Al-Bashir & the ICC: the Problem of Head of State Immunity

Asad G. Kiyani* Downloaded from

Abstract

This article considers the law of head of State immunity through an analysis of the indictment of Sudanese President Omar al-Bashir by the International http://chinesejil.oxfordjournals.org/ Criminal Court (ICC). Contrary to most commentaries, this essay argues that al-Bashir remains protected by head of State immunity, and that ICC jurisdiction over him can only be maintained through one of two controversial claims: either that the Security Council can override customary international law rules of treaties and immunities, or that the law of immunities already provides an exception that invalidates al-Bashir’s protection. This article provides a detailed explanation of why both propositions are unsustainable and require considerable revision of public international law. While the desire to prosecute al-Bashir is understandable, the ICC’s legal arguments actually threaten the

Court’s ability to protect victims by alienating some States Parties and prompt- by guest on August 22, 2015 ing those States and others to reduce co-operation with the Court. It concludes by suggesting that the Court’s arguments represent a problematic assertion of its position as an institution of global governance.

I. Introduction 1. In spite of its noble aspirations, international criminal law has not been exempted from regular warnings about the danger of international judicial institutions

∗ LL.B (Osgoode Hall), LL.M (Cambridge), Doctoral Candidate in the Faculty of Law at the University of British Columbia (Canada), and a Liu Scholar at the Liu Institute for Global Issues. As a Vanier Canada Graduate Scholar, the author’s research is supported by the Social Sciences and Humanities Research Council of Canada. Many thanks are due to Natasha Affolder, James Stewart and Benjamin Perrin, as well as the anonymous reviewers of the Chinese Journal of International Law, for their helpful comments on earlier drafts. The paper was completed on 22 September 2013 and the websites cited were current as of that date unless otherwise noted.

...... 12 Chinese Journal of International Law (2013), 467–508 468 Chinese JIL (2013) abandoning the rule of law.1 This concern has been raised again with the contentious indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC).2 This controversy arises because, for all the agreement that al-Bashir should be prosecuted,3 there is little agreement on why the ICC hasthe authorityor jurisdiction to do so.4 In an effort to bring some order to this widespread uncertainty, this article

1 Two important pieces in this body of literature that are of relevance to the positions taken in this article are Georg Schwarzenberger, The Problem of an International Criminal Law, 3 Curr Leg Probs (1950), 263, and Bernhard Graefrath, Leave to the Court What Belongs to the Court: The Libyan Case 4 EJIL (1993), 184. Schwarzen- bergerargued that international criminal law was acontradiction in terms, and the post- Downloaded from war military tribunals were merely “world politics in disguise”. Graefrath argued that the imposition of sanctions against Libya for its failure to surrender two suspects in the 1988 Lockerbie bombing of Pan Am Flight 103, violated the treaties and rules of international law that ought to have governed the Security Council and International Court

of Justice. http://chinesejil.oxfordjournals.org/ 2 Al-Bashir is alleged to have helped design, co-ordinate and implement crimes including: the forcible transfer of hundreds of thousands of civilians; the rape of thousands of women; torture; mass killings; and genocide. See Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (4 March 2009) (First Bashir Warrant) and Second Decision on the Prosecutor’s Appli- cation for a Warrant of Arrest (12 July 2010) (Second Bashir Warrant). 3 In its initial decision, the Pre-Trial Chamber (PTC) emphasized that the Chapter VII authorityof the Security Council was its basis for jurisdiction. See First Bashir Warrant, –

above n.2, paras.40 45. Two years later, a differently constituted PTC (two of the by guest on August 22, 2015 three judges had not participated in the first decision) made only a single, one-line mention of the Security Council, but spent 22 paragraphs arguing that it had jurisdiction over al-Bashir through an entirely separate rule of customary international law. See Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber I, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Repub- lic 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) (Malawi Decision), paras.22–43 (Security Council reference para.36). 4 Two articles published consecutively in one issue of a law journal highlighted the uncertainty by presenting two competing arguments—both of which the PTC adopted (see above n.3). Paola Gaeta argued that the ICConly had jurisdiction because, as a rule of customary international law, head of State immunity did not protect perpetrators of international crimes before international courts. See Paola Gaeta, Does President Al Bashir Enjoy Immunity From Arrest?, 7 J. Int’l Criminal Justice (2009), 315. In the companion piece, Dapo Akande stated that only the Security Council’s exercise of Chapter VII powers could defeat al-Bashir’s immunity. See Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Criminal Justice (2009), 333. A third argument is that the ICC is a competent court under the Genocide Convention. See Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. Int’l Criminal Justice (2010), 365. The PTC has not adopted this Kiyani, Al-Bashir and the ICC 469 undertakes a detailed and comprehensive analysis of the jurisdictional issues in the case. Contrary to most commentaries,5 it concludes that al-Bashir remains protected by his immunity as the head of a State that is not a party to the Rome Statute.6 At the risk of introducing even more controversy to the debate, this article argues that the ICC’s jurisdictional claims over al-Bashir are tenuous at best; that the Court’s position can only be sustained by relying on controversial and peripheral restatements of public international law; and that the manner of the pursuit of al-Bashir will undermine the goals and effectiveness of the ICC. 2. Although the charges against al-Bashir were first confirmed by the Pre-Trial Chamber (PTC) of the ICC in 2009, the issue remains relevant for two reasons. Downloaded from Firstly, the confusion surrounding the scope of head of State immunity continues. The indictment of al-Bashir has not lain dormant since the issuance of warrants for his arrest; the PTC recently invited the United States to arrest al-Bashir when the possibilityof his visiting the UN General Assembly in New York was raised.7 Head of State immunity surfaces in other cases as well. Before his death, Muammar Gaddafi of Libya http://chinesejil.oxfordjournals.org/ was in the same unclear position as al-Bashir,8 and the election of indictee Uhuru Ken- yatta as Kenyan President means that the issue has arisen again.9 Properly delineating

position, presumably because it would not account for all the crimes alleged against al- Bashir. 5 See, e.g., the respective articles of Paola Gaeta and Dapo Akande, above n.4. See also Manisuli Ssenyonjo, The International Criminal Court Arrest Warrant Decision for President Al Bashir of Sudan, 59 ICLQ (2010), 205, and Sophie Papillon, Has the United Nations Security Council Implicitly Removed Al Bashir’s Immunity? 10 by guest on August 22, 2015 Int’l Criminal LR (2010), 275. 6 Rome Statute of the International Criminal Court (Rome Statute), 2187 UNTS 90. 7 Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Pre-Trial Chamber I, Decision Regarding Omar Al-Bashir’s Potential Travel to the United States of America (18 September 2013). At least one commentator—who otherwise believes that al-Bashir lacks immunity because of the Security Council referral of the Darfur case—argues that al-Bashir retains immunity when representing Sudan at UN meet- ings because of the operation of the Convention on the Privileges and Immunities of the United Nations and art. 105 of the UN Charter. See the Convention on the Pri- vileges and Immunities of the United Nations, 90 UNTS 327, art. IV; and the analysis in Dapo Akande, above n.4, 351–352. 8 Libya, like Sudan, is not a State Party to the ICC and had not consented to its jurisdiction when Gaddafi was indicted by the Court in June 2011. See Situation in the Libyan Arab Jamahiriya, ICC-01/11, Pre-Trial Chamber I, Decision on the “Prosecutor’s Ap- plication Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah al-Senussi” (27 June 2011) (Gaddafi Decision). 9 Kenyattawas indicted by the ICC forcrimes committed in previous elections. See Pros- ecutor v. Francis Kirimi Muthuara, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01-09-02/11, Pre-Trial Chamber II, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (23 January 470 Chinese JIL (2013) the relationship between the immunity and the ICC therefore remains an important and unfinished task.10 Secondly, there has been little analysis of how the ICC arguments on the immunity fit within the traditional constraints of public international law,11 or how they may affect the future work of the Court. The risks of adopting the ICC position include States withdrawing from or no longer co-operating under the terms of the Rome Statute;12 a disincentive for non-party States to join the ICC in the future; and the weakening of the rule of law in the international system. Of course, these outcomes do not explain why the ICC’s stance is wrong, but they do demonstrate the need for a more careful analysis of the legal issues given the stakes. The im- portance of this article therefore lies in its resolution of the convoluted question of head of State immunity generally, and its explanation of how the ICC’s flawed reasoning Downloaded from about this narrow legal issue substantially revises fundamental aspects of public international law. 3. Two clarifications must be offered asto the scope of this article. Firstly, no position

is taken on whether the arrest or trial of al-Bashir itself will affect the prospects for peace http://chinesejil.oxfordjournals.org/ in Sudan. The “peace versus justice” debate is a separate question. The argument here is not that holding al-Bashir accountable will undermine the peace process, but that the particular methods and reasoning relied upon by the Court are both legally dubious and will also have important negative repercussions for the ICC. Secondly, this article does not argue that al-Bashir is innocent or ought to be left free from judicial process. The desire to hold him accountable is correct, especially given the cogent evidence of

2012). The current Chief Prosecutor has declared her commitment to prosecuting Kenyatta despite his victory. See ICC prosecutors drop case against Kenyan politician by guest on August 22, 2015 Francis Muthaura, The Guardian (11 March 2013) (www.guardian.co.uk). 10 While the Special Rapporteur of the ILC has stated that the scope of immunity before international criminal courts has been “sufficiently delimited and clarified”, she has also noted “the differing interpretations that may arise in practice when applying these international legal norms”. International Law Commission, Second Report on the immunity of State officials from foreign criminal jurisdiction, Special Rapporteur Concepción Escobar Hernández, UNGAOR, 65th Sess, UN Doc A/CN.4/661 (4 April 2013), para.27. 11 Forexample, it has been said that because the Security Council referred the Darfur situation, it therefore has the legal authority to refer cases involving non-States Parties. See Sarah Williams and Lena Sharif, The Arrest Warrant for President al-Bashir: Immun- ities of Incumbent Heads of State and the International Criminal Court, 14 J Conflict & Security L (2009), 71, 79. 12 The AU declared that it would continue not to co-operate in arresting Bashir despite the ICC referring Chad and Malawi to the ICC Assembly of State Parties for not arresting Bashir when he travelled to those States. See AU, Assembly of the African Union, 18th Sess, Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Doc Assem- bly/AU/Dec.397 (29–30 January 2012) (AU Dec. 397) (www.au.int/en/ decisions/assembly). Kiyani, Al-Bashir and the ICC 471 government involvement in crimes in Darfur.13 The misgivings expressed in this essay are not about the general ethical motivation behind prosecuting al-Bashir, but about the particular legal arguments utilized by the ICC and the consequences of adopting those positions. While arresting alleged war criminals such as al-Bashir is important, the Court is pursuing that goal in a manner that compromises its long-term goals. The deficiencies in the Court’s reasoning will undermine the Court’s ability to protect future victims of atrocity, either by alienating States Parties to the Rome Statute or giving non-States Parties an incentive to not ratify the treaty, reducing or eliminating the local co-operation that is necessary for the Court’s success. 4. These conclusions are examined in more detail after a thorough analysis of the legal issues. Section II focuses on the principles of head of State immunity that lie at the core Downloaded from of the case. Sections III through V critically evaluate and respond to the substantive arguments relied upon by the PTC to justify indicting al-Bashir. Section III addresses the claim that the Security Council can directly or indirectly override al-Bashir’s immunity; Section

IV explains how rules of treaty law restrict the ICC in this case; and Section V demonstrates http://chinesejil.oxfordjournals.org/ that both statutory and case-law precedent provide little support for the PTC position. Section VI turns to the political context of the dispute to explain how the anti-immunity arguments are not only legally suspect but counter-productive to the goals of the ICC. The short-term “success” of arresting al-Bashir threatens to be offset by future difficulties in securing co-operation from States Parties and persuading non-States Parties to ratify the Rome Statute. Some of those States would oppose the ICC regardless, but the decisions of the Court in the al-Bashir case will provide legal justifications for their intransigence, and induce doubt in other States about the methods and trustworthiness of the Court. by guest on August 22, 2015 II. The ordinary rules of head of State immunity 5. The central issue is al-Bashir’s immunity as a head of State, which al-Bashir says protects him from ICC jurisdiction. The ICC’s response is that there is a rule of customary international law that prevents the application of immunity, and additionally that the Security Council’s Chapter VII actions have stripped al-Bashir of his immunity in this instance.14 Revisiting the basic rules of head of State immunity providesthe foundation for assessing these twin arguments by showing, firstly, that head of State immunity is a rule of customary international law and, secondly, by highlighting the significant dif- ferences between al-Bashir and previous trials: all the precedents concern former heads of State, or heads of State whose immunity was waived. The distinctions are meaningful because former heads of State have drastically different immunities than

13 Including deeply troubling allegations that the Sudanese government sought legal advice on how to calibrate criminal acts in order to fall just short of the dolus specialis of genocide. See Mark Osiel, Making Sense of Mass Atrocity (2009), 137 (referencing conﬁdential interviews by the author at The Hague in 2008). 14 See First Bashir Warrant, above n.2, and Malawi Decision, above n.3. 472 Chinese JIL (2013) incumbents such as al-Bashir, and Sudan’s refusal towaive al-Bashir’s immunity means that he remains in a unique position when compared to predecessors such as Slobodan Milošević and contemporaries such as Uhuru Kenyatta.15 Relying on past cases as precedents is therefore unhelpful to the ICC position. 6. Sitting heads of State have traditionally had “personal” immunity, such that while in ofﬁce, they are immune from all foreign criminal jurisdiction.16 Whether or not this immunity is jus cogens is debatable, but it is certainly a rule of customary international law,17 and the scope of immunities are determined almost exclusively by reference to customary international law.18 This immunityapplies whether the head of State istrav- eling or not, and whether he or she is abroad for government business or private purposes.19 For this reason, head of State immunity is more comprehensive than Downloaded from

