Abstract
The series of ICC decisions on non-cooperation by a number of States parties in light of their failure to arrest President Omar al-Bashir of Sudan (who is indicted for war crimes, crimes against humanity and genocide) for trial at the ICC, has resulted in a broader debate about the legal and political context in which the ICC operates. The debate on immunity of high-ranking officials before the ICC concerns more than a legal-technical exegesis of the Rome Statute; it is about finding a principled legal answer to a difficult question situated in a complex political reality. It is about giving guidance to domestic courts and justice systems, which are at the coalface of the Rome Statute’s cooperation regime. The ICC Appeals Chamber has an opportunity to provide both legal clarity and direction. An Advisory Opinion by the ICJ on the matter of immunities could also be helpful. The aim should not be to appease opportunistic political sensibilities of disgruntled States, but rather to find a way forward for the ICC, which is totally dependent on State cooperation for its goal of ending impunity for war crimes, crimes against humanity, genocide and aggression .
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Notes
- 1.
It should be noted that when it comes to the interpretation of the Rome Statute, the ‘fight against impunity’ as an object and purpose of the Statute and thus of significance for a proper contextual interpretation of the Statute, is contentious. In ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, The Hashemite Kingdom of Jordan’s Notice of Appeal of 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 ; or, in the Alternative, Leave to Seek Such an Appeal, 18 December 2017, ICC-02/05-01/09-312 (Jordan Appeal), the Appeals Chamber has issued a list of questions to be addressed by the parties and participants. One of the questions relates to the broad aim of the ICC ‘to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus contribute to the prevention of such crimes’. The Appeals Chamber asks what the significance of such a contextual interpretation of the Rome Statute is and refers specifically to the broad aim ‘to put an end to impunity’. This question is linked to Article 31 of the Vienna Convention on the Law of Treaties, which requires treaties to be interpreted in the light of their context, including the preamble, and their objects and purpose. Commentators like Dov Jacobs argue that ‘the use of the vague notion of “the end of impunity” to justify any particular interpretation of the Rome Statute’ is not acceptable. For Jacobs, the ‘fight against impunity’ is not really an object and purpose of the Rome Statute, because such an approach ‘confuses the specific object and purpose of the Rome Statute as a legal instrument (conducting criminal trials) and the more general moral/political goal (ending impunity)’. See Jacobs D (2018) Immunities and the ICC: my two-cents on three points. https://dovjacobs.com/2018/09/10/immunities-and-the-icc-my-two-cents-on-three-points/amp/?_twitter_impression=true. Accessed 7 January 2019.
My own view is perhaps the more mainstream one, namely that the Rome Statute, in the broad and ‘constitutional’ sense, has as a foundational object the end of impunity. This broad goal should, of course, not play the determinative role in individual criminal cases where the object is first and foremost to determine individual criminal responsibility. An acquittal can obviously then not be construed as in conflict with the stated goal of the Rome Statute to end impunity. I do believe, however, that the goal and purpose to end impunity, as articulated in the preamble of the Rome Statute, has relevance and meaning in the context of the immunities issue. This issue concerns the key question of the class of accused persons that can appear before the ICC; it also concerns a key issue regarding the duties of States, thus constituting a ‘constitutional’ issue. But, again, ‘impunity’ is not a trump card to win against all the odds. It is the goal, but that goal must be reached within the confines of the Rome Statute and other relevant legal frameworks, including customary international law.
- 2.
ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 14 February 2002, 2002 ICJ Reports 3, para 51. Certain holders of high-ranking office in a State – a group wider than Heads of State, Heads of Government and Ministers of Foreign Affairs – enjoy personal immunity from criminal jurisdiction of foreign States. See also developments regarding the ICJ’s Immunities and Criminal Proceedings (Equatorial Guinea v. France), filed June 2016 – criminal proceedings in France against the Second Vice-President of Equatorial Guinea.
- 3.
http://www.mappingbashir.org/. Accessed 7 January 2019.
- 4.
Moyn 2014, pp. 77–78.
- 5.
Ibid., p. 83.
- 6.
Ibid., p. 84.
- 7.
For more on this, see chapters 11–13 in Werle et al. 2014, pp. 179–228.
- 8.
AU Assembly, Decision on the International Criminal Court, 28–29 January 2018, Assembly/AU/Dec.672 (XXX), para 5 (ii).
- 9.
AU Assembly, Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Assembly/AU/Dec.397 (XVIII), para 10; Akande 2012.
- 10.
For a detailed commentary on the deteriorating relationship between the AU and the ICC, see generally van der Vyver 2011. Charges against Kenyatta and Ruto were withdrawn in 2014 and 2016 respectively due to insufficient evidence, but the arrest warrant against al-Bashir remains a contentious issue.
- 11.
