity by the national’s state. Some authors believe Article 98(1) does not recognize any immunity rather, it only includes procedural requirements for the court to consider if the state has an obligation that could conflict with the request188. However, if there is no tension between the Articles, it would fail to explain why
182Prosecutor v. Omar Hassan Ahmad Al-Bashir, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, 6 May 2019,ICC-02/05-01/09-397-Anx1 p.185 para 441-445 183Sarah M.H. Nouwen, 'Return To Sender' (Cambridge Law Journal, 2019) p.606 184 Article 4(2) of the Rome Statute of the International Criminal Court. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State. 185Article 54 of the Rome Statute of the International Criminal Court 186Prosecutor v. Omar Hassan Ahmad Al-Bashir, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, 6 May 2019,ICC-02/05-01/09-397-Anx1 p.185 para 441 187Ibid., Para 445 188It implies a procedural requirement for the court to issue an arrest warrant but can’t be raised as a protection of immunities. Claus Kreß, 'Preliminary Observations On The ICC Appeals Chamber’S Judgment Of 6 May 2019 In The Jordan Referral Re Al-Bashir Appeal' (Toaep.org, 2019) p.5
36 there is Article 98(1) in the first place, as national authorities then could never raise immunities as an obstacle to cooperate with the Court, rendering the article redundant189.
The first principle to deduce190 the obligation in Article 98 is par in parem non habet imperium, whereby treaties can only impose a legal obligation on signatory parties to the Treaty. Nevertheless, the principle is based on sovereign equality and would not pose contradictions if international courts are not acting on behalf of states but as representations of the international community191. Courts acting as the “direct embodiment of the international community for the purpose of enforcing its ius puniendi”192, would make such a group of states act transcending the limitations of their state capacity.
It could be argued that even if international courts are not acting on behalf of the international community, Article 38 of the VCLT could be raised. Article 38 of VCLT states that “nothing in Articles 34 to 37 preclude a rule set forth in a treaty from becoming binding upon a third state as a customary rule of international law, recognised as such”193. This represents the mutual influence between customary law and treaty formation. Treaties can evidence pre-existing customary law or impulse for the formation of new customary law through state practice194. Therefore, treaties can assist in the crystallization of a change in rules of customary international law.195 Such crystallization of an exception to the customary law would be a reflection of irrelevance of official capacity, and thus considered in statu nascendi 196, codified in Article 27(2).
189This has also been pointed out to be contrary to the basic principles of treaty interpretation. See Dapo Akande, 'ICC Issues Detailed Decision On Bashir’S Immunity' (EJIL: Talk!, 2011)
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The relationship between third parties and treaties is also referred to in the general formula of pacta tertiis nec nocent nec prosunt197, codified in Art 34 of the VCLT and upheld by the ICJ in The Lotus Case198. A treaty is considered res inter alios acta which means that something done between others does not harm or benefit others. However, other values of international criminal justice can also be raised. Principles such as individual criminal responsibility or end of impunity could outweigh other conflicting principles199 as there is no clear answer to the hierarchy of general principles200. Nevertheless, scholars Professor Christenson201 holds the notion that jus cogens permits the exercise of a hierarchy of general principles and may overturn or modify customary law202. The ICTY also noted that justice for international crimes is “comparatively higher” than the injury caused to the sovereignty of States203. The ICJ linked the prohibition of genocide to fundamental values, inspired by the commitment “to condemn and punish genocide as ‘a crime under international law” and fundamentally “contrary to moral law and to the spirit and aims of the United Nations”204. Similarly, the Rome Statute upholds these principles in the object and purpose in its preamble’s aim to end of impunity for the perpetration of core crimes205.
4.3.2 Exception Rationale In international law, conflicts of rules are very frequent which makes exceptions play an important role in the field. Such conflicts may arise because of its fragmented nature or
197The principle is defined by the Oxford Dictionary as a treaty binds the parties and only the parties#, meaning that it does not create obligations for third parties. See Pacta Tertiis Nec Nocent Nec Prosunt' (Oxford Reference)
38 because of the increasing interaction between domestic, regional and international legal orders. Moreover, academics increasingly believe that formal sources of international law are decreasing whereas more importance is given to real-world effectiveness and political legitimacy206. Exceptions are defined as “the situation in which a rule is applicable to, but nevertheless not applied to the case”207.
The ILC has not directly addressed a standardized method to the identification of exceptions of customary norms. Nevertheless, the Study Group on Fragmentation208 focuses on the conflicts between the emergence of a lex specialis as an exception to the general law created by the special properties of the subject matter. According to the Study group, in the relation between these two rules, the more specific rule should take precedence over the general standard209. The principle of lex specialis applies also to non treaty standards, including the relation between general and special custom210. Therefore, an exception may be derogated from a customary norm through the principle of lex specialis. The ICL does not identify a separate method to analyse exceptions in customary law211, it upholds the traditional two-element approach212. For the identification of an exception to customary norms, the ICJ also resorted to the two-element approach213 but relied especially on state practice. Moreover, it has been acknowledge that state practice is especially important to establish a change in customary law214. In the case Schooner-Exchange v. Mc Faddon the US Supreme Court established that when there is an absence of previous regimes the applicable rules can be inferred by general principles or analogy but in practice resorted to the dual system215.
