Today and the next few days, the Appeals Chamber is hearing oral submissions on the question of whether Bashir, from Sudan, has immunity from arrest and surrender to the ICC, as the sitting head of State of a non-State party. This promises to be a interesting debate, with contributions from Jordan, the AU and a handful of international law professors who are for the most part recognised experts on this question. To move the debate along, the Appeals Chamber has issued a list of questions to be addressed by the participants.
I just wanted to react quickly on three particular aspects of the question.
- Is the “international” character of the ICC relevant ?
A number of the questions put to the participants relate to the question of whether the fact that the ICC is an “international court” can affect the rules that apply in relation to immunities. This argument was put forward explicitly at the Special Court for Sierra Leone to justify the absence of immunities for Taylor and is regularly considered in the litterature, relying on an obiter from the ICJ Immunities where it was said that: “Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction” (par. 61).
I’ve never been convinced by this argument. Ascribing an “international court” label to an institutional does not magically displace all rules of international law, allowing such an institution to suddenly do things that the individual States that created it could not do.
Moreover, the ICJ was simply acknowledging the fact that certain international institutions did not provide for head of State immunity. It certainly did not provide a normative view on the matter. interestingly, in its lists of questions, the Appeals Chamber claims that “The International Court of Justice in the Arrest Warrant case refers to a potential exception to Head of State immunity under customary international law”. However, the ICJ does no such thing, and does not even use the word “exception” in the relevant paragraph.
- What role for the “fight against impunity” in the interpretation of the Rome Statute?
One of the Appeals Chamber’s questions reads as follows:
According to article 31 of the Vienna Convention on the Law of Treaties, the provisions of a treaty must be interpreted in the light of its context, including the preamble, and its object and purpose. What is the significance of such a contextual interpretation of the Statute, in the light of its object and purpose as set out in its preamble, namely ‘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’, in the determination of the appeal?
My short answer is: none. I’ve always objected to the use of the vague notion of the “end of impunity” to justify any particular interpretation of the Rome Statute. Not only is it more often than not justified to adopt interpretations of the Statute which are against the Accused, but, more importantly, I do not think the “fight against impunity” is technically an object and purpose of the Statute to be taken into account for the purposes of Article 31 of the Vienna Convention (a minority view on this topic, I know). Saying this 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).
Confusing the two is like claiming that the object and purpose of a hammer is to build a house, rather than specifically to put nails in a wall. Focusing on the “build a house” aspect tells you absolutely nothing on what a hammer is actually meant to do concretely, because what is actually important to understand the hammer is the “put nails in the wall” aspect. The same is true of the ICC: relying on the “fight against impunity” gives you no indication on how the ICC is actually meant to work, and therefore is simply an excuse for Judges to put their own moral agenda in the mix. This should of course not be allowed.
- Interpreting UNSC Resolutions
The immunities debate has involved a great deal of discussion on what the UNSC actually intended to do when it adopted UNSC Resolution 1593. Irrespective of my own interpretation of the Resolution, I’ve always found it puzzling that we need to fill pages and pages of cabbalistic linguistic intepretations of the Resolution, when all we need to do is ask the UNSC what it actually meant to say. The UNSC is just there! Just put the question to it, or at least to some of its member States. It shouldn’t have to be that complicated: “Did you intend to displace international rules of immunity, or not?”. Whether the UNSC has the power to do so is an entirely different question (I would argue that it doesn’t), but maybe is there no issue to discuss in the first place. In this sense, it would have been interesting for the Appeals Chamber to specifically invite the UNSC and /or its member States at the time of the adoption of the Resolution to provide the Judges with some clarity on the matter.
In that respect, Benjamin Durr recently reported that:
China foreign ministry on Bashir visit: “The Chinese side holds reservations about the #ICC‘s indictment against Sudanese President Omar al-Bashir. We hope that the Court can handle the relevant issue in a prudent manner.” https://t.co/NNNDa4NY85 (v. @julianku)
— Benjamin Dürr (@benjaminduerr) 5 septembre 2018
With Patryk Labuda rightly commenting that:
Looking forward to how #ICC appeals chamber factors this into their analysis of UNSC resolution 1593. Seems a permanent UN security council member has spoken about what res 1593 means and does not mean re #Bashir immunity https://t.co/1cVV9SPH2S
— Patryk I Labuda (@pilabuda) 5 septembre 2018
Indeed, the Foreign Ministry statement, although couched in diplomatic terms, could suggest that the Chinese do no agree with the removal of Bashir’s immunity. This is not definitive proof of what the Resolution actually means, especially because China does not speak for the other members of the UNSC, but it could definitely be taken into account in the decision making process.
[UPDATE: Alex Galand has kindly pointed out to me on twitter that in fact both China and Russia have recently clearly stated that Head of State immunity remains, irrespective of a UNSC Resolution:
Russia uses the same SC meeting (20/06/2018 to reiterate its position re immunities of heads of States pic.twitter.com/Ix5uqWHdYM
— Alexandre Skander GALAND (@galand_s) 26 juin 2018
More food for thought for the Appeals Chamber which should absolutely be taken into account!]