Jacques B. Mbokani has a Ph.D. in law from the Université catholique de Louvain and is a professor at the University of Goma. He is also an advisor to OSISA-DRC. (The original version of this article appeared in French here.) The views and opinions expressed in this commentary do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

Introduction

On May 6, 2019, the Appeals Chamber of the International Criminal Court (ICC) concluded, based on the unanimous decision of its five judges, that the Hashemite Kingdom of Jordan violated its obligation to cooperate with the ICC by its refusal to arrest and hand over Omar Hassan Ahmad al-Bashir to the court. He was the President of Sudan at the time and was present in Jordan to participate in the League of Arab States Summit in March 29, 2017. This case originates through United Nations Security Council’s Resolution 1593 [pdf] of March 31, 2005, which referred the situation in the Darfur Region of Sudan to the ICC prosecutor, even though Sudan was not party to the Rome Statute establishing the ICC. The ICC prosecutor’s investigations in this situation have led to the opening of a few cases. Some of them concerned the rebels of Darfur, who have actually voluntary appeared before the ICC, while others referred to members of the central government of Sudan among whom is al-Bashir, the President of Sudan himself. Furthermore, in an arrest warrant issued on March 4, 2009, the latter was indicted for crimes against humanity and war crimes. A second arrest warrant for genocide was later issued in July 2010.

Without great surprise, Sudan, ruled with an iron fist by al-Bashir, who has now been removed from office, refused to cooperate with the ICC. The problem would have been limited to the Sudanese non-cooperation with the ICC, if president al-Bashir had not travelled abroad. However, he traveled abroad several times, including to States Parties to the Rome Statute, such as Jordan, without being arrested. To avoid his arrest, such States have generally hidden behind diplomatic immunity, which, according to them, the Sudanese president enjoyed on their territories. However, the immunity argument, invoked by Jordan before Pre-Trial Chamber (PTC) II of the ICC was not deemed convincing. In a decision pronounced on December 11, 2017, this chamber convicted Jordan for non-cooperation with the ICC and referred the case to the Security Council and the Assembly of States Parties (ASP).

After having appealed the PTC’s decision, Jordan saw its appeal (partially) rejected by the Appeals Chamber. In a decision issued on May 6, 2019, the Appeals Chamber convicted Jordan for non-cooperation with the ICC, rejecting the immunity argument pursuant to Article 27(2) of the Rome Statute. As regards Jordan’s referral to the Security Council and ASP for non-cooperation with the ICC, the Appeals Chamber disagreed with the PTC’s decision because, in its opinion, Jordan had consulted with the ICC on the difficulties it was encountering in executing the arrest warrant in question.

The judgment has given rise to extreme reactions against the ICC. These reactions should come as no surprise, in fact, since in February 2019 in its Decision on the International Criminal Court [pdf], the African Union (AU) “[declared that it was satisfied] with how the [AU] Commission had presented the Union’s position before the ICC’s Appeals Chamber during [Jordan’s] appeal hearing against the decision issued by the Pre-Trial Chamber II of the ICC on Jordan’s legal obligation to arrest and hand over the President of Sudan, Al Bashir, when he was on Jordanian territory for the League of Arab States Summit of March 29, 2017. It [has particularly invited] all member States to oppose any decision of the Appeals Chamber which is against the AU’s common position and the customary international law.”

However, it seems that with regard to the specific issue of President al-Bashir’s immunity, the conclusion of the judgment is acceptable, according to which, no immunity legally prevented Jordan from arresting President al-Bashir and handing him over to the ICC, considering the implications of Resolution 1593. It is rather in relation to certain aspects of the judgment’s reasoning that reservations should be expressed concerning misunderstandings and abusive generalizations of the judges.

I. The Customary Status of Article 27(2) of the Rome Statute

Article 27(2) of the Rome Statute stipulates “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.” The ICC’s Appeals Chamber states that this provision reflects the customary law.

The Appeals Chamber’s reasoning seems, however, to rely on a confusion between substantial immunity (also known as immunity ratione materiae), namely a ground for excluding criminal responsibility; and personal immunity (also known as immunity ratione personae), which is a procedural obstacle to prosecution before a court. This confusion is seen at two levels.

First, to demonstrate the customary nature of Article 27(2), the Appeals Chamber relied on certain provisions on the charters of international and internationalized criminal tribunals, even though such provisions refer to the criminal liability (denial of substantial immunity) of defendants and not to a potential procedural obstacle that their official capacity might raise against the jurisdiction of the criminal tribunals. For example, Article 7 of the Charter of the International Military Tribunal (Nuremberg) stipulates, “the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.” This Article refers to criminal liability (denial of substantial immunity) and not to a procedural obstacle to prosecution (personal immunity). It is the same idea that we find in the other provisions invoked by the Appeals Chamber, such as Principle III of the Nuremberg Principles of 1950, Article IV of the Genocide Convention, relevant provisions of the Statutes of two ad hoc international criminal tribunals of the United Nations, and that of the Special Court for Sierra Leone.