206 Martti Koskenniemi, 'The Power Of Legitimacy Among Nations By Thomas M. Franck. New York, Oxford: Oxford University Press, 1990.' (2017) 86 The American Journal of International Law. p.9 207Ibid, p.9 208ILC “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, Report of the Study Group of the International Law Commission, (13 April 2006) UN Doc. A/CN.4/L.682. para 50 209 Ibid., p 35 para 57 210 Ibid., p 47 para 84 211 “The Commission, in fact, upholds the traditional two-elements approach with reference to the formation and the identification both of custom- ary rules and of exceptions to them, and makes no mention whatsoever of an allegedly differentiated identification standard.” See Mariangela La Manna, 'The Standards For The Identification Of Exceptions To Customary Law' (2018) 27 The Italian Yearbook of International Law Online. p.153 212 The “two-element approach” is based on the traditional analysis of State practice and opinio juris for the identification of customary law and can include both inductive and deductive perspectives. See ILC “Draft conclusions on identification of customary international law adopted by the International Law Commission”,(30 April–1 June and 2 July–10 August 2018) A/73/10. p. 126-126 213North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/ Netherlands), (1969) I.C.J. Reports 3. p. 3 paras. 70 - 77 214Mariangela La Manna, 'The Standards For The Identification Of Exceptions To Customary Law' (2018) 27 The Italian Yearbook of International Law Online. p.157 215The Schooner Exchange v. McFaddon and others 11 US 116 (1812)
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Following the rule-exception structure, Article 27 and Article 98 (1) fall within a conflict of compliance, “whereby the conflicting rules prescribe incompatible forms of behaviour”216. Similarly, Article 27 can also imply incompatibility with rules of other normative systems, as Jordan is a member state of the Rome Statute but also a party of the 1953 Convention on the Privileges and Immunities of the Arab League217.
To deal with the conflict of norms, the consequences of such norms can be balanced because, if a norm leads to undesirable consequences, “this is a reason against the application of the rule to that case”218. Scholars have argued that the complete rejection of immunities of ICC crimes is overweight for justice219 and that state parties should ignore immunities even of non-state parties to the ICC220. Through this perspective, Article 98(1) results in immunity and therefore an undesirable consequence. Moreover, according to experts, determining which rule prevails over the other rule must be analyzed through its coherence, lex specialis and lex posterior221. In relation to coherence, in this case, Article 27 should outweigh Article 98(1) as it better fits the legal system, contributing to the purpose and objective of the Rome Statute. Secondly, the more specific rule, lex specialis, and the more recent rule lex posterior, prevail over more general or older rules. The rule stated in Article 98(1) puts forward both a general rule concerning immunities and an older rule referring to the original notion of immunities for the conduct of international relations. Therefore, following a conflict of rule or “rebutting defeaters”222 analysis, Article 27 prevails over Article 98(1). This analysis
216Jaap Hage and Antonia Waltermann, 'Exceptions In International Law' (Academia.edu, 2020)
40 supports the existence of an exception to the rule on immunities and shows that the Malawi Referral Decision stands on sounder grounds.
This is supported by Sadat’s argument that the travaux préparatoires of the Rome Statute, as well as other sources, indicate that Article 27(1) of the Rome Statute codifies such an exception before the ICC regarding the jus cogens crimes in the Rome Statute223. States ratifying the Rome Statute after its adoption in 1998 accepted this understanding of Article 27 because, as the Appeals Chamber notes, they accepted that an international court, such as the ad hoc tribunals or the ICC, exercises jurisdiction in a different manner than national courts224 . This is congruent with the increased understanding that immunities are rejected when there are violations of jus cogens. Al Bashir is prosecuted for this violation of jus cogens norms that would render 98(1) irrelevant. Therefore, it could be understood that Article 27 was a declaration of custom through the signing of the Rome Statute. A rule that is found in a treaty can bind a third state since, at the same time, it is also considered to be a rule of international customary law. Therefore, parties of the treaty are bound both by the treaty provision and by the custom whereas non-state parties are only bound by the custom. This was already established in the ICJ Nicaragua case where it was ruled that a norm of international customary law and treaty law can exist in parallel225. However, Article 38 is only applicable when such custom is recognised 226.
