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Comment on the Darfur Question: “What are the obligations of Contracting Parties to the Genocide Convention to implement arrest warrants for genocide issued by the ICC, and of African Union State Parties to implement ICC arrest warrants generally?”

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Peace and Justice Initiative
908
April 11, 2011
2:49 pm

Introduction

The current Sudanese President, Omar Al-Bashir, is subject to two outstanding arrest warrants issued by the ICC. The first warrant includes charges of war crimes and crimes against humanity, arising from the atrocities that have occurred in Darfur over recent years. The second warrant includes charges of genocide, also in relation to Darfur.1 The issuance of these warrants raises the question of whether States are obliged to arrest Bashir and transfer him to the ICC despite his position as an incumbent Head of State.

An analysis of the relevant treaties, in particular the Rome Statute and the Genocide Convention, along with customary international law demonstrates that such obligations do exist. Sudan, although not a party to the Rome Statute, acceded to the Genocide Convention in 2003, and on that basis as well as on the basis of Security Council Resolution 1593 (discussed below), is unquestionably required to either prosecute Bashir in its national courts or arrest him and transfer him to the ICC. Contracting Parties to the Genocide Convention (at the time of writing there are 141 Contracting Parties to the Genocide Convention) are required to arrest Bashir and transfer him to the ICC if he comes within their territory. States Parties to the Rome Statute are required to arrest Bashir and transfer him to the ICC if he comes within their territory. Customary international law on the law of immunities does not provide an exception to these obligations.

This analysis sets out firstly the basis of the obligation under the Genocide Convention. It then looks to the separate question of obligations under the Rome Statute. In carrying out the assessment, it takes into account the impact of customary international law on the obligations under these instruments.

I. Contracting Parties to the Genocide Convention have a binding obligation to arrest Bashir and prosecute him or surrender him to the ICC

In establishing the Genocide Convention, the Contracting Parties to the Genocide Convention agreed that persons responsible for genocide in any of its forms should be punished.2 They agreed that this obligation applies irrespective of the status of the person responsible, even if they are a serving Head of State.3

Although no international penal tribunal with jurisdiction to hear genocide cases existed at the time the Genocide Convention entered into force, the States Parties anticipated the possibility of prosecutions by such a tribunal. In fact, some States Parties, most notably France, felt that an international penal tribunal would be the most appropriate forum for genocide prosecutions in order to avoid the likely bias and political interference of national proceedings for this type of crime.4 Accordingly, Article VI of the Genocide Convention provides:

“Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” (emphasis added)

In the Bosnia Genocide Case, the ICJ held that Article VI contains an implicit obligation to cooperate with an international penal tribunal prosecuting a person or persons alleged to be responsible for genocide, stating:

“For it is certain that once such a court has been established, Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it, which implies that they will arrest persons accused of genocide who are in their territory even if the crime of which they are accused was committed outside it and, failing prosecution of them in the parties’ own courts, that they will hand them over for trial by the competent international tribunal.”5

The ICC is clearly an international penal tribunal as envisaged by the Genocide Convention.6 Accordingly, the question narrows down to whether Contracting Parties to the Genocide Convention have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir for the atrocities in Darfur. Simply being a Contracting Party to the Genocide Convention is not sufficient in and of itself to demonstrate such acceptance. Instead, acceptance of the jurisdiction of the ICC with respect to Bashir must be established on the basis of an independent provision or principle of international law that binds the relevant Contracting Party to the Genocide Convention.

A. Contracting Parties to the Genocide Convention that are also Parties to the Rome Statute and/or member States of the United Nations have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir

1. Under the Rome Statute for States Parties:

States Parties to the Rome Statute have accepted the ICC’s jurisdiction through their ratification of the Rome Statute. On this basis, States that are party to both the Rome Statute and the Genocide Convention have an obligation under Article VI of the Genocide Convention to cooperate with the ICC with respect to the prosecution of Bashir for genocide.

2. Under Security Council Resolution 1593 for UN member states which are Contracting Parties to the Genocide Convention:

With respect to States not party to the Rome Statute, but party to the Genocide Convention, the position is less straightforward.7 A literal application of the ICJ’s holding in the Bosnia Genocide case indicates that these States have an obligation under Article VI of the Genocide Convention. Although not parties to the Rome Statute, these States can be deemed to have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir on the basis of Security Council Resolution 1593.8

Security Council Resolution 1593 referred the situation in Darfur since 1 July 2002 to the ICC. The United Nations thereby accepted the ICC’s jurisdiction with respect to that situation, which encompasses the arrest warrants and proceedings against Bashir for genocide. The UNSC referral by way of Resolution 1593 constitutes a collective acceptance on the part of all UN members States of the ICC’s jurisdiction over the Darfur situation. It extends to UN member States who were not on the Security Council when the resolution was passed. This is made clear by Article 25 of the UN Charter, by which UN members pledge to accept the decisions of the UNSC on matters of international peace and security. No UN member State is able to deny that the ICC has jurisdiction over the Darfur situation, even if they have an obligation under international law which appears to conflict with the attendant duty to cooperate in arresting and transferring Bashir.9

The acceptance of the jurisdiction of an international penal tribunal for the purposes of Article VI of the Genocide Convention by way of UN obligations is not novel. In the Bosnia Genocide case, the ICJ stated that Serbia had an obligation to cooperate with the ICTY on the basis of its membership of the UN. This was an additional basis for the obligation under Article VI of the Genocide Convention, separate from Serbia’s obligations under the Dayton Agreement. In the specific circumstances of that case, the ICJ relied primarily on Serbia’s obligation springing from the Dayton Agreement because it covered the critical period of December 1995 to 2000.10 However, this does not undermine its holding that Serbia’s membership of the UN was sufficient to constitute its acceptance of the ICTY’s jurisdiction.

In the Bosnia Genocide judgement, the ICJ analysed whether Serbia had “accepted the jurisdiction” of the ICTY, thus activating the obligation under Article VI of the Genocide Convention. It did not insert into Article VI of the Genocide Convention an additional requirement of showing an obligation to cooperate with the international tribunal located in an instrument other than the Genocide Convention.11 Instead, it held that one manner of fulfilling the acceptance requirement was by showing that Serbia had an obligation to cooperate with the ICTY. Serbia had an obligation to cooperate with the ICTY under the Dayton Agreement and later as a member of the UN, and thereby was deemed to have accepted the ICTY’s jurisdiction. In other words, Serbia’s obligations arising under the Dayton Agreement and as a result of its UN membership jointly and severally demonstrated that Serbia had accepted the jurisdiction of the ICTY; they were not requirements in themselves for the activation of Article VI of the Genocide Convention. This is consistent with the plain terms of Article VI, which contain one requirement—showing that the State in question has “accepted the jurisdiction” of the international penal tribunal. As stated by the ICJ, “Article VI obliges the Contracting Parties “which shall have accepted its jurisdiction” to co-operate with it.”12

The fact that Security Council Resolution 1593 recognized that “States not party to the Rome Statute have no obligation under the Statute” does not affect the preceding analysis. The obligations, including the obligation to arrest and surrender Bashir to the ICC, arise from Article VI of the Genocide Convention, which is a separate and distinct instrument from the Rome Statute.

B. The implications of the obligations under the Genocide Convention: No immunity for Heads of State

The Genocide Convention provides that persons responsible for various forms of genocide shall be punished, irrespective of whether they are serving Heads of State. Consequently, Bashir’s status is irrelevant with respect to the obligation arising under the Genocide Convention.

Article VI of the Genocide Convention requires that Sudan, as a Contracting Party to the Genocide Convention and a State in the territory of which the alleged crimes were committed, either prosecute Bashir or surrender him to the ICC. Article VI obliges other Contracting Parties to the Genocide Convention to surrender Bashir to the ICC for prosecution for genocide. Additionally, the ICJ’s statement in the Bosnia Genocide case indicates that Contracting Parties to the Genocide Convention that obtained custody over Bashir may prosecute him in their own courts.

Because the obligation arises from the Genocide Convention, Article 98 of Rome Statute does not directly impact on that obligation. The impact of Article 98 and other instruments of international law and customary international law are assessed below.

Additionally, under Article IX of the Genocide Convention, the ICJ acquires compulsory jurisdiction over disputes concerning violations of the obligations under the Genocide Convention. This may prove to be a useful tool to induce compliance with the obligation under Article VI, should another State decide to invoke the ICJ’s jurisdiction in case of a Contracting Party’s failure to arrest or transfer Bashir to the ICC.

II. States Parties to the Rome Statute have a binding obligation to arrest Bashir and try him or surrender him to the ICC

A. The basis of the obligations on State Parties

States Parties to the Rome Statute have accepted obligations to assist the ICC.13 However, Article 98 of the Rome Statute provides:

“[the] Court may not proceed with a request for surrender or assistance 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.”

This provision is a clear recognition of the customary law on immunities that would normally work to prevent States from arresting or subjecting to legal action State officials, in particular, Heads of State.

1. Implicit waiver:

The waiver requirement has been identified as a potentially major obstacle to the ICC ever being able to prosecute a Head of State.14 For this reason, it has been argued that States that have ratified the ICC may have also waived all immunities regarding the arrest and transfer of persons to the ICC.15 This would mean that the reference to “third State” in Article 98(1) refers to non-party States only.16 The argument finds little textual support, but it does comport with the principle of effectiveness as an interpretative device, allowing Article 27 to have some meaning.

2. Evolving Rule of Customary International Law to lift Head of State Immunity:

The position is further supported by evidence of a customary rule to lift Head of State immunity, in cases of international crimes, at least insofar as the jurisdiction of international courts and tribunals is concerned. Head of State immunity was first lifted as a bar to prosecution before an international court in the Treaty of Versailles which sought to prosecute German Emperor Wilhelm II for “a supreme offence against the international morality and the sanctity of treaties”.17 A provision lifting personal immunity was explicitly included in the ICC Statute and UNTAET Regulation 2000/15 setting up the Special Panels for Serious Crimes in East Timor. In addition, Article 7 of the IMT Charter has also been interpreted as rejecting personal immunities.18 Given that all States are bound to cooperate with the ICTY and ICTR, one could equally imply an exception to procedural immunity inherent in Articles 7(2) and 6(2) respectively.19 While the SCSL did not enjoy the same benefit, it has noted that that “[t]he nature of the offences for which jurisdiction was vested in these various [international] tribunals is instructive as to the circumstances in which immunity is withheld.”20 The trend of these instruments is undeniably the rejection of procedural immunity over international crimes.

It is arguable that the ICJ implicitly recognised the customary law nature of the obligation to lift Head of State immunity in its Advisory Opinion on Reservations to the Convention on Genocide by holding that “the principles underlying the Convention are principles which are recognised by civilized nations as binding on States, even without any conventional obligation.”21 This signals that Article IV, which provides that “Persons committing genocide … shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”, is a customary rule of international law.

In the Sharon case, the Belgium Court of Cassation held that Article 27(2) of the ICC Statute does not affect or prevent the application of the customary rule on immunities when a court is exercising “universal jurisdiction by default”.22 However, this is distinguishable from the exercise of jurisdiction either by the territorial State or an international penal tribunal, both of which are specifically foreseen as potential forums in the Genocide Convention. Similarly, while the ICJ found the personal immunity of a Congolese incumbent minister of foreign affairs to be absolute in respect of a Belgian arrest warrant pertaining to alleged international crimes in the Democratic Republic of Congo, the basis for jurisdiction again was universal jurisdiction.23 Moreover, the finding of the Court regarding the scope of the immunity appeared strictly related to the functions of a foreign minister.24 Little State practice or opinio juris was relied on, arguably leaving the question of the customary status of the rule requiring the respect of personal immunity in cases of international crimes open to interpretation.25 Significantly, the Court held that an exception to absolute personal immunity under international law was the exercise of jurisdiction by “certain international courts”, citing as examples the ICTY, ICTR and the ICC.26 On this basis, the Special Court for Sierra Leone held that Charles Taylor—the incumbent President of Liberia when the indictment was issued by the Court—could be subject to its jurisdiction as an international court.27 Whether the ICJ’s obiter on this “exception” to absolute personal immunity may be relied on by national authorities as a legal basis to arrest and transfer a head of State to the ICC remains unclear, but it is undeniable that this concession by the Court may provide some further justification for interpreting Article 98 of the ICC Statute in this manner.

