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University of New South Wales Law Journal Student Series |
‘A VEXED QUESTION INDEED’:[1] HEAD OF STATE IMMUNITY IN CUSTOMARY INTERNATIONAL LAW AND THE ICC IN THE APPEALS CHAMBER’S JORDAN REFERRAL DECISION
MICHAEL BAKER
‘Let us be realistic: The Security Council avenue does not carry us very far if we look to the foreseeable future.’[2]
The matter of whether heads of state enjoy immunity before the International Criminal Court (‘ICC’), is a topic which has generated significant controversy amongst the States Parties to the Rome Statute, non-party states and academics alike. The Appeals Chamber’s reasoning in the most recent decision on the issue, in the ongoing saga of the Al-Bashir Arrest Warrant, at best, does little to clarify to the question of head of state immunity before the ICC. At worst, it has weakened the stature and perceived legitimacy of the Court.
In this essay, after exploring the scope of head of state immunity in customary international law, I will analyse relevant provisions in the Rome Statute. I will then move on to the debate regarding the reasoning in the aforementioned Al-Bashir Arrest Warrant Case in its most recent iteration: the Appeals Chamber’s decision not to refer Jordan to the Security Council (‘the Jordan Referral Decision’). My commentary here will be restricted to the Court’s findings regarding customary international law. Contextualising key findings within previous case law, I will explain why these findings are cause for concern. In particular, I will demonstrate how, by reversing the onus of demonstrating custom, the Court ignores established legal principle. Finally, I will address the legal and political ramifications of the ICC’s decision, and the claim that the decision worsens the perceived legitimacy crisis currently engulfing the Court.
To be clear, I will deal with only one scenario in which head of state immunity arises in relation to the ICC. That scenario is one where a State Party is requested to cooperate in the arrest and surrender of a head of state of a state that is not a party to the Rome Statute, and has therefore not relinquished its immunities in favour of that regime.[3]
Heads of state are said to enjoy two types of immunity from foreign national proceedings: (1) immunity ratione materiae, or functional immunity, which attaches to the official acts of a head of state during their term of office; and, (2) immunity ratione personae, or personal immunity, which attaches to a head of state’s personal status.[4] The latter’s scope provides for total inviolability, including for acts undertaken in a private capacity, but ceases once that person leaves office. It is the latter that has generally been at issue in the Al-Bashir Arrest Warrant Cases, though the distinction has been at times blurred.
Immunities of heads of state were particularly relevant in a number of national court cases concerning the exercise of ‘universal jurisdiction’.[5] Most famous among these was the House of Lords decision in Pinochet.[6] The House of Lords in Pinochet, in particular, attempted to establish an exception to immunity ratione materiae for state officials, including heads of state, for serious international crimes.[7]
There is disagreement amongst scholars about whether a customary rule excepting functional immunity for serious international crimes crystallised.[8] In finding that the incumbent foreign minister of the Democratic Republic of Congo was entitled to head of state immunity from a Belgium-issued arrest warrant, the International Court of Justice (‘ICJ’) confirmed the absolute nature of immunity vis-à-vis foreign national courts in the Arrest Warrant Case.[9] A distinction between types of immunity was not drawn, and the ICJ did not find any exception to functional immunity for serious international crimes before national courts.[10] But the ICJ did include reference in obiter dicta to an exception to immunity in cases before ‘certain international criminal courts, where they have jurisdiction’.[11] In doing so it provided examples of provisions in the statutes of international courts concerning immunity, including inter alia the statutes of the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda and the ICC.[12] As commentators would later lament,[13] it did not enumerate a criteria for determining the kind of international court that would qualify as ‘certain’ per the ICJ’s dicta.[14]