In the horizontal level, the Court can request non-member state assistance pursuant to Article 87(5). This is supported by the inclusion of “or any other appropriate basis” under Article 87(5)(a). This could also be applicable in the case of not having a SC referral227 relying on the existence of an exception to customary international law, the Court could also invite a non-state party to cooperate based on this exception.
223Leila Sadat, 'Why The ICC’S Judgment In The Al-Bashir Case Wasn’T So Surprising' (Just Security, 2019)
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4.3.3 Customary law Route and Lon Fuller’s eight principles of legality Having analyzed the internal rationale of the customary exception, the norm must meet the 8 principles of legality to be considered a comprehensive legal norm and create a sense of obligation228. According to Lon Fuller legal norms must be (1) sufficiently general, (2) publicly promulgated, (3) prospective, (4) at least minimally clear and intelligible, (5) free of contradictions, (6) relatively constant, so that they don't continuously change from day to day, (7) possible to obey, and (8) administered in a way that does not wildly diverge from their obvious or apparent meaning229.
The exception to head of State personal immunities under customary law prohibits personal immunities as a bar from prosecution in the vertical relationship between the State of the accused and the international court. The exception also extends to the horizontal relationship as the State is acting on behalf of the Court and the international community. This is also upheld by the treaty-based obligations arising from the Genocide Convention and Geneva Conventions. Therefore the norm is general as it is not deployed in an ad hoc manner but applies to all situations where a head of State is charged with international crimes and sought by an international court (1). It has been promulgated, and therefore accessible to the public, enabling actors to know what the law requires by means of Article 27 and by findings in all ICC judgements upholding the obligation to arrest Al Bashir. (2). The law is prospective, the fact that all previous rulings stressed the need to arrest and surrender Al Bashir prior to the Jordan decision makes such promulgation not retroactive. Moreover, other international courts and tribunals establish similar precedents as shown in chapter 3 (3). However, since the issue of Al Bashir’s arrest warrants in 2009 and 2010, there has been no resolution of key questions that surround his arrest. The International Law Commission had the opportunity to address the possibility under customary law to arrest a sitting head of state of another state
228When the eight criteria are met, the different actors engaging with the norm will be able to reason with it through shared standards. Such standards will guide not only actors but also decision-makers and will produce its own adherence or fidelity to the legal norm. Fidelity or “obligation” is created because it is seen as legitimate by the actors that address it. See Lon L. Fuller, The Morality Of Law (1st edn, Yale University Press 2000). And Jutta Brunnée and Stephen J. Toope, 'Interactional International Law: An Introduction' (International Theory, 2010) p.33 229Lon L. Fuller, The Morality Of Law (1st edn, Yale University Press 2000). And Jutta Brunnée and Stephen J. Toope, 'Interactional International Law: An Introduction' (International Theory, 2010) p. 33
42 pursuant the ICC but did not provide such answer230. Nor did it present it to the Sixth Committee of the United Nations General Assembly for discussion231. The United Nations Security Council did not resolve such issues after issuing the Resolution. Similarly, the ICC did not resolve this issue through the Assembly of State parties to the ICC previous to the Appeal Chamber decision. Furthermore, scholars have also describe the decisions as vague and difficult, especially the Jordan decision232. This makes it difficult for actors, not only states but also scholars, to understand what is permitted, prohibited or required by law, weakening its clarity (4). Having resolved the conflicting notion of Article 27 and Article 98, the exception does not require conflicting action. Article 27 reflects the exception in customary law, prevailing over Article 98 and is consistent with general principles of international law and the VCLT (5). The exception, therefore, does not require actions that are impossible to perform as States have obligations under the Statute and customary law. Moreover, pursuant to Article 87(5)(a) inclusion of “or any other appropriate basis”, the Court can invite a non-state party to cooperate on the basis of this exception (6). The inconsistency of the Court’s rulings impacts on the legitimacy of the Court but does not fully impact the existence of an exception to the customary norm. Variations and different interpretations are understood due to the independent capacity of judges and the interpretative space set in Article 12(2). However, certainty and predictability are keystones in fostering authority for a relatively new court system233. Therefore, the case by case assessment of immunities by the ICC along with the limited precedents undercuts criteria of stability whereby rules must be constant over time (7). Finally, the exception is not congruent with the rulings because, although they have all resulted in non-compliance, the consequences have not been consistent. The logical consequence is the referrals to the ASP and UNSC, however, the cases of Nigeria, South Africa, and Jordan have not been referred. Moreover, even when there is a referral, there is little action or no action by the UNSC or the ASP, limiting the congruence of enforcement of rule (8).