Second, the confusion between substantial immunity and personal immunity occurs when the Appeals Chamber invokes the Arrest Warrant [pdf] case judged by the International Court of Justice (ICJ), even though this case did not involve the substantial immunity of the Minister of Foreign Affairs of the Democratic Republic of the Congo (DRC) at the time, but his personal immunity before Belgian criminal tribunals. As a matter of fact, this confusion is surprising because Article 27 of the Rome Statute makes a clear distinction between these two types of immunity: the first paragraph of this Article refers indeed to denial of substantialimmunity, whereas the second paragraph concerns denial of personal immunity before the ICC.

In fact, the provision that is firmly rooted in customary international law is not the second paragraph of Article 27, as claimed by the Appeals Chamber, but the first paragraph. This confusion affects the remaining aspects of the judgment.

II. Do Arrest Warrants of International Courts Limit Head of State Immunity Abroad?

The Appeals Chamber answered the above question in the affirmative. Its reasoning relies overall on the international nature of the court in question, in this case the ICC, which issued the arrest warrant. According to the Appeals Chamber, once the court is international and the immunity is not enforceable against such court, pursuant to a customary rule established in Article 27(2), it creates a horizontal effect at the level of the States. By executing the above-mentioned arrest warrants, such States may arrest a foreign head of state wanted by the said court and present on its territory, without such arrest causing any problem concerning the immunity of the foreign head of state in question.

In fact, this argument is true only in part. Three observations need to be made in examining this point. First, the Appeals Chamber is correct when it states that the Rome Statute, and thus Article 27(2), is applicable to the situation in Darfur. It is the Rome Statute that establishes the legal framework in which investigations and prosecutions before the ICC will take place. Certainly, Resolution 1593 is only a triggering mechanism.  It purpose or effect is not to turn a non-party States, such as Sudan, into States Parties to the Rome Statute. However, it is not correct to conclude from this fact that the Rome Statute is not applicable to this situation. In fact, such an approach means to request the Prosecutor and ICC judges to intervene in this situation outside any previously defined legal framework, whereas they derive their official capacity from the Rome Statute. This argument (of the non-applicability of the Rome Statute to the Darfur referral) would have been defendable if it had relied on the idea that the Security Council should not submit to the ICC situations of States that are not parties to the Rome Statute. Even then, the issue would be different. It would concern the very validity of the Security Council’s referral to the ICC of a situation of non-party States to the Rome Statute. However, no one has questioned the validity of such referral to date.

Second, as mentioned above, Article 27(2) refers to denial of personal immunity that the Appeals Chamber unfortunately mistakes for substantial immunity. Nevertheless, and contrary to what the Appeals Chamber argues, denial of personal immunity, provided for in Article 27(2), refers only to immunity from a criminal jurisdiction, namely, the immunity that bars a criminal court from trying a person as defendant. Article 27(2) does not necessarily relate to this other aspect of personal immunity, which is inviolability, namely the status of a person who cannot be liable to any form of arrest or detention (Article 29 of the Vienna Convention on Diplomatic Relations [pdf]. Here again, the Appeals Chamber’s reasoning confuses immunity from criminal jurisdiction and inviolability, one, as the other, representing the two aspects of personal immunity. Or, it is not because immunity from criminal jurisdiction is not enforceable against the ICC that high-ranking leaders of States that have not ratified the Rome Statute would necessarily lose their inviolability before foreign national authorities in charge of executing a warrant of arrest issued by the ICC. In fact, the issue regarding the inviolability of foreign State leaders wanted by an international court relates rather to the extent of the obligation to cooperate of member States, in the execution of arrest warrants issued by international courts. 

This issue leads to the third observation. In this matter, we first note that Sudan had the obligation to cooperate fully with the ICC. The grounds for this obligation are not found in the Rome Statute because Sudan has not ratified it. The grounds are based on Paragraph 2 of Resolution 1593 in which the Security Council “[decided] that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.” The fact that Sudan did not arrest President al-Bashir constituted a violation of its international obligations as member of the United Nations because, under Article 25 of the Charter of the United Nations, “members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

Second, we find that Jordan also had the obligation to cooperate with the ICC. In Jordan’s case, this obligation arose both out of Article 86 of the Rome Statute, because Jordan is a State Party to this legal text, and out of Paragraph 2 of Resolution 1593, because Jordan, just as Sudan, is a member of the United Nations.

In this regard, it is worth mentioning that in Paragraph 2 of Resolution 1593, the Security Council found that “States not party to the Rome Statute have no obligation under the Statute.” However, to fill the gaps regarding the States not Party’s obligation to cooperate, the Security Council “urges all States and concerned regional and other international organizations to cooperate fully.” Thus, pursuant to this Resolution, all States (Parties to the Rome Statute or not) have the obligation to cooperate fully with the ICC. This obligation also extends to regional organizations such as the AU and the League of Arab States, which in their amicus curiae briefs to the Appeals Chamber have kept silent over this aspect of the Resolution.