3. Sudan is estopped from asserting Head of State Immunity:

In the case at hand, Security Council Resolution 1593 and the UN Charter may be dispositive of the issue of reconciling inconsistent obligations under Article 98. In Resolution 1593, the UNSC 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.” Under Articles 25 and 103 of the UN Charter, the UNSC’s decision prevails over any inconsistent obligations under international law that UN member States may have, including customary law so long as it does not have a jus cogens character.28 Since immunities may be waived by the relevant State, Head of State immunity is clearly not an obligation of jus cogens. 29 Accordingly, Sudan could be argued to be estopped from asserting Head of State immunity. Indeed, to assert Head of State immunity would be the antithesis of cooperation with the ICC and thus directly inconsistent with Security Council Resolution 1593. Because Head of State immunity attaches to Sudan as a State it may only be asserted by Sudan and may not be asserted by Bashir as an individual. If Sudan is precluded from asserting Head of State Immunity, there is no counter-veiling obligation under international law preventing States Parties to the Rome Statute from arresting Bashir.

B. There are no obligations under the Rome Statute on States not party to the Rome Statute

States not party to the Rome Statute have not accepted obligations under the Rome Statute (with the exception of Sudan, as explained above). Moreover, Security Council Resolution 1593 unequivocally provides that “States not party to the Rome Statute have no obligation under the Statute.” Therefore, those States have no obligation under the Rome Statute.

C. The implications of the obligations on State Parties to the Rome Statute

State Parties to the Rome Statute must implement the arrest warrants issued by the ICC and adhere to all other obligations to cooperate with the Court.

III. States not party to the Genocide Convention or the Rome Statute have no binding obligation to arrest

As for States that are party to neither the Genocide Convention nor the Rome Statute, they do not have obligations under either of those instruments as a matter of conventional law. Security Council Resolution 1593 urges them to cooperate with the ICC in proceedings against Bashir but does not create any binding obligations in that respect.

Conclusion

Under international law, UN member States which are party to the Genocide Convention have an obligation to arrest Bashir and transfer him to the ICC for trial. Sudan is under a binding obligation pursuant to Security Council Resolution 1593 to transfer Bashir to the ICC or try him in Sudan. The plain terms of Security Council Resolution 1593 along with the provisions of the UN Charter preclude Sudan from asserting Head of State immunity to try to prevent other States implementing the ICC arrest warrant. States Parties to the Rome Statute must implement the arrest warrants issued by the ICC. In any of these proceedings, Head of State immunity would not provide a defence to the genocide charges.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
The ICC Pre-Trial Chamber issued a second warrant of arrest in July 2010. The decision followed the Appeals Chamber decision of February 3, 2010 reversing the Pre-Trial Chamber’s March 2009 decision not to issue a warrant of arrest for Bashir with respect to the charge of genocide in Darfur. ↩
2.
Genocide Convention, Articles I, III. ↩
3.
Genocide Convention, Article IV. ↩
4.
W. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), at 368. ↩
5.
Application of the Convention on the Prevention and Punishment of Genocide (Bosnia Herzegovina v. Serbia & Montenegro), I.C.J. Reports, 2007, (“Bosnia Genocide Case”), para. 443. ↩
6.
See Bosnia Genocide Case para. 445. ↩
7.
At the time of writing, there are over 50 States falling into this category: Bringing Power to Justice, Absence of Immunity for Heads of State before the International Criminal Court, Amnesty International, 2010, p.50. ↩
8.
This argument also applies to States Parties to the Rome Statute can be deemed to have accepted the ICC’s jurisdiction with respect to the prosecution of Bashir for the alleged genocide in Darfur on the basis of Security Council Resolution 1593. ↩
9.
UN Charter, Article 103. See also discussion below, noting that Sudan may be estopped from asserting Head of State immunity as that would be inconsistent with its obligations under Security Council Resolution 1593. ↩
10.
Bosnia Genocide Case, para. 447. See also para. 449, where the ICJ noted that Serbia’s failure to punish perpetrators of the Srebrenica genocide “constitutes a violation by the Respondent of its duties as a party to the Dayton Agreement, and as a Member of the United Nations, and accordingly a violation of its obligations under Article VI of the Genocide Convention.” (emphasis added.) ↩
11.
For a contrary position see the discussion by Dapo Akande in his contribution to this forum, referring to Bosnia Genocide Case, para. 446. ↩
12.
Bosnia Genocide Case, para. 443. ↩
13.
Rome Statute, Article 86. ↩
14.
Otto Triffterer, “Article 27: Irrelevance of official capacity,” in Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Otto Triffterer (ed.) (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 513. ↩
15.
See, e.g., the UK’s International Criminal Court Act 2001, s23(1): ‘Any state or diplomatic immunity attaching to a person by reason of a connection with a state party to the ICC Statute does not prevent proceedings under this part in relation to that person.’ Sub-paragraph (6)(c) makes it clear that State or diplomatic immunity includes ‘any rule of law derived from customary international law’. The same provision appears in the Commonwealth Model Law on implementing the Rome Statute, as well as in the implementing legislation of Malta, Samoa and Ireland. ↩
16.
Paola Gaeta, “Official Capacity and Immunities,” in The Rome Statute of the International Criminal Court: A Commentary, Volume I, Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds) (Oxford: OUP, 2002), 994. ↩
17.
Art. 227 Treaty of Versailles. However, the trial never took place. ↩
18.
Arguably, Admiral Doenitz, who succeeded Hitler as Head of State on 1 May 1945 following the latter’s suicide, was tried and convicted (to 10 years imprisonment) on the basis that Art. 7 IMT Charter rejected personal immunity. ↩
19.
Personal or procedural immunity refers to the comprehensive immunity from the jurisdiction of foreign national courts enjoyed by a limited group of State officials during their tenure. This immunity relates to procedural law, meaning that the person enjoys inviolability from civil or criminal jurisdiction. By contrast, functional immunity is a substantive defence to a violation of a national or international rule since responsibility for an internationally unlawful act is deemed to be imputable to the State and not to the individual. ↩
20.
Prosecutor v. Taylor, Case SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004, para. 49. ↩
21.
Reservations to the Convention on Genocide (Advisory Opinion), 1951 ICJ Reports 15 (1951), para. 24. ↩
22.
Sharon Ariel and others, Belgium, Court of Cassation, Judgment of 12 February 2003, available online. See also Antonio Cassese, “The Belgium Court of Cassation v. the International Court of Justice: the Sharon and others Case,” J. Int’l Crim. Just. 1 (2003), 437. ↩
23.
Arrest Warrant of April 11th 2000 (Democratic Republic of the Congo v. Belgium), Judgment, Merits, 41 ILM 536 (2002). ↩
24.
Ibid., paras. 53-54. ↩
25.
See, e.g., Ibid., Dissenting Opinion of Judge Van den Wyngaert, p.143, para. 11 and para. 12. See also Article III(1) of the Institut de Droit International, Resolution on International Crimes and Immunities from Jurisdiction of States and their Agents, adopted 10 September 2009, at Naples. ↩
26.
Ibid., para. 61. ↩
27.
Prosecutor v. Taylor, Case SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004. ↩
28.
The Vienna Convention on the Law of Treaties of 1969 lays down the principle that any treaty that conflicts with a peremptory norm of general international law is void. Art. 53 VCLT (1969). It is not clear how this provision would apply to the UN Charter, given that Article 103 of the Charter provides that obligations under the Charter override obligations under other treaties, which would include the Vienna Convention on the Law of Treaties. ↩
29.
In the Arrest Warrant case, the Congo argued that immunity of a serving State representative could indeed be waived by the represented State. Mr. D’Argent, CR 2001/5, 15 October 2001, at 22-23, uncorrected verbatim record. See also the dissenting opinion of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić in the European Court of Human Rights in the Al-Adsani v. United Kingdom judgement (21 November 2001), para. 2. ↩

danterzian
910
(a reply to 908)
April 11, 2011
10:26 pm

The Peace and Justice Initiative argues that customary international law lifts Head of State immunity in cases of international crimes before international tribunals. I disagree. I do not believe they make a persuasive argument for the existence of this customary international law.

Establishing a customary international law requires a widespread state practice that is undertaken out of a sense of legal obligation. Thus, since customary international law is based on state practice, the practices of the Security Council-created ICTY and ICTR are irrelevant to establishing a customary international law.

Additionally, I argue that the Rome Statute of the ICC lacks sufficient acceptance to establish the widespread state practice necessary to establish a customary law removing Head of State immunity. The Rome Statute is ratified by a bare majority of the world's nations. Furthermore, seven G20 states, with a population amounting to nearly half the world, reject the Rome Statute. Additionally, Article 98(1) of the Rome Statute confirms that this alleged customary international law does not exist by recognizing that government officials of states not party to the Rome Statute still possess immunity.

Scott McDonald
909
(a reply to 908)
April 11, 2011
9:04 pm

I agree with the argument that the nexus between U.N.S.C. 1593 and membership in the Genocide Convention means that Sudan and other Contracting Parties have accepted the jurisdiction of the ICC in this instance. However, this argument only utilizes half of the rationale present in the Bosnia Genocide case. By focusing solely on the obligation to punish created by the Convention, you are ignoring the obligation to prevent genocide that was also highlighted by the ICJ. While there are difficulties in determining what exact steps Contracting Parties have under this obligation, it is still an avenue that supplements the obligation to punish argument in several ways. First, attempting to use U.N.S.C. authority and membership in the Genocide Convention to boot strap a limited acceptance of ICC jurisdiction is unlikely to go over well with those states that have chosen not to ratify the Rome Statute. By arguing that respecting the ICC arrest warrants (by, at the very least, not allowing al-Bashir to travel in your territory without fear of arrest) is required under Contracting Parties’ obligation to prevent genocide, we can provide these states with an alternative basis for compliance that may avoid their objections altogether. Second, the test to determine what action states should take to prevent genocide laid out by the ICJ in the Bosnia Case is a means with which additional pressure can be applied on particularly key states. Factors such as proximity to the violator and ties to the violator are used in determining what steps are expected of states in their prevention obligation; the idea here being that those states that have a greater capacity to influence the violator must take stronger steps to do so. This will allow additional pressure to be placed on African Union states that have criticized the ICC warrants, as well as allies of Sudan. Finally, by emphasizing only the obligation to punish, there is the risk that the ongoing nature of the humanitarian crisis in Darfur will be forgotten. See my earlier comment in this discussion for an expansion of these arguments and citations.

alk1668
891
February 10, 2011
11:56 am

Important facts about the situation in Cote D’ Ivoire.

“Some lawyers close to the International Criminal Court (ICC) rebelled against the words of the Prosecutor at the ICC.”

We are a group of lawyers near the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania, and also near the International Criminal Court based in The Hague in the Netherlands.

We are challenged by the events taking place in Côte d’Ivoire and Africa that leave no one indifferent. Our membership in the International System of Justice, leads us to wonder at the words of Prosecutor near the ICC, Mr Luis Moreno-Ocampo about which resemble clear threat against one of the litigants, and more precisely against the camp of President Laurent Gbagbo.

This untimely interference ICC Prosecutor in this case attempts to show the intention of transforming it to this August Court in a political weapon in the sole of the Western powers. There is reason to wonder when Mr. Prosecutor of the ICC to conduct its investigations to index a camp as being responsible for crimes that may have committed in CI after the elections.

This position reflects that announced after the elections by some Western powers fear that leads us to Mr Moreno-Ocampo does not show a bias outrageous. And if so we are the antithesis of the noble spirit which prevailed in the establishment of the Court which he is the prosecutor.

Indeed, Mr Moreno-Ocampo seems to want to use prosecutorial discretion that is his privilege, for political purposes, and seems very clear to President Gbagbo said: “Leave the power transfer your site to Mr Ouattara, otherwise we will continue for crimes against humanity etc....”

We remember that recently Mr. Moreno-Ocampo did not hesitate to point the finger and mention by name the Minister Charles Ble Goude as requiring the prosecution before the ICC. And in doing so the prosecutor has identified a suspect even before determining the crime, which shows a bias outrageous!