The ICJ’s dicta in the Arrest Warrant Case on an ‘international courts exception’ has been relied on in a number of decisions since as removing head of state immunity before such forums. It was applied in the Special Court for Sierra Leone’s decision that the former Liberian President Charles Taylor was not entitled to immunity as the Special Court for Sierra Leone (‘SCSL’) was an international criminal tribunal.[15] It was arguably unnecessary for the SCSL to apply the exception, as Mr Taylor was no longer President at the time of trial and therefore not entitled to immunity ratione personae at the time of his trial.[16] The international courts exception, was subsequently applied by ICC Pre-Trial Chambers in the first two decisions concerning the failure of States Parties to the Rome statute to arrest Al-Bashir.[17] Those decisions were heavily criticised by commentators as well as by the African Union.[18] Most recently, as we will see below, the ICC Appeals Chamber has applied similar reasoning, with similar controversial effect, in the Jordan Referral Decision
Before analysing the Appeals Chamber’s decision, some observations about the Rome Statute and its relationship to the question of head of state immunity must be made. The Rome Statute, by itself, does not provide or define immunity, it merely recognises its existence. The extent to which it protects an obligation or right of immunity is subject to disagreement, including, apparently, between chambers of the ICC.[19]
Article 27(2) of the Rome Statute specifies that ‘immunities or special personal rules which may attach to the official capacity of a person ... shall not bar the Court from exercising its jurisdiction’. Elsewhere in the Statute Article 98(1) provides that the ICC will not issue a request for arrest and surrender:
...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 apparent conflict between these two provisions, is particularly relevant when a State Party is requested to execute an arrest warrant for the head of state of a third state not party to the ICC and so entitled to personal immunity (‘third state scenario’). In such a case there appear to be competing obligations. The State Party owes a vertical obligation in treaty to the ICC on one hand, and on the other hand a horizontal obligation to the third state of personal immunity for its head of state.[20]
One reading of the two articles is that, in a third state scenario, Article 27(2) strips obligations of horizontal immunity owed by States Parties to third states. On such a reading Article 98(1) is ‘a procedural rule that determines how the Court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation.’[21]
The better view is that articles 27(2) and 98(1) must be read together as protecting immunities for third states. Thus, ‘if the third state has not relinquished its immunities in favour of the ICC regime, then personal immunity persists’.[22] This approach has a strong foundation in pacta tertiis or the principle that a treaty binds only those who are parties to it and cannot create rights or obligations for third parties.[23]
The preceding analysis is particularly relevant to the question of whether States Parties have a duty to cooperate with the ICC in the execution of an arrest warrant for Mr Al-Bashir, the now former President of Sudan. In this part therefore, after providing some context I will analyse the ICC Appeals Chamber’s most recent judgment on that matter.
Mr Al-Bashir continues to be the subject of ICC arrest warrants for war crimes, crimes against humanity, and genocide,[24] but has travelled to the territory of a number of States Parties.[25] State Parties who have failed to arrest Mr Al-Bashir have argued that to do so would be to violate a horizontal obligation of personal immunity from the exercise of their criminal jurisdiction.[26]
A number of States who have refused to cooperate with its requests in arresting Mr Al-Bashir have been referred to the Security Council, [27] whilst others have escaped sanction.[28] The use of this mechanism by the ICC has left behind a litany of judgments with a catalogue of reasoning of varying persuasiveness. It is the Appeals Chamber’s decision concerning the referral of Jordan to the Security Council for its failure to arrest Mr Al-Bashir while he was in Jordan, that the present analysis is concerned with. That judgment was handed down on May 6, 2019. It was accompanied by the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa incorporated by reference in the main judgment. A Joint Dissenting Opinion of Judges Carranza and Bossa was also issued. As well the ICC produced a ‘Questions and Answers’ document which it stressed is not part of the judgment but makes some counter points to anticipated questions.
