You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case

This morning, 6 May 2019, the Appeals Chamber issued its Judgment on the Appeal filed by Jordan against an 11 december 2017 decision by Pre-Trial Chamber II whereby it was found that Jordan failed to comply with an order to arrest and transfer Bashir to the ICC because Bashir did not benefit from Head of State immunity in the context of a UNSC Referral. As a consequence, Jordan’s non-cooperation was referred to the UNSC and the ASP.

It was a long-awaited decision, touching upon fascinating issues of public international law, treaty interpretation, customary international law, effects of UNSC resolutions, etc. The process that led to the Judgment was itself fairly novel, the Appeals Chamber having invited and received amicus briefs from the AU, the Arab League and a dozen law professors, who, in addition to their written briefs, were heard and questioned by the Chamber at length over several days in September 2018.

This is a really difficult blog post to write, because the Judgment comes at the conclusion of 8 years of debates (since the 2011 Malawi decision), with many sub-plots and twists. Explaining comprehensively why this is a terrible decision therefore would ideally require some prior knowledge of what the stakes are and would require me to fill way too many pages for a blog.

Therefore, for a comprehensive overview of the issues and explanations of why the reasoning of the Appeals Chamber is not convincing, I simply refer you to the innumerable blog posts I’ve written on the topic (particularly my initial reaction to the Malawi decision back in 2011, which is relevant here given the fact that the Appeals Chamber dug it up from nowhere) and my comprehensive chapter on the issue (an earlier draft of which you can find here).

What I will do here is simply pick and choose some particular problematic or noteworthy aspects of the Chamber’s reasoning.

First of all, at the heart of the Appeals Chamber’s reasoning is the conceptual idea that there exists a concept of “international tribunal” that is not simply the “pooling” of the exercise of jurisdiction by States (see par. 115 of the Judgment). These “international tribunals” would have a different nature and would therefore not be subject to the same rules of international law than States are, which allows the Appeals Chamber to say that while Head of State immunity continues to apply between States, it does not apply before international tribunals. However, this reasoning is very problematic. Indeed, it relies on a moral, rather than legal basis, as seen in the claim that “international tribunals” act in the name of the “international community as whole” rather than individual States. But what is the “international community” as a whole from a legal perspective? It is of course never defined in the Judgment.

Moreover, where does the “pooling” of jurisdiction end and the “international tribunal” start? For example, if France and Belgium, who separately would not be able to arrest and prosecute a foreign head of State, create an “international tribunal” through a bilateral agreement, would that new institution be able to prosecute that same Head of State? I doubt it, because States cannot grant to an IO a power they do not possess. This is basic common sense. You can’t just avail yourself of this simple rule by essentially claiming the moral high ground. Also, what arrogance to claim that you are acting in the name of the “international community as a whole”, especially when you see in practice the opposition that exists to the ICC (whether it is justified or not is another issue).

Given the reasoning adopted by the Appeals Chamber on this point, I find it somewhat ironic that the Judges go on the explain that “The law does not readily condone to be done through the back door something it forbids to be done through the front door” (par. 127). Not only is there a slight Judge Dredd feeling about this sentence (who is the “law” exactly? “I am the law!”), but it is exactly what the Judges did to remove immunity in the first place: treaty rules might be a problem? let’s use the back door of the “international tribunal” and magically go through the cupboard into the magical Narnia world when standards rules of international law disappear under the benevolent gaze of the “international community as a whole”…

The key issue should not so much be what an abstract category of “international tribunal” would look like, but rather, in each specific circumstances how a tribunal was created and what effects it might have on third States. This requires no creativity whatsoever, but simply a basic application of public international law rules. In the case of the ICC, as a treaty body, there is simply no reason why it should bind third States and that should be the end of the discussion (the PTC in the Rohinga decision attempted to justify that the ICC could have an effect on third-States as an IO with objective legal personality, but their reasoning was not very convincing either). 

Second of all, as a consequence of the Judgment, Article 98(1) is rendered mostly meaningless. Of course, Article 98(1) does not actually list what immunities need to be respected by cooperating States, but it is somewhat difficult to imagine that if the drafters of the Rome Statute really thought that Article 27 removed all immunities, even in the horizontal relationship between States, as an established rule of customary international law, it would have bothered to introduce Article 98(1) in the first place.

Third of all, the consequences for third States are quite big.

1) this Judgment means that immunities cannot be claimed by nationals of non-State parties, even when the situation is not referred to the Court by the UNSC. In other words, even if a situation is opened through a State referral or a proprio motu decision by the Prosecutor, State Parties would have to arrest and surrender nationals of non-State parties who would otherwise benefit from immunity.

