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

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Al-Bashir & the ICC: the Problem of Head of State Immunity © The Author 2013. Published by Oxford University Press. All rights reserved doi: 10.1093/chinesejil/jmt035 ....................................................................................................................................... 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 jur- isdiction 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 pro- vides 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 sup- ported 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 inter- national 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 includ- ing: 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 jurisdic- tion 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 un- certainty 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 jur- isdictional 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 inter- national 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 pos- sibilityof 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 jurisdic- tion 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 argu- ments on the immunity fit within the traditional constraints of public international law,11 or how they may affect the future work of the Court.
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