15 Unlike Bashir, Kenyatta does not have immunity from the ICC as he isthe head of State of a country that has ratified the Rome Statute. Article 143(4) of the Constitution of Kenya (2010) specifies that the immunity of the President “shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is http://chinesejil.oxfordjournals.org/ a party and which prohibits such immunity”. 16 See Roseanne Van Alebeek, The Immunityof States and Their Officials in Internation- al Criminal Law and International Human Rights Law (2008), 169, and Dapo Akande, International Law Immunities and the International Criminal Court, 98 AJIL (2004), 407, 410. There is no such absolute rule with respect to domestic prosecutions—these vary from jurisdiction to jurisdiction. In Sudan, Article 60 of the 2005 Interim Constitution provides that the President and First Vice-President of Sudan are immune from all legal proceedings (including domestic) unless three-fourths of the National Legislature votes to charge either or both of them before the Sudanese Con- stitutional Court. If convicted, theyare deemed to have forfeited theiroffice and right to by guest on August 22, 2015 be protected by immunity. Interim National Constitution, Republic of the Sudan, The National Assembly of Sudan (www.parliament.gov.sd/en/). 17 See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ Reports 2002, 3, 21–22, para.53; Dapo Akande, above n.16, 409; and Hazel Fox, The Law of State Immunity (3rd edn., 2013), 539. The point has also been stated in national courts. See e.g. John R Crook, Contemporary practice of the United States relating to international law: State jurisdiction and immunities: US Brief suggests Pope’s immunity as a head of state, 100 AJIL (2006), 219, 220 (quoting the US State Department: “The doctrine of head of state immunity is applied in the United States as a matter of customary international law”); and Gaddafi (Court of Cassation, France), 125 ILR (2001), 490, 509 (“In the absence of contrary international provisions binding on the parties concerned, international custom precludes the institution of proceedings against incumbent heads of State before the criminal jurisdictions of a foreign State”). 18 See International Law Commission, Preliminary report on immunity of State officials from foreign criminal jurisdiction, Special Rapporteur Roman Anatolevich Kolodkin, UNGAOR, 60th Sess, UN Doc A/CN.4/601 (29 May 2008), paras.30–34. 19 The ICJ described the scope of the immunity as follows: “A Head of State enjoys in particular ‘full immunity from criminal jurisdiction and inviolability’ which protects him or her ‘against any act of authority of another State which would hinder him or her Kiyani, Al-Bashir and the ICC 473 diplomatic immunity or ordinary functional immunities. The expansive nature of the immunity recognizes the functions of heads of State, which include high-level diplomacy, negotiations, and the pacific settlement of disputes.20 These are more extensive and all-encompassing functions than those held by ordinary diplomats, who often perform much narrower diplomatic tasks, let alone former heads of State who have no official role at all. This is not to say that there is no rationale for potentiallyabrogating the immunities of sitting heads of State, only that—as recognized by the Institut de droit international21—there are important countervailing reasons for both preserving them and distinguishing incumbents from former heads of State, even when the persons involved are accused of serious international crimes. Downloaded from 7. Of course, head of State immunity is not permanent. Once heads of State are no longer in office, they lose any special protection afforded to them through their personal immunity as heads of State, and are only protected by the same rules of functional immunity22 as applicable to other former State http://chinesejil.oxfordjournals.org/

in the performance of his or her duties’.” See Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, ICJ Reports 2008, 177, 236–237, para.170 (quoting from Arrest Warrant, above n.17). 20 Heads of State can have multiple constitutional and political functions beyond the symbolic embodiment of sovereignty. See Hazel Fox, above n.17, 542 (noting that heads of State have “full powers” of the State, including “the capacity to represent and act for the State”). Heads of State have been described as having an “exceptional position” amongst thosewho may claim some sort of immunity. See Lassa Oppenheim and Herscht Lauterpacht (eds.), International Law: A Treatise (8th edn., 1955), 358. by guest on August 22, 2015 Under the terms of the Interim National Constitution, above n.16, Bashir is both the head of State and the Government of Sudan, and has important constitutional and political roles to play (as does arguably his First Vice-President). 21 The Institut’s 2009 resolution on immunity affirmed the protection of personal immunities in the face of alleged international crimes, even as it encouraged States to con- sider waiving those same protections. See Third Committee, Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, Institut de droit international, Napoli Session (2009) (www.idi-iil.org). 22 It is unclear whether this functional immunity protects former heads of State from liability before national courts for international crimes committed while in office. In de- ciding the third Pinochet case, some members of the UK House of Lords held that former heads of State are not protected by functional immunity for international crimes, since these crimes cannot be seen as the proper functions of a head of State. Others argued that Pinochet lacked immunity not because of the “proper functions” argument, but because of the operation of the Convention Against Torture as part of domestic UK law. See R v. Bow Street Magistrate (ex parte Pinochet) [1999] UKHL 17, [2000] 1 AC 147. The situation remains unsettled in international law. See Hazel Fox, above n.17, 550–553. For the purposes of this article, it is assumed that functional immunities offer no protection to former State officials who are indicted by the ICC for serious international crimes. 474 Chinese JIL (2013) officials.23 Furthermore, as a matter of law, immunities—including the “personal” immunities ofthe headof State—belongto theStateandnottheindividual,andcan therefore be waived at any time by the government.24 These waivers can be done on an individual-by-individual basis, or can be on-going in nature. An example of the latter is Article 27(2) of the Rome Statute, which states that a person’sofficial capacity or immunities do not prevent the ICC from obtaining jurisdiction over that individual.25 8. Forour purposes, there are three keyaspectsto head of State immunity.26 Firstly, it is a rule of customary international law. Secondly, there are important reasons to distinguish the immunities of sitting headsof State from other types of immunities,including any that may protect former heads of State. Finally, the immunity may be waived by the Statethatholdsit even ifthe individualiscurrentlyholding theoffice ofhead of State. As Downloaded from shown below, each of these propositions undermines important elements of the ICC’s claims of jurisdiction over al-Bashir.

III. The Security Council referral http://chinesejil.oxfordjournals.org/ 9. This section refutes the position that the Chapter VII authority of the Security Council renders al-Bashir’s immunity inoperative for the purposes of the Rome Statute. Al-Bashir is being investigated in relation to crimes allegedly committed in Darfur, which were referred to the ICC by Resolution 159327 of the Security Council. The PTC did not specify exactly how Resolution 1593 might bind Sudan to the Rome Statute and remove al-Bashir’s immunity, but there are three possibilities. One isthrough the delegation of the Security Council’s ChapterVII powersto the ICC, which then exercises that authority to compel co-operation from Sudan. Another is by by guest on August 22, 2015 binding Sudan to the Rome Statute and Article 27(2) through a Chapter VII resolution of the Security Council. The third is deleting the immunity through direct action by the Council itself. The last two arguments both depend on Article 103 of the UN Charter, and so are considered together. The common problem with all three of these arguments isthat neither Chapter VII nor Article 103 of the Charterallowsthe Security Council to extend the jurisdiction of the Court.28 The ICC is not able to exercise any Chapter VII

23 Roseanne Van Alebeek, above n.16, 183. 24 The Vienna Convention on Diplomatic Relations, 500 UNTS 95, art. 32 provides for the right of a State to waive the immunities of its own ofﬁcial(s). 25 See also the Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, art. 4. 26 All of which were afﬁrmed by the 2009 Resolution of the Institut de droit international, above n.21. 27 SC Res 1593 (31 March 2005). 28 Luigi Condorelli and Santiago Villalpando, Can the Security Council Extend the ICC’s Jurisdiction?, in: Antonio Cassese et al (eds.), The Rome Statute of the Inter- national Criminal Court: A Commentary (2002), 572. Kiyani, Al-Bashir and the ICC 475 powers because it is not part of the UN, and the Security Council itself does not have the authority to revise the rules of public international law in order to negate al-Bashir’s immunity. Those rules—which include the UN Charter itself,29 the customary law rules of immunities outlined above, and the law of treaties—severely restrict the Secur- ity Council’s powers in this case.

III.A. The inability to delegate Chapter VII powers to the ICC 10. The ﬁrst position to be addressed is that of delegation. Even if it is assumed that the Security Council has the power to remove immunities,30 this does not necessarily mean that power may be delegated to the ICC. Assigning a discretionary decision-making Downloaded from power to a tribunal requires that the tribunal is actually competent to receive the Chapter VII power in the ﬁrst place.31 According to the UN Charter, competent entities are: UN member States32; “regional arrangements” as contemplated by Article 51 of the Charter33; and organs of the UN itself. The ICC does not fall into anyof these categories.

11. The ICC is obviously not a UN member State, nor is it a regional arrangement http://chinesejil.oxfordjournals.org/ under Article 51 of the Charter. While there is no deﬁnition of “regional” in the Charter, the types of organizations considered to be regional agencies include the Or- ganization of American States (OAS), the Arab League, and the African Union (AU).34 To permita decentralized agencysuch asthe ICCstatusas a regional arrangement under

29 Charter of the United Nations, 26 June 1945, Can TS 1945 No 7. 30 Discussed further in Section III.B, below. 31 See Danesh Sarooshi, The United Nations and the Development of Collective Secur- ity: The Delegation by the UN Security Council of its Chapter VII Powers (2000), 247 by guest on August 22, 2015 (“[T]he competence of the Council to delegate Chapter VII powers to an entity does not in itself mean that the entity has the institutional competence to be able to exercise those powers”), and 252–253 (“The delegation of Chapter VII powers to a regional arrangement gives the arrangement—and thus its organs—the right to exercize those powers but not in disregard of its constituent treaty”). 32 An example of such a delegation occurred in Operation Artemis, the French-led Interim Multinational Emergency Force to assist troops in the UN Mission in the Democratic Republic of Congo (MONUC), authorized by SC Res 1484 (30 May 2003). 33 Such as NATO, whose operations in Kosovo were authorized by SC Res 1244 (10 June 1999). 34 Along with the AU, OAS, and Arab League, Conforti includes the Commonwealth of Independent States (CIS), the Organization for Security and Cooperation in Europe (OSCE), the Western European Union (WEU), the Arab League, the Economic Com- munityof West African States (ECOWAS),and the Organization of Eastern Caribbean States (OECS). See Benedetto Conforti, The Law and Practice of the United Nations (3rd edn., 2005), 235–238. Only the AU, OAS and Arab League are unambiguously considered regional agencies. See Waldemar Hummer and Michael Schewitzer, Article 52 in: Bruno Simma (ed.), The Charterof the United Nations: ACommentary (2002), 807, 828. NATO may arguably be a Chapter VIII regional agency as well, 476 Chinese JIL (2013)

Chapter VIII would undermine the role of the UN in securing international peace35 by rendering meaningless the proximity requirements of the Article 51 restriction.36 Yet even if the ICC were classiﬁed as a regional arrangement, the problem arises that the only Chapter VII powers that can be delegated to regional arrangements are military enforcement powers,37 as per Article 53(1) of the Charter.38 The intention of Article 53(1) is further evidenced by the UN Secretary-General’s Agenda for Peace39 plan, which sought to put regional organizations to use in the political and military tasks of preventive diplomacy and peacekeeping.40 It does not contemplate judicial tasks.41 12. The only remaining way in which the ICC might receive Chapter VII powers is through recognition as part of the UN system. Yet there is no basis for the position that Downloaded from the ICC is either a principal or subsidiary organ of the UN. The Rome Statute is atreaty that was negotiated outside the auspices of the UN, and Articles 1 and 4(1) of that treaty state that the Court is permanent (i.e. it does not exist at the pleasure of the UN) and that it has “international legal personality”. The Preamble and Article 2 of the UN-ICC 42 Agreement similarly recognize the independence of the Court from the UN system. http://chinesejil.oxfordjournals.org/ Unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY),

notwithstanding its establishment as a collective security group. See Danesh Sarooshi, above n.31, 251. 35 Waldemar Hummer and Michael Schweitzer, above n.34, 822 (“Short of requiring ‘regions’ in the geographic sense, the requirement of some degree of spatial proximity among members of ‘regional arrangements’ cannot be dropped, since this would cause the decentralized system of the UN for securing the peace, which is embodied in these ”

regional arrangements, largely to lose its effectiveness ). by guest on August 22, 2015 36 Parties to the Rome Statute are as diverse and geographically scattered as the UN membership. At the time of writing, 121 States Parties had ratiﬁed the ICC Statute. There were 33 States Parties from Africa, 25 from Western Europe (including Canada, New Zealand and Australia), 18 from the Asia-Paciﬁc Region, and 27 from the Caribbean/ Latin America. A complete and current list of States Parties is online (www.icc-cpi.int). 37 Danesh Sarooshi, above n.31, 248–251. 38 See generally, Jurgen Bröhmer and Georg Ress, Article 53, in: Bruno Simma (ed.), above n.34, 854, 859–866, esp. 860 (“[T]he majority of the member States assumed that the non-military sanctions were not enforcement actions which, from a systematic perspective (relation between Art. 53 and Art. 2(4)), is a conclusive interpretation”); Benedetto Conforti, above n.34, 231–238; and Danesh Sarooshi, above n.31, 247–253. 39 Report of the Secretary-General, An Agenda For Peace: Preventive Diplomacy, Peace- making and Peace-keeping, UN Doc A/47/277—S/24111 (17 June 1992). 40 Christine Gray, International Law and the Use of Force (2004), 282–294. See also Danesh Sarooshi, above n.31, 4. 41 The only judicial role mentioned is that for the ICJ, a UN organ. Agenda for Peace, above n.39, paras.38–39. 42 Negotiated Relationship Between the International Criminal Court and the United Nations, ICC—UN, ICC-ASP/3/Res.1 (4 October 2004). Kiyani, Al-Bashir and the ICC 477

International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), the ICC is governed entirely by its Assembly of States Parties. While judicially independent, the ICTY and ICTR are able to exercise Chapter VII authority because they are organs of the UN that have been established by the Security Council and delegated such authority.43 The authority of the ICC, on the other hand, is based on the consent of States to the Rome Statute44 and is wholly independent of the organ- izational structure of the UN. Aside from the ability to refer matters to the Court, the only substantive role that exists for the UN is in relation to Article 16 suspensions of the ICC’s jurisdiction over a particular situation by the Security Council. Neither of these roles are mentioned or elaborated upon in the UN–ICC agreement, and neither the Downloaded from Rome Statute nor its drafting history make any clear provision for accepting or exercising Chapter VII powers.45 Similarly, the Security Council cannot supervise any other aspect of the Court’s work, including the appointment of its personnel. Contrast this with the SCSL, where the Secretary-General is responsible, either solely or jointly with other members of the SCSL, for the appointment of judges, prosecutors and the regis- http://chinesejil.oxfordjournals.org/ trar of the court.46 The far-reaching independence of the ICC suggests that there is no basis on which to suggest the ICC can receive Chapter VII powers, including the power to bind non-parties to the Rome Statute.