230Adil Haque, 'Head Of State Immunity Is Too Important For The International Court Of Justice' (Just Security, 2020)
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4.4 Conclusion After analyzing all of the possible routes, this thesis finds several conclusions. Firstly, the Security Council Route relies on abstract language to remove immunities and fails to consider the relation between SC powers and customary law, weakening its legitimacy. Secondly, the Genocide Convention and war crimes Route provide sounder legal grounds to remove immunity and confering jursidiction to the ICC over these crimes. Finally, the legality of the Customary law route has been upheld by the non conflictual relationship between Article 27 and 98, general principles of international law and the exception rationale. However, the exception does not meet Lon Fuller’s principles of legality and therefore can’t be considered a comprehensive legal norm at this point of time.
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CHAPTER 5: PRACTICE FOLLOWING THE AL BASHIR CASE: PRACTICE OF LEGALITY
This chapter will analyze the international response to the Al Bashir case, especially after the last and most relevant decision on Jordan, to determine practice of legality and a possible tipping point. According to interactional theory, international society builds reciprocity by participating in the legal system and only when this practice is congruent, it creates obligations234.
Until there is a more consistent practice by states and court decisions, the analysis will generalize inductively from limited practice235. For this analysis, it is important to note that there is disagreement on the duration and frequency of practice to satisfy the definition as well as the number of States to take into consideration236. Consequently, the determination of state practice is often highly selective and takes into account only “major powers and the most affected states”237. Other existing theories suggest that in some circumstances “powerful states may have a greater stake in complying with CIL rules” because the potential consequence of their action and possibility to establish a precedent are greater238.
It is also significant to point out the findings of the latest ILC the Eight report on immunities of state officials in April 2020239. This is important as studies made by the ILC for the
234 Declaration of common values is not sufficient, legal obligations need to be complied by a community of practice, to maintain the influence of a legal obligation. There is a community of practice dealing with Head of State immunities as there are numerous participants that pursue similar or competing objectives. These participants include the ICC and member states, scholars, NGOs and other actors involved with global justice objectives. See Jutta Brunnée and Stephen J. Toope, 'Interactional International Law: An Introduction' (International Theory, 307–318, 2011)
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General Assembly, “may also have an important effect on customary international law240. Although the Report maintains that the findings in the Jordan decisions should be understood in the context of the Rome Statute241, it can be argued that Special Rapporteur Concepción Escobar Hernández gives weight to the customary route by saying that it “may have some bearing on the present topic, particularly on the very concept of foreign criminal jurisdiction” 242. Moreover, she explicitly said that the Commission could not disregard international criminal tribunals in the fight against impunity as ruled in the Arrest Warrant case243.
5.1 The Rome Statute and National Legislations The first step to prove that the shared understanding of irrelevance of capacity is grounded on a practice of legality is for member states to adopt domestic laws that implicitly or explicitly discard personal head of State immunity from arrest when a request is made by the ICC244. There is consistent evidence that countries245 have changed their national legislation with regards to this understanding and include representation from different parts of the world, including African countries246. In these laws, it is evident that the involvement of an international court alters the application of head of state immunities of their nationals. It also provides grounds to establish that these states believe they are bound by the Rome Statute
240Christopher Greenwood, 'Sources Of International Law: An Introduction' (Legal.un.org, 2008)
46 and by Article 27. The provisions of treaties are not customary international law by themselves but may provide “an explicit expression of the will of states” offering valuable evidence of the existence and content of a customary norm247. A treaty provision can lead to the “crystallization of a rule that may be emerging”248. It requires that the provision be articulated in general terms, so as to potentially be universally binding”249 and that those most affected states recognize that a legal obligation is involved. As seen by provision 27 and its implementation in national legislation, the provision could be in the process of crystallization.
The ILC pointed out the progressive development of customary law through treaties as they seek to clarify or further develop it250. Draft conclusion 11 in the second report also includes “treaty practice” among the forms of evidence of acceptance of general practice as law251 The Rome Statute can be seen as an authoritative statement of customary law concerning Head of State immunity and impunity. An example of this mutual influence between custom and treaty is identified in the VCLT, having 45 signatories and 116 state parties (less than half of world states), has been considered as codifying customary law and apply to all States including non members252. Moreover, the fact that a large number of states agreed on a treaty provision, it is already an important element of State practice253.
5.2 Most affected states and international response Al Bashir was able to travel to 14 countries after the issue of the arrest warrant, 8 signatory countries254 and 4 non-ICC state parties255. These countries have deliberately not arrested Al Bashir and could be seen as contributing to state practice, however, it is not clearly
247ILC, “Third report on identification of customary international law by Special Rapporteur Michael Wood”, 27 March 2015, A/CN.4/682. para 33 248Ibid., para 35 249Pierre-Hugues Verdier and Erik Voeten, 'Precedents, Compliance And Change In Customary International Law: An Explanation Theory' (The American Journal of International Law , Vol. 108, No. 3 Cambridge University Press, 2014)
47 widespread nor consistent256. Moreover, the representativeness of such practice is influenced by the fact that Al Bashir's government contacted the host countries before their visit to assure that he was not going to be arrested pursuant the ICC warrant257. This could reflect an influence on state practice resulting from political considerations instead of their positioning on immunities. Creating an “agreed practice” enabling leaders to “gerrymander customary international law in their favour”258. The reluctance to arrest Al Bashir can also be attributed to the political tensions between the African Union, and African states with the ICC, due to perceived inappropriate targeting of African leaders259. As a result, and similarly to previous arguments, such state practice may be a reflection of political positions in relation to other issues which cannot contribute to the establishment of a common and consistent perspective on the issue of immunities and custom.