In its judgment holding that head of state immunity did not apply to Mr Al-Bashir, and thus that Jordan was required to cooperate, the Court, broadly-speaking, relies on two lines of reasoning. Both have bases in previous ICC decisions. The first is that because Security Council referred the situation in Darfur to the ICC, under Chapter VII of the UN Charter, and ordered Sudan to ‘cooperate fully’, Sudan ‘cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al Bashir’.[29] This is the reasoning that was also relied upon by the Pre-Trial Chamber in its judgment referring Jordan to the Security Council,[30] and in the South Africa Decision.[31]
The second line of reasoning is that there is no customary international law of immunity for heads of state before ‘international courts’, which is relevant also ‘for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another state’.[32] This relies on the ICC’s decisions on Chad and Malawi and revives the ‘international courts theory’. The ICC’s reasoning in the Al-Bashir Cases has generally been referred to in the literature as the ‘security council route’ and the ‘customary international law route’. I will deal exclusively with the customary international law route.[33]
In reviving the ‘international courts theory’, the Appeals Chamber’s decision makes three key claims relating to customary international law immunity and the Rome Statute. The first is a claim about where the onus lies in terms of demonstrating custom that immunity does or does not apply before the ICC. The second is about the nature of a State’s jurisdiction when acting to assist the ICC pursuant to a request for arrest and surrender. The third, and perhaps most problematic, is the application of the ‘international courts exception’, without the caveat present in the Arrest Warrant Case: ‘certain international courts and tribunals where they have jurisdiction’.[34] Each claim will be dealt with in turn.
(a) The Onus of Demonstrating Custom
Perhaps the most important (and least persuasive) claim in the Appeals Chamber’s judgment was that the onus of demonstrating a customary rule of personal immunity for heads of state before international courts is on those who wish to rely on it.[35] In a way, the Court has used a sleight of hand by effectively changing the question being asked of it. Rather than attempting to find evidence of an exception to the pre-existing body of law on immunity, it instead starts from the position that the scope of customary law immunity ‘has never developed up to the point to include international criminal courts’.[36] Building on that proposition, the Court held that recognition of the existence of the immunity before international courts therefore requires a demonstration of state practice and opinio juris of a new rule to that effect.[37] The majority leave this demonstration of the absence of such a rule to the Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmanski, and Bossa.
The Court’s reliance on what I refer to as the ‘onus proposition’ is deeply problematic for a number of reasons. It reverses the language of the ICJ in the Arrest Warrant Case (and subsequent case law) which refers to an exception to head of state immunity for proceedings in international courts. Taking an original position of an absence of a law of immunity from proceedings in international courts, is irreconcilable with the fact that it is states and their governments and courts, who execute arrest warrants. Those states have pre-existing horizontal international legal obligations. An exception to the pre-existing rule of international customary law of immunity from a foreign state’s criminal jurisdiction is therefore required to render their acts lawful.
Perhaps more worryingly, it is open to argue that the Court’s onus position goes against generally accepted principles on the formation of customary international law. It was held by the ICJ in Nicaragua that:
‘In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should in general be consistent with such a rule; and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.’[38]
This demonstrates the international legal community’s significant caution about the development of new rules. Thus, even if Jordan or another State Party had executed an ICC arrest warrant, in spite of pre-existing horizontal immunity owed to a non-party state, that may not be enough to demonstrate a new rule. Or at the very least, the threshold for departing from a pre-existing rule appears somewhat higher than what the Appeals Chamber seems to acknowledge in this case.
To summarise, the Appeals Chamber avoids acknowledging that an exception in customary international law to a horizontal obligation of personal immunity for proceedings before international courts may not exist. It achieves this by substituting the onus of finding such an exception, with the task of finding a new rule altogether. It does this perhaps because the factual matrices of state practice cited in the Joint Concurring Opinion can each be distinguished on the basis that an obligation of horizontal personal immunity was not at issue.[39] In those prior cases States concerned had directly or indirectly waived or relinquished immunity. For example, Charles Taylor was not entitled to personal immunity as he had left office when he was arrested and surrendered to the Special Court of Sierra Leone.[40] Similarly, the practice of states at the Nuremberg Trials can be distinguished on the basis that senior state officials being tried were no longer entitled to personal immunity, and that it was a military tribunal conducted in an occupied territory subject to the Nuremberg Charter.[41] Thus the Court arrives at a conclusion which seems to be at odds with established legal principle in that it suggests that, in a new factual situation, a new rule must be found, rather than applying the directly relevant pre-existing rule, or finding a relevant exception.
(b) The Surrogacy Argument
On the issue of horizontal obligations of immunity, the Court and the Joint Concurring Opinion, treat Article 27(2) of the Statute as reflecting customary international law. The Court states that this provision therefore also ‘exclud[es] a reliance on immunity in relation to a Head of State’s arrest and surrender’,[42] by a State Party.