43 Danesh Sarooshi, above n.31, 107. The scope of this Chapter VII authority is limited in two ways. Firstly, by the restrictions on subject-matter, personal, temporal and territorial jurisdiction contained within the ICTY and ICTR statutes. Secondly, by the purpose of Chapter VII delegation, as established by the tribunal statutes and the Se- curity Council resolutions establishing the tribunals. See SC Res 827 (25 May 1993), by guest on August 22, 2015 para.4 and the ICTY Statute, art. 29; and of SC Res 955 (8 November 1994), para.2 and the ICTR Statute, art. 28. 44 Either through ratiﬁcation or ad hoc acceptance of ICC jurisdiction under art. 12(3) of the Rome Statute. 45 There are only two references to Chapter VII in the Rome Statute, in arts. 13 and 16. Security Council resolutions taken pursuant to either provision must be Chapter VII resolutions. The Chapter VII requirement certainly places procedural obligations on the Security Council (in terms of voting requirements per art. 27 of the UN Charter), as well as some sorts of obligations upon the Court (to either initiate or suspend certain types of proceedings). However, there is no indication in arts. 13 and 16 of the Rome Statute—or any other documents—that in passing Chapter VII resolutions the Security Council also transfers additional powers to the Court in order to enable it to meet those obligations. This would seem unnecessary in the context of art. 16, as no additional powers would be required for the ICC to stop doing what it is doing. As for referrals under art. 13, the language of the provision is permissive (i.e. the Prosecutor decides whether to proceed), and contains no further reference to the modiﬁcation of existing ICC powers or procedures. 46 See the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court For Sierra Leone (16 January 2002), arts. 2–4, 6, 7 and 10. 478 Chinese JIL (2013)

III.B. Article 103 and the supremacy of the Security Council 13.ThesecondsetofargumentsstatesthatSudanmustcomplywiththeSecurityCouncil referral because of Sudan’s membership in the UN, its concomitant consent to the priority of the UN via Article 10347 of the Charter,48 and the mandatory nature of Chapter VII resolutions. Instead of Chapter VII powers flowing through the ICC, the obligation to arrest al-Bashir is directly imposed upon Sudan and other UN Member States by the Security Council itself. The basic flaw with this argument is that the UN Charter only takes precedence over other international treaties,49 not customary international law rules such as head of State immunityor the laws governing treaties. In this case, those cus- ’ tomary rules defeat the argument that the UN referral can negate al-Bashir s immunity. Downloaded from 14. The drafting history of Article 103 shows that, after considerable debate about whether the Charter should be supreme over all international law, the drafters made a deliberate choice to specify “international agreements” instead of “all international obligations”, elevating the Charter only above treaties and other international agreements.50 This was affirmed by the General Assembly in the Declaration on Friendly http://chinesejil.oxfordjournals.org/ Relations,51 which distinguished between “obligations under the generally recognized principles and rules of international law” and “obligations under international agreements valid under the generally recognized principles and rules of international law”, and clearly stated only the latter were superseded by the Charter.52

47 “In the event of a conﬂict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international

agreement, their obligations under the present Charter shall prevail.” UN Charter, by guest on August 22, 2015 above n.29, art. 103. 48 Ibid. 49 This primacy does not necessarily result in the voiding of those treaties, only the sus- pension of those provisions in so far as they conﬂict with obligations arising under the Charter. Any treaties that violate jus cogens norms would only be void under the Charter if one or more parties were also UN Member States. At the same time, such treaties would be void on the separate basis that they violate a non-derogable norm of customary international law. 50 See Report of the Rapporteur of Committee IV/2, as approved by the Committee, “Privileges and Immunities” in: Documents of the United Nations Conference on International Organization (1945) Vol. XIII, 707. See also Rob McLaughlin, The Legal Regime Applicable to Use of Lethal Force When Operating under a United Nations Security Council Chapter VII Mandate Authorising “All Necessary Means”,12JConﬂict & Security L (2008), 389, 400–401; and Rain Liivoja, The Scope of the Supremacy Clause of the United Nations Charter, 57 ICLQ (2008), 583, 602–605. 51 Declaration on Principles of International Law concerning Friendly Relations and Co- operation among States in accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN Doc. A/RES/25/2625, 121, 124 (24 October 1970). 52 Ibid. Kiyani, Al-Bashir and the ICC 479

This understanding has appeared in numerous declarations by the General Assembly53 without contradiction, and has also been conﬁrmed by the Internation- al Court of Justice (ICJ),54 and numerous scholars writing about the UN55 and the ICJ’s Lockerbie decisions.56

53 See the Declaration on the Strengthening of International Security, GA Res 2734 (XXV), UN Doc A/RES/25/2734 (16 December 1970), para.3; the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, GA Res 42/22, UN Doc A/ RES/42/22 (18 November 1987) para.4; and the Preamble of Respect for the Pur- poses and Principles Contained in the Charter of the United Nations to Achieve Inter- Downloaded from national Cooperation in Promoting and Encouraging Respect for Human Rights and for Fundamental Freedoms and in Solving International Problems of a Humanitarian Character, GA Res 55/101, UN Doc A/RES/55/101 (2 March 2001). 54 Interpretation of the Agreement of 25 March 1951 Between the World Health Organ-

ization and Egypt, Advisory Opinion, ICJ Reports 1980, 73, 89–90, para.37 (all inter- http://chinesejil.oxfordjournals.org/ national organizations are bound by the rules of general international law). See also Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK), Provisional Measures, [1992] ICJ Reports 1992, 3, 15, para.39 (“in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention”). 55 Aleksander Orakhelashvili, The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions, 16 EJIL (2005), 59, 69 (“Article 103 makes the Charter prevail over international agreements … but

this is not the case for the general international law, of which jus cogens is a part. The by guest on August 22, 2015 clear text does not support the opposite view, and those who wish to see Article 103 as making the Charter prevail over general international law cannot rely on evidence, but only on wishful thinking”); Derek Bowett, The Impact of Security Council Deci- sions on Dispute Settlement Procedures, 5 EJIL (1994), 89, 92 (“It is true that this reasoning conﬁned to the supremacy of a Council decision over inconsistent treaty rights or obligations, because Article 103 is concerned solely with compatibility between Charter obligations and obligations ‘under any other international agreement’. Accordingly the reasoning would not apply where a member relied on its rights under general international law”); Geoffrey R Watson, Constitutionalism, Judi- cial Review, and the World Court, 34 Harvard ILJ (1993), 1,25 (“Article 103, reliedon so heavily by the majority, provides that Charter obligations prevail over ‘other international agreements’; it does not provide that Charter obligations prevail over jus cogens and other forms of customary international law”); and Judith Gardam, Legal Restraints on Security Council Military Enforcement Action, 17 Michigan JIL (1996), 285, 304 (“[T]he presence of Article 103 in the Charter has no impact on the need for the Se- curity Council to comply with general international law. … It is not necessarily inconsistent for the Security Council to override other treaty obligations of States while remaining bound itself by customary rules. States have differing treaty obligations but customary obligations bind all States equally.”). 56 See Rob McLaughlin, above n.50, 402 (the Lockerbie decisions “generally assert that the Article 103 trump is exercisable over treaty law”); Christian Tomuschat, The 480 Chinese JIL (2013)

15. If the Charter only has primacy over international agreements and not customary international law, then Member States are not obliged to comply with all directionsthat emanate from the UN. Any Security Council directive to violate a principle of customary international law is ultra vires, because any obligation to comply “is conditional upon the Council’s compliance with the Charter principles: Article 103 cannot make a resolution which is unlawful under the Charter prevail over other legal norms”.57 This point, ﬁrst made by Hans Kelsen in 1950,58 was repeated by the ICJ in the Lockerbie case59 and reinforced by other commentators.60 In other words, UN Member States are bound to comply with Security Council resolutions under Chapter VII, but only when those decisions themselves do not breach the boundaries Downloaded from of UN competence—such as norms of customary international law. As argued in the following sections, this amounts to a crucial restriction on the scope of obligations that can be imposed by the Security Council in al-Bashir’s case. http://chinesejil.oxfordjournals.org/

IV. The customary law of treaties 16. Resolution 1593 can be seen as violating customary international law, and therefore ultra vires, either through its effects on the customary international law of immunities (discussed in Section V), or through its effects on treaty law. As a treaty-based organization, the UN is bound by the law of treaties: it is restricted by the terms of the UN Charter, as well as the codiﬁed and customary international law rules of treaties.

Those basic rules prevent the Security Council, the ICC and any other international by guest on August 22, 2015 organization or group of States, from extending the jurisdiction of the Court or binding a non-State Party to any treaty without that State’s consent. Depending on one’s reading of the Rome Statute, these rules either completely preclude Security Council referrals of any non-State Party, or limit the ICC’s powers in such cases.

Lockerbie Case Before the International Court of Justice, 48 Rev Int’l Comm Jurists (1992), 38, 43–44; and Bernhard Graefrath, above n.1, 198–199 (criticizing the Court’s initial Lockerbie decisions for their inadequate analysis of art. 103 as it relates to non-treaty matters). 57 Aleksander Orakhelashvili, above n.55, 69. 58 Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 95 (“The meaning of Article of 25 is that the Members are obliged to carry out these decisions which the Security Council has taken in accordance with the Charter.”). 59 Cited with approval in Lockerbie (Libya v UK), Provisional Measures, ICJ Reports 1992, 3, 101–102 (diss. op. El-Kosheri, para.23) (not dissenting on this point). 60 See e.g. Derek Bowett, above n.55, 92–93. Kiyani, Al-Bashir and the ICC 481

IV.A. Treaty law and the treatment of non-parties 17. The foundational principle at issue is that of pacta tertiis nec nocent nec prosunt— treaties neither create obligations upon nor grant rights to third parties.61 This customary international law rule is codiﬁed in Article 34 of the Vienna Convention of the Law of Treaties.62 Article 35 of that convention adds that obligations only arise for third party States if those States expressly accept the obligation.63 Articles 39 and 40 specify that only parties to a treaty may amend it, and only after consultation with other parties. The Security Council is not a party to the Rome Statute, nor has it con- sulted with the Assembly of State Parties on this issue.64 Nor do the provisions of the Rome Statute even permit the alteration of itsterms by the Security Council, let alone in Downloaded from awaythatwouldsomehow makeArticle27(2)applicableto non-States Parties.65 Sudan would therefore seem to have no obligations—to arrest al-Bashir or do anything else— under the Rome Statute.

IV.B. Reconciling Security Council referrals with the customary laws of treaties http://chinesejil.oxfordjournals.org/ 18. Some may disagree with the characterization of the Darfur referral as ultra vires. Michael Wood argues that the referral has not bound Sudan to the Rome Statute, but only imposed the provisions of that treaty, and therefore is not ultra vires.66 Of course, as he acknowledges, the referral imposed on Sudan “obligations to cooperate that were at least as comprehensive as those it would have been if it had been a party”.67 Since this imposition of obligations is unaccompanied by the beneﬁts that accrue through ordinary ratiﬁcation of the Rome Statute, such as voting rights in the Assembly of States Parties, the distinction Wood draws is more semantic than by guest on August 22, 2015

61 See Certain German Interests in Polish Upper Silesia, Merits, (1926), PCIJ (Ser A) No 7, 29 (“A treaty only creates law as between the States which are parties to it”). 62 Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS 331, 8 ILM 679. 63 While insisting that Sudan should co-operate with the ICC, the Security Council referral notes “that States not party to the Rome Statute have no obligation under the Statute”. See SC Res 1593 (31 March 2005). 64 To the extent it might be argued that it ﬁts with the principles and purposes of the UN to bind Sudan to the terms of the Rome Statute in violation of customaryand treaty law, it should be noted that the drafters of the VCLT agreed that “the present Convention will promote the purposes of the United Nations set forth in the Charter”. See the VCLT, above n.62, Preamble, recitals 6 and 7. 65 See Héctor Olásolo, The Triggering Procedure of the International Criminal Court (2005), 97 (“[N]o de jure power to alter the jurisdictional scheme of the [Rome Statute] has been granted to the Security Council by the [Rome Statute] or [UN Charter]”). 66 Michael Wood, The Law of Treaties and the UN Security Council: Some Reﬂections, in: Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (2011), 251. 67 Ibid. 482 Chinese JIL (2013) substantive. Problematic assertions such as these fail to fully address the pacta tertiis principle and the customary nature of immunities, and demand further analysis of the Security Council referral power, how such resolutions are to be interpreted and their permissible effects in relation to Sudan and al-Bashir.

IV.B.i. Disallowing referrals 19. The simplest (and perhaps most controversial) interpretation of Resolution 1593 and its effects isto not recognize the validityof the referral at all, because the law of treaties prevents binding non-States Parties to treaties. It is important to note that this interpretation does not make redundant Article 13(b), the Rome Statute provision that permits Security Council referrals in the first place. The Security Council’s referral Downloaded from power can still be meaningful even though it cannot extend the Court’s jurisdiction.68 This is particularly true in conflict situationsthat involve ICC members but are not currently being investigated by the ICC Office of the Prosecutor. For example, there may be States Parties to the Rome Statute who, for reasons of domestic politics such as demonstrating to the citizenry that the government maintains sovereignty or control of a http://chinesejil.oxfordjournals.org/ country or region (or, alternatively, who seek the continuation of atrocities by the government), willnotself-refer to the ICCunderArticle 13(a).At the same time,the Office of the Prosecutor itself—burdened perhaps by the volume and difficulty of its existing work, or concerned with other crimes that appear more serious—may be unable to devote the resources to engage in a proprio motu investigation under Article 13(c). If these uninvestigated situations were deemedathreatto international peace and security, the Security Council could refer the matter to the Office of the Prosecutorand therefore

make it a priority for the Court. While the Court and Prosecutor would still have dis- by guest on August 22, 2015 cretion over whether and how the case was pursued, this limited referral power could advance the anti-impunity and justice-seeking goals of both the ICC and the UN without stretching basic principles of international law to the extreme.