The fact that none of the 14 countries have arrested Al Bashir and the little international reaction for non-compliance can be perceived as “passive practice, abstention from acting, silence or omission”260, amounting to inaction. Some authors suggest that the consistency of the actions of the ICC, an international organization, can only be determined by the reactions of states261, However, decisions of international courts and tribunals concerning the existence of rules of customary law are “considered as a substantial means to determine such rule”262. The fact that the ICC did not refer Jordan to the UNSC and the ASP could also be perceived as inaction. In the dissenting opinion judges Ibáñez and Bossa explicitly criticized the non-referral as “contrary to the object and purpose of the Rome Statute” and could be
256Adil Ahmad Haque, 'Head Of State Immunity Is Too Important For The International Court Of Justice' (Just Security, 2020)
48 perceived as “inaction by the Court”263. Nevertheless, following the same argument, silence of ICC members can be considered as a form of evidence of their acceptance as law264 of the ICC decisions. Even though it is not clear if the “circumstances called for some reaction”265. There was also a little reaction to the ICC decision in the 18th Session of the Assembly of State Parties where only criticism was addressed by the African Union266. There was small criticism in the ASP Eighteenth session by the African Union267 and observer countries such as China268. In previous rulings, there was an existing reaction but similarly scarce.
5.2.1 Sudan In February 2020, the Sudanese transitional government surprisingly agreed to hand over Al Bashir to the ICC to face charges of war crimes and genocide and accepting the Court’s jurisdiction269. The spokesman of the Sudanese government stressed that this was a decision that was asked for by the Sudanese people and expressed the view of the government270. Nevertheless, Al Bashir was deposed in a coup d’état in April 2019 and therefore provides little legal significance to the question of personal immunities. Al Bashir has still not been extradited as he is currently imprisoned in the Sudanese capital271 facing crimes of illegal acquisition and use of foreign funds and cooperation with the Court for extradition are still
263Prosecutor v. Omar Hassan Ahmad Al-Bashir, Joint Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa, May 6, 2019, ICC-02/05-01/09-397-Anx2 p.11 para 15 264ILC “Draft conclusions on identification of customary international law adopted by the International Law Commission”,(30 April–1 June and 2 July–10 August 2018) A/73/10. p. 122 265Ibid, p.120 See “[t]he absence of reaction may well amount to acquiescence...[t]hat is to say, silence may also speak, but only if the conduct of the other State calls for a response” 266Statement of the African Union by Amb. Dr Nmira Negm, 18th Session of the Assembly of State Parties.
49 ongoing272. This decision to surrender the now-former president Al Bashir can be understood as adherence and increasing understanding of an exception to the customary norm.
5.3. Practice of International Organizations The ILC on the identification of customary law established in Conclusion 4(2) on the Requirement of Practice, that the practice of IOs also contributed to the formation or expression of rules of customary law273. Moreover, Conclusion 12(2) holds that a resolution adopted by an IO may provide evidence for determining the existence and content of a rule of customary international law274. Resolutions also provide evidence of custom but the UN body cited in the report is the General Assembly. However, votes and statements of individual States in IOs may count as opinio juris as “the practice of States within international organizations attributed to States themselves”275.
5.3.1 UNSC and Statements by Member States The UNSC is treaty-based and states have delegated their decision making powers to the Council to act on their behalf. UNSC Resolutions therefore reflect state practice of all members as the representation of the international community. The United Nations in 2005 took an exceptional step by referring the situation to the ICC for investigation through Resolution 1593276. Individual member state practice and opinio juris can also be inferred from the State’s statements attached to it. The Security Council, acting under Chapter VII of the United Nations Chamber, adopted the Resolution with 11 votes in favour, none against and 4 abstentions277. The fact that there were no votes against the resolution, highlights that
272“We have fully committed to cooperating with the ICC and we so far confirm that we are committed to let all wanted persons appear in court - but the exact location where the trial will take place is still something that we are discussing between us in the transitional government and with the ICC,” Statement by Faisal Mohamed Salih, spokesperson and Minister of Information. Mohammed Amin, '‘Suspect Still At Large’: Why Sudan Hasn’T Handed Omar Bashir Over To The ICC' (Middle East Eye, 2020)
50 even if some countries oppose some aspects of the Court and its jurisdiction, all countries believe in ending close to impunity in Sudan. This is upheld by the reference to “the Government of the Sudan” thus addressing the senior officials taking part in the conflict. This may imply that the Resolution already contemplated the exception on immunities of Head of state officials.