Prosecutor Moreno-Ocampo is it in the spirit that prevailed in the establishment of the International Criminal Court when he does so? It appears not, and if this attitude persists it will remove all credibility with this Court. In doing so the prosecutor Moreno-Ocampo violates a fundamental principle of law and even the rules of the ICC:

Violation of a fundamental principle of law:

Mr Moreno-Ocampo to our knowledge has not set foot in CI has decided where he is if there is abuse, they necessarily come from the camp of President Gbagbo, there’s clearly a violation of law the presumption of innocence as provided by Article 64 of the ICC Statute which imposes the principle of objectivity in the search for truth (the Attorney investigation, moreover, prosecution and defense, not only load as it appears to do in the case of CI).

Breach of the ICC:

Mr Luis Moreno-Ocampo has skipped an important step in the referral to the ICC, which is that only when national courts are unwilling or competence to judge such crimes that the ICC is seized and he must demonstrate that gap of national courts;
The ICC is made either by the States parties or by the Security Council of the UN, or the Prosecutor may then decide to open an investigation on its own initiative, but before deciding that he must seek permission to PTC

Having made these observations, it should be noted here that while they had signed the Rome Statute, Côte d’Ivoire has not ratified the Statute and is therefore not to date Member State of the ICC;

Côte d’Ivoire is not the only state in this situation, we in Africa including Cameroon, America, the United States, Asia, China, which have not ratified the Statute.

It is interesting to dwell on the reasons given by China to refuse to ratify:

Will the ICC against the sovereignty of nation states;
The principle of complementarity gives the Tribunal the ability to judge the court system of a nation (whether national courts are competent to judge such crimes);
The jurisdiction covers war crimes, both domestic and international conflicts;
Finally, and most important objections against the Court, China believes that the right of the prosecutor to lay charges under the court may place a political influence.

One can realize that fear of China is found to deal with what is happening in Côte d’Ivoire, where the Prosecutor is spirited to brandish the threat of prosecution as a scarecrow for President Gbagbo to assign the seat of President of the Republic of Côte d’Ivoire to the person selected by the

“International community”, this nebula.

When one follows the history of Côte d’Ivoire is the question of why the ICC has not even lifted the threat against the rebels when they are delivered to all sorts of abuses From September 2002, although this is within the jurisdiction of the Court, in operation since July 2002

How the ICC intends to establish its credibility if she allows herself to be drawn into political manipulation as is the case in Côte d’Ivoire?

How is it that the ICC interfering in internal political conflict and a threat of the parties remaining completely silent for many years on the actions of the other party?

How the ICC can explain that, suddenly, she became concerned about the protection of the Ivorian people ignored it and continued to ignore yesterday because obviously this is not the interest of the Ivorian people it protects

How to understand that the ICC has issued and continues not to issue threats against the French soldiers who had fired on the unarmed crowd in Abidjan in 2004? If the prefect Abengourou, attacked the 25 or Jan. 26 by the youth of RhD, the abuses of Duekoue, Daloa etc..And the list goes on…

All this should lead us to ask whether the ICC is not a new weapon placed in the hands of Western countries to threaten and enslave the South through other hidden aspects of legality under etc…

Josette Kadji me,
Attorney at Law Society of Cameroon and near the ICTR and the ICC

Jean de Dieu Momo,
Attorney at Law Society of Cameroon and near the ICTR

Cecilia
894
(a reply to 891)
February 14, 2011
4:28 pm

Although Ivory Coast is not a state party to the Rome Statute, the ICC may establish its jurisdiction to investigate the alleged human rights violation that occurred after the 2010 presidential election.

Article 12.3 of the Rome Statute provides in relevant part:

“If the acceptance of a State in which is not a Party to this Statute is required under paragraph the State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.”

Ivory Coast has made a declaration accepting the jurisdiction of the International Criminal Court. President Ouattara’s Prime Minister Guillaume Soro called on the International Criminal Court to send a mission to the Ivory Coast to prosecute those responsible for the alleged crimes after the presidential election. The election commission results show that Mr. Alassane Ouattara won Ivory Coast’s presidential election. Moreover, the United Nations, the Economic Community of West African States (ECOWAS), the United States, the European Union and the African Union have all recognized Ouattara as Ivory Coast’s rightful leader. Accordingly, the acceptance of the ICC’s jurisdiction by Ouattara’s government establishes the ICC Prosecutor’s authority to investigate the alleged crimes and human rights violation. It is immaterial that former President Gbagbo is trying to usurp the presidential office.

Cardon
892
(a reply to 891)
February 11, 2011
6:28 pm

Without grappling with the whole of your comment, I’ll just address your contention that the Prosecutor must maintain a presumption of innocence pursuant to Article 66 (not Article 64) of the ICC Statute. That’s a novel idea!

Prosecutors are tasked with building a case against a suspect/defendant. A prosecutor has the burden of proving the guilt of the accused. It’s hard to see how they could do so while maintaining a presumption of innocence.

Article 66 requires that the Court maintain the presumption of innocence. The prosecutor is free to believe that the defendant is guilty.

davidlee211
889
February 2, 2011
11:50 am

The AU decision to not arrest or surrender Al Bashir in accordance with an ICC order does not override or suspend existing obligations of ICC States Parties under the Rome Statute. Therefore, ICC States Parties are obligated to cooperate with the ICC.

The African Union (“AU”) has the legal competence to require AU members to not cooperate with the International Criminal Court (“ICC”) under Article 9(g) (“The functions of the Assembly shall be to…give directives to the Executive Council on the management of conflicts, war and other emergency situations and the restoration of peace”) and Article 23(2) (“any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions”) of the Constitutive Act of the African Union.1

However, for States Parties to the Rome Statute of the International Criminal Court (“Rome Statute”), the AU decision to not cooperate with the ICC2 does not defeat ICC States Parties’ obligations to arrest or surrender under Article 89 of the Rome Statute.3 Although Article 98 of the Rome Statute prevents the ICC from requesting assistance for arrest or surrender when it would require a state to act inconsistently with its obligations under international law,4 these obligations cannot be created subsequent to an ICC request simply to avoid cooperation with the ICC. Otherwise, any ICC request for cooperation can be sidestepped by artificially creating a new international obligation which is inconsistent with that request. Thus, for States Parties to the Rome Statute, compliance with the AU decision constitutes a material breach of the Rome Statute. In fact, only the Security Council can defer the investigation or prosecution in accordance with Article 16 of the Rome Statute.5

Moreover, the Vienna Convention on the Law of Treaties (“VCLT”) prohibits compliance with the AU decision if it would be incompatible with compliance with the Rome Statute.6 Under Article 18 of the VCLT, “[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its consent to be bound by the treaty.”7 ICC States Parties have consented to be bound by the Rome Statute. The object and purpose of the Rome Statute is “to put an end to impunity.”8 However, by complying with the AU decision and giving it priority, ICC States Parties are protecting rather than bringing Al Bashir to justice. Thus, ICC States Parties that refuse to comply with the Rome Statute are thereby breaching their obligations under it.

In addition, under Article 41 of the VCLT:

“[T]wo or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: the possibility of such a modification is provided for by the treaty; or the modification in question is not prohibited by the treaty and…does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.”9

In other words, two or more parties to a multilateral treaty cannot agree to modify the treaty as between themselves alone unless the treaty provides for such a possibility, or the treaty does not prohibit the modification and the modification is not incompatible with the object and purpose of the treaty. Here, because the AU decision not only addresses the same subject-matter as the Rome Statute, but alters state obligations under it, the AU decision amounts to a modification of the Rome Statute. Thus, Article 41 of the VCLT applies. However, the Rome Statute does not provide for the possibility of two or more parties agreeing to modify the treaty as between themselves alone.10 Moreover, even if the Rome Statute did provide for such a possibility, the modification called for by the AU decision is incompatible with the object and purpose of the treaty (as explained in the paragraph above).11 As a result, Article 41 of the VCLT prohibits AU members who are also ICC States Parties from modifying their obligations under Article 89 of the Rome Statute as between themselves alone. Therefore, compliance with the ICC’s requests for arrest or surrender is still binding under the Rome Statute.

An alternative understanding of the AU decision as it relates to ICC States Parties’ obligations under the Rome Statute can be found by way of analogy to methods of statutory interpretation. Considering the Rome Statute as a statute, “the primary technique of interpretation…is textual.”12 This method of statutory interpretation is codified under Article 31 of the VCLT, which says: “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object or purpose.”13 In other words, the plain meaning of the text of the Rome Statute is the primary evidence of the intent and purpose of the statute. Using this method of interpretation, Article 89 of the Rome Statute is explicit: “States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with [the ICC’s] requests for arrest and surrender.”14 Thus, the primary meaning and legislative intent of Article 89 indicate that ICC States Parties must comply with requests by the ICC for arrests and surrender. If this is true, then the AU decision to not cooperate is in violation of Article 89 and is therefore not binding as a matter of international law (unlike the Rome Statute, which is still binding on all ICC States Parties).

Lastly, another way of understanding the AU decision and the Rome Statute is by way of analogy to contracts between private parties. Considering the AU decision and the Rome Statute as contracts between states, Article 60 of the VCLT is particularly relevant here: “A material breach of a treaty, for the purposes of this article, consists in: a repudiation of the treaty not sanctioned by the [VCLT]; or a violation of a provision essential to the accomplishment of the object or purpose of the treaty.”15 In other words, where there are two successive conflicting contracts, there are two relevant inquiries to determine whether there is a material breach of the first contract. First, making a second contract constitutes some form of repudiation of the first contract when the first contract has terms that are inconsistent with the formation of the second contract.16 Here, the AU decision constitutes a repudiation of the Rome Statute because the AU decision calls its members to not arrest or surrender Al Bashir even though the Rome Statute requires it. Second, the formation of the second contract constitutes a material breach of the first contract where the second contract frustrates the purpose of the first contract, regardless of whether or not they seem to relate to the same subject-matter.17 Here, the AU decision is incompatible with the object and purpose of the Rome Statute (as explained above in paragraph III), and so it can certainly be said to frustrate the purpose of the Rome State.18 Thus, using either inquiry, the AU decision constitutes a material breach of the Rome Statute.

In conclusion, whether under the VCLT or by analogy to statute or contract, the AU decision is not a valid basis for refusing to arrest or surrender Al Bashir in accordance with the ICC’s request. Therefore, AU members who are also States Parties to the Rome Statute are obligated to cooperate with the ICC.19

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Constitutive Act of the African Union, July 11, 2000, O.A.U. Doc. No. CAB/LEG/23.15, available online. ↩
2.
Decisions and Declarations, Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) (July 1–3, 2009), available online [hereinafter “AU decision”]. ↩
3.
Rome Statute of the International Criminal Court, art. 89, U.N. Doc. A/CONF.183/9 (1998) (entered into force July 1, 2002) (stating “States Parties shall…comply with [the ICC’s] requests for arrest and surrender”). ↩
4.
Id. at art. 98. ↩
5.
Id. at art. 16. ↩
6.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, available online. ↩
7.
Id. at art. 18. ↩
8.
Rome Statute, supra note 3, at preamble. ↩
9.
Vienna Convention on the Law of Treaties, supra note 6, at art. 41. ↩
10.
Rome Statute, supra note 3. ↩
11.
Id. at preamble. ↩
12.
Christopher J. Borgen, Resolving Treaty Conflicts, 37 Geo. Wash. Int’l L. Rev. 573, 632 (2005). ↩
13.
Vienna Convention on the Law of Treaties, supra note 6, at art. 31. ↩
14.
Rome Statute, supra note 3, at art. 89. ↩
15.
Vienna Convention on the Law of Treaties, supra note 6, at art. 60. ↩
16.
Borgen, supra note 12, at 624. ↩
17.
Id. at 633. ↩
18.
Rome Statute, supra note 3, at preamble. ↩
19.
However, it must be noted that the doctrine of immunity from arrest might provide an independent basis under other international law principles for AU members to refuse to cooperate with the ICC, but this is a different issue that will not be addressed here. ↩

JJ Paust
887
February 1, 2011
11:09 am

With respect to non-immunity of sitting or former heads of state or officials under international law, our casebook notes the prosecution of Conradin von Hohenstafen in 1268, Peter von Hagenbach in 1474, the “trial” by an int’l congress of Napoleon in 1818 (punishment = exile), the indictment in absentia of Kaiser Wilhelm in the 1919 Treaty of Versailles, the 1919 Responsibilities Commission Report recognizing head of state responsibility, the dicta in the U.S. Supreme Court case The Santissima Trinidad about a prince who violates the law of nations being amenable to trial (as well as Berg v. British and African Steam Navigation Co. and U.S. v. Eisentrager [no form of immunity exists for violations of Geneva law]), the Opinion and Judgment of the IMT at Nuremberg recognizing that immunity of diplomats and others for ordinary crimes does not pertain with respect to crimes under international law and that the state cannot delegate an authority that it does not posses to violate international law, the French case of Abetz (prosecution of a diplomat for international crime (and the ultra vires rationale behind it), the 1950 Nuremberg Principles adopted by the U.N. G.A. and which reflect customary international law, the decision in The Prosecutor v. Milosevic that customary international law denies immunity of a head of state for international crime, the U.S. civil trial against Marcos, the U.S. prosecution for international drug trafficking of a sitting (or crouching) head of state Noriega, the sensible recognitions of some of the Lords in the UK decision in Pinochet (and those that were simply made up, citing nothing, sometimes using Latin phrases that appear in no international criminal instruments), the many international criminal law instruments that expressly reach any person (some of which also expressly deny any limitation of responsibility to heads of state or public officials—including the Rome Statute of the ICC), and so forth.