IV.B.ii. Reading down the Rome Statute 20. Another way of interpreting the referral is to say that it has a limited effect because the Rome Statute must be “read down” when applied to non-States Parties. To the extent the referral does place obligations on Sudan, it can be said to have limited effect by precluding the application of certain provisions of the statute, including Article 27(2). As a result, Sudan would still have no obligation to co-operate with the ICC, but ICC members would be required to co-operate only so long as they did not violate rules of customary international law, including those concerning head of State immunity. 21. The idea of “reading down” is not a novel concept; it is found in both domestic legal systems and international law. When statutory powers appear to conﬂict with other powerful legal norms, those powers are regularly interpreted in a non-conﬂicting

68 See Luigi Condorelli and Santiago Villalpando, above n.28. Kiyani, Al-Bashir and the ICC 483 manner, i.e. “read down” when appropriate. This saves the trouble of redrafting the statute so that it is no longer in conflict by providing a common-law rule of limited application with the same effect.69 In international law, “reading down” statutes gives effect to another common rule of the law of treaties—that treaties not conflict with customary international law. Aust notes that it is “legitimate to assume parties did not intend a treaty to be incompatible with customary international law”.70 In accordance with the lex generalis, “a treaty is to be interpreted in a way consistent with general principles and rules of international law”,71 and “[w]here a treaty rule is ambiguous and could be construed to require ‘violation’ of a customary norm, it seems appropriate to apply a principle that the treaty should be interpreted in so far as possible to be con- Downloaded from sistent with the customary norm.”72 Weinberger argues fora modification of the rule in Charming Betsy73 with the following result: “A treaty ought never to be construed to violate customary international law, if any other possible construction remains, and can never be construed to violate rights under customary law.”74 Indeed, the ICJ has already gone down this path, stating that even where a treaty might otherwise appear http://chinesejil.oxfordjournals.org/ to grant jurisdiction over a foreign official, “such extensions of jurisdiction in no way affects immunities under customary international law.”75 For non-State Party referrals,

69 In Canada, where the practice of reading down is often used with respect to conflicts with constitutional norms and in non-constitutional questions of interpretation, Sulli- van notes that reading down may be necessary to combat unintended over-inclusive- ness: “[I]t is impossible for drafters to spell out every qualification or limitation that might appropriatelyapply in a given set of circumstances.” Reading down is further jus- fi “ ” ti ed by the strong and virtually impossible to rebut presumption of coherence by guest on August 22, 2015 between conflicting laws. Ruth Sullivan, Sullivan on the Construction of Statutes (2008) at 166–7 and 225. Peter Hogg describes the benefit of reading down as con- ciliatory: “[Reading down] achieves its remedial purpose without declaring the provision invalid. It allows the bulk of the legislative policy to be accomplished, while trimming off those applications that are constitutionally bad.” Peter Hogg, Constitu- tional Law of Canada (1998), s. 15.7. 70 Anthony Aust, Modern Treaty Law and Practice, (2007), 248. 71 Ibid., 250. 72 Brian D. Lepard, Customary International Law: A New Theory with Practical Applica- tions (2010), 272 (emphasis in original). 73 The rule being that national statutes must be interpreted so as not to conflict with international law. Murray v. The Charming Betsy, 6 US (2 Cranch) (1804), 64, 118. 74 Sheila Weinberger, The Wimbledon Paradox and the World Court: Confronting In- evitable Conflicts between Conventional and Customary International Law, 10 Emory ILR (1996), 397, 438. 75 “[T]he rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while the absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, 484 Chinese JIL (2013) the Rome Statute’streaty-based override of head of State immunity would conflict with the customary law rule that continuesto apply to non-States Parties. In such a situation, Article 27(2) should be interpreted as simply not applying.76 22. Others have argued that reading down the Rome Statute violates principles of the law of treaties because it makes Article 27(2) redundant or inutile.77 This interpretation is flawed in three respects. Firstly, as mentioned earlier, this interpretation violates a separate principle of law of treaties, which is that treaties cannot bind third parties.78 The second problem isthatreading down Article27(2) in the caseof al-Bashirdoesnot make it redundant. Rather, it recognizes the exceptional nature of the clause. Recall that Article 27(2) is an example of an on-going waiver from the ordinary customary law Downloaded from rules of immunities; without it, even States Parties to the Rome Statute could claim the protection afforded by personal immunities. In almost every case before the ICC, Article 27(2) does exactly what it is meant to do: override the immunities of individuals in those States that have consented to ICC jurisdiction. Indeed, the vitality of

Article 27(2) is being demonstrated by the current proceedings against Kenyan Presi- http://chinesejil.oxfordjournals.org/ dent Uhuru Kenyatta. Precluding the application of Article 27(2) to al-Bashir has no impact on its utility against Kenyatta and others; Article 27(2) is only inoperative in that speciﬁc and narrow class of cases where two criteria are met: a non-State party has not voluntarilyaccepted the jurisdiction of the Court and persons clothed with personal immunityare indicted. As it stands, Darfur isthe only current situation that meets these criteria,andonlyal-Bashirisin theclass of personsthatcouldbe exemptedfromits application.79 The fact that Article 27(2) has not been relied upon in the other cases does not mean that it is redundant, but that the Prosecutor has chosen not to utilize it by not pursuing anyone else protected by personal immunities. This exercise of pros- by guest on August 22, 2015 ecutorial discretion does not render a provision inutile, let alone justify the expansive interpretation of that clause.

thereby requiring them to extend their criminal jurisdiction, such extensions of jurisdiction in no way affects immunities under customary international law. … These remain opposable before the courts of a foreign State, even where those courts exercise jurisdiction under those conventions.” Arrest Warrant, above n.17, para.59. 76 This argument can be extended. One possibility is that all provisions of the Statute that create an obligation on the non-consenting State are of no effect, and States Parties are only bound by those obligations that do not violate customary law. Forexample, Sudan would have no art. 86 obligation to co-operatewith the Court, while a State Party to the Rome Statutewould have the obligation to co-operate with the ICC but not to arrest al- Bashir. 77 See Dapo Akande, above n.4, 338. 78 See art. 35 of the VCLT, above n.62, and accompanying text. 79 Of the seven other active ICC investigations, the only other situation that met these criteria was in Libya. The death of former Libyan leader Muammar Gaddaﬁ means there is no longer any claim of head of State immunity in that case. Kiyani, Al-Bashir and the ICC 485

23. The third flaw flows from this problem. Objecting to the “reading down” of the Rome Statute because it supposedly nullifies some provisions of the treaty is both in- correct and contradictory. Whereas negating the application of Article 27(2) in the al-Bashir case would not render it null for the vast majority of cases, applying it here would render Article 98(1) entirely ineffective and inutile. Article 98(1) precludes the Court from requesting States to arrest persons if that request would violate other international obligations owed by those States, such as obligations to respect immunities.80 Even when “read down”, Article 27(2) can apply to individuals other than al- Bashir,81 but if Article 98(1) cannot apply to individuals such as al-Bashir—a national of a non-state party who would otherwise seem to be protected by customary law immunities—then what effectiveness can it claim? Downloaded from 24. Indeed, the only way to achieve a harmonious reading of Articles 27(2) and 98(1) that is both internally coherent as well as consistent with external rules of international law is either to disregard the referral entirely or to read down Article 27(2). The conflict

between Article 27(2) and the rules of the law of treaties is otherwise unresolvable. The http://chinesejil.oxfordjournals.org/ tension between them may be understood as a conflict between a product of the treaty system and the normsthat are fundamental to the existence of that system, one that must be adverted to regardless of the object and purpose of the treaty in question.82 If applied in the present case, this rulewould not permit the arrest of al-Bashir so long as he remained President of Sudan, but would have other positive benefits. It would reinforce existing customary international law on both immunities and treaty interpretation, while still giving some effect to the important anti-impunity goals of the ICC by allowing the pursuit of those Sudanese suspects who are not covered by personal immunities.83 by guest on August 22, 2015 80 Article 27(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.” Article 98(1): “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” Rome Statute, above n.6. 81 Such as Uhuru Kenyatta, see above n.15. 82 Note as well that the inclusion of arts 98(1) and 98(2) (precluding ICC jurisdiction on the basis of either international law immunities or bilateral agreements not to surrender certain nationals of States) make clear that the object and purpose of the treaty cannot be solely to end impunity or extend humanitarian protection. 83 Another way in which “reading down” supports anti-impunity efforts is by preserving the Charter’s priority over so-called art. 98(2) agreements. Article 98(2) of the Rome Statute is similar to art. 98(1) in that it restricts the Court’s ability to pursue suspects, but differs in that it refers to international agreements instead of customary law obligations on immunity. These art. 98(2) agreements have the same effect as customary immunities, but are not elevated to the same status under international law, and are therefore subordinate to the Charter and Security Council referrals. 486 Chinese JIL (2013)

V. A customary international law exception for immunities? 25. In Section II, it was shown that the immunity of a head of State is part of customary international law. Any Security Council action that directly or indirectly removes this immunity is therefore ultra vires and not binding upon Member States.84 The only al- ternative is to argue that another rule of customary law has created an exception to head of State immunity.85 This alleged exception states that immunities do not protect individuals charged with international crimes by international criminal tribunals.86 This eliminates the need to rely on the authority of the Security Council, and perhaps explains why—after ignoring this argument in its conﬁrmation of al-Bashir’s indict- 87 ment—the PTC relied almost exclusively on this alleged exception two years later. Downloaded from 26. This customary law argument follows several lines: that the 1919 Report of the Commission on the Responsibility of the Authors of the War88 and the statutes of previous international criminal tribunals show historical belief in the exception; that the rationale for personal immunities does not hold up vis-à-vis international courts because they are free from the bias of domestic courts; relatedly, that these statutes and the Arrest http://chinesejil.oxfordjournals.org/ Warrant89 decision of the ICJ demonstrate that the ICC, as an international court, automatically has jurisdiction over al-Bashir; and that there is a growing practice of international criminal tribunals removing the immunities of sitting heads of State. 27. Yet the evidence the PTC relies upon often demonstrates something quite different from what is claimed. The supposed precedents lack the historical pedigree or legal signiﬁcance attributed to them for a variety of reasons. Statutes and prior cases that supposedly demonstrate the exception do not in fact deviate from the basic rules of head of State immunity outlined in Section II. Previous examples of heads of by guest on August 22, 2015 State being prosecuted either concern former heads of State or incumbents whose immunity was waived, and the statutes of previous tribunals actually provide evidence of a separate rule that affects substantive defenses, not personal immunities. Finally, the argument that international courts are impartial because they are international depends

84 The necessary implication of this position is that the purported competence of the ad hoc tribunals to strip immunities was therefore also ultra vires. 85 To be clear, the ICC has not adopted the position that it is creating a newexception and therefore changing customary international law. Rather, the PTC has been unambigu- ous about its belief that customary international law has already changed and that the necessary precedents already exist. To adapt Wolfke’s phrasing, the PTC is trying to “justify [its] conduct as allegedly permissible exceptions of a valid general customary rule.” See Karol Wolfke, Custom in Present International Law (1993), 65–66. 86 See Paola Gaeta, above n.4. 87 See above n.3. 88 Commission on the Responsibility of the Authors of the War and On Enforcement of Penalties—Report Presented to the Preliminary Peace Conference, reprinted in: 14 AJIL (1920), 95, 116–117 [1919 Commission Report]. 89 See above n.17. Kiyani, Al-Bashir and the ICC 487 upon an unsustainable interpretation of unclear statements made by the ICJ and an unduly optimistic reading of both international relations and the past and present state of international criminal courts. For these reasons, it cannot be said there is a customary law exception to head of State immunity.

V.A. A lack of supporting case law 28. A rule of customary international law can only be said to exist when there is evidence of State practice following the rule, and belief in the legal validity of that rule. There is little evidence of State practice or opinio juris that sitting heads of State can be arrested and tried for international crimes. The cases that purportedly establish this rule usually Downloaded from suffer from one or both of the following flaws: the individuals concerned were no longer sitting heads of State at the relevant time, and therefore lacked the personal immunity that al-Bashir currently has; or, they had been transferred, with the consent or co-operation of the State, to the court in question, which amountsto awaiverof the immunity http://chinesejil.oxfordjournals.org/ by the State concerned. These reasons fit perfectly with ordinary understandings of head of State immunity, and show no evidence of an exception to those rules.90 29. The PTC relies upon what it claims are four examples of sitting heads of States who have lost their personal immunities before international criminal courts and tribunals: Laurent Gbagbo, Muammar Gaddafi, Charles Taylor and Slobodan Miloše- vić.Thefirst two cases are dubious precedents for indicting al-Bashir. The arrest and transfer of Laurent Gbagbo, the former president of the Ivory Coast, cannot be claimed as precedent given that he was a former head of State at the time of his 91 ’ arrest and transfer to the ICC, and his immunities had been waived by Gbagbo s by guest on August 22, 2015 own government.92 Gbagbo was President from 2000 until a disputed election in 2010. In April 2003, his government declared its ad hoc acceptance of ICC

90 As described in Section II, above. 91 Gbagbo surrendered his claim towinning the 2010 Ivory Coast presidential election on 11 April 2011. The ICC was not authorised to open its investigation into post-election violence until 3 October 2011. Situation in the Cote d’Ivoire, ICC-02/11-14, Deci- sion Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investiga- tion into the Situation in the Republic of Côte d’Ivoire (3 October 2011). Awarrant for Gbagbo’s arrest was issued on 23 November 2011, nearly 7 months after he had lost any claim to immunity: Prosecutor v. Laurent Koudou Gbagbo, ICC-02/11, Pre- Trial Chamber III, Warrant of Arrest for Laurent Koudou Gbagbo (23 November 2011); and Public redacted version of Decision on the Prosecutor’s Application Pur- suant to Article 58 for a warrant of arrest against Laurent Koudou Gbagbo (30 Novem- ber 2011). 92 That self-referral was for any crimes that had been committed during an armed rebel- lion against Gbagbo’s rule that started on 19 September 2002. See Déclaration de reconnaissance de la Compétence de la Cour Pénale Internationale, Letter from Bamba Mamadou, Minister of State (CIV) to ICC (18 April 2003) (www.icc-cpi.int). 488 Chinese JIL (2013) jurisdiction “sans retard et sans exception”,93 thereby accepting the statutory waiver of immunity under Article 27(2). Nearly a year before Gbagbo’s eventual arrest in 2011, his successor confirmed the continuing unconditional acceptance of ICC jurisdiction.94 Arresting individuals whose immunity has been waived and who are former heads of State is perfectly in accordance with the ordinary customary rules of immunities; they neither present nor provide support for any exception. 30. As for the deceased Muammar Gaddafi, his case95 cannot count in any meaningful sense. Including Gaddafi as a “precedent” seems an inaccurate embellishment given that he was indicted after al-Bashir, and placed in precisely the same unsettled legal position. Even had Gaddafi lived, there is little doubt that the new Libyan government either would have waived his immunity and surrendered him to the Court, or initiated Downloaded from domestic proceedings against him.96 Again, this is in line with the present law on immunities. 31. Charles Taylor, the former warlord leader of Liberia, was a sitting head of State at 97 fi the time of his indictment, but had been out of of ce for nearly three years at the time http://chinesejil.oxfordjournals.org/ ofhisarrestandtransfertotheSCSL.Again,thetransferofaformer headofStateisinline with ordinary rules of personal immunities.98 The trial of Slobodan Milošević,whowas indictedwhilestillservingasPresidentoftheFederalRepublicofYugoslavia(FRY),99 isa more complex case, but still not nearly as straightforward as suggested by the Court. By