2) This is probably one of the weirdest consequences of the Judgment: because the Appeals Chamber claims the existence of a rule not just in the Rome Statute, but in customary international law, that there are no immunities before “international tribunals”, one could arguably claim that the obligation to arrest and surrender a person would rest not only on State parties but also on non-State parties, because customary law is binding on all States… this is of course a ridiculous proposition, but it shows the absurdity of the Judgment.

Fourth, I note that the AC makes no mention of the Malabo Protocol, which explicitly provides for Head of State immunity. Presumably, by the AC’s standards, the tribunal constituted by the Malabo Protocol would be an “international tribunal”. Therefore, it would be acting in the name of the “international community as a whole”, in claiming that immunities exist before “international tribunals”. Why would this not equally be evidence of a contrary customary international law?

Fifth, I note that the Appeals Chamber mentions in one paragraph that Jordan’s obligation to cooperate would also stem from the Convention against Genocide. This was the position taken in a separate opinion to the South Africa decision by Judge Brichambaut (see my commentary here). I was not entirely convinced by the argument at the time, but at least the Judge made an effort to analyse the Genocide Convention specifically and explain how it would be related to the Rome Statute. Here, there is no such effort and it is impossible to understand what the relevance of the Genocide convention is in the current proceedings. Maybe it was included as a possibility in a earlier draft of the Judgment and someone forgot to remove it, because as it stands, these few lines, which seem to be added as an afterthought, with no explanations, 1 footnote and no references, are completely useless.

Sixth, I don’t have much to add that I haven’t said in the past to the analysis provided by the Appeals Chamber of the “UNSC route”. Just a few quick thoughts:

1) It’s not entirely clear why the AC bothers with this section of the Judgment at all, given that the questions raised become essentially moot given the customary law avenue taken by the Chamber.

2) I do note that the reasoning provided by the AC is interesting when it comes to determine under what sections of the Rome Statute Soudan would be obliged to cooperate with the Court. I must say that on first reading, I am convinced with the argument according to which, given the language of the UNSC Resolution, Soudan would have to respect the cooperation provisions relating to State parties rather than non-State parties. However, this does not automatically mean that Soudan would be bound by Article 27, and on this the Judgment is less convincing.

3) I also note that the AC did not follow my friendly advice: it did not actually asked those States on the UNSC who wrote the referral if in fact they did intend to remove immunities. This would have been all the more interesting as some of these States have made public Statements to the contrary (see here).

Seventh, in relation to the referral of Jordan to the ASP and the UNSC, I remain a bit lost at what the legal framework is. In such discretionary matters, it seems more of a divination exercise than one of legal reasoning, so I don’t have much to say about that. I just wonder, maybe naively, when a referral will ever be justified. Indeed, when the Jordan cooperation issue comes up, there is 7 years of constant (if not consistent) case-law asking State parties to arrest and surrender Bashir. I have all the sympathy in the world for Jordan’s legal position, which I mostly share, but practically, in those circumstances, it is difficult to see Jordan’s non-cooperation as anything else but a clear refusal to comply with a clear order from the Court. How is that not sufficient for a referral? I’m wondering, but this is just me thinking out loud, whether the real issue is to avoid that this discussion be forced on the ASP/UNSC, bodies which might make statements that the Judges would not want to hear. Indeed, it would not look good if the UNSC or the ASP (under the pressure of the AU States) actually came out in defense of Jordan…

Eighth, while I have yet to read the separate opinion (I might blog on it later), I am not sure what to make of its existence. Indeed what are we taking about?  it is a separate concurring opinion which focuses on written by 4 of the 5 judges in relation to the 2  grounds of appeal for which the decision was unanimous. So basically, did the 5th Judge not agree with the content of the separate opinion? because if she had, it would be signed by all 5 judges, concurring with themselves and then this would just be another part of the Judgment… Also, as also noted by Hemi Mistry, there are regular cross-references between the Judgment and the concurring opinion, which raises the question of the exact status of the document. I hope to have more clarity when I actually read it.

In conclusion (for now), I honestly believed that the AC would play it safe and stir away for the Customary Law route. I was wrong. As noted by Dapo Akande, this radical view justifies even more that the AU move for an ICJ advisory opinion on the matter. They have nothing to lose now.

From the perspective of the ICC, the Appeals Chamber has sadly confirmed I was right when I chose “the frog that wanted to be an ox” title, for my book chapter on immunities. This is again a case of the ICC Judges trying to be more (and to make the Court be more) than it actually is. In the fable, the frog actually exploded at the end… it’s of course just a metaphor, but given recent developments at the Court, it’s increasingly becoming a concrete risk for the institution.