What international criminal law instrument grants immunity to a sitting head of state or official for international crimes (as opposed to ordinary offenses under domestic law as in the Vienna Convention on Diplomatic Immunity)? What international criminal tribunal from 1474 onwards has ruled that a head of state or official is immune from prosecution for violations of international criminal law?

A large number of U.S. cases have also recognized that there is no immunity from civil suit with respect to international crimes—see, e.g., here & here.

A French court responded to a British adage that the King can do no wrong (the Brits and some British trained have seemingly always had trouble with such) by noting that not only can a King do wrong but a King has power to do more wrong than others!

G. L.
886
February 1, 2011
7:07 am

I. Introduction:

Currently, the International Criminal Court (ICC) case against President Omar Al Bashir faces the reality that no incumbent head of state has ever been arrested and prosecuted by an international tribunal, at least in part due to the well-established principle of head of state immunity. In analyzing the justifications and development of immunities under international law, I will argue that immunity does not protect Al Bashir from prosecution by the ICC; however, immunity does create a legal obstacle to his arrest so long as Al Bashir remains a sitting President.

II. Prosecution

One of the key issues to this debate is whether Al Bashir can even be legally prosecuted considering historical deference to immunity under customary international law. In issuing the arrest warrant, Pre-Trial Chamber I expressed the view that Al Bashir’s status as a sitting head of state does not grant him immunity before the ICC.1 However, the African Union has asserted that Al Bashir is protected by immunity.2 The question is: what is the basis of Al Bashir’s immunity and is it valid against the charge of genocide before the ICC?

Immunity from prosecution in customary international law exists out of mutual respect for the individual sovereignty of nations. Immunity can fall in one of two categories: functional immunity (ratione materiae) or personal immunity (ratione personae).3 Functional immunity exists for officials committing acts of state under the principle that people must be able to act on behalf of their government without fear of prosecution. Such immunity relates to the validity of specific acts, which means that immunity is permanent, even after the actor is no longer a government official.

Personal immunity confers protection for people in certain government offices on the basis that a state would not be able to function properly without those officials. This form of immunity covers both official and personal acts but lasts only so long as the individual is in a protected government position.

As a sitting head of state of Sudan, Al Bashir’s acts would generally be covered under both forms of immunity. For parties to the Rome Statute, the suspension any immunities is explicitly laid out in Art. 27 which states that “official capacity as a Head of State or Government […] shall in no case exempt a person from criminal responsibility” and that “[i]mmunities […] whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”4 However, Sudan is a non-party to the Rome Statute and is not directly subject to Art. 27.5

Without Art. 27 affirmatively suspending immunity, the question then becomes whether generally accepted justifications for recognizing immunities are applicable here. Generally, these immunities were developed and exercised “horizontally,” i.e. among equal sovereign states.6 Recognition of head of state immunity in state-to-state interactions is necessary for the basic function of international relations. However, the charge against Al Bashir is not being made by a single, co-equal state but rather by an international criminal tribunal, an entity which is not a “horizontal” co-equal but rather a “vertical” superior. Deferring to traditional immunities would defeat the purpose of creating an over-arching international criminal tribunal and would not follow the historic justifications for having immunities.7 Recent developments in international law indicate that such “vertical” contexts, the both functional and personal immunity are inapplicable.

First, functional immunity clearly does not protect against prosecution for international crimes. The principle behind functional immunity is that certain acts are necessary functions of state but international crimes can never be necessary functions of state. Furthermore, individuals are still responsible for international crimes and cannot hide behind the defense of official state action.8 This view is bolstered by the prosecution of Slobodan Milosevic for his actions while he had been head of state by the International Criminal Tribunal for the former Yugoslavia (ICTY). While functional immunity had not been explicitly raised as a defense, the decision nevertheless addressed the issue head-on.9 The ICTY found that Art. 7, paragraph 2 of the Statute of the International Tribunal for the Former Yugoslavia, which denies any form of head of state immunity,10 is valid and “reflects the rule of customary international law.”11 In coming to this decision, the ICTY noted the current trend of international instruments and case law supporting the derogation of functional immunity in prosecuting international crimes12, specifically citing from the Pinochet case, “In future those who commit atrocities against civilian populations must expect to be called to account if fundamental human rights are to be properly protected. In this context, the exalted rank of the accused can afford no defence.”13

Personal immunity is more problematic since the state of customary international law on this matter is not as clear as it is with functional immunity; however, personal immunity in this specific case has been undeniably revoked by Security Council Resolution 1593.

From the customary international law perspective, recent developments in international law do indicate an inclination favoring derogation of personal immunity. Milosevic and Charles Taylor were both indicted by international tribunals while they had been sitting heads of state14, indicating that incumbent head of state immunity is no bar to prosecution for war crimes and crimes against humanity. This trend tends to indicate that customary international law regarding personal immunity is developing parallel to functional immunity, resulting in the derogation of all immunities for international crimes.

This trend is complicated by the fact that the principle behind personal immunity is arguably still applicable in cases before an international tribunal. Prosecuting incumbent government officials, especially heads of state, undoubtedly impedes the basic functions of that country.15 Thus, as a matter of policy, suspending personal immunity under customary international law may be untenable.16 In that case, derogation of immunity would need a specific basis rooted in a legal document. For Milosevic and Taylor, the instruments establishing the ICTY and the Special Court for Sierra Leone (SCSL) contemplate personal immunity and explicitly bar the use of such immunities. In both cases, the countries had submitted themselves and their officials to such jurisdiction. As noted above, Sudan has not submitted itself to the ICC and Art. 27 the Rome Statute.

However, Security Council Resolution 1593 alters the equation. Despite not being a party to the Rome Statute, Sudan became subject to ICC authority once the Security Council referred the matter to the ICC, stating 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.”17 ICC authority is governed by the terms of the Rome Statute; by referring the situation in Darfur to the ICC, the Security Council essentially made Sudan subject to prosecution under the terms of the Rome Statute for the Darfur conflict. As such, Al Bashir’s immunity as head of state has been suspended.

III. Arrest

The issue of immunity and Al Bashir’s arrest is a far greater battle for the ICC to fight so long as Al Bashir remains an incumbent President. Under Resolution 1593, Sudan has the obligation to “cooperate fully” with the ICC, meaning the government of Sudan should surrender Al Bashir of its own accord. This is highly unlikely scenario considering Sudan still does not recognize ICC authority and would clearly be resistant to arresting its own head of state.

Since the ICC lacks a related police force, the only other viable alternative is to rely on its member states to effectuate the arrest. Here, the immunities question begins anew because the question is no longer about immunity before an international tribunal but about immunity between states.

While functional immunity may still be suspended,18 the traditional justifications for personal immunity are applicable in full force—states are obligated to accord immunity to each other’s officials as equal sovereign nations. This creates the odd result that government officials may not be immune from prosecution but are immune to arrest. However, this conundrum is supported by case law as seen in the Arrest Warrant Case. In the Arrest Warrant Case, the ICJ rejected an arrest warrant issued by Belgium for the then-incumbent Minister of Foreign Affairs of the Democratic People’s Republic of the Congo. The ICJ concluded that immunities under customary international law remained valid even for serious crimes which international conventions created an obligation to punish and prevent. In analyzing state practice, the ICJ was “unable to deduce […] any form of exception to the rule according immunity from criminal jurisdiction” even where the accused is suspected of war crimes or crimes against humanity.19 Additionally, relevant international law cases and instruments do not contend with the issue of immunities before national courts.20

Furthermore, Art. 28 of the Rome Statute also creates an obstacle to arrest. As noted above, Art. 98 lends some context to interpreting the application of Art. 27 on the matter of immunity from ICC prosecution; however, it is more substantively relevant on the matter of arrest by a member state. Art. 98(1) states, “The Court may not proceed with a request for surrender or assistance 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.” Under Art. 98, member states’ obligation to arrest Al Bashir would be subordinate to their obligations to respect Sudan’s head of state immunity under customary international law.

Arguably, Security Council Resolution 1593 could suspend head of state immunity for arrest as it did for prosecution. However, this argument is not wholly convincing. The exact terms of the resolution merely referred the Darfur situation to the Prosecutor and required Sudan to cooperate with “the Court and the Prosecutor.”21 These terms pertain to the “vertical” authority of the ICC and the Prosecutor, i.e. Al Bashir is subject to prosecution and Sudan is obligated to surrender him. However, the Resolution does not specifically address the issue of arrest by a state nor does it expressly force Sudan generally submit to the entire terms of the Rome Statute as a party would. In contrast, when the Security Council established the ICTY22 and SCSL,23 the Security Council expressly removed personal immunities.

As the situation stands with the Rome Statute and current customary international law, Al Bashir is immune from arrest by a foreign state so long as he is the sitting head of state. One factor that could possible change this calculus is the Genocide Convention. In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ analyzed Article VI of the Genocide Convention which provides, “Persons charged with genocide […] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” The ICJ found that Art. VI created an implied obligation for member states to arrest persons accused of genocide who travel into that state.24 In other words, the Genocide Convention would overcome the customary international law obstacle that the Rome Statute alone could not. Thus, states who are parties to both the Genocide Convention and the Rome Statute would be obligated by Art. VI to arrest those accused of genocide by the Prosecutor such as Al Bashir.25