93 Ibid. 94 On 14 December 2010, Alassane Ouattara—Gbagbo’s opponent in the 2010 election who was declared victorious by the Independent Election Commission and inter-

nationally recognized as President—issued a confirmation of the State’s continuing ac- by guest on August 22, 2015 ceptance of ICC jurisdiction under art. 12(3) of the Rome Statute. See: Confirmation de la Déclaration de Reconnaissance, Letter from Alassane Ouattara, President (CIV) to ICC (14 December 2010) (www.icc-cpi.int). 95 A warrant for his arrest was issued in June 2011, but proceedings were terminated in November 2011 after his death. Gaddafi Decision, above n.8. 96 The National Transitional Council of Libya stated Muammar Gaddafi’s son, Saif al- Islam Gaddafi, would have a domestic trial instead of being sent to the ICC. See Libya Rules out ICC Trial for Saif Al-Islam, Al Jazeera English (9 April 2012) (www.aljazeera.com). 97 A sealed indictment was issued in March 2003. Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-I, Indictment (7 March 2003) (on file with author). Taylor resigned as President of Liberia on 11 August 2003, and was not arrested until 29 March 2006. 98 As noted by the court. See Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-I, Appeals Chamber, Decision on Immunity from Jurisdiction (31 May 2004), para.59 (Taylor Immunity Decision). 99 One of his contemporaries, Milan Milutinović, was also indicted while serving as Presi- dent of Serbia. However, Milutinović surrendered himself to the ICTY after this term ended in 2002, and did not raise immunity as an issue during his trial. See Prosecutor v. Šainović et al, IT-05-87, Trial Chamber, Decision on Milutinović Motion for Pro- visional Release—Public (22 May 2007), para.10. Kiyani, Al-Bashir and the ICC 489 the time Milošević was produced before the ICTY in 2001, he had lost his bid for re- election, resigned as President of the Federal Republic of Yugoslavia (FRY), and been arrested on domestic corruption and abuse of power charges.100 He was therefore a former head of State, at which time the ICTY reissued a warrant for his arrest.101 As with Gbagbo, Gaddafi and Taylor, who were also former heads of State, Milošević lacked any personal immunities at the time of his arrest and trial.102 Again, this creates no exception to the traditional customary law of head of State immunity.103

V.B. Article 27(2) has no statutory predecessor 32. In addition to these very recent international cases, the PTC also relies on historical Downloaded from statutory precedents. Yet there are equally compelling alternate explanations of this evidence that the PTC does not engage with. An example is the 1919 Commission Report presented at the Preliminary Peace Conference after the First World War, which impliedthat immunities shouldnotapply for international crimes.104 While the Commis-

sion may itself have envisaged a change in the nature of immunities, States failed to imple- http://chinesejil.oxfordjournals.org/ ment the Commission’sproposals.105 The Commission Report led to Article 227 of the Treatyof Versailles, in which “[t]he Allied and Associated Powers publiclyarraign William II of Hohenzollern, formerly German Emperor, fora supreme offence against international morality and the sanctity of treaties.”106 The obvious problem is that this again deals

100 Milošević lost to Vojislav Koštunica. While histerm was not set to end until June 2001, he resigned on 7 October 2000 after public protests at alleged manipulation of electoral results by his allies.

101 Thewarrants were re-issued on 22 January 2001. See ICTY, News Release, SJP/P.I.S./ by guest on August 22, 2015 557-e, Milosevic and others case: warrants re-issued to the Federal Republic of Yugo- slavia, (23 January 2001) (www.icty.org/sid/8029). 102 See Prosecutor v. Slobodan Milošević, IT-02-54, Trial Chamber, Decisions on Prelim- inary Motions (8 November 2001). Both the Hague District Court and, on appeal, the European Court of Human Rights, held that they lacked jurisdiction to hear the matter. See Slobodan Milošević v. The State of the Netherlands, reprinted in: 41 ILM (2002), 86; and Milošević v. the Netherlands, App. No. 77631/01, ECtHR (19 March 2002). 103 While Serbia transferred Milošević to the ICTY in violation of a domestic court order (see Konstantinos D. Magliveras, The Interplay Between the Transfer of Slobodan Milošević to the ICTY and Yugoslav International Law, 13 EJIL (2002), 661, 663–668), this should not be interpreted as a waiver of immunity. For one, Milošević had no immunity to waive at the time, since he had ceased to be President of Serbia in 1997, and President of the FRY in 2000. Second, Serbia, as a provincial entity within the federal State of Yugoslavia, was not competent to waive any immunity Milošević might have had as President of the FRY. 104 1919 Commission Report, above n.88, 116–117. 105 Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005), 33. 106 Treaty of Versailles, 225 CTS 188. 490 Chinese JIL (2013) with the immunity of a former head of State. Additionally, Article 227 recognized that any jurisdiction the Allies enjoyed over the former Kaiser was not absolute. Instead of obliging the Netherlands to transfer the former Emperor, the Allies could only “request” his transfer,107 an entreaty that was promptly rejected. None of this creates an exception to the standard understanding of personal immunities,108 and the failure to realize Article 227 has been labelled “the least satisfactory aspect” of the Treaty of Versailles.109 33. The PTC also claims the statutes of previous international criminal tribunals provide further evidence of an established customary law exception. However, this position overlooks the important distinction in criminal law between substantive defenses and procedural constraints such as immunities.110 Article 27(1)111 of the Rome Statute Downloaded from contains a nearly identical statement to declarations contained in the Nuremberg112 and Tokyo Charters,113 as well as the ICTR and ICTY Statutes.114 These provisions all remove the substantive defense of ofﬁcial capacity—the defense that an individual cannot be held responsible for acts of the State. Yet what makes the Rome Statute unique is Article 27(2), which removes personal immunities—the procedural barriers http://chinesejil.oxfordjournals.org/ that prevent a court from exercising its authority over particular individuals. Article 27 (2) has no statutory predecessor; none of the other statutes even mentions

107 Contrast this “request” with the mandatory language of arts 228 and 230, ibid., requiring Germany to hand over all accused persons and all documentation necessary to the determination of responsibility. 108 Note as well that this supposed rule was agreed upon only by the victorious Allied powers, which would also have judged the defeated former Emperor, undermining

the idea that this rule had widespread international acceptance. by guest on August 22, 2015 109 Robert Cryer, above n.105. 110 See Roseanne Van Alebeek, above n.16, 265–266; Hazel Fox, above n.17, 555–556; and Dapo Akande, above n.16, 414–415, 419–420 (although Akande argues that part of art. 27(1) of the Rome Statute also affects procedural immunities). See also Taylor Immunity Decision, above n.98, para.32. 111 “[O]fficial 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.” Rome Statute, above n.6, art. 27(1). 112 Charter of the International Military Tribunal (Nuremberg Charter), art. 7 reprinted in: Michael R. Marrus, The Nuremberg War Crimes Trial, 1945–46: A Documentary History (1997). 113 Charter of the International Military Tribunal for the Far East, art. 6 reprinted in: Robert Cryer and Neil Boster, Documents on the Tokyo International Military Tribu- nal (2008). 114 See Statute for the International Criminal Tribunal for the Former Yugoslavia, 32 ILM 1159, art. 7(2) and Statute for the International Criminal Tribunal for Rwanda, 33 ILM 1602, art. 6(2). The Special Court for Sierra Leone has a similar provision in its statute. See Statute of the Special Court for Sierra Leone, 2178 UNTS 138, 145, art. 6(2). Kiyani, Al-Bashir and the ICC 491 immunities.115 In addition, the ICJ has twice stated that immunity from jurisdiction is notthesame as absenceofresponsibility,116 andthispointissocommonlyrepeatedthat it is a “cliché”117; to conflate the two isto mis-state basic principles of criminal law. Our earlier introduction of immunity and waivers further illustrates the important difference between substantive defenses and procedural bars: if the two were identical in meaning, then head of State immunity could never be waived by a State against the wishes of the accused.118 This directly contradictsthe nature of immunities,and strong- ly undermines the PTC’s argument that statutory precedent is on its side.

V.C. Bias and neutrality in international courts Downloaded from 34. In the absence of supporting case-lawand statutory precedent, the ﬁnal position the PTC relies upon is the theoretical argument that the rationale for immunities is inapplicable to the ICC because it is an international and not a domestic court. This adopts Cassese’s argument that (a) the reason why personal immunities may be

raised before national courts is that State A might otherwise use prosecutions to http://chinesejil.oxfordjournals.org/ unduly impede or limit the ability of State B to engage in international action, and (b) this rationale does not apply to international courts because they are “totally independent of states and subject to strict rules of impartiality”.119 35. This understanding is questionable in at least threeways. The ﬁrst reply isthat it is irrelevant to the determination of customary international law whethera practice is supported bya goodrationale.What matters isthat the practice exists and exhibits a belief in the rule, not its rationality. As shown above, State practice has consistently supported the traditional interpretations of head of State immunity, not the exception argued for by the PTC. by guest on August 22, 2015 36. Cassese’s argument suffers even if this positivist approach is abandoned and one takes it on its substantive terms. One immediate response is that, surely, the cleavage

115 Hazel Fox, above n.17, 555 (“In fact, only the ICC expressly provides that immunity may be set aside”). 116 See Arrest Warrant, above n.17, 25–26, para.60 (“Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility”). See also Difference Relating to Immunity From Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, 62, 88–89, para.66. While that case concerned the immunityof a UN official and not a head of State, the ICJ noted that the immunityof that official did not negate UN responsibility for damages caused by the actions of that official. 117 Robert Cryer, Prosecuting International Crimes, above n.105, 292. 118 Ibid. 119 Malawi Decision, above n.3, para.34. 492 Chinese JIL (2013) between the national and international isnot as clean as imaginedhere. As farasthe ICC is concerned, enforcement action originates at the State level, making the actions of national legal and police systems integral to the Court’s work, and opening the door to at least some degree of bias. For example, domestic authorities might be inclined to only arrest anti-government suspects, or—when dealing with persons clothed in immunity —only pursue the leaders of unfriendly States. Secondly, there is a great deal of disagree- ment about the impartiality and neutrality of international judicial institutions. The Tokyo and Nuremberg military tribunals have been poorly reviewed on neutrality grounds,120 as—to a lesser degree—have the ICJ121 and ICTY.122 As for the ICC, many States have asserted claims of bias with respect to the pursuit of al-Bashir. 37. The idea that international courts are somehow uniquely impartial is based in Downloaded from part on overly ambitious interpretations of the Arrest Warrant decision. In that case, the ICJ considered whether Belgium’s indictment of Abdoulaye Yerodia for crimes against international law violated his immunities as the serving Minister of Foreign

Affairs for the Democratic Republic of Congo (DRC). After making its dispositive http://chinesejil.oxfordjournals.org/ ﬁnding in Yerodia’s favour, the ICJ added that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts where they have jurisdiction”, including the ICTY, ICTR and ICC.123 There is limited precedential value to this statement for a number of reasons. The case was about diplomatic immunity, not head of State immunity, and the statement itself did not even distinguish between incumbent and former immunity holders. Nor did the Court discuss immunities in the context of non-partiesto the ICC Statute, immunities before international courts in general or the ability of the Security Council to effect treaty-based overrides of customary immunities. The comment was made in obiter, and by guest on August 22, 2015 not based on a speciﬁc analysis of facts relating to the ICTR, ICTYor ICC. In fact, none of the pleadings even raised this argument. This perhaps explains why the ICJ did not fully distinguish the ad hoc tribunals from the ICC, or specify what is common about them so as to justify the abrogation of immunities before all of them. 38. The argument that the Arrest Warrant case conclusively determines the question of head of State immunity is only sustainable if one accepts the grand but demonstrably untrue assertion that all international criminal tribunals are identical in creation, regulation and jurisdiction, and that this commonality results exclusively from their supra- national status. The more reasonable interpretation of the court’s brief comments is

120 The best example being Justice Pal’s scathing dissent in the Tokyo Trials. See Radha- binod Pal, Dissentient Judgment of Justice Pal (Kokusho-Kankokai, 1999). 121 See Bernhard Graefrath, above n.1. 122 See Dan Saxon, Exporting Justice: Perceptions of the ICTY Among the Serbian, Cro- atian, and Muslim Communities in the Former Yugoslavia,4 Journal of Human Rights (2005), 559 (stating that all victim communities, but especially Serbs, view the ICTYas a politically-biased instrument). 123 Arrest Warrant, above n.17, para.61. Kiyani, Al-Bashir and the ICC 493 that it simply restates that nationals of ICC States Parties are not able to claim protection through personal immunities. At best, the ICJ can be criticized for its brevity in not distinguishing tribunals constituted under the Chapter VII powers of the Security Council from treaty-based courts such as the ICC.124 Any determination that the ICJ purported to provide a complete analysis that covered extraordinary cases such as al-Bashir’s, or do more than list some of the courts before which immunities may not apply, is an unjustiﬁed extrapolation. 39. Ultimately, the fact that a court or institution is international says little about its perceived or actual impartiality. The ICC and Security Council, the key international institutions involved in the al-Bashir case, have long been seen with suspicion, particularly by less powerful States. In addition, at least some of the precedents relied upon by Downloaded from the PTC can be questioned for failing to meet Cassese’s own criteria. All of this suggests that the rationale for immunities continues to be relevant even for international courts.

