This week, Pre-Trial Chamber I of the International Criminal Court has been busy reprimanding African States for non-cooperation in executing the Arrest Warrant against Sudan President, Omar Al Bashir. On Monday it issued a decision on the failure of Malawi to comply and yesterday, a similar decision was issued in relation to Chad (decision in French).
This could have been a fairly innocuous event. In the past 18 months, the PTC has on several occasions taken notice of the presence of Bashir in an African country (Tchad and Kenya in August 2010, Djibouti in May 2011). Each time, in short decisions, the judges found that these countries had not complied with their obligation under the statute as State parties to enforce the arrest warrant against the Sudanese president. So the two decisions this week would seem to fall in line with these previous findings, a normal day at the office so to speak.
Of course, the question still remains whether State parties are 1) actually under an automatic obligation under the Statute to execute an arrest warrant and 2) whether the general requests for the arrest and surrender of Bashir to all States that the Pre-Trial Chamber issued in 2009 and 2010 (respectively here and here) are actually in conformity with the Statute. I have already argued that the answer is negative on both counts because Article 89(1) provides that you need a request from the Court to have an obligation under the Statute and that, for the sentence “…any State on the territory of which that person may be found” (as opposed to just “any State”) to make any sense, the request must be specific and specifically justified, rather than be general and preemptive. This is confirmed by the very specific information that must be provided with the request under Article 91.
But again, the two recent decisions would generally be old news already if they had followed the exact same approach as previous ones.
However, the Pre-Trial Chamber has decided to be bolder this time and address the question of head of State immunities, both under Article 27(2) of the Statute and in relation to Article 98(1) of the Statute, and the articulation between the two. The reasoning of the Chamber is so confused and unsatisfactory that it is difficult to know where to start.
Before I move to the heart of the discussion, I wanted to point a minor procedural issue, but that is illustrative of the general sloppiness of the drafting. When a Chamber makes a finding of non-compliance with a request for cooperation under Article 87(7), Regulation 109 of the Regulations of the Court (drafted by the Judges themselves) provides that the President shall refer the matter to the ASP or the UNSC. However, the Malawi decision ignores this and orders that the Registrar transmit the decision. This is all the more surprising, that the Chad decision (in French) actually uses the correct procedure and explicitly refers to Regulation 109 to ask the president to transmit the decision. This inconsistency comes up, despite the bench being composed of the same judges. Apparently, the francophone Assistant Legal Advisers at the Court are more knowledgeable than the anglophone ones…
But let’s now come to the question of Articles 27 and 98(1), relating to head of State immunities.
- The discussion of Article 27
First of all, the judges consider the issue of Immunity of Heads of States in International Proceedings (§§22-36 of the Malawi decision. In the remainder of the post, I will refer to this decision, which is broadly reproduced in the Chad one).
Going back as far as 1919, the PTC refers to a string of international judgments (Nuremberg, Tokyo, ICTY and even ICJ), statutes of international tribunals (ICTY, ICTR, SCSL) and other documents (Principles of International Law recognised in the Charter of the Nuremberg Tribunal, Draft Code of Crimes against the Peace and Security of Mankind) to conclude that (§36):
“Therefore, the Chamber finds that the principle in international law is that immunity of either former or sitting Heads of State can not 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.”
The Chamber seems to think that the sheer number of references will make their argument compelling. But this is a typical judicial application of the “cheerleader effect“: all the references look good together, but taken separately might not be so convincing. Indeed, the references actually concern two distinct issues. The first one, which is dealt with in Article 27(1) of the ICC Statute, is whether official capacity can remove the criminal responsibility of a person. The second one, dealt with under Article 27(2) of the ICC Statute, is whether head of State immunity can prevent an international Court from exercising jurisdiction. There is no debate about the first question in the current case, only about the second one so the following references are just irrelevant: Statute of the IMT, Statute of the Tokyo Tribunal, UN Principles, Code of Crimes, ICTY Statute, ICTR Statute and SCSL Statute. Which leaves us with more or less one relevant source, which is the ICJ Arrest Warrants Case.
In any case, from a methodological point of view, it is puzzling why the Chamber actually engages in these developments. As is often the case in international criminal decisions, there is a very “flexible” approach to the sources of law. The PTC does not, at any point, justify why these references are even invoked. This is especially troubling at the ICC, because the drafters of the Rome Statute, contrary to those of others Statutes of international criminal tribunals, actually chose to include an explicit provision on the Applicable law, which clearly provides (Article 21(1)(a)) that the Statute, RPE and Elements of Crimes are the first documents to be considered. Article 27(2) clearly says that head of State immmunity “shall not bar the Court from exercising its jurisdiction over such a person”. There was no reason whatsoever to give a lecture in the history of international prosecutions to reach the conclusion that is already mandated by the Statute.