IV. Conclusion

The immunities question ultimately presents no obstacle to the ICC prosecution of Al Bashir considering the current trend derogating immunities under customary international law and the terms of Security Council Resolution 1593. However, this combination of international law structures does not sufficiently justify the denial of immunity from arrest by a co-equal state. While the Genocide Convention may present a solution, the Rome Statute and established customary international law provide an insufficient basis for arrest of Al Bashir as long as he remains head of state.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Press Release, International Criminal Court, ICC Issues a Warrant of Arrest for Omar Al Bashir, President of Sudan (Mar. 4, 2009), available online. ↩
2.
Decisions and Declarations, Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) (July 1–3, 2009), available online. ↩
3.
Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407 (2004). ↩
4.
Rome Statute of the International Criminal Court, art. 27, July 19, 1998, 2187 U.N.T.S. 3 [hereinafter Rome Statute]. ↩
5.
An argument could be made that because the language of art. 27 refers broadly to “all persons” without reference to “parties”, art. 27 was intended to apply to all individuals in all states, regardless of whether they are a party to the Rome Statute. However, despite the broad language of art. 7, art. 98 specifically considers and accords deference to immunities of individuals in non-party states. ↩
6.
Frederic Megret, In Search of the ‘Vertical’: An Exploration of What Makes International Criminal Tribunals Different (And Why), October 9, 2008, available online. ↩
7.
Id. ↩
8.
The Nuremberg Trial, 6 F.R.D. 69, 120 (1946). (“He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.”) ↩
9.
Prosecutor v. Slobodan Milosevic, Decision on Preliminary Motions, Case No. IT-99-37-PT, T. Ch. III, 8 Nov. 2001, para. 26. ↩
10.
Statute of the International Tribunal for the Former Yugoslavia art. 7, para.2, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]. ↩
11.
Slobodan Milosevic, supra note 27, para. 28. ↩
12.
Id. at paras. 29-33. ↩
13.
Id. at para. 33. ↩
14.
See generally Prosecutor v. Milosevic, Indictment, No. IT-99-37 (May 22, 1999); Prosecutor v. Charles Taylor, Indictment, No. SCSL-03-01-PT (Mar. 7, 2003). ↩
15.
As a practical matter, neither Milosevic nor Taylor were arrested and brought to trial until after he had stepped down from power. ↩
16.
The clash between the principles behind personal immunity and principles of international criminal law is complicated. While personal immunity may be necessary to preserve the essential functions of a state, allowing such immunity may become impunity for the very worst offenders who maintain head-of-state status for life. However, because no precedent case exists for prosecuting a sitting head of state, the current state of customary international law regarding personal immunity is less clear than with functional immunity. ↩
17.
S.C. Res. 1593, para. 2, U.N. Doc. S/RES/1593 (Mar. 31, 2005). ↩
18.
As noted in Section II, under customary law, violations of international law are not protected state acts; thus, even in the horizontal context, the principles behind functional immunity are not relevant here and do not grant protection. ↩
19.
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, para. 58 (Feb. 14). ↩
20.
Id. ↩
21.
S.C. Res. 1593, supra note 17. ↩
22.
ICTY Statute, art. 7, para 2. ↩
23.
Statute of the Special Court for Sierra Leone art. 6, para. 2, U.N. Doc. S/RES/1315 (Aug. 14, 2000). ↩
24.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) paras. 439-450 (Feb. 26, 2007). ↩
25.
This solution is dependent upon how the ICC fits into the “international penal tribunal” def’n under the Genocide Convention, which goes beyond the scope of this comment. ↩

JJ Paust
885
January 31, 2011
12:54 pm

Under Article IV of the Genocide Convention, there is absolutely no immunity for any person of any present or past status—especially a sitting ruler or official—and the same holds true with respect to any other international criminal instrument. For example, there is absolutely no immunity for a head of state or official under Article 27 of the Rome Statute of the ICC. Clearly, the preamble to the Rome Statute is also relevant when it recognizes the determination of the international community meeting at Rome “to put an end to impunity” and that “effective prosecution must be ensured”. Customary international law also does not provide immunity for a sitting head of state or official. See, e.g., Paust, Bassiouni, et al., International Criminal Law 29-43 (3rd ed. 2007). Even the erroneous ICJ decision in the Congo v. Belgium noted that there is no immunity in an international criminal tribunal. The ICTY recognized in The Prosecutor v. Milosevic (2001) that there is no immunity. No criminal law instrument mentions Latin phrases such as ratione personae or ratione materiae. Most international criminal law instruments proscribe certain conduct and contain the unlimited, far-reaching phrase “any person who” or a similar phrase. Another Latin phrase is more useful—aut dedere aut judicare.

JJ Paust

Scott McDonald
884
January 31, 2011
7:38 am

I. Introduction/Background

On the surface, Sudanese President Omar al-Bashir’s travel plans do not seem to have been hindered much by the arrest warrants issued by the ICC; since his indictment, he has made trips to Chad, Kenya, Zimbabwe, Ethiopia, and Qatar.1 The Chad trip stands as the most significant because it is the first time al-Bashir has visited a member state of the ICC. By not acting upon the arrest warrants during al-Bashir’s visit, Chad defied international law and its own treaty obligations via the Rome Statute. Yet Chad is not the only gracious host on the aforementioned list to violate international law by hosting a leader accused of genocide. Ethiopia and Zimbabwe are both parties to the Convention on the Prevention and Punishment of the Crime of Genocide2, and state parties to the Genocide Convention have a legal obligation to implement the ICC arrest warrants.

This obligation stems from the holding in Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia v. Serbia), where the International Court of Justice held that states parties to the Genocide Convention have an obligation to take affirmative action to prevent and punish genocide.3 First off, it is critical to note that the ICJ found that prevention and punishment, while linked, are separate obligations.4 Thus, the responsibility of contracting parties to the Genocide Convention to implement the ICC arrest warrants, regardless of their membership status in the ICC, is tied to both their obligation to prevent genocide, as well as their obligation to punish. As the rest of this paper will demonstrate, implementation of the ICC arrest warrants qualifies as a required act of prevention under the test laid out by the ICJ. Though it is also arguably a required act of punishment, that is a separate argument not made in this paper. The distinction is an important one, because if implementation of the arrest warrants is found to be a required act under contracting parties’ obligation to prevent genocide, the difficult question of whether key countries have accepted the jurisdiction of the ICC is irrelevant.5

II. The Obligation to Prevent Genocide Created by the Genocide Convention Means that Contracting Parties have a Duty to Implement ICC Arrest Warrant For Genocide

In the Genocide Case, the ICJ held that “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the state learns of….the existence of a serious risk that genocide will be committed.”6 Once on notice of such a risk, state parties to the Genocide Convention must utilize “all means reasonably available” in order to prevent genocide from occurring.7 Under these parameters set out by the ICJ, to determine whether the Genocide Convention creates an obligation for state parties to implement the ICC arrest warrants, we must answer two questions: 1) Have state parties been made aware of a serious risk that genocide is being or will be committed in Darfur? and 2) Does implementing the ICC arrest warrants qualify as a means “reasonably available” to state parties? The answer to both questions is a resounding yes.

The analytic framework utilized by the ICJ in the Genocide Case requires a case by case, fact intensive analysis to determine what means were reasonably available to state parties.8 The court laid out one primary parameter in ascertaining whether a state party utilized all such means: The capacity to effectively influence the actions of the person/s who are committing genocide or are likely to do so. This parameter is in turn affected by several factors, including geographic distance between the state party and the perpetrator state, and the strength of their political, social, and economic links.9 Thus, a state party that is a neighbor to the perpetrator, and has strong ties to that perpetrator, would have a larger array of reasonably available means to prevent genocide than a distant state party with no ties. The holding also made it clear that the obligation is “one of conduct and not one of result”, meaning that state parties cannot shirk their obligation by arguing that even if they had utilized all reasonably available means, they could not have prevented genocide.10

A. State Parties to the Genocide Convention have Been Made Aware of a Serious Risk that Genocide Will be Committed

Contracting parties have been put on notice regarding the risk and/or commission of genocide in Darfur through the actions of the United Nations, the ICC, and various non-governmental organizations. The first primary form of international notice came on March 3, 2005, when the United Nations Security Council referred the situation in Darfur to the ICC prosecutor via Resolution 1593.11 The resolution began with the Security Council taking note of a report produced by the International Commission of Inquiry that detailed widespread human rights violations occurring in Darfur.12 While the Commission report and accompanying Resolution did not declare the events in Darfur up to that point to be a genocide, that is not the standard required for the creation of a duty to act according to the holding of the Genocide Case. Instead, the ICJ held that the “serious risk” that genocide will be committed is sufficient to create the duty.13 It is hard to imagine a stronger indication of such a serious risk (besides evidence that genocide is already underway) than widespread human rights violations of the nature referenced by the Commission’s report. This basis for the resolution, along with the fact that the Council was referring the situation to the ICC, signified a serious risk that genocide would be committed in Darfur. The fact that this first notice came from the UNSC, the strongest voice in the international system, means that no state can plead ignorance.

Another form of notice regarding the risk of genocide in Darfur came with the warrants issued by the ICC. The first arrest warrant, issued on March 4, 2009, indicted al-Bashir on charges of war crimes and crimes against humanity.14 Though al-Bashir was not indicted for genocide at this point, the argument in the paragraph above details why this is irrelevant. The warrant was based on the pre-trial chamber’s decision there were reasonable grounds to believe that al-Bashir was involved in the commission of systematic violence, including murder and extermination, against three specific ethnic groups in Darfur.15 That this warrant was issued by a court of law after a hearing in which extensive evidence was produced is significant; these procedural checks ensured that there was substance to the allegations against al-Bashir, which in turn strengthened the notice given to contracting parties of the Genocide Convention that there was a serious risk that genocide would be committed in Darfur.

This first arrest warrant has been rendered largely irrelevant however, following the issuance of a second arrest warrant, complete with the charge of genocide, on July 12, 2010.16 By analyzing the evidence against al-Bashir and finding it sufficient to issue an arrest warrant for al-Bashir, the ICC made it effectively impossible for states to ignore the possibility that genocide was being committed in Darfur or that it might be committed in the near future.

Further evidence of the possibility of genocide occurring in Darfur has been provided by numerous NGO reports and briefs. A briefing paper from Save Darfur published in 2008 summarizes some of the relevant facts: 1) At least three hundred thousand dead since the crisis began. 2) As many as 2.5 million displaced. 3) Constant attacks by government backed militia on humanitarian aid efforts.17 This data, compiled from U.N. reports, certainly highlights the possibility that genocide is occurring or may occur in Darfur.

Two Human Rights Watch reports provided additional evidence of the risk of genocide in Darfur to the international community. In May of 2004, the group released the report entitled “Darfur Destroyed” that laid bare the campaign of ethnic cleansing perpetrated by the government and government backed militias that had already claimed thousands of lives.18 While the report did not call the events at that point genocide, an organized campaign of ethnic violence like the one underway in Darfur by May of 2004 undoubtedly contained a risk of genocide. This threat of genocide has not disappeared in the years since this report, though it has changed somewhat due to the arrival of UNAMID and the displacement of the population. In “Chaos by Design”, a report published in 2007, HRW detailed how the ongoing campaign of ethnic cleansing had evolved, incorporating the disruption of humanitarian aid and organized rape, and was still supported by the Sudanese government.19 According to the report, this campaign has been designed to keep the Darfur region in a chaotic, unstable state, so that the Sudanese government can maintain dominance over the region.20

Even if state parties to the Genocide Convention, after examining UNSCR 1593, the ICC arrest warrants, and relevant U.N./NGO reports, find that they do not believe that genocide has been committed in Darfur, they have still been put on notice according to the rule established by the ICJ. This is because the Genocide Case ruling only requires that state parties be made aware of a “serious risk that genocide will be committed.”21 The compelling evidence of al-Bashir’s government utilizing systemic violence against specific ethnic groups in Darfur was enough to convince major international institutions to act; it is also sufficient to show that such a risk exists in Darfur.

B. Implementing Arrest Warrants is A “Reasonably Available Means” for Preventing Genocide in Darfur

The second element of determining whether state parties to the Genocide Convention have a duty to implement the ICC arrest warrants based on their obligation to prevent genocide hinges on whether such implementation qualifies as a “reasonably available means” as defined by the ICJ. If implementing the arrest warrants falls under the framework created in the Genocide Case for determining the obligations of contracting parties, then such implementation is a reasonably available means and state parties have a duty. To complete this analysis, two foundational questions must be addressed. First, what does implementing the arrest warrants entail? Second, will such implementation contribute to preventing and/or ending genocide in Darfur?

Before we can determine if implementation of the ICC arrest warrants qualifies as an obligation for state parties under this framework, we must address the foundational questions highlighted above. Admittedly, implementation of the arrest warrants may seem to be a vague request. An extreme interpretation could lead to scenarios where governments are mandated to utilize covert action to nab al-Bashir or even invade Sudan. However, it is doubtful that this what the ICC had in mind and a much more limited interpretation is all that is needed for our purposes. Implementing the arrest warrants simply means that a state party pledges to arrest al-Bashir if he enters their sovereign territory, and that they will surrender him to the court in a timely manner.22 It certainly means that a state party does not welcome al-Bashir with open arms, as Ethiopia and Zimbabwe did.