V.C.i. Political bias in international courts http://chinesejil.oxfordjournals.org/ 40. Concerns about the neutrality and impartiality of the ICC pre-date125 and exist in- dependentlyof the Darfur situation.126 At the same time, many States suspicious of the

124 Another important flaw with the ICJ’s reasoning is replicated in the Malawi Decision, above n.3, para.27. The ICJ misstated the law when it found that Yerodia’s diplomatic immunity was co-extensive with that of head of State immunity. As noted in Section I, the immunity of heads of State extends further than diplomatic immunity, so that the immunity persists even when the head of State is abroad on private visits. See Sir Arthur Watts, The Legal Position in International Law of Heads of State, Heads of Govern- by guest on August 22, 2015 ment and Foreign Ministers, 247 Recueil des Cours 9 (1994-III). As Judge van den Wyngaert stated in dissent, heads of State and foreign ministers may have comparable functions, but that does not mean they have comparable immunities. Arrest Warrant, above n.17, 146–147, paras.14–17 (diss. op. van den Wyngaert). Any argument that purports to abrogate head of State immunity on a purely functional basis is deficient because it collapses the distinction between a head of State’s personal immunity and a government official’s functional immunity. See Arrest Warrant, above n.17, 150, para.22 (diss. op. van den Wyngaert), and Dapo Akande, above n.16, 411–412. 125 Political concerns largely animate the United States’ objections to the ICC, including: the Court’s claimed jurisdiction over nationals of non-States Parties; the potential for politicized prosecutions; an unaccountable prosecutor; and the threat of usurping the Security Council’s role in international relations. See Jennifer K Elsea, US Policy Regarding the International Criminal Court, CRS Report RL31495 (29 August 2006). Similar concerns explain Chinese opposition to the ICC. See Lu Jianping and Wang Zhixiang, China’s Attitude Towards the ICC, 3 J of Int’l Crim Justice (2005), 608. Concern about the politicization and lack of accountability of the Office of the Prosecutor has led to calls for self-imposed prosecutorial guidelines. See Allison Marsten Danner, Enhancing the Legitimacy and Accountability of Pros- ecutorial Discretion at the International Criminal Court, 97 AJIL (2003) 510, 525. 126 That the Court can be a site for political contests is clear from reactions to the Court’s (in)action with respect to the Israel-Palestine situation. Canada has threatened the 494 Chinese JIL (2013) supposed neutrality and legitimacy of the ICC and the Security Council argue that the al-Bashir case provides particularly strong evidence of bias and impropriety. The will- ingness of the ICC and Security Council to stretch basic concepts of public international law in order to indict yet another African, has led Sudan, the AU and other States to contest the actions of both of these organizations from the outset. When the Security Council voted to refer the situation in Darfur to the ICC, Sudan’s Ambassador to the United Nations protested that the referral was reminiscent of colonial practices, and of dubious legality. It was “fraught with a series of procedural impediments and legitimate reservations”, rested on the belief “that the scales of justice and law are based on exceptions”, and demonstrated that the ICC was “a tool for the exercise of the culture of superiority and to impose cultural superiority”.127 Downloaded from 41. The AU has repeatedly objected to al-Bashir’s indictment and stated that its members would not co-operate with the ICC to arrest him128 because the indictment

Palestinian Authority for attempting to refer alleged Israeli crimes to the ICC. Mike http://chinesejil.oxfordjournals.org/ Blanchﬁeld, You’ll Face “Consequences” from Canada if You Take Israel to Inter- national Criminal Court: Baird to Palestinians, National Post (6 March 2013) (news.nationalpost.com). Amnesty International said the decision not to investigate alleged Israeli war crimes “opened the court to accusations of political bias”. See Amnesty International, Press Release, ICC Prosecutor statement: Fears over justice for Gaza victims, PRE01/176/2012, (3 April 2012) (www.amnesty.org). A pro- Israeli intervener said the same decision proved that the ICC had not been “hijacked for political purposes”. See Lawfare Defeat for NGOs at ICC, NGO Monitor (3 April 2012) (www.ngo-monitor.org).

127 Comments of Mr. Elfatih Erwa, Sudanese Ambassador to the UN, made to the Secur- by guest on August 22, 2015 ity Council immediately after the passage of Resolution 1593, referring Darfur to the ICC. UN Doc S/PV.5158 (31 May 2005), 12–13. 128 Every AU General Assembly since al-Bashir’s indictment has included one or more statements on (a) the doctrine of universal jurisdiction and the immunities of foreign officials; (b) Security Council deferrals under Article 16 for Sudan, Libya or Kenya; and (c) co-operation with the arrest warrants for al-Bashir and Muammar Gaddafi of Libya. See Decision on the Abuse of the Principle of Universal Jurisdiction, Doc. Assembly/AU/Dec.243 (XIII) (3 July 2009) (AU Dec. 243) and Decision on the Report of the Commission on the Meeting of African States Parties to the Rome Statute of the International Criminal Tribunal (ICC), Doc. Assembly/AU/ Dec.245 (XIII) (3 July 2009) (AU Dec. 245); Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the International Criminal Court (ICC), Doc. Assembly/AU/Dec. 270 (XIV) (2 February 2010) (AU Dec. 270); De- cision on the Progress Report of the Commission on the Implementation of Decision On the Second Ministerial Meeting on the Rome Statute of The International Crim- inal Court (ICC), Doc. Assembly/AU/Dec. 296 (XV) (27 July 2010) (AU Dec. 296); Decision on the Implementation of the Decisions on the International Criminal Court, Doc. Assembly/AU/Dec. 334 (XVI) (31 January 2011) (AU Dec. 334); De- cision onthe Implementation of the AssemblyDecisions on the International Criminal Court, Doc. Assembly/AU/Dec.366 (XVII) (1 July 2011) (AU Dec. 366); and De- cision on the Progress Report of the Commission on the Implementation of the Kiyani, Al-Bashir and the ICC 495 exists in the context of a “double standard” applied to “poor countries”129 and reflects the abuse of universal jurisdiction to target African leaders.130 Some AU MemberStates “unreservedly attributed the indictment of the Sudanese president to a glaring practice of selective justice.”131 The AU has remained consistent in its objection to the role of the Security Council in the referral of Sudan, the non-deferral of the situation under Article 16, and the effect of the Security Council’s involvement on the interpretation of the Rome Statute and the development of public international law.132 It has also argued that Article 98(1) of the Statute133 justifies non-co-operation with respect to al-Bashir.134 The Arab League has rejected the validity of the indictment as well,135 and even China—a Permanent Member of the Security Council—has openly Downloaded from flouted the referral by welcoming al-Bashir with a full State reception.136 42. As a result, the AU and some member States have engaged in symbolic non-co- operation. At one point, therewas discussion of a mass withdrawal from the ICC by AU members, but this was rejected in favour of pressuring the Security Council instead.137

Other examples of non-co-operation include refusing the ICC permission to open a http://chinesejil.oxfordjournals.org/ liaison ofﬁce in Ethiopia,138 and stating that AU members which welcomed al- Bashir after his indictment “were discharging their obligations under Article 23 of the Constitutive Act of the African Union and Article 98 of the Rome Statute as well

Assembly Decisions on the International Criminal Court (ICC), Doc. Assembly/AU/ Dec. 397 (XVIII) (30 January 2012) (AU Dec. 397). (All documents at www.au.int/ en/decisions/assembly). 129 AU criticizes ICC ruling on Bashir genocide charges, Sudan Tribune (5 February 2010) (www.sudantribune.com/spip.php?article34022). by guest on August 22, 2015 130 See Decision on the Report of the Commission on the Abuse of the Principle of Uni- versal Jurisdiction, Assembly/AU/Dec.199 (XI) (June 30–July 1, 2008) (www.au. int/en/decisions/assembly). 131 Ramtane Lamama, quoted in African ICC Members Mull Withdrawal Over Bashir In- dictment, Voice of America (8 June 2009) (www1.voanews.com/english/news/a-13- 2009-06-08-voa30-68788472.html). 132 See AU Dec. 199, AU Dec. 245, AU Dec. 270, AU Dec. 296, AU Dec. 334, AU Dec. 366, and AU Dec. 297, above n.128. 133 Above n.80. 134 See AU Dec. 245, AU Dec. 270, AU Dec. 366 and AU Dec. 397, above n.128. 135 Arab leaders back “wanted” Bashir (30 March 2009) BBC News, (news.bbc.co.uk/2/ hi/7971624.stm). 136 Malcolm Moore, Sudan’s al-Bashir Given Red Carpet Treatment by China, The Tele- graph (29 June 2011) (www.telegraph.co.uk). 137 African Countries Back Away from ICC Withdrawal Demand, Sudan Tribune (10 June 2009) (www.sudantribune.com/spip.php?article31443). The AU subsequently complained about the Security Council’s failure to act on its requests for a deferral of the investigation into Darfur. See AU Dec. 296, above n.128, para.4. 138 Ibid., para.8. 496 Chinese JIL (2013) as acting in pursuit of peace and stability in their respective regions”.139 Even after the ICC referred non-co-operating States to the Assembly of State Parties and Security Council,140 and the PTC found that Malawi had acted contrary to the Rome Statute by failing to arrest al-Bashir in 2011,141 the AU repeated its support for those States, and further asked that African States work to “ensure that African proposals and concerns are properly considered by the UN Security Council and the Assembly of States Parties to the Rome Statute”.142 While AU members are not unanimous in their support of al-Bashir,143 there remains concern about the legality of the pursuit of al- Bashir, and suspicion of the ICC’s relationship to Africa.144 This suspicion is mani- fested in growing support for local, non-ICC court processes in Libya and Kenya,145 Downloaded from a renewal of calls for a mass withdrawal from the ICC,146 and repeated criticisms of the Security Council’s refusal to engage with the AU to resolve the impasse.147 The

139 AU Dec. 366, above n.128, para.5. http://chinesejil.oxfordjournals.org/ 140 Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, Decision informing the United Nations Security Council and the Assembly of States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, and Deci- sion informing the United Nations Security Council and the Assemblyof States Parties to the Rome Statute about Omar Al-Bashir’s presence in the territoryof the Republic of Kenya (27 August 2010) (International Criminal Court, Pre-Trial Chamber I). 141 See Malawi Decision, above n.3. 142 AU Dec. 397, above n.128, paras.3–7. 143 Botswana, for one, has regularly stated its belief that it is obligated to arrest al-Bashir should he arrive in the country. However, Botswana apologized to Kenya after its by guest on August 22, 2015 foreign minister initially stated that Kenyatta would be banned from Botswana “if he refuses to co-operate with the ICC”. See Botswana Apologises to Kenya over Kenyatta ICC warning, BBC (14 March 2013) (www.bbc.co.uk). After being threatened with cuts to foreign aid, the new President of Malawi stated that it would be obligated to arrest al-Bashir were he to arrive in the country; in response, an AU meeting scheduled to take place in Malawi in 2012 was moved to Ethiopia. Aaron Maasho, AU moves summit to Ethiopia after Malawi snubs Bashir, Reuters (12 June 2012) (www. reuters.com). 144 In January 2013, the AU recommended seeking an advisory opinion on the immunity of non-States Parties’ heads of State. It also asked States to balance their obligations to the AU against theirobligationsto the ICC, and to unite behind particular judicial can- didates in order to promote African representation on the ICC bench. Decision on the Implementation of the Decisions on the International Criminal Court (ICC), Assem- bly/AU/Dec.419(XIX) (AU Dec. 419). 145 See, e.g., Decision on International Jurisdiction, Justice and the International Crim- inal Court (ICC), Assembly/AU/Dec. 482(XXI) (AU Dec. 482) (on Kenya) (iccnow.org); and AU Dec. 419, above n.144 (on Libya). 146 Sudan says AU to agree on mass withdrawal from ICC, Sudan Tribune (24 May 2013) (www.sudantribune.com). 147 See e.g. AU Dec. 482, above n.145. Kiyani, Al-Bashir and the ICC 497 al-Bashir indictment is no longeran isolated case; it isthe ﬁrst and most notorious ﬂash- point of general dissatisfaction with the ICC and its “race hunting” of African States.148

V.C.ii The role of the Security Council in international courts 43. As implied by the AU’s steady complaints, these arguments reﬂect long-standing concerns about the procedures and neutrality of international institutions, including the Security Council. A key deﬁciency with the PTC commingling its jurisdictional claims with the Security Council referral is that this fails to confront the central issues of legitimacy and legality that arise when the Council enters into “legally grey areas”149 such as the Sudan referral. This is not a new problem. The SCSL, for example, acknowledged that not every international court is automatically competent Downloaded from to delete immunities, and that one group of States cannot join together to abrogate the immunities of another State simply by saying their court is international.150 As groups of States can easily have shared, politicized interests, including the punishment of a common enemy, there must be some additional element beyond “internationality” http://chinesejil.oxfordjournals.org/ for international courts to justify the deletion of immunities.151 For the SCSL, the extra justifying condition was the Chapter VII resolution152 of the Security Council that initiated the treaty process establishing the court.153 The problem with this reasoning isthe same as in the al-Bashircase: it fails to acknowledge the contested nature of the Security Council’s powers, how that affectsthe legitimacyof international courts, or the dubious legality of the Security Council’s judicial and quasi-judicial acts.154

148 According to AU Chairman (and President of Ethiopia) Hailemariam Desalegn, “The … intention was to avoid any kind of impunity but now the process has degenerated to by guest on August 22, 2015 some kind of race hunting.” See African Leaders Accuse ICC of “Race Hunt”, Al- Jazeera (28 May 2013) (www.aljazeera.net). 149 See Tetsuo Sato, The legitimacy of Security Council activities under Chapter VII of the United Nations Charter since the end of the Cold War, in: The Legitimacy of Inter- national Organizations, Jean-Marc Coicaud and Veijo Heiskanen (eds.), (2001), 309. Sato analyses the legitimacy of Security Council activities and highlights the need for greater legitimation in the ‘legally grey areas’ of quasi-judicial and quasi-legislative activities, including more functional separation of powers and more active judicial review. 150 This position was based on submissions from the amici in the case. See Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-I, Submissions of the Amicus Curiae on Head of State Immunity, Trial Chamber II (23 October 2003) para.78 (Taylor Amicus Brief). 151 Ibid. Whether a court has jurisdiction depends on “the nature of the tribunal: how it was established and whether the State of the ofﬁcial sought to be tried is bound by the instrument establishing the tribunal.” See Dapo Akande, above n.16, 417. 152 SC Res 1315 (14 August 2000). 153 See Taylor Immunity Decision, above n.98, paras.34-42. 154 Frederic L. Kirgis, Jr., The Security Council’s First Fifty Years, 89 AJIL (1995), 506, 531 (“The most serious legal or quasi-legal issues surrounding the post-Cold War 498 Chinese JIL (2013)