One could of course question whether applying 27(2) to the Heads of States of non-State parties is contrary to international law, but that is not the judges’ problem. I’ve argued elsewhere that the whole UNSC referral mechanism is somewhat contrary to international law. But once the case actually comes before a Chamber, the judges are bound by the Statute and should apply 27(2). Should this mean that the ICC, as an institution, would be violating international law is not the judge’s concern. Sudan should raise the question of the responsibility of the ICC, as an International organization, or even its member States, which would be a nice case of Shared Responsibility. But again, not an issue for the judges. In this sense I actually agree with the Tadic Trial Chamber, which refused to consider the legality of the creation of the ICTY. It was not its function to do so.
But I digress. In a nutshell, the PTC could have just referred to 27(2) and moved on (although the whole discussion on 27(2) is in my opinion irrelevant, but more on that later).
Article 98(1)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.”
The Chamber considers that there is a tension between 27(2) and 98(1) (§37). To solve this tension, it further pushes its reasoning in relation to international prosecutions of heads of States. Stating that there has been an increase in Head of State prosecutions by international courts (citing Taylor, Gbagbo and Gaddafi), the PTC says that this has gained “widespread recognition as accepted practice” (§39). This practice is further illustrated by the ratification by 120 States to the Rome Statute (and therefore to article 27(2)) and by the fact that some Security Council members who have not joined the Court have agreed to refer situations to the Court. The judges therefore conclude, in what can only be described as “armchair legal reasoning”, that (§42):
“The Chamber considers that the international community’s commitment to rejecting immunity in circumstances where international courts seek arrest for international crimes has reached a critical mass. If it ever was appropriate to say so, it is certainly no longer appropriate to say that customary international law immunity applies in the present context.”
There would certainly be a lot to say about the Chamber’s approach to determining the content of customary law, although it does at least refer to State practice, which is far less egregious than what the Special Tribunal for Lebanon did last year, when referring to the practice of international courts not contested by “States, non-state actors and other interested parties”, to determine the existence of a customary norm. The key point, however, is that the practice that is referred to, is only evidence of the potentially customary nature of Article 27(2). It does not, as the Court affirms, relate to the question of the arrest and surrender of an accused.
In this sense, I believe that there is in fact no tension between 27(2) and 98(1), because these two provisions are not about the same thing! Article 27(2) relates to the jurisdiction of the Court itself and 98(1) to obligations of States in relation to other States in general international law. Moreover, if the drafters of the Rome Statute believed that the inclusion of Article 27(2) meant automatically that there was an obligation to cooperate with the ICC irrespective of head of State immunity of non-State parties, why include Article 98(1) at all? It would make no sense.
So clearly, the Court has in fact brought into the discussion Article 27(2), when it should have kept its discussion limited to 98(1). The only relevant reasoning that would have been acceptable was whether, given the phrasing of 98(1), there is a crystallizing rule under international law that head of State immunity does not carry in the national context, which would therefore remove the difficulty with 98(1). This would have involved a more serious discussion of the Arrest Warrant Case, and evolution since then. But again, this is sadly not what the Chamber did, instead rendering a muddled and inappropriate decision.
This is all the more inappropriate given the fact that the Chamber, in considering the obligations of Malawi, makes a key finding (even if it had been said before) on the application of Head of State immunity to a defendant in a procedure that is not designed for that, which raises questions in relation to the rights of the defense, given that the Office of the Public Counsel for the Defense does not seem to have been involved in the discussions and that this is not a decision which is subject to appeal under Article 82. In that respect, one can even question whether the term “decision” is appropriate for such a document. Indeed, Article 87(7) does not even seem to describe a formal procedure. It refers to “a finding” of non-compliance, rather than a “decision”, whereas the Statute uses the word “decision” in most of the Statute, and only uses the term “finding” twice, in relation to evidence, and in the context of Article 87(7). The French version, which says that the Court “peut prendre acte” of the non-compliance, leans even more to the less formal nature of the determination. As for the question of Regulation 109, this might seem like a detail, but it does contribute to the general impression of a less than precise job that is reflected in the heart of the discussion, as illustrated previously.
- A sad hommage to Antonio Cassese?
The explicit reference to the late Antonio Cassese, not only in a footnote, but in the main text (§34), can only mean that this decision is seen as an hommage to one of the most active proponents of judicial creativity. But it is likely that the former President of the ICTY and STL, although he might agree with the final result, would himself cringe at the less than convincing legal reasoning of the Pre-Trial Chamber.
This Decision might be a testimony that his legacy of creativity lives on, but without his talent, judgments that were, despite the criticism that could be leveled at them, judicial symphonies, when crafted by him, sound like children randomly hitting the keys of an out-of-tune piano, when crafted by others.
UPDATE 1: For other critical assessments of the decisions, see Professor Schabas and Dapo Akande, who are both skeptical about the court’s reasoning.
UPDATE 2: in relation to Regulation 109, there has been a corrigendum to the original decision which correctly asks the President (and not the Registry) to refer the matter to the ASP and UNSC.