This is substantially (or eerily) similar to the Court’s reasoning in Malawi which was criticised by the African Union and other commentators for rendering Article 98, respecting immunities, redundant.[43] In the Jordan Referral Decision it is not clear what the Court’s basis is for declaring that Article 27(2) reflects a customary rule rejecting horizontal obligations of immunity in relation to proceedings before the ICC. In Malawi the Court at least went to the trouble of declaring that, as 120 states had ratified the Rome Statute and thereby renounced their immunities, ‘a critical mass’ had been achieved such that immunities no longer applied.[44]
It appears that Court has attempted to sidestep a declaration of the kind made in the Malawi Decision. Instead they have focused on the argument that, when a State Party acts pursuant to an ICC arrest warrant, the State Party it is acting as an instrument or ‘surrogate’ of the court, ‘only lending assistance to the Court in the exercise of the Court’s jurisdiction’.[45] It essentially circumvents the horizontal immunity question by arguing that there is no exercise of state jurisdiction when a State Party acts pursuant to an arrest warrant from the ICC. According to the Joint Concurring Opinion, the criminal jurisdiction of the requested state is ‘insulated’ by Articles 4(2) and 59.[46]
The ‘surrogacy argument’ has its basis in the Malawi Decision.[47] The argument can also be supported on the basis that it is the ICC, not a national court of a State Party, which is to consider whether any immunity obligations may be owed by a requested State and whether this would conflict with the execution of the request.[48] However one cannot ignores the issue of a third state’s rights. That is, just because 120 states have renounced their immunities by ratifying the Rome Statute, and act pursuant to the Statute, does not mean non-party states have lost their rights to head of state immunities.
(c) The Court’s Implicit Use of the Jus Puniendi Argument
The only means around the above counterargument, which is essentially pacta tertiis, is that there is some other justification negating the need for the consent of States not party to the Rome Statute, for the relinquishment of their rights to immunity. One justification used by one academic and amici in the Jordan Decision, is that the exercise of jurisdiction by the ICC can clearly be distinguished from national courts exercising ‘universal jurisdiction’ on the basis of the former’s jus puniendi or ‘right to punish’.[49] State practice, starting with the Great War, continuing with the Nuremberg Tribunal, and the ICTY, ICTR and ICC, demonstrates that international criminal courts act in the interests of the international community as a whole, with respect to serious crimes under customary international law.[50] Such crimes include genocide, crimes against humanity, war crimes, and the crime of aggression.[51] Thus States who may choose not to be bound by the ICC Statute as such:
Cannot completely distance themselves from the fact that the international community, in full conformity of a central guiding principle of the customary process, has been provided, by virtue of the ICC Statute, with a court of universal orientation for the enforcement of this community’s ius puniendi.[52]
Whilst the Court does not explicitly acknowledge the jus puniendi argument, the acceptance of that argument is implicit in its differentiation between exercises of domestic jurisdiction, international courts which it says ‘act on behalf of the international community as a whole.’[53]
(d) Which International Courts?