After addressing what implementation entails, the question then becomes: Will implementing the arrest warrants contribute to preventing genocide or stop genocide already occurring in Darfur? To answer this in the affirmative, we can look to two hypothetical situations, both predicated on state parties to the Genocide Convention and state parties to the Rome Statute honoring the arrest warrants. The first hypothetical is simple: al-Bashir visits a contracting party to the Genocide Convention, and is arrested and surrendered to the ICC. Though this would likely infuriate the remaining Sudanese government, it would still place enormous pressure on them to end their activities in Darfur. This pressure comes from two sources. First, by ending the impunity for individual leaders, even heads of state, the ICC will have sent a strong message to the new leadership in Sudan that will have them think twice about continuing their actions. Second, the new administration would be encouraged to improve its behavior in regards to Darfur in order to facilitate a possible negotiation for the release of al-Bashir.

However, the more likely hypothetical to occur if all contracting parties to the Genocide Convention decide to implement the arrest warrants is that al-Bashir will be effectively locked within Sudanese territory. This would make the Sudanese government an isolated, outcast regime, and is an example of coercive pressure that the ICJ had in mind when it created its framework for determining reasonably available means. The state’s that have the greatest capacity to influence al-Bashir are his African neighbors and China, with whom Sudan has strong political and economic ties. In terms of Sudan’s neighbors, Ethiopia, Uganda, Democratic Republic of the Congo, and Egypt are all contracting parties to the Genocide Convention, while Chad and the Central African Republic are state parties to the Rome Statute.23 If this group of nations was to honor its treaty obligations and implement the arrest warrants, it would create a powerful regional condemnation that could force the Sudanese administration’s behavior in Darfur to change. Similarly, if China, a contracting party to the Genocide Convention,24 were to implement the arrest warrants as per its duty, it would be another effective means of coercive diplomatic power that could prevent genocide from occurring in Darfur.

It is difficult to argue that the limited action required of states in implementing the arrest warrants is anything other than a reasonably available means. Implementation of the warrants does not require military force, clandestine action, or any other active use of resources. Essentially, all a nation needs to do is to tell al-Bashir that if he steps foot in their borders, he will be arrested. Coercive diplomatic pressure like this, while a small step, is still a step towards correcting the behavior of the Sudanese government.

III. Conclusion

The ICJ opinion was unequivocal in its ruling; once made aware of a serious risk that genocide will be committed, state parties to the Genocide Convention must employ all reasonably available means to prevent genocide.25 Notice that genocide was occurring in Darfur, or that there was a serious chance that it would occur, was broadcasted throughout the international system on several different occasions by several different sources. Following this notice, implementation of the subsequent ICC arrest warrants represents a relatively easy step that would contribute to the prevention or end of genocide in Darfur. For these reasons, state parties to the Genocide Convention have an obligation to implement the ICC warrants.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Sudan’s Bashir in Zimbabwe visit, BBC (June 7, 2009, 11:21 AM), available online; see also Chad refuses to arrest Sudan’s al-Bashir, CBC (July 21, 2010 1:55 PM), available online. ↩
2.
Ethiopia was actually the first nation to ratify the convention on July 1, 1949 and Zimbabwe acceded to the Convention on May 13, 1991, see Status of Treaties, Chapter IV: Human Rights Treaties, Convention on the Prevention and Punishment of the Crime of Genocide, State Parties, available online ↩
3.
Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [hereinafter Genocide Case], Judgment, I.C.J. 2007. available online. See also Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 U.N.T.S. 277. (genocide is a crime under international law that contracting parties must “undertake to prevent and to punish.”) [hereinafter Genocide Convention]. ↩
4.
Genocide Case, Para. 426. ↩
5.
See Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. Int’l Crim. Just. 365, (2010) (arguing that the issuance of an arrest warrant on the charge of genocide means that state parties to the Genocide Convention must cooperate with ICC efforts to arrest al-Bashir based on their obligation to punish genocide. This argument relies on Article VI of the Genocide Convention, which references person charged with genocide being tried by “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” Even if we assume that the ICC qualifies as this “international penal tribunal”, it is a tenuous assertion that Contracting Parties to the Genocide Convention that are not parties to the Rome Statute have thereby accepted the jurisdiction of the ICC.) See also Genocide Convention, art. VI. ↩
6.
Id., Para. 431, p. 155. ↩
7.
Id., Para. 430, 154 ↩
8.
Id., Para 430. ↩
9.
Id. ↩
10.
Id. ↩
11.
S.C. Res. 1593, U.N. Doc. S/RES/1593 (March 31, 2005). ↩
12.
Id. See International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General (Jan. 25, 2005) available online (Arguably another form of notice regarding the risk of genocide in Darfur; detailed serious violations of human rights law on the perpetrated by the Sudanese Government and Janjaweed militias, including the killing of civilians, rape, and destruction of villages) ↩
13.
Genocide Case, Para. 431. ↩
14.
International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (March 4, 2009), ICC-02/05-01/09. available online. ↩
15.
Id. ↩
16.
International Criminal Court, Pre-Trial Chamber I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (July 12, 2010), ICC-02/05-01/09. available online. ↩
17.
“The Genocide in Darfur-Briefing Paper”, Save Darfur, June 2008, available online ↩
18.
“Darfur Destroyed”, Human Rights Watch, May 6, 2004, available online ↩
19.
“Chaos by Design”, Human Rights Watch, September 19, 2007, available online ↩
20.
Id. ↩
21.
Genocide Case, Para. 431. ↩
22.
See International Criminal Court, Pre-Trial Chamber I, Decision requesting observations from the Republic of Kenya, (October 25, 2010), available online. (request that Kenya explain why it has refused to arrest al-Bashir during his visit.) See also Supplementary Request to all State Parties to the Rome Statute for the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, (July 21, 2010), available online. (Request to all state parties of the Rome Statute that they honor their obligations, most notably under Article 89 of the Statute, to arrest al-Bashir if he is on their territory. No reason to assume that a different standard would be expected of state parties to the Genocide Convention.) See also Rome Statute art. 89, July 17, 1998, 2187 U.N.T.S. 90. (Section 1: “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.”) ↩
23.
Contracting Parties to the Genocide Convention, available online; State Parties to the Rome Statute, available online. ↩
24.
Contracting Parties to the Genocide Convention, available online ↩
25.
Genocide Case, Para. 430. ↩

Alma Pekmezovic
881
January 28, 2011
8:53 am

The AU Resolution establishes that AU Member States “shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.”1 The passage of the Resolution on 3 July 2009 has led to arguments that Member States of the AU can ignore the Rome Statute. These arguments are based on the notion that States can simply withdraw from their obligations under a treaty by subsequently entering into new legal commitments which defeat the purposes of the treaty.

This essay considers the effect of the AU Resolution on African States’ obligation to apply the Rome Statute. It will be argued that the Resolution does not affect the binding character of the Statute. Part 1 examines the most important provisions of the Statute and draws attention to its objects. Part 2 explains the meaning of the pacta sunt servanda principle and considers the application of the Vienna Convention on the Law of Treaties (‘Vienna Convention’) in international law.2 Part 3 concludes.

Part 1: The Rome Statute of the International Criminal Court

According to the Rome Statute, State Parties have a general obligation to comply with the provisions of the Statute. Thus, Article 86 of the Rome Statute states that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”3 This obligation flows directly from the ratification of the Statute. By ratifying the Statute, States consented to be bound by all its terms and provisions.

Article 87 grants the ICC the authority to make requests to State Parties for cooperation. The Statute specifies some forms of cooperation such as: the identification and whereabouts of persons; the taking of evidence and production of evidence to the Court; the questioning of any persons being prosecuted; and the arrest and surrender of persons.

Articles 89(1), 90, 91 and 92 are closely related. The provisions deal with requests for arrest and surrender of suspects. According to Article 89(1), State Parties “shall … comply with requests for arrest and surrender.”4 Where there are competing requests for extradition, State Parties must apply Article 90 and give priority to the ICC’s request in certain circumstances. Article 91 specifies detailed requirements for the contents of a request for arrest and surrender, whereas Article 92 sets out States’ obligations with respect to provisional requests.

Under Article 87(7) the Court has the power to refer a matter to the Assembly of State Parties, or the Security Council, where a State Party fails to comply with a request to cooperate contrary to the provisions of the Statute.

The objects of the Rome Statute are stated in the Preamble to the Statute. According to Article 31(2) of the Vienna Convention, the preamble of a treaty is to be considered as part of the context for the purpose of the interpretation of the treaty. The Preamble to the Rome Statute recognizes that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”5 Further, it provides that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”6

Part 2: Observance of Treaties

The decision of the AU not to cooperate with the ICC defeats the objects and purposes of the Rome Statute. There is clear inconsistency between the AU Resolution and the Statute. African States cannot comply with both instruments. Although the AU Resolution may have been validly enacted pursuant to Article 9(g) of the Constitutive Act of the African Union, the passage of the Resolution does not override the Rome Statute.7

A fundamental principle of customary law is that treaties must be observed. This is known as the so-called pacta sunt servanda principle. The words pacta sunt servanda mean that “promises shall be kept.” Article 26 of the Vienna Convention codifies this principle and emphasizes the importance of the sanctity of treaties. It states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”8 The third paragraph of the Preamble of the Vienna Convention also expressively refers to the principle, noting that “the principles of free consent and good faith and the pacta sunt servanda rule are universally recognized.”9 This is primarily designed to ensure predictability in international law: States cannot renege upon their obligations under a treaty and must refrain from any acts which would frustrate the objects of the treaty.10

Article 18 of the Vienna Convention reiterates this principle, stating that:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.11

Even though Article 18 refers to acts which are undertaken prior to the entry into a treaty, the basic obligation to refrain from acts which defeat the purposes of a treaty continues to have meaningful force after the adoption of a treaty. This is a universally applicable rule under customary law, extending to all treaties and prevailing throughout the life of a treaty

In more concrete terms, the requirement to perform a treaty in good faith means that treaty rights and obligations are put in effect. The ICJ has interpreted good faith in the context of Article 26 to mean that it “obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.”12 Thus, treaty parties must observe their obligations in the spirit of the treaty as well as according to the letter.13

The AU Resolution is contrary to the basic principles of pacta sunt servanda. It purports to unduly curtail States’ freedom to execute their treaty obligations under the Rome Statute in good faith. This constitutes a blatant violation of Article 26.

Moreover, according to Article 27 of the Vienna Convention, treaty parties cannot invoke the provisions of their internal law to justify their failure to perform the treaty. Article 27 may be viewed as a further expression of the pacta sunt servanda principle. This essentially means that on the “international level international law is supreme.”14 The application of Article 27 necessarily leads to the conclusion that African States are precluded from arguing that the AU Resolution has become part of their internal law and thus exonerates them from the provisions of the Rome Statute.

Part 3: Conclusion

According to the Vienna Convention, African State Parties to the Rome Statute are required to observe the pacta sunt servanda principle. The AU Resolution is aimed at limiting the reach of the ICC’s jurisdiction in the wider African region and flows from a misinterpretation of the Rome Statute. As such, the Resolution is incompatible with the objects and purposes of the Statute, and poses a threat to the legitimacy of the ICC. This essay has demonstrated that African States are, as a matter of international law, not entitled to withdraw from their obligations under the Rome Statute and cannot raise the AU Resolution as a defence to their breach of these obligations. The African Union has no right to interfere with the operation of the Statute and cannot shield Al Bashir from prosecution.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Decisions and Declarations, Assembly of the African Union, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Assembly/AU/Dec.245(XIII) (July 1–3, 2009), available online (accessed at 11 January 2011). ↩
2.
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, available online (accessed at 11 January 2011). ↩
3.
Rome Statute of the International Criminal Court, art. 86, U.N. Doc. A/CONF.183/9 (1998) (entered into force July 1, 2002) ↩
4.
Id. at art. 89(1). ↩
5.
Id. at preamble. ↩
6.
Id. at preamble. ↩
7.
Constitutive Act of the African Union, July 11, 2000, O.A.U. Doc. No. CAB/LEG/23.15, available online (accessed at 11 January 2011). ↩
8.
Vienna Convention on the Law of Treaties, supra note 2, at art. 26. ↩
9.
Id. at preamble. ↩
10.
Waldock, Third Report on the Law of Treaties [1964] Yearbook of the ICL, vol II, p 7. ↩
11.
Vienna Convention on the Law of Treaties, supra note 2, at art. 18. ↩
12.
Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7, 79 ↩
13.
Mark Eugen Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 367. ↩
14.
Mark Eugen Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 375. ↩

Cecilia
878
January 27, 2011
8:05 am

I. Introduction

Contracting parties to the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter “The Genocide Convention”) have an obligation to implement the arrest warrant for genocide issued by the International Criminal Court (ICC) against President Omar Al Bashir. This obligation was triggered by the Security Council under Article 13b of the Rome Statute.1 The Security Council deemed the situation in Sudan as constituting “a threat to international peace and security,” and therefore referred the matter to the Prosecutor.2 It is important to note that Article 25 of the U.N. Charter creates an obligation for the members of the United Nations to “accept and carry out the decisions of the Security Council.”3 Accordingly, Security Council Resolution 1593 established a duty for cooperation with the International Criminal Court on all parties to the Genocide Convention since they are also members of the United Nations.4 Thus, this comment will address how Article VI of the Genocide Convention and Security Council Resolution 1593 provide the basis for cooperation with the International Criminal Court.