44. Any justiﬁcation of ICC action that rests on Security Council authorization must at least acknowledge the important on-going debate about the legitimacyof manyof the Security Council’s actions.155 The suggestion that States have consented to anyexercise of Security Council power by virtue of Articles 24(1), 25 and 103 of the UN Charter overlooks not only the reality of political resistance to Council resolutions at the State level (such as the refusal of Sudan to co-operate), but legal resistance that confronts Council action.156 The Council’s limited and undemocratic membership is insufﬁ- cient to demonstrate neutrality or provide the referral with the legitimacy necessary to assert jurisdiction over al-Bashir.157 Nor is it enough to say that since both the Se- curity Council and the Court ostensibly seek to end impunity that their respective powers may be combined to that end, or that the powers of one may be interpreted ex- Downloaded from pansively so as to aid the aims of the other: “This ‘Security Council as legal demiurge

Security Council have … had much more to do with the possible abuse of power than …

with abdication of it. It has empowered the [warcrimes] tribunals and the [compen- http://chinesejil.oxfordjournals.org/ sation] commission to apply norms that do not necessarily reflect pre-existing international law. Council has made quasi-judicial determinations that go well beyond those inherent in its express authority to determine threats to the peace, breaches of the peace and acts of aggression. It has also gone beyond its readily implied authority to interpret and apply relevant Charter provisions or to interpret its own resolutions. It has done so despite its own non-judicial character, and without procedural safe- guards”). 155 On the democratic and deliberative deficits of Security Council action, see Ian John- stone, Legislation and Adjudication: Bringing Down the Deliberative Deficit, 102 AJIL (2008), 275. On the hegemonic nature of some Security Council action, see by guest on August 22, 2015 Detlev F. Vagts, Hegemonic International Law, 95 AJIL (2001), 843, and José E. Alvarez, Hegemonic International Law Revisited, 97 AJIL (2003), 873. 156 As in Kadi, where the claimant’s assets were frozen by virtue of a Security Council action that designated him a terrorist supporter without giving him the option to refute the accusations. The European Court of Justice stated that UN Member States have a “free choice” as to how to implement Council resolutions within their domestic legal order, such that judicial review of the “internal lawfulness” of the implementation of those resolutions is perfectly compatible with the existing “international legal order”. The Court then set aside an European Council regulation implementing a Security Council resolution on the basis that sufficient procedural guarantees were not provided for at the Security Council level: Joined Case C-402 and 415/05P, Kadi and Al Barakaat Int’l Found. v. Council and Comm’n [2008] E.C.R. I-6351, para.298–299, 327–328 and 350–353. 157 On the general debate about Security Council legitimacy, see Ian Hurd, Legitimacy, Power, and the Symbolic Life of the United Nations Security Council, 8 Global Gov- ernance (2002), 35, and Tetsuo Sato, above n.149. On forms of legal deliberation and their effect on Security Council legitimacy, see Ian Johnstone, Legal Deliberation and Argumentation in International Decision Making, in: Hilary Charlesworth and Jean- Marc Coicaud (eds.), Fault Lines of International Legitimacy (2010), 175. On the history and use of legitimacy at the Security Council, see Ian Hurd, After Anarchy: Le- gitimacy and Power in the United Nations Security Council (2007). Kiyani, Al-Bashir and the ICC 499 view’, which is controversial on its own grounds, is obviously difficult to transpose to the situation of the ICC where, in the relations of the Court with non-state parties, it would amountto no lessthan a sort of cosmopolitanhold-up.”158 To the extent thatthe ICC both accepts Security Council referrals and relies upon them to make highly controversial arguments about jurisdiction, it is undermining the claims of neutrality that are central to any court’s legitimacy. 45. All these issues demonstrate that many States do not trust international institutions in the way Cassese suggests they do. Importantly, their reasons for distrust are meaningful even if they are simultaneously politically self-interested. The publicly stated reasons for opposing the ICC centre on many of the same issues discussed in this article: the unprecedented nature of the indictment; the democratic deficit of Downloaded from the Security Council; the contravention of basic principles of the law of treaties; and the apparent impropriety demonstrated by the Office of the Prosecutor. All of these factors undermine the ICC’s claim to neutrality, and therefore the argument that

the rationale for immunities is inapplicable to international tribunals. http://chinesejil.oxfordjournals.org/ 46. Focusingon thelegitimacyof tribunals inthis wayhasthreeresults: itclarifiesthat mere international status is insufficient to permit deletions of immunity; it calls into question the argument that there is consistent State practice abrogating immunities; and it further contradicts Cassese’s argument. Cassese may be right that immunities should not apply before neutral courts, but it is an oversimplification to equate “international” with “neutral”. By extension, in so far as the PTC adopts Cassese’s position,159 it cannot then rely on either the 1919 Commission or the military tribunals as evidence of a customary exception. The selectivity160 and politicization problems by guest on August 22, 2015

158 Frédéric Mégret, In Search of the “Vertical”: An Exploration of What Makes Inter- national Criminal Tribunals Different (and Why), in: Carsten Stahn and Larissa van den Herik (eds.), Future Perspectives on International Criminal Justice (2010), 178, 220. 159 Malawi Decision, above n.3, para.34. 160 To the extent that art. 7 of the Nuremberg Charter is claimed as a precedent for the removal of immunities, it is perhaps worth noting that this clause was itself limited by art. 6, which means that the only immunities removed were those of the “major war criminals of the European Axis countries”. See Charter of the International Mili- tary Tribunal (Nuremberg Charter), art. 6 reprinted in: Michael R. Marrus, above n.112. One wonders if the Allies would have favoured the language of art. 7 in the absence of the protection afforded by art. 6. Similar complaints about the broader selectivity problems at Nuremberg were made contemporaneously with the trials. See Herbert Wechsler, The Issues of the Nuremberg Trial, 62 Political Science Q (1947), 11, 26 (“My concern is with the point of equality itself, so important an element of justice—equality in the sense that the sanctions do not apply either to our allies or to ourselves”); and Bernard Meltzer, A Note on Some Aspects of the Nur- emberg Debate, 14 U Chicago LR (1947), 455, 469 (“It is, in my judgment, the central difficulty of Nuremberg: The governing law has not been equally applied. The standards of guilt have been applied only to the enemy. They have not been applied to 500 Chinese JIL (2013) of those bodies161 are examples of the false multi-lateralism that underminestheirclaim to neutrality.162 47. This section leads to two important conclusions. Firstly, there is a dearth of customary international law precedent to support the PTC. The alleged State practice from the First and Second World Wars can be explained as deficient on three grounds: no individual ever lost his or her personal immunities, including the former German emperor; the Tokyo and Nuremberg Charters only removed the substantive defense of official responsibility, not the procedural bar of personal immunity; and the lack of multi-lateralism behind those tribunals. When combined with the absence of precedent in ICC, ICTY and ICTR jurisprudence, it is difficult to recognize a customary law rule that immunities are inapplicable before international criminal tribunals. Downloaded from 48. The second point is that denying the customary international law argument would not alter the past practice of international criminal law in any meaningful

our Allies or to ourselves. The Russians are not forced to defend their operations in http://chinesejil.oxfordjournals.org/ Finland or Poland. We are not required to justify Hiroshima.”). But see Francis Biddle, In Brief Authority (1962), 450–56, Robert Cryer, above n.105, 200–201 and Sienho Yee, The Tu Quoque Argument as a Defence to International Crimes, Pros- ecution or Punishment, 3 Chinese JIL (2004), 87, 103–109. 161 See Georg Schwarzenberger, above n.1. Robert Cryer notes that the 1919 Commission was composed solelyof representatives of the Allied Powers and that, “[u]nsurprisingly, given its composition, the Commission found that the outbreak of war was entirely the fault of the Central Powers, despite the fact that theyalso accepted that the question was complex and ‘might be more ﬁtly investigated by historians and statesmen than by a ’ ”

tribunal . Robert Cryer, above n.105, 32. Similarly, the judges and prosecutors at by guest on August 22, 2015 Nuremberg were exclusively from the four major Allied Powers: Russia, France, the United Kingdom, and United States. The problems with the Nuremberg trials were succinctly stated by Norman Birkett, the British alternate judge at the tribunal, who stated in respect of the Nuremberg Charter that, “[i]f it continues to apply only to the enemy, then I think the verdict of history may be against Nuremberg.” Norman Birkett, International Legal Theories Evolved at Nuremberg, in: Guénaël Mettraux (ed.), Perspectives on the Nuremberg Trial, (2008), 307. 162 Selectivity concerns also animated the ICJ in the Arrest Warrant case, where five members of the Court all expressed varying degrees of scepticism about the potential abuse of universal jurisdiction through selective prosecutions. See Arrest Warrant case, above n.17, Separate Opinion of President Guillame, para.15 (“It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as an agent for an ill-defined ‘international community’”; Separate Opinion of Judge ad hoc Bula-Bula, para.14 (after noting the history of Belgian colonialism in Congo, the judge asked, “Why does the respondent State not exercise its territorial jurisdiction by prosecuting Belgian companies established on its territory suspected of illegal activities in areas of foreign occupation within the Congo?”; and Joint Separate Opinion of Judges Higgins, Koojimans and Buergenthal, para.59 (a State wishing to exercise universal jurisdiction to bring criminal charges must “prevent abuse”, in part through the use of “a prosecutoror juge d’instruction who acts in full independence, without links to or control by the government of that State”). Kiyani, Al-Bashir and the ICC 501 way. It was perfectlyacceptable to arrest and prosecute Charles Taylor, Laurent Gbagbo and Slobodan Milošević not because there was some customary law exception to the ordinary rules of head of State immunity, but because those ordinary rules already allowed for their prosecutions: all three were former heads of State and, in the case of Gbabgo, had seen the immunity waived by the State holding it. An exception cannot be drawn from cases that comply with the regular rule.

VI. Practical implications of the ICC position 49.Theanalysistothispointhasfocused onthestrictlylegalargumentsraisedinsupport

ofthePTCposition.IthasarguedthattheSecurityCouncilcannotempower theICCto Downloaded from bind SudantotheRomeStatute, orobligateother Statestoviolateal-Bashir’simmunity. A review of past cases and tribunals demonstrates that the cases relied upon by the ICC as proof of an exception to customary international law are in fact perfectly aligned with the ordinary rules of head of State immunity, and that the statutes of previous tribunals do not support the exceptioneither. This section supplementsthistechnocrat- http://chinesejil.oxfordjournals.org/ ic legal argument by examining the political and legal consequences of the PTC’s arguments. Arresting al-Bashir threatens the future of work of the ICC, and to radically reshape public international law without either consulting those most affected by the change or fully addressing the consequences of doing so. VI.A. Undermining the Court and future prosecutions 50. The first and most compelling response to the suggestion that it is worth sacrificing certain principles of public international law in order to put al-Bashir on trial is that doing so actually decreases the likelihood that such prosecutions will occur in the by guest on August 22, 2015 future. As stated above, the Sudanese response to Resolution 1593 was not only legally targeted, but crafted in language that created special resonance with histories of colonialism, exceptionalism and exploitation. That powerful mix of law and politics has been supplemented by the AU response that adopts that language but also articu- lates several legal pointsthat needto be addressed by the Court.163 The AUhas paired its legal analysis with specific demands to its member States to not co-operate in arresting al-Bashir, including—at one time—the possibilityof a regionallyorganized withdrawal from the Rome Statute.164 While that stance has been deferred,165 the potential for non-co-operation and withdrawal remains; the Kenyan parliament recently voted for the second time to withdraw from the Rome Statute.166

163 With the caveat that some of these legal points have been articulated with more clarity and speciﬁcity than others. Article 16 has been considered in some detail by the AU, but art. 98 has not. 164 See African ICC Members Mull Withdrawal, above n.131. 165 See African Countries Back Away, above n.137. 166 Associated Press, Kenya votes to leave ICC days before deputy president’s Hague trial, The Guardian (5 September 2013) (www.guardian.co.uk). The vote remains symbolic 502 Chinese JIL (2013)

51. The loss of States Parties, either through withdrawal or non-co-operation, would be devastating to the ICC. For one, the symbolic statement would be a tre- mendous blow to the symbolism and credibility of the Court. What would it say about the legitimacy of an international organization that cannot count among its supporters a regional bloc of States from the only continent where it has initiated trials? Why would less powerful States who are not yet parties want to ratify the Rome Statute, when so many others do not trust the Court either to act in an un- biased manner or to acknowledge their concerns about ICC rules and procedures? The Arab League’s members, for example, would surely feel reassured about their non-participation in the Court. Downloaded from 52. Withdrawal and other forms of non-co-operation would also have a deleterious effect on the Court’s docket. Article 127 of the Rome Statute requires a one-year notice of withdrawal from the Statute, and states that withdrawal does not affect a State’s obligations to the Court, including co-operation with existing cases and investigations, as 167 well as future cases arising out of the same situation. While this is strong, unambigu- http://chinesejil.oxfordjournals.org/ ous language, it is equally clear that it is subordinate to the practical realities of enforcement. The success of the Court is predicated upon co-operation at the national level, and it has no way to compel such assistance. The Court has no enforcement branch, and relies on the flow of information and witnesses from domestic authorities, which are easily obstructed.168 Some cases might be able to continue without State co-operation, but the majority would be unable to proceed.169 While many accused persons by guest on August 22, 2015 until and unless a legislative bill giving it effect is introduced and ratified by the government. Ugandan officials have also expressed their support for the Kenyan vote. Uganda backs Kenya vote to quit ICC, New Vision (8 September 2013) (www.newvision.co. ug). 167 Rome Statute, above n.6. 168 In Kenya, for example, the ICC has been confronted with an “unprecedented level of witness interference” in its Kenyan cases. See Bernard Momyani and Simon Jennings, Kenya Witnesses Face Harassment Institute for War and Peace Reporting, ACR Issue 350 (5 June 2013) (iwpr.net). The Office of the Prosecutor was forced to drop charges against one Kenyan accused after a key witness confessed to accepting a bribe and recanted essential evidence, and the Government of Kenya failed to provide the Court with access to vital evidence or witnesses. See Statement by ICC Prosecutor on the Notice to withdraw charges against Mr. Muthaura, (11 March 2013) (www. icc-cpi.int). 169 As are the cases against government officials from Sudan, including al-Bashir. The government of Sudan has undertaken simple but extraordinary measures in order to frus- trate the ICC. The Office of the Prosecutor alleged that the Sudanese Embassy in the Hague simply physically barred the ICC from delivering documents to it after the ICC indicted two other government officials, Ahmed Harun and Ali Kushayb. See First Bashir Warrant, above n.2 at paras. 228–229. Kiyani, Al-Bashir and the ICC 503 would find themselves in situations where they could not travel outside their home countries,170 that would hardly equate to bringing them to justice, let alone provide the other salutary effects of trials.171 The Court would project weakness and ineffect- iveness, a danger that arises even without the exceptional step of a mass withdrawal. An expansion of the AU non-co-operation stance so that it includes all ICC situations in Africa would have largely the same result. States might still be in violation of their obligations under the Rome Statute, but would be able to present a more principled explanation for their position, along the lines of a general strike rather than general repudiation. This would give those governments with buyer’s remorse—notably Uganda and Kenya—a sham principle with which to justify their current obstruction Downloaded from of the Court’s processes.172 It should also be noted that obstruction and non-co-operation can happen in less blunt and more legalistic ways. By way of example, the AU has become so frustrated with the ICC position on al-Bashir and immunities that it has advised memberStatesto relyon Article98(2)of theRome Statute and draw upbilateral 173 agreements confirming “the immunities of their Senior State officials”. That deci- http://chinesejil.oxfordjournals.org/ sion has the potential to increase the number of defendants claiming immunity from the Court; this would both hinderco-operation between the ICC and States and undermine the protective mission of the ICC. 53. The second structural result is the creation of a clear hierarchy of States and their unequal exposure to the jurisdiction of the ICC. At the bottom of this hierarchy, open to prosecution but with little ability to influence its exercise, will be States such as Sudan, who lack a permanent seat on the Security Council and have no real capacity to influence the governance of the Court. States that have ratified the Rome Statute will be in the middle—they will have greater exposure to jurisdiction, but will retain by guest on August 22, 2015