Aside from the obvious issues with the jus puniendi argument regarding consent, what has caused considerable consternation about its implicit use is that the Court does not appear to qualify which international courts, it says are justified in ‘overriding’ immunity. Paragraph 56 of the Joint Concurring Opinion defines an international court or tribunal as merely ‘an adjudicatory body that exercise jurisdiction at the behest of two or more states’.[54] It has been pointed out that this definition potentially allows a situation where two states could establish an international court to prosecute the head of state of a third state.[55]
In an article authored not long after the decision, Claus Kreß who proposed the jus puniendi argument, distances himself from that part of the judgment. He reiterates arguments from his amicus curiae brief, emphasising the universal orientation that must be met before an international criminal court, established by a treaty, can be considered as a direct embodiment of ‘the international community for the purposes of enforcing its [j]us puniendi’.[56] Essentially then, this all comes back to the use of the word ‘certain’ before ‘international criminal courts’ in the ICJ’s Arrest Warrant Case. The ICC attempts to rectify this ‘erroneous interpretation’ in its ‘Question and Answer Document’ by referring to the Arrest Warrant Case, despite its absence in the written judgment of the Court.[57]
Partly as a result of the Bashir immunities issue, the African Union has adopted a ‘strategy of collective withdrawal’ from the ICC.[58] Though it is not clear to what extent the strategy will be effective as the resolution was not binding on individual members, there are serious moves afoot to establish an African regional criminal court in place of the ICC.[59] The African Union also seeks a General Assembly referral to the ICJ to clarify the situation.[60] While the question of an ICJ Advisory Opinion on the matter continues to percolate, it seems to be recognised, including within the Court itself, that the question of head of state immunity poses a threat to its credibility.[61]
This is only made worse by the fact that the Court does not address the fact that the absence of co-operation, particularly by African States Parties in the Al-Bashir matter may in fact itself demonstrate that state practice favours the persistence of personal immunity for third states. It acknowledges the submission amici curiae of the mapping project undertaken by Bashir Watch, which maps out every state Mr Al-Bashir has travelled to since the issuance by ICC of his arrest warrant, but does not address the point.[62]
Addressing this argument would not have been difficult as the Court could have simply relied on the general position on the formation of customary international law outlined above. Or, the proposition that, as Sir Christopher Greenwood eloquently puts it ‘...that some (perhaps many) States practise torture does not mean that there is not a sufficient practice outlawing it.’[63] By analogy, that some states do not respect what the Court maintains is its power to override immunity, by refusing to execute its requests, does not demonstrate that a rule has emerged allowing that conduct.
Behind the Appeals Chamber’s forbearance from going down the Security Council avenue in the Jordan Referral Decision (and its reliance on the customary international law avenue in its place), is a strategic claim by the Court about the nature of it’s true jurisdiction. Clearly, the Court does not want to be left in the hands of the Security Council, as significant members of the Security Council are not States Parties and are in fact openly hostile to the ICC.[64] As Kreß put it in his oral submissions: ‘Let us be realistic: The Security Council avenue does not carry us very far if we look to the foreseeable future’. Put another way, reliance on Security Council referral as a basis for excluding immunity would have ensured that, in a third state scenario, absent a state waving immunity, prosecuting an incumbent head of state would remain an entirely political question, open only when the Security Council deemed it so.
The importance of immunity to the future of the ICC cannot be understated. Clearly, where it is invoked by States Parties, the Court is left without a means to prosecute those it considers most responsible for serious crimes in international law. Immunity in the third state scenario becomes weightier still if one considers the matters that may soon be on the Court’s docket arising, for example, from the situation in Bangladesh/Myanamar,[65] not to mention the situation in Afghanistan – an investigation recently authorised by the ICC on appeal from the prosecutor. It was a judge in the Pre-Trial Chamber’s decision on Afghanistan, who explicitly cited a lack of cooperation in the Al Bashir cases as evidence of a lack of prospects of success in more politically sensitive prosecutions.[66]
Whilst not necessarily a legal or even a political point, the way in which the ICC administration has handled criticism of the present judgment also does its institutional reputation, and the clarity of the Court’s position on immunities, no favours. Following criticism on the ‘blogosphere’ of the Court’s most recent Al Bashir decision, it issued a ‘Question and Answer’ document. The issuance of such a document is not necessarily by itself inappropriate, but where the content of that document goes beyond language contained in a judgment and engages in legal debate,[67] one has to question what broader purpose the document serves. That presumably the document would not be subject to judicial deliberation and is explicitly not an authoritative text adds to an image, already firmly established in the minds of some, of an institution lacking credibility, authority and control. It is also apt to mislead the public on what the true meaning of the decision is.
If the Court wishes to secure what it sees as its true mandate, stakeholder management, communication, and clarity are vital. To this end, engagement with international legal scholars by an official spokesperson for the ICC on the esteemed EJIL:Talk! blog accusing them of not having read the Court’s judgment (a claim repeated in the Question and Answer Document) potentially puts that at risk.[68]
Head of state immunity and its interaction with States Parties obligation to cooperate with ICC requests is continues to be highly controversial. The reason for this controversy is likely structural: the ICC relies on state cooperation for securing its mandate, all of whom have divergent interests, of which the drafters of the Rome Statute were highly conscious. In this essay I have critically analysed the various intricacies of the debate, and attempted to highlight where the Appeals Chamber made errors in coming to the conclusion that customary international law allows the ICC to ‘override’ head of state immunity. The Jordan Referral Decision is a poor one, not necessarily because of the result it arrives at, but because it overextends the true nature of the Court’s jurisdiction and violates fundamental principles of public international law. Such reasoning will always damage the perception of the Court in the long run, as will the methods it employs to disseminate its views and positions on issues vital to its long-term success.