Delegations such as the Argentinian portrayed the Resolution as a “crucial precedent”, and understood that the ICC was the place to deal with such immunity. The French delegation also claimed that it “sent a message further than Darfur” and “reaffirmed his confidence in the ICC and hoped that those clauses concerning immunity from the Court would be dropped very soon”278. However, the core issue with the Security Council is the veto capacity of the five permanent member states. Even if China and the US did not vote against the Resolution, they absented their votes. The US statement attached to Resolution 1593 stated that under no circumstance US citizens could be prosecuted before the Court. Similarly China after saying that Sudan should waiver its immunities, it did not do any action to request such consent and stressed that “we cannot accept any exercise of the ICC’s jurisdiction against the will of non-State parties”279. Therefore, although these countries did not oppose the jurisdiction of the Court in the case of Sudan, it would be different for any of their nationals as they have veto power.
On 19 June 2019, Prosecutor Fatou Bensouda addressed the Security Council in the 8554th meeting addressing the Jordan decision and cooperation with the Court280. Most countries unequivocally confirmed the decision of the Appeal Chamber and reaffirmed need of Sudan to cooperate281. These statements are congruent with previous UN Security Council meetings since Resolution 1593282. Consequently, states feel bound not only by the Resolution but they
278Ibid. 279Statement by Wang Guangya, Representative of China to the UN at the Security Council 5158th Meeting, 31 March 2005, UN Doc. S/PV.5158, p. 5 280The Prosecutor stressed the aim of the ICC in its role of “ending impunity for alleged Rome Statute crimes in Darfur is essential to the maintenance of peace and security in Darfur and beyond” See UNGA “Reports of the Secretary-General on the Sudan and South Sudan, Security Council Seventy-fourth year 8554th meeting”, (19 June 2019) UN Doc S/PV.8554. p.3 281Statement by Mr. Pecsteen de Buytswerve (Belgium), statement by Mr. Allen (United Kingdom), statement by Mrs. Gasri (France), statement by Mr. Adom (Côte d’Ivoire), statement by Mr. Schulz (Germany), statement by Mr. Singer Weisinger (Dominican Republic), statement by Mr. Horna (Peru), statement by Mr. Lewicki (Poland) 282Data obtained from Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Minority Opinion of Judge Marc Perrin de Brichambaut, 6 July 2017 ICC-02/05-01/09-302-Anx p.48 footnote 122: Australia at
51 uphold the obligation to comply with the ICC Jordan decision in relation to immunities. Moreover, the need to hold perpetrators accountable and end international crimes that challenge the collective conscience, justify the need for cooperation and legal response. This is evident in statements such as the Dominican Republic intervention applauding the recent decision in the obligation to arrest irrespectively of immunities and zero tolerance for international crimes283.
Russia, China and the US, permanent SC members clearly stated their opposition to the ruling and called for States to refrain from creating friction between states284. This opinion has been also manifested in previous UNSC meetings285. Equatorial Guinea and Kuwait, similarly not party to the Rome Statute, do not recognize its jurisdiction286. South Africa also provides an alternative voice by encouraging African led initiatives287. Sudan’s former government representative also expressed its opposition to the Cour288. Therefore, these countries could be identified as persistent objectors. However, the persistent objector rule can’t be claimed for violations of jus cogens norms289. The main rationale for such an exception is the purpose the norms, “as being aimed at protecting the most crucial values of common interest and moral importance”290. Consequently, it could be argued that impunity for jus cogens violations fits in the purposes of protecting these values since not prosecuting violators would undermine the effectiveness of the norm. Furthermore, in the case of Sudan the persistent objector rule would no longer apply due to recent compliance with the Court291.
