The authors are students with the University of Southern California Gould School of Law International Human Rights Clinic. In 2018 and 2019, they tracked developments in the litigation on Jordan’s failure to arrest former Sudanese President Omar Hassan Ahmad al-Bashir for a leading human rights organization. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. 

On May 6, 2019, the Appeals Chamber of the International Criminal Court (ICC) issued its judgment on whether Jordan, a member of the ICC, was obligated to execute ICC arrest warrants for Omar Hassan Ahmad al-Bashir, the former President of Sudan. With this decision, the judges sought to settle the issue of whether the head of state of a country that is not a member of the ICC is immune from arrest and surrender by an ICC member state when an ICC warrant has been issued for them and the United Nations Security Council had referred the situation to the ICC. In a move that surprised many legal analysts, the Appeals Chamber held that under customary international law, heads of state have no immunity from criminal prosecution by international criminal courts exercising proper jurisdiction, and by extension, no immunity from arrest and surrender by foreign authorities acting on behalf of the court.

On first glance, such a conclusion might seem uncontroversial. Provisions barring immunity as a defense before international tribunals were key to the Nuremberg and Tokyo trials after WWII, and they were incorporated into the foundational documents of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda (among other modern international criminal courts). Moreover, in the Arrest Warrant [pdf] case at the International Court of Justice (ICJ), the ICJ noted that immunity might not apply “to criminal proceedings before certain international courts, where they have jurisdiction.”

However, the Appeals Chamber’s reasoning rejects the crux of the argument made by Jordan’s counsel and others throughout the proceedings, which is that there is a difference between the immunity of heads of state before international criminal courts and the immunity of heads of state from arrest by other states acting at the request of an international criminal court. Put another way, the fact that a head of state does not have immunity before the ICC does not, without more, say anything about whether he or she has immunity from arrest and surrender by a foreign state in service of the ICC.

The Appeals Chamber addresses this distinction with arguments about sovereignty and practicality. On practicality, the court argues that if Article 27(2) of the Rome Statute, which precludes the defense of immunity, only encompasses proceedings before the ICC, no heads of state could ever be effectively arrested and surrendered without an express waiver of immunity by the State at issue, including those of ICC members. However, this argument ignores the fact that ICC members have extensive cooperation obligations under Article 86 preventing them from raising immunity to avoid prosecutions.

Additionally, the Appeals Chamber reasons that domestic courts are limited by the sovereign power of other states, whereas an international court is adjudicating international crimes with the character and force of jus cogens. The prohibitions of genocide, war crimes, and crimes against humanity are universally accepted. Thus, the horizontal relationship between states is not relevant because the ICC is acting on behalf of the international community as a whole, and the court’s request to a member state to arrest and surrender the subject of an arrest warrant does not implicate the requested state’s domestic jurisdiction over those crimes. The decision thus calls into question the remaining function of Article 98(1) of the Rome Statute, which prohibits an ICC member state from proceeding with an ICC request for surrender of a non-member head of state without first obtaining the cooperation of that non-member state. It also raises more serious questions about the nature of the ICC’s jurisdiction.

If there is no immunity for heads of state before international criminal courts, and by extension (per the Appeals Chamber decision) no immunity from arrest and surrender by foreign domestic authorities acting on behalf of the ICC, then any state official of a non-member state could in theory be arrested by foreign domestic authorities if they were responsible for crimes committed on the territory of a state which is an ICC party. Notably, per the court’s reasoning, this is true regardless of whether or not the individual is from a member state or has been implicated by a Security Council referral. Put another way, the decision suggests that the ICC has jurisdiction that exceeds that of its member states, and it can transcend obligations member states hold to respect the immunities of non-member states.

This reasoning differs significantly from that of the Pre-Trial Chamber II. The lower court judgment reached the same outcome, but held that the Security Council referral of Darfur to the ICC in Resolution 1593 [pdf] placed the same cooperation obligations on Sudan as if it were an ICC state party, preventing Sudan from asserting immunity in light of the fact that the Rome Statute does not recognize immunities. While the Appeals Chamber agreed with the Pre-Trial chamber’s analysis on this point, it focused its conclusion of no immunity from arrest based on customary international law. Both the majority opinion and the concurrence concluded that the argument that al-Bashir did not have immunity from arrest to claim based on the interplay between the language of “full cooperation” within Resolution 1593 and similar language in the Rome Statute is unnecessary because there was no immunity Sudan could have asserted in the first place.

The Appeals Chamber’s parallel reasoning has two opposing implications. First, the court’s reasoning that al-Bashir had no immunity because of the combined effect of Resolution 1593 and the cooperation obligations of states under the Rome Statute will likely have a limited practical effect.  Even if a Security Council resolution adopted under Chapter VII of the UN charter can be a “written instrument that prescribes the jurisdiction of an international criminal court,” the Security Council is politically fractured, and a subsequent referral similar to Resolution 1593 is unlikely in the foreseeable future.

On the other hand, the court’s position that there is no customary international law rule granting immunity to heads of state before international tribunals, even when the accused is from a country that is not a party to the Rome Statute, arguably represents a significant expansion of the court’s power. Theoretically, the ICC can now pursue heads of state from non-states parties without any legal bar to their arrest by ICC members so long as jurisdiction is proper.

This position has advantages. If the existence of immunity is closely tied to the language of a Security Council Resolution, it is unlikely that the court will be able to enforce its mandate uniformly. By using customary international law to prevent immunity from impeding the arrest, surrender, and prosecution of ICC suspects, the court’s mandate to end impunity for grave international crimes is not limited by the political whims of the Security Council.

In any case, the decision has brought these theoretical quandaries to the forefront and ruled on a complex area of international law. Not surprisingly, the ruling has attracted significant scrutiny, and contention among observers and academics will likely continue.