Moreover, the judgment of the International Court of Justice (ICJ) in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) provides the framework for analyzing the obligations of contracting parties to the Genocide Convention.5 The Bosnia v. Serbia judgment is a guiding instrument for the application of the Genocide Convention.6

This comment will address the obligation to punish genocide since the requisite elements to prevent genocide have not been established against any contracting party to the Genocide Convention other than Sudan.7 The ICJ makes a distinction between the obligation to prevent genocide and the obligation to punish genocide in Bosnia v. Serbia.8 Because “a state’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed,” it is imperative to establish when the contracting state had this knowledge before charging it with a violation to prevent genocide.9 In order to establish the requisite foreknowledge in Bosnia v. Serbia, the ICJ cited to evidence that General Wesley Clark had pointedly asked President Milošević why he allowed General Mladić to perpetrate the massacre at Srebrenica for which Milošević’s response was that “[Mladić] didn’t listen to me.”10 In holding that Serbia violated its obligation to prevent the Srebrenica genocide, the ICJ relied on Milošević’s own observations to Mladić and the international concern about what would likely happen at Srebrenica.11

In Sudan’s case, international concern can arguably be said to have been sparked when United Nations Coordinator for Sudan, Mukesh Kapila, said “the conflict had created the worst humanitarian situation in the world.”12 However, the influence exerted by Serbia over those who devised and implemented the genocide in Srebrenica and the foreknowledge exhibited by Milošević has not been established against any contracting party to the Genocide Convention in the Sudan situation. Consequently, this comment will only address the obligation to punish genocide to establish that contracting parties are required to implement the arrest warrants issued by the International Criminal Court.

II. Contracting Parties to the Genocide Convention have an Obligation to Implement the Arrest Warrants Issued by the ICC Even Though They are Not Parties to the Rome Statute

Article VI of the Genocide Convention is instrumental in establishing the basis for cooperation with the ICC among parties to the Genocide Convention. Article VI of the Genocide Convention provides in relevant part:

“Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”13 (Emphasis Added)

As a threshold matter for its applicability, Article VI requires that a person be charged with genocide. In Bosnia v. Serbia, the ICJ did not provide an interpretation for this element of Article VI, however, “it can be concluded from its findings that an indictment by the ICTY for genocide clearly suffices as a charge to genocide.”14 Similarly, an indictment by the ICC for genocide against Al Bashir would be sufficient to satisfy this element of Article VI.

A. The ICC Qualifies as an International Penal Tribunal within the Meaning of Article VI of the Genocide Convention

In applying Article VI to the situation in Darfur, the first element that must be established is that the ICC qualifies as an international penal tribunal. The ICC is the closest model of an international penal tribunal envisaged by the drafters of Article VI of the Genocide Convention.15 At the time of the adoption of the Genocide Convention there was not an international penal court in existence, nevertheless under Article VI the ICC should be regarded as an international penal tribunal. In interpreting the term “international penal tribunal” the ICJ declared that an “international penal tribunal within the meaning of Article VI must at least cover all international criminal courts created after the adoption of the Convention of potentially universal scope, and competent to try the perpetrators of genocide or any of the other acts enumerated in Article III.”16

The ICC qualifies as an international penal tribunal since it came into being after the adoption of the Genocide Convention when the Rome Statute of the International Criminal Court entered into force on July 1, 2002.17 The drafters of the Genocide Convention probably thought the court would be created by treaty, which is supported by the language in Article VI: “those Contracting Parties which shall have accepted [the] jurisdiction of the international penal tribunal.”18 Unlike the ICTY which was created pursuant to a United Nations Security Council Resolution, the ICC more closely fits the model of the international penal tribunal because it was created by treaty.19

Moreover, the ICJ failed to interpret how the ICTY is “of [potential] universal scope.”20 The ICJ is silent on how the ICTY met the universal scope standard but if applied in terms of jurisdiction the ICC strongly meets this element.21 The ICC exercises it jurisdiction where the crime has been committed by a national of a state party to the Rome Statute or on the territory of a state party, though jurisdiction can also be triggered by a Security Council Resolution, as in the present case.22 When jurisdiction is triggered by the Security Council, “any territory or national limitation disappears,” and the ICC can be said to have universal jurisdiction.23

Finally, the ICC is competent to try the perpetrators of genocide, including President Al Bashir. The ICC has jurisdiction over the crime of genocide under Articles 5 and 6 of the Rome Statute.24 Article 5 clearly establishes the Court’s jurisdiction with respect to genocide.25 Article 5 of the Rome Statute states “[t]he Court has jurisdiction in accordance with this Statute with respect to… the crime of genocide.”26 Article 6 of the Rome Statute defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group condition of life calculated to bring about its physical destruction in whole or in part….”27 The arrest warrant issued by the ICC on July 12, 2010 found that there were reasonable grounds to believe that Al Bashir was criminally responsible for the charges of genocide under article 6(a), 6(b) and 6(c) of the Statute.28 The arrest warrant demonstrates that the ICC is appropriately exercising its jurisdiction over the crime of genocide with respect to the situation in Sudan. Thus, the ICC is competent to try Al Bashir for genocide and is an international penal tribunal within the meaning of Article VI.

B. The Obligation to Implement the Arrest Warrants Issued by the ICC Stems from Acceptance of the ICC’s Jurisdiction by Contracting Parties to the Genocide Convention

In order to establish that contracting parties to the Genocide Convention have an obligation to cooperate with the ICC, the second element that must be established is that those states have accepted the jurisdiction of the ICC. States that are parties to the Genocide Convention have an obligation to cooperate with an international penal tribunal (i.e., the ICC) only where the parties have accepted the jurisdiction of that international penal tribunal.29

Parties to the Genocide Convention have accepted the jurisdiction of the ICC irrespective of whether they are state parties to the Rome Statute. The ICC’s jurisdictional authority stems from Article 13(b) of the Rome Statute as a result of Security Council Resolution 1593.30 Article 13(b) states that the ICC may exercise its jurisdiction with respect to genocide, crimes against humanity, war crimes, or the crime of aggression if “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”31 In referring the matter to the ICC, the Security Council granted jurisdictional authority to the ICC concerning the situation in Sudan. Under Article 25 of the U.N. Charter, all Members of the United Nations “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”32 Security Council Resolution 1593 established a duty for cooperation with the International Criminal Court on all parties to the Genocide Convention since they are members of the United Nations.33

Consequently, contracting parties to the Genocide Convention have accepted the ICC’s jurisdiction over the situation in Darfur. Additionally, the Genocide Convention comes into effect when the arrest warrant issued by the ICC includes the charge of genocide, which would necessarily bring it under the realm of Article VI.34 Because all of the parties to the Genocide Convention are U.N. members, which have accepted the ICC’s jurisdiction, the contracting parties to the Genocide Convention have an obligation to cooperate with the ICC in arresting President Al Bashir.

Since the arrest warrant for President Al Bashir for crimes against humanity (murder, extermination, deportation, torture and rape) and war crimes (planning attacks on civilians and looting) was issued by the ICC on March 4, 2009, Al Bashir has visited five countries that are contracting parties to the Genocide Convention.35 More importantly, Al Bashir has visited three countries that are contracting parties to the Genocide Convention since the ICC added the crime of genocide to the arrest warrant issued on July 12, 2010, which consequently requires those states to carry out their obligations under Article VI.36

The countries that are in violation of their obligation to implement the arrest warrant for genocide are Ethiopia, Libya and Saudi Arabia.37 Al Bashir visited Ethiopia on November 22, 2010, for the Inter Governmental Authority for Development (IGAD) Summit where he was welcomed by high ranking government officials.38 Similarly, on August 6, 2010, Al Bashir returned to Sudan after a two-day visit in Libya where he met with Libyan leader Al Gaddafi.39 In November 2010, Bashir traveled to Saudi Arabia on a Muslim pilgrimage where he was again not arrested.40 As contracting parties to the Genocide Convention, Ethiopia, Libya and Saudi Arabia have violated their obligation under Article I of the Genocide Convention to punish genocide.41 These states were obligated to arrest Al Bashir while he was present in those countries and turn him over to the ICC.42 The Ethiopian and Libyan government should have effectuated the arrest of Al Bashir when he met with high ranking officials in both countries. Additionally, Saudi Arabia should have reasonably determined his whereabouts and arrested him.43 Because Ethiopia, Libya, and Saudi Arabia are contracting parties to the Genocide Convention and have accepted the jurisdiction of the ICC, they were under a duty to cooperate with the ICC in arresting Al Bashir but failed in that duty.

It is beyond the scope of this paper to determine what damages are appropriate for those parties in breach of their duties under the Genocide Convention. Nevertheless, in deterring other states from violating their obligations under the Genocide Convention, the international community should impose monetary sanctions or economic sanctions on those states in violation of their obligation to prevent and punish genocide.

III. Conclusion

Under Article VI of the Genocide Convention, contracting states are obligated to cooperate with the ICC because Al Bashir has been charged with the crime of genocide, and the ICC is an international penal tribunal to which acceptance of its jurisdiction has been established. The Genocide Convention and the Security Council referral created an obligation for contracting parties to the Genocide Convention to fully cooperate with the ICC in effectuating the arrest of President Al Bashir.