[1] Prosecutor v Al Bashir (Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa in the Jordan Referral) (International Criminal Court, Appeals Chamber, Case No ICC-02/05-01/09, 6 May 2019) [414] < https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-397-Anx1-Corr > (‘Joint Concurring Opinion in the Jordan Referral’).
[2] Transcript of Proceedings, Prosecutor v Al Bashir (Judgment in the Jordan Referral) (International Criminal Court, ICC-02/05-01/09, Judge Eboe-Osuji, 14 September 2018) 34 (Claus Kreß) < https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-T-4-ENG>.
[3] For a description of two other typical scenarios, see eg Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 4th eds, 2019) 523.
[4] The same immunity also applies to foreign ministers and heads of government: International Law Commission, Immunity for State Officials from Foreign Criminal Jurisdiction, 65th sess, UN Doc A/CN.4/L.814 (4 June 2013) arts 3–4 < https://legal.un.org/ilc/guide/4_2.shtml>.
[5] See, eg, Attorney General v Eichmann [1961] Criminal Case No 40/61 (11 December 1961) (District Court of Jerusalem) <http://www.internationalcrimesdatabase.org/Case/192/Eichmann/> Prosecutor-General of the Supreme Court v Bouterse [2001] LJN: AB1471 (18 September 2001) (Supreme Court of the Netherlands) <http://www.internationalcrimesdatabase.org/Case/1082/Bouterse/> Cour de cassation [French Court of Cassation], 00-87215, 13 March 2001 reported in (2001) Bull crim nº 64, 218 <https://www.legifrance.gouv.fr/juri/id/JURITEXT000007070643/> (‘Gadaffi’); Audiencia Nacional [Spanish National Court], nº1999/2723, 4 March 1999 (‘Castro’).
[6] R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 1 AC 147 <https://www.iclr.co.uk/wp-content/uploads/media/vote/1996-2014/ac2000-1-147.pdf> (‘Pinochet’).
[7] Ibid [179A].
[8] Antonio Cassese, ‘When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v Belgium Case’ (2002) 13(4) European Journal of International Law 853, 870 <http://www.ejil.org/pdfs/13/4/1564.pdf> . Cf Cryer, Robinson, Vasiliev (n 3) 516.
[9] Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 3, 25 [58] <https://www.icj-cij.org/en/case/121/judgments> (‘Arrest Warrant Case’).
[10] Ibid, 25 [58].
[11] Ibid, 26 [61] (emphasis added).
[12] Ibid, 25 [58].
[13] Claus Kreß, ‘Preliminary Observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal’ (2019) Torkel Opsahl Academic EPublisher’s Occasional Paper Series, 17 <https://www.toaep.org/ops-pdf/8-kress>.
[14] See Sarah Williams and Lena Sherif, ‘The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’ (2009) 14 Journal of Conflict & Security Law 71, 76.
[15] Prosecutor v Taylor (Decision on Immunity from Jurisdiction) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2003-01-1, 31 May 2004) [51]-[53] <http://www.worldcourts.com/scsl/eng/decisions/2004.05.31_Prosecutor_v_Taylor.pdf> (‘Taylor’).
[16] Cryer, Robinson, Vasiliev (n 3) 528.
[17] Prosecutor v Al Bashir (Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 13 December 2011) [43] < https://www.icc-cpi.int/CourtRecords/CR2011_21750.PDF> (‘Malawi Decision’); Prosecutor v Al Bashir (Decision 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) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 13 December 2011) [14] < https://www.icc-cpi.int/CourtRecords/CR2012_04203.PDF> (‘Chad Decision’).
