Looking for Middle Ground on the Immunity of Al-Bashir? Take the Third ‘Security Council Route’

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Cross-posted from EJIL:Talk!

On 10-14 September, the Appeals Chamber (AC) of the International Criminal Court (ICC) held hearings in the appeal of Jordan against the decision of Pre-Trial Chamber (PTC) II entitled ‘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 o[f] Omar Al-Bashir’ of 11 December 2017’. As Talita De Souza Dias aptly showed in her recent post, one of the most debated issues during the hearings was whether the Security Council (SC) can implicitly waive the immunities of non-party States’ high-ranking officials when it refers a situation to the ICC. I agree with Talita’s findings on the permissibility of implicit derogations from immunities but I will argue that it is not Article 27(2) that renders the immunity of Al-Bashir inapplicable at the domestic level. Rather, it is the effect of Article 89 (1) on ‘Surrender of persons to the Court’ that makes his immunity of no avail before a domestic jurisdiction enforcing the ICC arrest warrant. In making this argument, I will propose a variant of the ‘Security Council Route’ that is different from those hitherto recognised in the literature or by the ICC.

Readers will recall that there are two main theories regarding the (in)applicability of immunities in domestic proceedings for arrest and surrender to the ICC of a state official ordinarily entitled to international law immunities. First, there is the theory that there is a customary exception to the immunity of heads of States for ‘proceedings before certain international criminal courts’. This view, drawn from an obiter dictum of the International Court of Justice in the Arrest Warrant Case, considers that the ICC is the archetypal example of a court of an international nature, and that enforcement by domestic authorities of an ICC request for arrest and surrender is part of the customary exception to the immunity the high-ranking official would normally enjoy.

The second theory is the ‘Security Council route’, which argues that the Security Council may remove the immunity of heads of state in proceedings before or initiated by the ICC. However, it should be noted that there are two variants of this theory. The first variant is the view adopted in PTC II’s DRC Cooperation Decision (DRC Decision) where it was held that the SC by imposing upon Sudan the obligation to ‘cooperate fully’ with the Court has implicitly waived the immunities of Al-Bashir. The second variant was adopted by the decision under appeal by Jordan. That variant,  which was first adopted by the ICC Pre-Trial Chamber in the Decision on South Africa’s Non-compliance (South Africa Decision), states that by referring the situation in Darfur to the Court, and obligating Sudan to cooperate fully, the SC has imposed Article 27(2) of the Rome Statute upon Sudan, which would have displaced Al-Bashir’s immunity. In this piece, I set out a third ‘Security Council Route’.

The Third Security Council Route

Jordan, supported by the AU, made an argument, rarely seen in the literature, about the object of a SC referral to the ICC. The dominant view, including the one adopted by the PTC II in the DRC Decision and South Africa Decision, is that SC Resolution 1593 refers the State of Sudan to the ICC. Jordan’s and the AU’s position (a position which I share and developed in my book forthcoming in November 2018) is that SC Resolution 1593, paragraph 1 does not refer Sudan to the Court but a ‘situation’ with defined territorial (and less defined temporal) parameters –   that is the situation in Darfur, Sudan since 1st July 2002 (see here, p. 63). In my view, this distinction is crucial as it entails that all UN Member States – not only Sudan – have to accept that the SC, acting under Chapter VII of the UN Charter, triggered the ICC’s jurisdiction over crimes committed in Darfur since 1st July 2002. Given that the Court’s jurisdiction is to be exercised in accordance with the Rome Statute, including Article 27, this implies that all States have to accept that the ICC’s jurisdiction over the situation in Darfur is not barred by immunity ratione materiae as well as immunity ratione personae – and this, regardless of whether the accused is an official from a State party or not.

However, it is not all State officials that are by the effect of SC referral subject to an ICC request for arrest and surrender. Like Roger O’Keefe, I am of the opinion that it is not Article 27 that waives the immunities of high-ranking officials from foreign criminal jurisdiction enforcing an ICC arrest warrant (O’Keefe amicus brief, par. 5-7).  Instead, as I will illustrate below, such effect flows from Article 89 (1) on ‘Surrender of persons to the Court’.  The SC referral, on its own, does not impose an obligation to surrender persons to the Court upon all non-party States. Such obligation, which belongs to Part IX of the Statute, ‘International Cooperation and Assistance’, only exists for States parties, non-party States that issued an ad hoc declaration under Article 12 (3), and States obliged by the SC to ‘cooperate fully’ with the Court. Unlike the SC referral, the obligation to ‘cooperate fully’ with the Court, provided in SC Resolution 1593, paragraph 2, is imposed upon Sudan only. Other non-party States (other than Sudan) are simply ‘urged’ to cooperate with the Court.