UNSC 7337th Meeting, p. 4; Columbia at UNSC 6887th Meeting p. 13; France at UNSC 6778th Meeting p. 12; Germany at UNSC 6778th Meeting, p. 18; Guatemala at UNSC 7080th Meeting, p. 10; Ukraine at UNSC 7710th Meeting, p. 9. 283UNGA “Reports of the Secretary-General on the Sudan and South Sudan, Security Council Seventy-fourth year 8554th meeting”, (19 June 2019) UN Doc S/PV.8554 p. 10 284Ibid., p. 7, 12, 13 285Data obtained from Prosecutor v. Omar Hassan Ahmad Al-Bashir, Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Minority Opinion of Judge Marc Perrin de Brichambaut, 6 July 2017 ICC-02/05-01/09-302-Anx p.48 footnote 122: Egypt at UNSC 7710th Meeting, p. 11; Morocco at UNSC 6887th Meeting, p. 17; Russia,at UNSC 6887th Meeting, p. 16; Rwanda at UNSC 6974th Meeting, p. 6; Venezuela at UNSC 7478th Meeting, p. 14. 286UNGA “Reports of the Secretary-General on the Sudan and South Sudan, Security Council Seventy-fourth year 8554th meeting”, (19 June 2019) UN Doc S/PV.8554 p.12, 15 287Ibid., p. 9 288Ibid., p. 15-16 289 The definition of jus cogens and its non derogable nature is found in Article 53 of the VCLT 290 James A Green, The Persistent Objector Rule In International Law (1st edn, Oxford University Press 2016) p. 195 291If a state stops maintaining its persistent and consistent objections after the norm’s crystallization, even if this is due to the political pressure or other extra-legal factors then the objecting state is bound by the norm. After that, noncompliance with the norm will constitute a breach of international law. Ibid., 280
52
5.3.2 AU and Statements by Member States The AU already in 2014 decided to exempt senior government officials from prosecution by the regional human rights Court at the 23rd AU Summit. It adopted an amendment to the Protocol on the Statute of the ACJHR to provide immunity to African leaders before the Regional Court. Under Article 46A bis of the Protocol on Amendments to the Protocol provides such immunity applies to sitting heads of states and senior officials in office292. The introduction of immunities can be seen as going against the objectives of the Constitutive Act of the AU provided in Article 4 on rejecting impunity. In the 33rd Ordinary Session of the Assembly of the Union in February 2020, the AU called upon its members to oppose the decision of the Appeals Chamber for being against the Rome Statute, customary international law and the AU Common position293. It expressed its concerns with the double standards of the ICC with regards to African countries and increased politicisation of the Court294.
5.4 Non-State Actors Non-state actors and individuals actions can not be considered as “practice” contributing to the creation of customary law295. However, non-state actors can be acknowledged as playing an important role in the promotion of custom. There is increasing understanding that the role and opinion of the civil society “cannot be completely discounted in the formation of customary international law today”296. Non-state actors such as NGOs and civil society are able to use their reputation to influence behaviour through the use of “soft power”297 and are increasingly acknowledged as participants in the international legal process298. These non-state actors which include individuals, NGOs and other entities conform what Krisch identifies as liquid authority recognizing the complexity and negotiation of authority in
292Protocol on amendments to the protocol on the statute of the African court of justice and human rights, Exp/Min/IV/Rev.7, 15 May 2012 p.36 293Decisions, declarations, resolution and motion, assembly of the Union ,Thirty-Third Ordinary Session 09-10 February 2020, SC26504 – 9/1. p.2 294Ibid., p. 2 295ILC, “Second report of the Special Rapporteur of the International Law Commission on identification of customary international law” (22 May 2014) UN Doc. A/CN.4/672 p. 30 para 43 296Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo V. Belgium), Dissenting opinion of Judge Van Den Wyngaert ICJ p. 155 para 27 297 Andrea Bianchi, 'Globalization Of Human Rights The Role Of Non-State Actors | IHEID' (Graduateinstitute.ch, 2009)
53 globalized societies299. The Interactional Account theory also puts special attention and value to other actors that interact with norms in the international community.
States have been relatively silent in condemning the actions of non-cooperating states but there has been increasing response by non-state actors after the Jordan Decision. William Pace300 stated that it was “one of the greatest achievements of the Rome Statute301. Lotte Leicht302 tweeted, “Decision by the ICC judges should shame states failing to arrest and surrender war crimes suspects to the court303. Many international and national civil societies campaigned to bar Al Bashir’s entry to their states or arrest him on their territory. Other groups such as the Coalition for the ICC sent letters to the Jordanian authorities, asking to arrest Al Bashir without delay and called state parties to the ICC that were also attending the summit, to avoid all contact with Al Bashir, “as recognition of the seriousness of the charges against him”304. The Jordan decision was also welcomed by the SALC that said that it was “crucial in the fight against impunity for international crimes”305 and the Executive Director, also noted that the decision settled the issues regarding immunities306. Moreover, the role of NGOs and other non-governmental groups in criminal law litigation, especially in the cases of South Africa and Kenya illustrate the “broad movement at grassroot level to end impunity” 307.
