Legal Challenges faced by States and the ICC in Handing Over Al-Bashir to the Court-Ali Masoudian Varzaneh

Ali Masoudian Varzaneh - Master Student of Public International Law at Allameh Tabataba'i University

2021/10/11

International law has faced with the breaking news that Sudan is now willing to hand over their former President, Omar Hassan Ahmad Al-Bashir (Al-Bashir) to the International Criminal Court (the ICC). Before this, the ICC had faced with non-compliance by some member States, including Jordan, Democratic Republic of Congo and South Africa, in not handing over Al-Bashir to the ICC. This matter, for so long, has been subject of a controversial dilemma of choosing between either the applicability of immunity, be it ratione materiae or ratione personae, of the incumbent or former President of a State before an international criminal tribunal, or opting for observing the obligations of States, other than Sudan, to cooperate with the ICC in terms of handing over the accused of the most serious crimes of concerns to the international community to the sole permanent international criminal entity with the main mandate of investigating and prosecuting the four core international crimes.

For the purpose of this paper, it is better to, first, give a brief explanation of the nature of the immunities mentioned above and then move to relative facts, rules and legal analysis on the issue at hand. Indeed, the immunity ratione materiae and ratione personae are two recognised immunities under international law which have different scopes of application. According to the International Law Commission (ILC), “immunity ratione personae or personal immunity is derived from the official’s status and the post occupied by him in government service and from the State functions which the official is required to perform in that post. This type of immunity from foreign criminal jurisdiction is enjoyed by officials occupying senior or high-level government posts.’’ The incumbent Head of State, the Head of Government and the Minister of Foreign Affairs enjoy such immunity (see here), which extends to acts performed by them in both an official and a private capacity, both before and while occupying the post. Since it is connected with the post occupied by the official in government service, it is temporary in character, becomes effective when the official takes up his post and ceases when he leaves his post. This immunity is different from the immunity that State officials enjoy regardless of the level of their post, by virtue of the fact that they are performing official State functions. Immunity ratione materiae, sometimes also called functional immunity, (see here) extends only to acts performed in an official capacity, i.e. performed in fulfilment of functions of the State, and thus continues to be applicable even after the terms of State officials services. The raison d'être of such differentiation is for the purpose of the applicability vel non of either of the abovementioned immunities to Al-Bashir. It is logically understandable that the commission of (an) international crime(s) cannot be qualified as official State acts, and thus, immunity ratione materiae cannot cover those criminal conducts Al-Bashir was accused of. Nevertheless, there is no doubt that Al-Bashir had been enjoying from personal immunity during the term of his presidency.

On 4 March 2009, the Pre-Trial Chamber of the ICC has made its far-reaching decision when it issued the arrest warrant for the former President of Sudan, Al-Bashir. He was charged with war crimes, crimes against humanity and genocide during an internal conflict in Darfur between March 2003 and July 2008. This was the first time in the history of an international criminal tribunal that an arrest warrant was issued for a serving president of a State. (For further information on this, see here and here). However, there were previously instances of presidents brought before international criminal tribunals, such as Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia (ICTY), and Charles Taylor of Liberia before the Special Court for the Sierra Leone (SCSL) with one different: they were not serving presidents when they were brought into the custody of these international tribunals, as referred to by Jessica Needham in her article.

The case against Al-Bashir was referred to the ICC by the United Nations Security Council (SC) Resolution 1593 acting under Chapter VII of the United Nations Charter whereas Sudan was not and has not been a State Party to the ICC. Here, it should be mentioned that Sudan has recently signed cooperation agreements with the ICC, and furthermore, the cabinet has decided to ratify the Statute of the International Criminal Court. In regard to cooperation with the ICC, the SC, in paragraph 2 of the Resolution 1593, “[d]ecides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.” [emphasis added]

Before analysing the obligations of States derived from this resolution in regard to immunity, it is worth adding that this resolution was criticised by African States which believed there is a political controversy when the permanent members of the SC (three of which are non-State Parties) have referred a situation in another non-State Party to the ICC. In other words, it is believed by African States that the Security Council has always been so strict to shield the interests of its permanent members. Thus, African States have criticised the ICC as existing “solely for judging Africans” (see here) and as a form of “imperialism” seeking to undermine people from poor and African countries. (see here)

Having regard to specificity of the case, two issues must be addressed to legally analyse whether Sudan or the States Parties to the Rome Statute were and still are under an obligation to hand over Al-Bashir to the ICC. First, does the Security Council referral of the situation to the ICC impose the obligations contained in the Rome Statute on Sudan as a non-State Party? More concretely, the question is whether Article 27(2) of the Rome Statute can be binding exceptionally on the States not parties to the Rome Statute or it is only applicable over States who have ratified the Statute? Second, how Article 98(1) and Article 27(2) of the Rome Statute must be read together in regard to member States?

With regard to the first question, an argument was put forward by the African Union that considering that Sudan is not a State Party to the ICC, it was not under an obligation to hand over Al-Bashir. (see the Resolution 397 of the African Union, and here). In its Decision of 12 December 2011, the ICC, noting that it is exercising its jurisdiction following the referral of the SC, emphasized that:

“The principle in international law is that immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court. This is equally applicable to former or sitting Heads of States not Parties to the Statute whenever the Court may exercise jurisdiction.” (para. 36).

In its submission in the Hashemite Kingdom of Jordan's Appeal Against the Decision Under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court for the Arrest and Surrender of Omar Al-Bashir, the African Union stated: in interpreting the Rome Statute  the ICC shall take into consideration customary international law and Article 98 of the Statute that contains the rules of customary international law concerning the immunity of Head of State from the exercise of foreign jurisdiction and provides for instances where there is no duty to cooperate with the Court. The African Union also submitted that Resolution 1593 does not waive the immunity of Al-Bashir and a referral under article 13(b) of the Statute does not place a State that is not a party to it in a situation analogous to that of a State Party.