It is no coincidence that Kenya has become a prominent player in the immunities debate, pushing for the UN General Assembly to seek an ICJ advisory opinion on immunities of Heads of State before international criminal tribunals. See Menya W (2017) Kenya pushes Africa agenda on immunity for its heads of State. https://www.nation.co.ke/news/Africa-agenda-on-immunity-for-its-heads-of-State/1056-4750340-view-asAMP-6r3g66z/index.html?_twitter_impression=true. Accessed 7 January 2019.
- 12.
AU Assembly, Decision on the International Criminal Court, 28–29 January 2018, Assembly/AU/Dec.672 (XXX), para 5(i).
- 13.
AU Assembly, Decision on the Meeting of African State Parties to the Rome Statute of the International Criminal Court (ICC), July 2009, Assembly/AU/Dec 245 (XIII), para 10.
- 14.
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 15 November 2011, ICC-02/05-01/09-139 (Non-Cooperation Malawi); Decision pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC-02/05-01/09-140 (Non-Cooperation Chad); Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, 9 April 2014, ICC-02/05-01/09-195 (Non-Cooperation DRC); Decision under Article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir , 6 July 2017, ICC-02/05-01/09-302 (Non-Cooperation South Africa ).
- 15.
AU Assembly, Decision on the Meeting of African State Parties to the Rome Statute of the International Criminal Court (ICC), July 2009, Assembly/AU/Dec 245 (XIII), para 10. For a detailed overview of this Decision, see generally Tladi 2009.
- 16.
See AU Assembly, Decision on the Progress of the Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), January 2012, Assembly/AU /Dec.397 (XVIII), para 6.
- 17.
Ibid., para 8. See also AU Assembly Decision on the Progress Report of the Commission on the Implementation of the Previous Decisions on the International Criminal Court (ICC), 30–31 January 2015, Assembly/AU/Dec.547 (XXIV), para 10.
- 18.
See AU Assembly, Decision on the Progress of the Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), January 2012, Assembly/AU/Dec.397 (XVIII), para 9.
- 19.
Non-Cooperation Malawi, above n 14.
- 20.
Ibid., para 12.
- 21.
Ibid., para 43.
- 22.
See, e.g., Akande 2011 (the author argued that the Pre-Trial Chamber erred when it held that an exception exists in customary international law to the immunity of Heads of State before international courts); Tladi 2013 (arguing that the reasoning provided by the Court failed to address Article 98 of the Rome Statute).
- 23.
Non-Cooperation Chad, above n 14, paras 9 and 13. A further decision on non-cooperation by Chad was issued by Pre-Trial Chamber II in March 2013 (ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Non-compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir , 26 March 2013, ICC-02/05-01/09-151).
- 24.
Non-Cooperation DRC, above n 14.
- 25.
Ibid., para 34(a).
- 26.
- 27.
- 28.
Non-Cooperation South Africa , above n 14.
- 29.
Ibid., paras 88, 91–93. For a detailed commentary on this decision, see Knottnerus 2017.
- 30.
See Knottnerus 2017 (arguing that the reasons given by the Court for the decision are not legally convincing, and that the Court still failed to clarify the meaning of Article 98).
- 31.
Gaeta 2014.
- 32.
For other findings on non-cooperation, see Non-Cooperation Malawi, above n 14; Non-Cooperation Chad, above n 14; Non-Cooperation DRC, above n 14.
- 33.
Non-Cooperation South Africa , above n 14.
- 34.
The Constitutional Court is the apex court.
- 35.
South Africa , Supreme Court of Appeal, The Minister of Justice and Constitutional Development v. The Southern African Litigation Centre, Judgment, 15 March 2016, 2016 (3) SA 317 (SCA) (Minister of Justice v. SALC).
- 36.
Ibid., para 61.
- 37.
Section 232 Constitution of the Republic of South Africa , 1996.
- 38.
Minister of Justice v. SALC, above n 35, para 69.
- 39.
UK House of Lords, Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia; Mitchell v. Al-Dali, 14 June 2006, [2006] UKHL 26, para 63, quoted in Minister of Justice v. SALC, above n 35, para 74.
- 40.
Minister of Justice v. SALC, above n 35, para 75.
- 41.
Non-Cooperation DRC, above n 14, para 25.
- 42.
Minister of Justice v. SALC, above n 35, para 76.
- 43.
Ibid., para 77.
- 44.
Ibid., para 82, referring to Non-Cooperation Malawi, above n 14, paras 37–43.
- 45.
Minister of Justice v. SALC, above n 35, para 82.
- 46.
Ibid., para 84.
- 47.
Ibid., para 103.
- 48.
Ibid.
- 49.