170 Al-Bashir has visited a number of States since his indictment, including Chad, Malawi, Ethiopia, Djibouti, Uganda, China and Nigeria. However, the threat of arrest has loomed over some of his recent trips, including to Nigeria, where he was forced to cut his visit short after a human rights lawyers filed suit demanding his arrest. Bashir leaves Nigeria amid calls for arrest, Al-Jazeera (16 July 2013) (www.aljazeera.net). 171 Including fact-finding about atrocities and the incapacitation of perpetrators. 172 Despite self-referring the Lord’s Resistance Army to the ICC, Uganda has turned against the Court, insisting that any trials take place through national courts in Uganda. At the swearing-in ceremonies for newly elected Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni congratulated the Kenyan people for choosing Kenyatta, who has resisted the ICC, and explained his change of opinion of the ICC: “I was one of those that supported the ICC because I abhor impunity. However, the usually opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution. They are now using it to install leaders of their choice in Africa and eliminate the ones they do not like.” See Museveni attacks ICC at Uhuru’s swearing-in, Daily Monitor (10 April 2013) (www.monitor. co.ug). 173 AU Dec. 419, above n.144. 504 Chinese JIL (2013) some ability to affect the policies and principles by which that jurisdiction is exercised. At the top will be the United States, Russia and China, the three permanent members of the Security Council who have not ratified the Rome Statute. Under the “Chapter VII Resolution as binding” model, those three States will occupy a hugely privileged position. They will retain the ability to not only push for the referral of situations concerning other non-State Parties, but do so while shielding themselves (and their non-State Party allies) through their veto power. If the referral of a situation by the Security Council and Article 103 of the UN Charter combine to defeat the customary international law protections of Article 98(1), they must also defeat agreements signed under Article 98(2). As a result, little incentive will exist for three of the world’s largest military powers to ratify the Rome Statute when they are able to insulate them- Downloaded from selves from its reaches through their vetoes, while at the same time defeating the treaty and customary-law protections applying to other States. 54. Ratification of the Rome Statute is therefore the only way for these three States to 174

seriously risk being brought under ICC jurisdiction. They are thus essentially exempt http://chinesejil.oxfordjournals.org/ from liability yet retain the ability to override the protections that ostensibly apply to any other non-party State. It would be unthinkable for such power brokers and adherents to realpolitik to trade such relative power for the uncertaintyand vagaries of the inherent jur- isdictionoftheCourt.While theCourtwould theoreticallyhave universal reach,theprac- tical upper limit of its jurisdiction would be those permanent members of the Security Council who have not ratiﬁed the Rome Statute. This limits the ability of the ICC to protect a number of potential victims, and—perhaps more crucially—calls into question the legitimacy of an institution that not only is incapable of exercising jurisdiction over such major military powers, but actually reasoned itself into that situation. At that by guest on August 22, 2015 point, it matters little whether the ICC would ever have actually dared to indict Russian, Chinese or American ofﬁcials for international crimes; what is of consequence is that it would be virtually impossible to do so because the Court gave its blessing to a regime where less exacting standards are applied to the most powerful States.

VI.B. Revision of basic principles of public international law 55. The PTC position also contests at least two basic principles of public international law. Accepting that the Chapter VII Security Council referral binds the government of Sudan to the terms of the Rome Statute alters basic rules about whether and by whom third parties can be bound to treaties against their will. While some international agreements already have unavoidable effects upon third parties, and thereby direct their actions in a certain way, those obligations are usually ones of recognition—of boundaries or governments, for example—and are qualitatively different from the one at issue

174 This invulnerability is not absolute. A secondary risk of liability arises through the Rome Statute, above n.6, art. 12(2)(a). That provision grants the ICC territorial jurisdiction over situations self-referred by States or investigated proprio motu by the Office of the Prosecutor. Kiyani, Al-Bashir and the ICC 505 here. They are not obligations requiring the third party State to surrender its leader to a treaty-based court with which it has no relationship. In so farasthese sorts of obligations are ones that ought to be imposed, they require careful calibration through global negotiations or, at the very least, through judicially evaluated restraints developed by truly multi-lateral institutions such as the UN. It might be the case that the Security Council is the only body that should have the power to impose these sorts of third- party obligations, but why and with what restrictions? What does the attribution of this power say about the definition of “international peace and security”,or—crucially for legitimacy purposes—the relationship between the ICC and the Security Council? None of these issues have been addressed by the Security Council or the ICC, and neither of those bodies seems competent to determine all or some of these issues. Downloaded from And yet the reasoning employed by the ICC legitimates the unfiltered expansion of Se- curity Council powers, even though at least one of the likely consequences of doing so is counter-productive to the ICC’s larger mission. ’

56. The second principle affected by the ICC s decision isthe relationship between http://chinesejil.oxfordjournals.org/ non-treaty lawand Article 103 of the Charter. Accepting the Security Council referral despite its effects upon treaty law implies acceptance of a changing relationship between the UN and general international law, re-shaping our understanding of the supremacy clause of the Charter in a way that contradicts past statements of the ICJ and the General Assembly. It is not clear from the al-Bashir case how this internal tensionistoberesolvedandwhethercustomaryinternationallawactsasarestrainton UN or Security Council action. Nor is it clear under what circumstances customary international law does not constrain one or both of these bodies. Should all deviations from customary international law need approval from the General Assembly, or is a by guest on August 22, 2015 Chapter VII resolution sufﬁcient? This leads to a further interrogation—if the organization for collective security is not bound by these principles, is any individual State? Again, these are questionsthat are best left not to the ICCor the Security Council, but to a more broadly representative body with the expertise and competence to answer them. This might be the ICJ or the General Assembly, but it surely cannot be the remit of an international criminal tribunal with narrow jurisdictional scope over a limited class of individuals to determine, adjust or pronounce upon the appropriate relationship between another international organization and customary international law. VI.C. Constructing the ICC as an institution of global governance 57. A similar point can be made about the ICC and its relationship to the AU. The PTC claimsthatthe AUcannotuse Article98(1)tojustify its non-co-operationreso- lutions, and therefore cannot compel individual member States not to co-operate with the Court, because the ICC has determined that customary international law is in its favour.175 The problems with this determination are manifold. Malawi’s

175 See Malawi Decision, above n.3 at paras.15 and 37. 506 Chinese JIL (2013) memberships in the ICC Assembly of States Parties and AU are legally and concep- tually distinct, and so while the ICC can contest the AU interpretation of customary international law, the Court comes perilously close to being judge in its own cause when it purports to resolve that question in its favour. Moreover, the ICC cannot legally exercise any jurisdiction over another international organization such as the AU or interpret the terms of the AU Constitutive Act, and any attempt to restrict the powers of the AU to issue binding obligations to AU members is ultra vires. Finally, the Court elides the distinction between States and States Parties to the Rome Statute when it claims for itself the ius puniendi for the international community.176 The ICC may have some rights to punish with respect to States that have accepted the Court’s jurisdiction, but it is overstating the case by implying the exist- Downloaded from ence of a residual global right to punish. There are numerous qualiﬁers to this right within the Rome Statute itself, some of which are clearer177 than others.178 58.TheseerrorsseemtostemfromtheCourt’s ﬂawed conception of itself as occupying

a privileged place in the hierarchy of global governance, albeit in the absence of anything http://chinesejil.oxfordjournals.org/ resembling a supremacy clause such as Article 103 of the UN Charter. The effect of such pronouncements may be minimal in the short term, but a longer view of international relations suggests this will be interpreted as an arrogation of power that is controversial becauseit isof dubious legal pedigree, and made even less palatable by the fact of itsexercise against African States both as individual entities and part of a collective. This alienation will likely increase if the ICC takes this position to heart and relies upon it in future cases.

VII. Conclusion by guest on August 22, 2015 59. This article has argued that in attempting to justify the indictment of Omar al- Bashir, the ICC has risked its legitimacy as an institution of international justice. It has done so by relying on controversial legal propositions, all of which can be rebutted by countervailing arguments outlined above. The manner in which the PTC has pursued al-Bashir, and the disputed legal arguments which it has relied upon, threaten to undermine the future work of the Court by giving some States a disincentive to ratify the Rome Statute, and others good reason towithdraw orat least not co-operatewith the Court. In addition, the Court’s reasoning seems to require a reshaping of some fundamental tenets of public international law. 60. There is no denying that, at its core, the desire to try those responsible for horriﬁc crimes is understandable, and this moral position is not easily addressed by the counter- arguments raised above. At the same time, the haste with which this humanitarian

176 Ibid., para.46. 177 See arts. 98(1) and (2), and the admissibility restrictions in art. 17 of the Rome Statute, above n.6. 178 Such as the effects of Security Council referrals. Kiyani, Al-Bashir and the ICC 507 impulse is pursued should give pause to its supporters. In the drive to hold al-Bashir accountable, vital questions of international criminal law and public international law have been ignored or overlooked, individual States and regional organizations have become resistant and obstructionist, and even members of the Security Council have contradicted the edicts of the Court and Council. The goal may be laudable, but it must be asked whether the methods employed to achieve it are the appropriate ones, and whether the long-term consequences are worth the short-term gains. 61. Assuming that the PTC is correct to call for al-Bashir’s accountability but incor- rect in its reasoning, how then is he to be brought to justice? The alternatives, unfortu- nately, are not encouraging. As a sitting head of State, al-Bashir is immune from all Downloaded from foreign processes, and the current Constitution of Sudan protects him from domestic proceedings. It may be that the tide of public opinion turns against him, as it did against Slobodan Milošević, leading to his removal from power and the deletion of his immunities. Or it could be that the government of Sudan sacriﬁces al-Bashir in the same way 179 that Hosni Mubarak was offered up in Egypt. There also remains the possibility that http://chinesejil.oxfordjournals.org/ some bold country, onewith a differing view of either the legal analysis in the case or the political costs, simply decides to arrest al-Bashir on one of his many sojourns outside Sudan,180 providing the necessary rupture of legal precedent that accompanies all revisions of customary international law.181 More likely, however, is that the ICC will have to play the waiting game to be able to secure jurisdiction over al-Bashir, as was acknowledged by the then-ICC Prosecutor.182 62. Even if al-Bashir is ultimately put on trial, that will be of little comfort, given the length of time it will have taken to do so, and the crimes that continue in the interim. If anything, this imbroglio has made it clear that the time is ripe for the international by guest on August 22, 2015

179 Of course, even domestic revolution does not guarantee accountability or even societal change. Mubarak’s trials are on-going, and he has yet to be convicted of any crime, while his former associates from the Egyptian armed forces are now running the country. 180 International criminal tribunals have been reluctant to relinquish jurisdiction over accused persons even when the legality of their transfer is questionable. See e.g. Pros- ecutor v. Dragan Nikolić, IT-94-2-AR73, Decision on Interlocutory Appeal Concern- ing Legality of Arrest, Appeals Chamber (5 June 2003). 181 Depending, amongst other factors, on what Lepard describes as the “overall factual context”, including reaction of other States to such a violation. However, not every change in customary international law requires such a violation; a shift in opinio juris may precede any novel practice. See Brian D Lepard, Customary International Law: A New Theory with Practical Applications (2010), 277–278. 182 Luis Moreno-Ocampo said it could take up to twenty years to arrest suspects such as al- Bashir. See Interview of Luis Moreno-Ocampo by David Frost (20 June 2008) on Frost Over the World, Al-Jazeera English (www.youtube.com/user/AlJazeeraEnglish); and Interview of Luis Moreno-Ocampo (19 March 2009) on Riz Khan, Al-Jazeera English, (www.youtube.com/user/AlJazeeraEnglish). 508 Chinese JIL (2013) community to reconsider the double-edged sword of immunities. Though international law and the rules of international diplomacy presently provide no exception for personal immunities, this should not be a barrier to a future exception, perhaps one that removes immunities in cases of large-scale human rights violations.183 It may even be that the arrest and prosecution of al-Bashir is in fact the first step in creating the customary lawexception that does not yet exist. The key point isthat anysuch shift must be clearly articulated as such, not created out of a haze of optimistic reconstructions of customary international law and unpredictable extensions of the powers of international organizations. Whatever the precise contours of a new norm, the central issues will be that of its adjudication and application. The body that decides on such issues will have to be clearly impartial, persuasive in its reasoning, and universally recognized as Downloaded from legitimate to take on such cases. The ultimate risk of the current practice is that, after the decades it took to finally establish a permanent international criminal court, that institution is already losing the confidence of some States who believe the Court is as-

suming, instead of demonstrating, that it possesses those characteristics. http://chinesejil.oxfordjournals.org/ by guest on August 22, 2015

183 Rosanne van Alebeek outlines some possibilities in this regard. See Roseanne Van Alebeek, above n.16, 301–414.