[18] See, eg, Dire Tladi, ‘The ICC Decisions on Chad and Malawi On Cooperation, Immunities, and Article 98’ (2013) 11 Journal of International Criminal Justice 199, 201; African Union, ‘On the Decisions of Pre-Trial Chamber 1 of the International Criminal Court Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of Sudan’ (Press Release No 002/2012, African Union, 9 January 2012) (‘African Union Press Release’) <http://www.iccnow.org/documents/PR-_002-_ICC_English_2012.pdf> .
[19] See, eg, Prosecutor v Al Bashir (Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with requests by the Court for the arrest and surrender) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09, 6 July 2017) [68] < https://www.icc-cpi.int/CourtRecords/CR2017_04402.PDF> (‘South Africa Decision’). Cf Prosecutor v Al Bashir (Judgment in the Jordan Referral) (International Criminal Court, Appeals Chamber, Case No ICC-02/05-01/09, 6 May 2019) [5] < https://www.icc-cpi.int/CourtRecords/CR2019_02856.PDF> (‘Judgment in the Jordan Referral’).
[20] Dapo Akande and Talita de Souza Dias, ‘Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute’, EJIL:Talk! (Blog Post, 12 November 2018) < https://www.ejiltalk.org/does-the-icc-statute-remove-immunities-of-state-officials-in-national-proceedings-some-observations-from-the-drafting-history-of-article-272-of-the-rome-statute/>.
[21] Judgment in the Jordan Referral (n 19) [5].
[22] Cryer, Robinson, Vasiliev (n 3) 523.
[23] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 34 (‘Vienna Convention on the Law of Treaties’); David Koller, ‘Immunities of Foreign Ministers: Paragraph 61 of the Yerodia Judgment as it Pertains to the Security Council and the International Criminal Court’ (2004) 20(1) American University International Law Review 7, 32.
[24] Prosecutor v Al Bashir (Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 4 March 2009) 7–8 < https://www.icc-cpi.int/CourtRecords/CR2009_01514.PDF>. The charge of genocide was subject of a second arrest warrant: Prosecutor v Al Bashir (Second Warrant of Arrest) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 12 July 2010) 8 < https://www.icc-cpi.int/CourtRecords/CR2010_04825.PDF>.
[25] For a map of States Parties and Non-States Parties to which Al Bashir has travelled since the issuance of warrants for his arrest see ‘Bashir Travel Map’, Bashir-Watch (Web Page) <http://bashirwatch.org/> .
[26] See, eg, Malawi Decision (n 17) [13]; Chad Decision (n 17) [7]; Prosecutor v Al Bashir (Decision on the Cooperation of the Democratic Republic of the Congo) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09, 9 April 2014) [18] < https://www.icc-cpi.int/CourtRecords/CR2014_03452.PDF> (‘DRC Decision’); Prosecutor v Al Bashir (Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Cour for the arrest and surrender) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09, 6 Jul 2017) [32] < https://www.icc-cpi.int/CourtRecords/CR2017_04402.PDF> (‘South Africa Decision’); Judgment in the Jordan Referral (n 19) [58]–[59].
[27] See, eg, Malawi Decision (n 17) [47]; Chad Decision (n 17) [10]; DRC Decision (n 26) [34].
[28] See, eg, Judgment in the Jordan Referral (n 19) [212]–[213]; South Africa Decision (n 26) [139].
[29] Judgment in Jordan Referral (n 19) [149].
[30] Prosecutor v 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) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09, 11 December 2017) [38] < https://www.icc-cpi.int/CourtRecords/CR2017_07156.PDF> (‘PTC Jordan Decision’).
[31] South Africa Decision (n 26) [81].
[32] Judgment in Jordan Referral (n 19) [114].
[33] See Williams and Sherif (n 14) 87.
[34] Arrest Warrant Case (n 9) [61] (emphasis added).
[35] Judgment in Jordan Referral (n 19) [116].
[36] Kreß (n 13) 7.
[37] Judgment in Jordan Referral (n 19) [116].
[38] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 88 [186] < https://www.icj-cij.org/en/case/70/judgments>.
[39] Joint Concurring Opinion in the Jordan Referral (n 1) [66]-[174].