South Africa , International Crimes Bill B37-2017, Section 3(1). http://www.justice.gov.za/legislation/bills/2017-b37-ICBill.pdf. Accessed 7 January 2019. The bifurcated Preamble of the Bill contains two parts: four paragraphs on the need to end impunity and to hold those responsible for the worst crimes under international law to account, including South Africa ’s obligations in this regard; and then a second, qualifying part of the Preamble which reminds the reader/interpreter that – ‘the Republic of South Africa is a founder member of the African Union; the Republic of South Africa plays an important role in resolving conflicts on the African continent and encourages the peaceful resolution of conflicts wherever they occur; the Republic of South Africa , in exercising its international relations with heads of state of foreign countries, in particularly heads of foreign countries in which serious conflicts occur or have occurred, is hindered by the Implementation of the Rome Statute of the International Criminal Court Act, 2002, which together with the Rome Statute of the International Criminal Court compel South Africa to arrest heads of state of foreign countries wanted by the International Criminal Court for the crime of genocide, crimes against humanity and war crimes and to surrender such persons to the International Criminal Court, even under circumstances where the Republic of South Africa is actively involved in promoting peace, stability and dialogue in those countries; and the Republic of South Africa wishes to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, but particularly on the African continent.’
- 50.
Non-Cooperation South Africa , above n 14.
- 51.
Ibid., para 68.
- 52.
It should be noted that immunity ratione personae from foreign criminal jurisdiction as enjoyed by serving Heads of State, is well-established under international law. And this includes immunity from foreign criminal jurisdiction for international crimes. The category of officials who enjoy this form of immunity goes beyond Heads of State and includes other high-ranking officials, including, at present, Heads of Government, defence ministers, and ministers for commerce and international trade. See Crawford 2012, pp. 499–500; UK House of Lords, R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet, Judgment, 25 November 1998, [2000] 1 AC 61, pp. 147, 244, 261, 265, 268–269, 277; France, Court of Appeal of Paris, Gaddafi case, Appeal judgment, 13 March 2001, 125 ILR 490; Belgium, Court of Cassation, Re Sharon and Yaron, Judgment, 12 February 2003, 127 ILR 110; UK, Tatchell v. Mugabe, Judgment, 2004, 136 ILR 572. See also Arrest Warrant , above n 2, p. 25.
- 53.
Non-Cooperation South Africa , above n 14, para 76.
- 54.
Ibid., para 79.
- 55.
Ibid., para 82.
- 56.
For the text of the Resolution, see https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf. Accessed 7 January 2019.
- 57.
Non-Cooperation South Africa , above n 14, para 92.
- 58.
Ibid., para 93.
- 59.
Kenya , Court of Appeal at Nairobi, Civil Appeal 105 of 2012 & Criminal Appeal 274 of 2011 (Consolidated), Attorney General & 2 others v Kenya Section of International Commission of Jurists, Judgment, 16 February 2018 [2018] eKLR.
- 60.
Ibid., pp. 47–48.
- 61.
Ibid., p. 8.
- 62.
Ibid., p. 49.
- 63.
Ibid., pp. 56–57.
- 64.
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, 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 or Omar Al-Bashir , 11 December 2017, ICC-02/05-01/09-309.
- 65.
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, 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 ’, 12 March 2018, ICC-02/05-01/09-326.
- 66.
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Supplementary African Union 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 ”’, 28 September 2018, ICC-02/05-01/09-389 (AU Supplementary Submission in the Jordan-Appeal).
- 67.
Ibid., para 4 (emphasis in original).
- 68.
Ibid., para 10.
- 69.
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, The African Union’s 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 ’, 16 July 2018, ICC-02/05-01/09-370, paras 44–55; AU Supplementary Submission in the Jordan-Appeal, above n 66, para 17.
- 70.
AU Supplementary Submission in the Jordan Appeal, above n 66, para 18.
- 71.
Ibid., para 20.
- 72.
Ibid., para 22 (emphasis added).
- 73.
Ibid.
- 74.
ICC, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Transcript, 12 September 2018, ICC-02/05-01/09-T-8-ENG ET WT 12-09-2018 1/109 SZ PT OA2, p. 74, lines 12–25 and p. 75, lines 1–5; p. 76 lines 1–25.
- 75.
AU Supplementary Submission in the Jordan Appeal, above n 66, para 25.
- 76.
See comments and references by Jacobs D (2018) Immunities and the ICC: my two-cents on three points. https://dovjacobs.com/2018/09/10/immunities-and-the-icc-my-two-cents-on-three-points/amp/?_twitter_impression=true. Accessed 7 January 2019.
- 77.
South Africa ’s decision in 2016 to withdraw from the ICC, a decision which was reaffirmed in December 2017, flows directly from the al-Bashir debacle. The immunities issue has consistently been the raison d’être for South Africa ’s attitude towards the ICC in the aftermath of President al-Bashir ’s visit to that country in 2015. For more on South Africa ’s tempestuous recent relationship with the ICC, and the ongoing debate about withdrawal from the Rome Statute, see Kemp 2017.
- 78.
See also comments by Akande 2016.
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Kemp, G. (2019). Immunity of High-Ranking Officials Before the International Criminal Court – Between International Law and Political Reality. In: Werle, G., Zimmermann, A. (eds) The International Criminal Court in Turbulent Times. International Criminal Justice Series, vol 23. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-303-0_5
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