299Nico Krisch, 'Authority, Solid And Liquid, In Postnational Governance' Authority in Transnational Legal Theory. p. 40 300Convenor of the Coalition for the ICC 301'ICC: Jordan Failed To Arrest Al-Bashir' (Coalition for the International Criminal Court, 2019)
54
5.5 Conclusion The practice of legality is more than just compliance, it requires actors to demonstrate their adherence to the norm and support its legality. By implementing national legislation in coherence with Article 27 and upholding the norm through statements in international organizations member states comply with the customary exception. Moreover, the fact that the vast majority of countries did not react to the Appeals Chamber decision may imply that they accept the customary exception as law. Non-state actors have also confirmed and requested compliance with the Decision. However, notably most affected parties including some UNSC permanent members and African countries have no intention to enforce the arrest warrants and therefore do not recognize any exception for Head of State immunity. The fact that after the Jordan decision state representatives continue to uphold their opposition to the exception shows that the norm has not reached the tipping point yet. That is why state practice can not be considered as widespread and consistent at this point. Through an interactional account theory, the participants in the community of practice continue to strengthen the shared understanding of the norm and pressure for the crystallization of the exception as seen by the participation of non-state actors. Nevertheless, Sudan’s aims to hand over Al Bashir further strengthens the possibility of more states adhering to the norm in the future.
55
CHAPTER 6: CONCLUSION
In conclusion, the Customary law avenue and the existence of an exception to customary law rejecting head of State immunities vis-a-vis international courts do not fulfil all the three steps for a comprehensive legal norm. Following the interactional account theory308, the exception is not met on two grounds. Firstly, it breaches the criteria of legality309 and secondly, it fails to find continued practice of legality. Although there is a strong shared understanding towards irrelevance of official capacity, the lack of clarity and congruence in the way the norm is administered avoids norm adherence by both ICC member states and non-state parties. A failure of any of these eight criteria result in a bad system of law and provides little grounds for a moral obligation to crystalize310. Moreover, the norm must also be embedded in a practice of legality and continue to be treated as legal norms. The weak practice of legality supports the argument that norms that are not rooted in robust criteria of legality are more likely to be breached. Legal stability, according to Interactional Account theory, is based on interaction allowing for a range of diverse actors to participate. The state-centric notion of current international law may hinder these interactions and stagnate change. However, this conclusion must be nuanced because there is growing shared understanding of irrelevance of capacity marked by the establishment of international tribunals and courts along with deep concern and support by the international community and global civil society. It shows that irrelevance of official capacity may be considered as a rule of “particular or special” custom which binds those states constituting a “community of interest”311. Such a norm may be developing into a general exception in customary law over time as evidence of practice supports the gradual erosion of personal immunities. Moreover, the Jordan decision has attracted the attention of scholars, lawyers, states and other non-state actors and may result in a clarification of the norm through an ICJ decision. This analysis has also stressed the naturalist legal view that law as a command is not adequate to tackle contested issues such as immunities because they are subjected not to a static definition but to the changing shared understanding of actors engaging with it. Moreover,
308According to the Interactional Account theory, norms must be based on a shared understanding (1), meet the 8 criteria or legality (2) and upheld bby practice of legality (3) as described in Chapter 1 309 Criteria of legality and principles of legality are used to define Lon Fuller’s 8 principles described in Chapter 4: 4.3.3 Customary law Route and Lon Fuller’s eight principles of legality 310Lon L. Fuller, The Morality Of Law (1st edn, Yale University Press 2000). P.150 311ILC, “Third report on identification of customary international law by Special Rapporteur Michael Wood”, 27 March 2015, A/CN.4/682. para 81
56 when attempting to understand the meaning of a word within a law, such meaning will be subjected to the interpretation of judges and often will fall in the naturalist result of what “ought to be”. Finally, the moral values of the international community show that there is a higher principle behind the legal system, intending to prevent and punish grave international crimes. Such a moral principle is in other words fidelity to law. This is backed by the constructivist background that norms are created and shaped by the actors. The case has also highlighted that the content of customary norms, especially exceptions to custom play an important role in international law and therefore a proper understanding is needed. The two-element analysis based on state practises and opinio juris may fall short in determining new or exceptional circumstances of the norm as state practice is limited. Although not a tipping point, the Jordan decision has increased the need to further develop the norm, notably the call for an advisory opinion by the ICJ to clarify and confirm the existence of the new customary norm could enhance the legality of the norm “by subjecting case-by-case decisions to overarching criteria that help to identify the exceptional cases”312. Given that only UN organs and agencies authorised by the UNGA can ask for an opinion313, African and objecting countries can increase the support for an opinion in the UNGA. On the other hand, the ICC ASP, under Article 119(2) of the Statute, can make recommendations including that disputing parties refer the issue of immunities to the ICJ. Dealing with the Darfur case, the international community must pay regards to reach a balance between the pursuit of justice and enabling successful efforts to achieve peace in the region. Therefore, further action by the Court or international aims should not jeopardize ongoing dialogue and support the transitional government in their search for peace and reconciliation. Nevertheless, the population of Sudan has acknowledged the importance of justice in this process, evidenced by the government’s announcement of ICC cooperation.
Word Count: 13727
312Jutta Brunnée and Stephen J Toope, Legitimacy And Legality In International Law (1st edn, Cambridge University Press 2010). P.311 313 Article 96 of the United Nations Charter 1945 and Article 65 of the Statute of the International Court of Justice
57
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