One of the most important provisions of Part IX of the Statute is the obligation to execute the ICC’s requests for surrender of persons. Article 89 (1) provides that States Parties shall comply with requests for surrender and that these requests may be transmitted for any person present in their territories. The exceptions foreseen by Article 89(1) for not executing such requests does not include immunities. It is, accordingly, this specific provision that entails that States parties have waived the immunities of their officials from arrest and surrender to the ICC.

Claus Kress rightly pointed out during the hearings that if this was the right construction, how come Article 89 did not ‘explicitly’ waive immunity, as O’Keefe, Jordan and the AU had been arguing for the SC resolution (see here, p. 122). This incisive observation prompted O’Keefe to change his mind on the effects of Article 89 (1) in the very last day of the hearings – he is now convinced that States parties have not waived their immunities from each other’s arrest and surrender to the ICC (see here p. 49-50. I am, on the other hand, still convinced that Article 89(1) waives immunities, irrespective of whether its terms are implicitly indicating so.

To be sure, Article 89 (1) does not mean that the ICC may request a State party to violate the immunities of any high-ranking official which is entitled to immunities from foreign criminal jurisdiction. Article 98(1) of the Rome Statute asks the ICC to assess whether its request for surrender would put the ‘requested State’ in a situation where it would be required to act inconsistently with its international obligation to respect the immunities of a ‘third State’.  If the Court finds that the request would put the requested States before conflicting obligations, it shall not issue the request, ‘unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.’ Given that States parties have waived their immunities from foreign criminal jurisdiction enforcing an ICC request for surrender via Article 89 (1), Article 98 is of no relevance to their officials. In other words, Article 98 is specifically targeted at situations where the warranted individual is from a non-party State, i.e. a third State.

Coming back to Sudan, the only non-party State obliged to ‘cooperate fully’ with the Court in the situation in Darfur. I won’t reiterate Talita’s argument, which I find highly persuasive. Suffice to say that past practice indicates that the SC was not required to explicitly derogate or waive the immunities of high-ranking officials from Sudan to displace such immunities in relation to the ICC situation in Darfur. It is indeed clear that the obligation to ‘cooperate fully’ imposed upon Sudan includes the obligation to abide by Article 89 (1) and accept the horizontal effects resulting from this pivotal provision, i.e. waiving any possible immunities Sudan’s officials may have under international law from foreign criminal jurisdiction enforcing ICC arrest warrants issued in the situation in Darfur. Furthermore, to ‘cooperate fully’ must necessarily entail that, pursuant to Article 25 UN Charter, this State full cooperation with the Court is assumed. Accordingly, for the sake of Article 98 (1) Sudan’s cooperation for the waiver of immunity has already been obtained and there was therefore no conflicting obligation for Jordan in arresting and surrendering Al-Bashir to the ICC.


To sum up, the flaw in the previously recognised ‘Security Council routes’ is that they conflate the obligation to accept the referral with the obligation to ‘cooperate fully’ – both obligations have different addressees as well as different consequences with respect to immunities. This conflation also led to the assumption that those who are not immune from the Court’s jurisdiction are similarly not immune from arrest and surrender by a foreign criminal jurisdiction. This assumption results from a misunderstanding of which article of the Rome Statute renders immunities inapplicable at the stage of arrest and surrender.

During the hearings, Darryl Robinson submitted that given that the issues before the ICC Appeals Chamber are very controversial and divisive, it would be commendable if the Chamber was able to find some middle ground (see here, p. 61). I believe the third variant of the ‘Security Council Route’ offers this middle ground. The DRC and South Africa decisions imply that (only) high-ranking officials from Sudan (or from States parties) are not entitled to plead their official capacity before the ICC, and that accordingly, these officials are not immune from arrest and surrender by another State enforcing the ICC arrest warrant.  I am of the view, like the AU (see here, p. 115), that all high-ranking officials are not immune from the ICC’s jurisdiction in the situation in Darfur. However, in my view, unlike those of Jordan and the AU, only the high-ranking officials of Sudan (or of State parties) are not immune from arrest and surrender by another State enforcing the ICC arrest warrant.

While the third ‘Security Council Route’ relies on the Chapter VII powers of the SC to displace the immunity of Al-Bashir from the ICC and its States parties’ jurisdiction, it does not, like the other variants, allow other non-party States to successfully claim before the ICC itself, that their State officials remain immune from its jurisdiction, even if such jurisdiction has been triggered by the SC. In the long term, such reasoning might be able to stand without the need to emphasize that it is backed by a Chapter VII obligation, and therefore bring more State practice and opinio juris for the ‘international criminal court exception’.