What is important to note in this case is that, in relation to ICC’s investigations and proceedings in Darfur, both Sudan and Jordan were under the obligation to cooperate fully with the ICC. Thus, it is only because both States had the obligation to cooperate with the ICC, that we can say that President al-Bashir had indeed lost his inviolability on Jordanian territory. This is explained by the fact that the obligation to cooperate imposed on Sudan by the Security Council banned it from invoking personal immunity of its President in order to prevent other States, including Jordan, to do what Sudan should have done ever since the arrest warrant against President al-Bashir had been issued in 2009, namely to arrest him and hand him over to the ICC. Therefore, Jordan had no reason to fear that it would violate any inviolability of President al-Bashir by arresting him and handing him over to the ICC. In other words, this means that this inviolability would have been applicable if one of the two States had not had the obligation to cooperate: if Sudan did not have to cooperate, the President’s arrest by a State party to the Rome Statute would put that State in the situation described in Article 98(2) of the Rome Statute; whereas, if Jordan had not had the legal obligation to cooperate with the ICC (pursuant the Security Council’s Resolution or the Rome Statute), it would simply have not had to account to the ICC.

As we can see, and contrary to what the Appeals Chamber implied, President al-Bashir’s loss of inviolability in Jordan does not rely in any way on the “international” character of the court in question. This aspect of the reasoning, which is an abusive generalization, is highly questionable for at least two reasons.

First, because it is based on a confusion between substantial and personal immunity. However, when the problem is only about substantial immunity, in situation where there is no personal immunity as in the case of former heads of state, it is not necessary for the court to be international to reject substantial immunity. A national court can legitimately judge a former foreign head of state for genocide, crimes against humanity, and war crimes committed while he/she was still in office and thus deny any substantial immunity that may be invoked, without causing any legal problem by such denial.  

Second, because this reasoning contradicts the principle of sovereignty and voluntarism of the States: what State (A) is not authorized to do alone without the consent of another State (X), two States (A and B) are not authorized to do either without the consent of said State (X). For example, if the DRC was not authorized and did not have Uganda’s consent to arrest and judge Yoweri Museveni, the incumbent Ugandan President, before its own courts, because President Museveni would thus be protected by personal immunity, including inviolability, as foreign head of State, the problem would not have been solved at all if the DRC, without Uganda’s consent, concluded an agreement with Cameroon and established an “international” court in charge of prosecuting President Museveni. The “international” character of such court would not be sufficient to deny the personal immunity of a foreign head of state if the said State is not party to the agreement establishing the court in question. Finally, it is not the “international” character of the court that is the deciding factor for the loss of inviolability by a foreign head of State, but the fact that the State prosecuting such head of State is legally bound, based on its own consent, by the agreement establishing the international court in question and imposing the State’s obligation to cooperate.

In light of the above, one of the consequences of the judgment on Jordan’s non-cooperation is that States must adjust their national laws on cooperation with the ICC to include cases such as al-Bashir’s. This adjustment is necessary because most national laws on cooperation with the ICC do not provide for situations in which the person to be arrested, based on an arrest warrant issued by the ICC, were protected by inviolability, such as diplomats or foreign heads of states. However, we doubt that States are ready to cross this important line, which is a logical consequence of the judgment on Jordan’s non-cooperation. What is certain is that many States could face a Shakespearian dilemma of being or not being a party to the Rome Statute.

Conclusion

Jordan’s conviction for non-cooperation with the ICC, although relying on a rather clumsy motivation, is a logical consequence of Security Council Resolution 1593.  No immunity could prevent Jordan from arresting al-Bashir on Jordanian territory and handing him over to the ICC because both Sudan and Jordan had the obligation to cooperate fully with the ICC. On this point, the operative part of the decision is legally correct.

However, if the al-Bashir case shows how intellectually stimulating the debate on the immunities of the heads of State before international courts can be, the practical interest of such a debate must be questioned for several reasons. First, al-Bashir is no longer President of Sudan, and it is very unlikely he will become president again in the near future. His arrest and handover to the ICC will no longer raise the same questions as those that concern us in this article. Then, with the decision rejecting the opening of an investigation in Afghanistan, we note the tendency of certain ICC judges who want to engage this judicial institution in politically correct prosecution (even when the argument is legally incorrect). In view of the various refusals to cooperate with the ICC, the misunderstandings, and the hostile reactions that the ICC decisions in the al-Bashir case have attracted upon this international judicial institution, which has been arguably abandoned by the Security Council (even though it is the latter that referred to it the Darfur situation), it is highly unlikely that the ICC judges will agree in the future to issue arrest warrants against Presidents (or Kings) of States not party to the Rome Statute. This will likely be the case even when the situation of these States were referred to the ICC by a resolution of the Security Council acting pursuant to Chapter VII. Thus, if the tendency to favor politically correct prosecution is confirmed, it is doubtful that this type of case will happen again in the future.