[40] See generally Taylor (n 15).
[41] Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 280 (entered into force 8 August 1945) art 7; Trial of the Major War Criminals before the International Military Tribunal, Volume 1: Nuremberg 14 November 1945 – 1 October 1946 (Nuremberg Military Tribunal, 1947) 222–223.
[42] Judgment in Jordan Referral (n 19) [3].
[43] African Union Press Release (n 18). See also Tladi (n 18) 206–208.
[44] Malawi Decision (n 17) [42].
[45] Judgment in Jordan Referral (n 19) [4].
[46] Joint Concurring Opinion (n 1) [444].
[47] Malawi Decision (n 17) [46].
[48] Malawi Decision (n 17) [46].
[49] See Kreß (n 13) 16.
[50] Judgment in Jordan Referral (n 19) [115].
[51] Judgment in Jordan Referral (n 19) [196].
[52] Kreß (n 13) 19.
[53] Judgment in Jordan Referral (n 19) [115]. See also Joint Concurring Opinion (n 1) [52]–[174] and [431]–[445].
[54] Joint Concurring Opinion (n 1) [56].
[55] Dapo Akande, ‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’, EJIL: Talk! (Blog Post, 6 May 2019) < https://www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/>.
[56] Written observations of Professor Claus Kreß as amicus cruiae, Prosecutor v Al Bashir (Judgment in the Jordan Referral) (International Criminal Court, ICC-02/05-01/09, 18 June 2018) [12] < https://www.icc-cpi.int/CourtRecords/CR2018_03098.PDF> quoted in Kreß (n 13) [17].
[57] ‘Q&A Regarding Appeals Chamber’s 6 May Judgment in the Jordan Referral Re Al-Bashir Appeal’, International Criminal Court (Questions and Answers Document, May 2019) 3 < https://www.icc-cpi.int/itemsDocuments/190515-al-bashir-qa-eng.pdf>.
[58] Aaron Maasho, ‘African Union leaders back mass exodus from International Criminal Court’, The Independent (online, 1 February 2017) <https://www.independent.co.uk/news/world/africa/african-union-international-criminal-court-a7557891.html>; ‘African Union Backs Mass Withdrawal from ICC’, BBC News (online, 1 February 2017) < https://www.bbc.com/news/world-africa-38826073>.
[59] See generally Eki Yemisi Omorogbe ‘The Crisis of International Criminal Law in Africa: A Regional Regime in Response?’ (2019) 66 Netherlands International Law Review 287.
[60] Edith M Lederer, ‘Africa Asks UN to Seek Court Opinion on Immunity for Leaders’, Associated Press (online, 2 August 2018) https://apnews.com/article/2af4da235eb14a238e6ddff23981bb00; Theresa Reinold, ‘African Union v International Criminal Court: Episode MLXIII(?)’ EJIL: Talk! (Blog Post, 23 March 2018) < https://www.ejiltalk.org/african-union-v-international-criminal-court-episode-mlxiii/>.
[61] Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (Separate Concurring Opinion of Judge Antoine Kesia-Mbe Mindua) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/17-33, 12 April 2019) [43] <https://www.icc-cpi.int/RelatedRecords/CR2019_03049.PDF> (‘PTC Afghanistan Decision Separate Concurring Opinion’).
[62] Jordan Referral Decision (n 19) [93].
[63] Charles Greenwood, Sources of International Law (United Nations Audiovisual Library, 2008) 2 <https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf>.
[64] See generally, William A Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ (2004) 15(4) European Journal of International Law 701.
[65] Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/19, 14 November 2019) < https://www.icc-cpi.int/CourtRecords/CR2019_06955.PDF>.
[66] PTC Afghanistan Decision Separate Concurring Opinion (n 61) 15 fn 48.
[67] Q&A Regarding Appeals Chamber’s 6 May Judgment in the Jordan Referral Re Al-Bashir Appeal’ (n 57) 3.
[68] See comments by Fadi El Abdallah (Spokesperson and Head of Public Affairs Unit, International Criminal Court) on Dapo Akande, ‘ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals’, EJIL: Talk! (Blog Post, 6 May 2019) <https://www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/>.
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