In response to the argumentation of the African Union, the heed should be paid to two types of obligations. Based on the wording of the former Prosecutor, there are two inter-dependent obligations i.e. “vertical effect” and the “horizontal effect”. Vertical effect relates to the obligations Sudan has towards the ICC and the horizontal effect concerns obligations that other State have towards Sudan. With respect to the vertical effect, the Prosecutor avers that while Article 27 concerns the relations between the Court and a State Party, it also “exceptionally” governs relations between the Court and a non-State Party “if the latter is a [UN Security Council] Situation-Referral State”. (para. 19) The Prosecutor argues that, by virtue of Article 27, the official capacity of a suspect or an accused “cannot bar judicial proceedings before the Court”; a State Party or a UN Security Council Situation-Referral State can neither “claim immunity vis-à-vis the Court’s exercise of jurisdiction, nor validly object to any request addressed to it for arrest and surrender of its official.” 

Moreover, ILC in its Draft on the Immunity of States Officials from Foreign Criminal Jurisdiction (see latest update here) has mentioned that there are different rules of immunity for national and international tribunals. Though the topic of the work of the ILC is different from what we have faced in Al-Bashir Case, there have been given some reflections on the immunity of Heads of States before an international criminal tribunal. Both the ICC (para. 149) and the ILC have confirmed that the immunity of Heads of States will cease to protect the Heads of States before the ICC. Thus, State of Sudan is under an obligation to respect the UNSC Resolution 1593 and that Article 27(2) also binds it.

Regarding the second question which is the logical corollary of the first question and relates to the horizontal effect, the issue is whether other States should respect the immunity of the incumbent Head of States (if any) who is accused of (an) international crime(s); or the immunity will not protect them when it comes to the ICC? For further clarifying this problem, we will first take a look at wording of these provisions. Article 98(1) of the Rome Statute provides that:

“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.” [emphasis added]

On the other hand, Article 27(2) reads as follows:

“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.”

As stated by the Pre-Trial Chamber II of the ICC, ''it is not disputed that under international law that a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court. Such personal immunities are ensured under international law for the purpose of the effective performance of the functions of sitting Heads of States.” (para. 25) This is what the International Court of Justice has confirmed in the case of Arrest Warrant. The ICC, however, describes Article 27(2) of the Rome Statute as exception to the personal immunities of Heads of States. According to this provision, the existence of personal immunities under international law which generally attach to the official capacity of the person “shall not bar the Court from exercising its jurisdiction over such a person”. (para. 25)

It is crystal clear that Rome Statute is governed by the general rules enshrined in the Vienna Convention on the Law of Treaties 1969 which provides (in Article 34) that “a treaty does not create either obligations or rights for a third State without its consent.” Hence, the exception to the exercise of the Court’s jurisdiction reflected in Article 27(2) of the Statute shall, in principle, be confined to those States who have accepted it. However, if we take a deep look at Article 98(1), we will find out that there is no conflict between Article 27(2) and 98(1) of the Statute. To further support this view, in its Decision of 9 April 2014, the ICC elaborates on their relations as:

“'It follows that when the exercise of jurisdiction by the Court entails the prosecution of a Head of State of a non-State Party, the question of personal immunities might validly arise. The solution provided for in the Statute to resolve such a conflict is found in article 98(1) of the Statute. This provision directs the Court to secure the cooperation of the third State for the waiver or lifting the immunity of its Head of State. This course of action envisaged by article 98(1) of the Statute aims at preventing the requested State from acting inconsistently with its international obligations towards the non-State Party with respect to the immunities attached to the latter’s Head of State.”

The Appeal Chamber, however, argues that in the case of Al-Bashir, the cooperation of Sudan for the waiver of immunity is already ensured by the fact that Sudan is obliged under the SC Resolution 1539 to “cooperate fully” with the ICC which entails eliminating any impediment to the proceedings before the Court, including the lifting of immunities. Any other interpretation, according to the Appeal Chamber, “would render the SC decision requiring that Sudan ‘cooperate fully’ and ‘provide any necessary assistance to the Court’ senseless.”  (para. 29).

 Conclusion

Al-Bashir was President of Sudan from 1993 to 2019. The ICC, at both Pre-Trial Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court and Appeal Chamber Judgment in the Jordan Referral re Al-Bashir Appeal, held he does not enjoy immunity as Head of State of Sudan when he was a serving President. Thus, it would become clear that immunity of Heads of States will not be applicable in respect of a serving President about whom there are reasonable basis to believe that he or she has committed an international crime within the jurisdiction of the Court. Indeed, there should be no impediment for the ICC to exercise its jurisdiction over a case the accused of which is believed to have committed an international crime within the jurisdiction of the Court under Article 5 of the Rome Statute. The author believes that the gravity of the situation and the interest of justice should be taken into consideration by the Office of the Prosecutor in examining each case let alone the case of such significance and sensitivity. Nevertheless, Article 27(2) of the Court's Statute should not pave the way for the abuse of such provision in the sense that insufficient baseless allegations be made against Heads of States and other high-ranking officials leading to destabilization of international peace and security. That is why the interest of justice was included in the provisions of the Rome Statute. However, one shall not ignore the importance fighting against impunity of international criminals which was the main reasons for the establishment of the ICC. In case of choosing between either ‘immunity’ or ‘ending impunity’, it seems that the interests of international community shall go for the latter.