Bosnia v. Serbia provides us with the framework for analyzing the obligations of contracting states to prevent and punish genocide under the Genocide Convention.44 In light of the judgment in Bosnia v. Serbia, contracting parties to the Genocide Convention have an obligation to implement the arrest warrant for genocide issued by the International Criminal Court against President Al Bashir.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Rome Statute of the International Criminal Court art. 13(b), July 17, 1998 [hereinafter Rome Statute], also available here. See also Salvatore Zappala, International Criminal Jurisdiction Over Genocide, 275-276 (Paola Gaeta ed., Oxford University Press 2009). ↩
2.
S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31 2005). ↩
3.
U.N. Charter art. 25, available online. ↩
4.
Convention on the Prevention and Punishment of the Crime of Genocide art. Article 13(b), Dec. 9, 1948 [hereinafter Genocide Convention]. See also Göran Sluiter, Using the Genocide Convention to Strengthen Cooperation with the ICC in the Al Bashir Case, 8 J. Int’l Crim. Just. 365, 372 (2010). ↩
5.
Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) [hereinafter Bosnia v. Serbia], Judgment, 2007 I.C.J. (February 26), available online. See also William A. Schabas, Genocide in International Law 520-525 (2d ed. 2009). ↩
6.
Zappala, supra note 1, at 276. ↩
7.
Roger S. Clark, State Obligations Under the Genocide Convention in Light of the ICJ’s Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 61 Rutgers L. Rev. 75, 106 (2008). See also International Criminal Court, Pre-Trial Chamber I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (July 12, 2010), ICC-02/05-01/09. Available online. See also Genocide Convention, supra note 4, State Parties, available online. (As a party to the Genocide Convention, Sudan is in violation of the Genocide Convention; however this comment will address contracting parties other than Sudan). ↩
8.
Bosnia v. Serbia (2007), supra note 5, at para. 425. ↩
9.
Id., para. 431. ↩
10.
Id., para. 437. ↩
11.
Id., para. 438. ↩
12.
Mass rape atrocity in West Sudan, BBC, Mar. 19, 2004, available online (last visited Jan. 2, 2011). ↩
13.
Genocide Convention, supra note 4, art. Article VI. ↩
14.
Sluiter, supra note 4, at 373. ↩
15.
Zappala, supra note 1, at 275. ↩
16.
Bosnia v. Serbia (2007), supra note 5, at para. 445. ↩
17.
About the Court, available online (last visited Jan. 3, 2011). ↩
18.
Bosnia v. Serbia (2007), supra note 5, at para. 445. ↩
19.
See Schabas, supra note 5, at 114. See also Zappala, supra note 1, at 275. See also Rome Statute, supra note 1. ↩
20.
Bosnia v. Serbia (2007), supra note 5, at para. 445. ↩
21.
Id. ↩
22.
Zappala, supra note 1, at 275. ↩
23.
Id. ↩
24.
Id. ↩
25.
See Rome Statute, supra note 1, art. 5 (Crimes within the jurisdiction of the Court provides: “1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide….”). ↩
26.
Id. ↩
27.
Id., art. 6. ↩
28.
Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, supra note 11, at 4. ↩
29.
Bosnia v. Serbia (2007), supra note 5, at para. 447. ↩
30.
Rome Statue, Article 13 Exercise of Jurisdiction provides: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if…(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations….” ↩
31.
See Rome Statute, supra note 1, art. 13(b). See also U.N. Charter, supra note 3, art. 39. ↩
32.
U.N. Charter, supra note 3, art. 25. ↩
33.
Sluiter, supra note 4, at 372. ↩
34.
Id. at 372. ↩
35.
European Parliament resolution of 9 September 2010 on Kenya: failure to arrest President Omar al-Bashir, at 2, P7_TA-PROV(2010)0315, available online. (President Bashir has visited the following contracting parties to the Genocide Convention: Ethiopia, Egypt, Libya, Saudi Arabia, and Zimbabwe). See also Genocide Convention, supra note 4, State Parties, available online. ↩
36.
Sluiter, supra note 4, at 372. ↩
37.
Sudan’s Bashir arrives in Ethiopia for IGAD Summit, Sudan Tribune, Nov. 22, 2010, available online (last visited Jan. 3, 2011). See also President Al-Bashir returns home after visit to Libya, Sudan Radio, Aug. 6, 2010, available online (last visited Jan. 3, 2011). See also Sudanese president in Saudi Arabia to perform pilgrimage, Sudan Tribune, Nov. 14, 2010, available online (last visited Jan. 3, 2011). ↩
38.
Sudan’s Bashir arrives in Ethiopia for IGAD Summit, Sudan Tribune, Nov. 22, 2010, available online (last visited Jan. 3, 2011). ↩
39.
President Al-Bashir returns home after visit to Libya, Sudan Radio, Aug. 6, 2010, available online (last visited Jan. 3, 2011). ↩
40.
Sudanese president in Saudi Arabia to perform pilgrimage, Sudan Tribune, Nov. 14, 2010, available online (last visited Jan. 3, 2011). ↩
41.
Genocide Convention, supra note 4, art. I. ↩
42.
Bosnia v. Serbia (2007), supra note 5, at para. 446. ↩
43.
See Id. at para. 448. ↩
44.
Bosnia v. Serbia (2007), supra note 5, at para. 425-450. ↩

danterzian
876
January 26, 2011
3:37 pm

I agree, in part, with Professor Schabas: I do not believe genocide has occurred in The Sudan. I ground my belief in the fact that the Commission of Inquiry on Darfur “concluded that the Government of the Sudan has not pursued a policy of genocide.”

However, unlike Professor Schabas, I am not entirely sure if genocide needs to actually occur. Professor Schabas recently commented that if the Genocide Convention is implicated by an arrest warrant charging genocide—without genocide actually being established—”perhaps we should change [the Genocide Convention’s] name to the Convention for the Prevention and Punishment of Situations Where Genocide Might Have Taken Place.”

In response to Professor Schabas’ comment, I believe the full title of the Genocide Convention already implies that genocide does not need to actually occur. The Convention’s full title is the “Convention on the Prevention and Punishment of the Crime of Genocide.” The word “[p]revention” implies that genocide does not need to actually occur. Rather, the word suggests that something close to genocide—without actually being genocide—implicates the Convention in order to “prevent” genocide from occurring.

Schabas
877
(a reply to 876)
January 27, 2011
6:21 am

Dear Dantzerian,

You are quite right to say that the obligation to prevent genocide means that obligations under the Convention arise before genocide is actually committed. We don’t disagree on this.

In my article, I was addressing the obligations that arise from article VI of the Convention. Its main purpose is to govern the jurisdiction of criminal courts with responsibility for prosecuting genocide. Some of the other experts seem to have extrapolated from this provision the existence of a duty to cooperate with the International Criminal Court.

Assuming, arguendo, that there is indeed such an implied duty in article VI of the Genocide Convention, the question that I am asking is whether such an obligation arises simply because the Prosecutor and the Pre-Trial Chamber allege that genocide may have been committed. That is not the same thing as saying that there is a duty to prevent genocide prior to its commission.

Suppose a State party to the Genocide Convention (but not to the Rome Statute), and not subject to the cooperation requirement imposed by the Security Council resolution, refuses to cooperate with the International Criminal Court in the Bashir arrest warrant. Then, another State party to the Genocide Convention decides to sue it before the International Criminal Court in accordance with article XI of the Convention for violating article VI of the Convention. In the meantime, the Pre-Trial Chamber holds a confirmation hearing and decides to throw out the genocide charge. A careful reading of the two Pre-Trial Chamber arrest warrant decisions (not to mention the abundant UN materials, including the 2005 report and the more recent documentation) suggests this would be a likely outcome. Is it really plausible that the International Court of Justice would find that a State party to the Genocide Convention was in breach of article VI after the International Criminal Court had ruled that there were not ‘substantial grounds’ (the text for the confirmation hearing) to consider that Bashir had committed genocide?

There seems to be something wrong with claiming there is a violation of the Genocide Convention simply because the Prosecutor has managed to establish a relatively low evidentiary standard for issuance of an arrest warrant.

danterzian
875
January 25, 2011
7:35 pm

Personal Immunity and President Omar Al Bashir: An Analysis Under Customary International Law and Security Council Resolution 1593

Argument: Although customary international law provides heads of state with personal immunities that prohibit an international tribunal from indicting, arresting or prosecuting them, the Security Council referral of the Darfur conflict to the ICC removed President Al Bashir’s personal immunity, thus enabling the ICC to legally indict, arrest and prosecute Al Bashir.

Introduction

Darfur is rife with crime, “including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement.”1 In Security Council Resolution 1593, the United Nations Security Council referred the situation in Darfur existing since July 1st, 2002 (the “Darfur conflict”), to the International Criminal Court (“ICC”).2 The ICC subsequently indicted Sudanese President Omar Al Bashir for committing war crimes, crimes against humanity and genocide and later issued a warrant for his arrest.3 However, the ICC’s indictment and arrest warrant may violate international law because President Al Bashir may have personal immunity.

I argue below that current heads of state like President Al Bashir have inviolate personal immunities under customary international law that absolutely prohibit an international criminal tribunal, such as the ICC, from indicting, arresting or prosecuting them. However, I also argue that the UN Security Council overrode customary international law and removed President Al Bashir’s personal immunity for the Darfur conflict before the ICC (the “ICC-Darfur matter”). With Al Bashir’s personal immunity removed for the ICC-Darfur matter, the ICC can legally indict, arrest and prosecute Al Bashir for the crimes he committed in the Darfur conflict.

This Comment will proceed in the following manner. Part I provides background information on international law and immunities under customary international law. Part II argues that, under customary international law, current heads of state have inviolate personal immunities that absolutely prohibit an international tribunal from indicting, arresting or prosecuting them. Parts II.A and B argue that international tribunals created by the Security Council and the treaty-based ICC—both of which remove personal immunities for crimes within their jurisdiction—have not established a new customary international law removing personal immunities. Part II.C argues that the International Court of Justice (“ICJ”) has not acknowledged the existence of a new customary international law removing personal immunities. Finally, Part II.D argues that the rationale for providing heads of state with personal immunities still exists before international tribunals.

Lastly, Part III argues that the Security Council implicitly removed government officials’ personal immunities for the ICC-Darfur matter by granting the ICC substantial jurisdiction to adjudicate serious violations of international humanitarian law. Furthermore, Part III.C argues that Security Council implicitly confirmed this removal of personal immunities in Security Council Resolution 1593 and in its actions taken and statements made after Resolution 1593.

I. Background on international law and immunities

International law derives from primarily two sources: Treaties and customary international law.4 Treaties are international agreements that contain “expressly accepted obligations.”5 The treaties’ obligations legally bind only the nations party to the agreement—not non-parties.6 However, it’s possible for a treaty’s principles to legally bind states not party to the treaty if the treaty’s principles transform into customary international law.7

Unlike treaties, customary international law legally binds all states, “regardless of whether a state has expressly accepted it.”8 Customary international law is established when (1) there is “a widespread and uniform practice of nations” and (2) nations “engage in th[at] practice out of a sense of legal obligation [(i.e., opinio juris)].”9 Additionally, although establishing customary international law depends on the practice of nations generally, it particularly depends on the practice of the most powerful nations.10 To determine whether a customary international law is established, courts examine custom, general principles of law, international conventions, judicial decisions and treaties.11 Furthermore, a treaty may, by itself, establish customary international law if it achieves widespread and uniform acceptance.12

A. Immunities

Under well-established principles of customary international law, government officials possess immunities.13 These immunities come in two types: Functional immunities and personal immunities.14 Both types have the same effect: They each prohibit international and foreign national criminal tribunals from indicting, arresting or prosecuting a government official.15 Although functional and personal immunities have the same effect, they differ in whom, what and how long they protect government officials. Functional immunities protect all government officials indefinitely, but its protection is limited to only official government acts.16 Thus, if a government official commits an international core crime (i.e., genocide, crime against humanity, war crime or torture), the official does not have functional immunity for that crime because it is not considered an official government act.17 Additionally, functional immunities protect official government acts indefinitely.18

In addition to functional immunities, government officials may be simultaneously protected by personal immunities.19 Unlike functional immunities, personal immunities protect only a few high-ranking government officials, such as heads of state, heads of government and ministers for foreign affairs.20 Furthermore, personal immunities protect all their acts—official and unofficial.21 However, personal immunities only protect these officials while they hold the high-ranking position.22 Thus, after a high-ranking official vacates her position, she is only protected by functional immunity.23

Although personal immunities have historically protected all acts, some argue that personal immunities no longer protect all acts because a new customary international law has emerged.24 Specifically, they argue that personal immunities do not protect an official who has committed an international core crime from indictment, arrest or prosecution by an international tribunal.25 However, I argue below that personal immunities still protect all acts—including international core crimes—and that no new customary international law has emerged.

II. Inviolate personal immunities under customary international law

Current heads of state has inviolate personal immunities under customary international law: Personal immunities are not removed for international core crimes before an international tribunal. Although the Security Council and a treaty, the Rome Statute, have created international tribunals that remove personal immunities, these tribunals have not established a new customary international law because they are either not a state practice or not sufficiently accepted. Additionally, contrary to what some have argued, the ICJ Arrest Warrant26 case does not acknowledge the existence of a new customary international law removing personal immunities because the court’s dicta was merely referring to examples of international tribunals where personal immunities were removed—not acknowledging the existence of a new customary international law.

A. Security Council

The international tribunals created by the Security Council have not established a new customary international law that removes personal immunities for international core crimes before international tribunals. Although the Security Council removed personal immunities in these international tribunals, they do not establish a new customary international law because they are not a state practice and do not have opinio juris. Furthermore, several Security Council resolutions indicate that these international tribunals are merely exceptions to customary international law and do not establish a new customary international law.

1. Security Council-created international tribunals do not establish customary international law

The Security Council has created or co-created three international tribunals that remove personal immunities for “serious violations of international humanitarian law” in specific conflicts: The International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”) and the Special Court for Sierra Leone (“SCSL”).27 These tribunals all have the same statutory provision removing personal immunities: “The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”28

The practice of removing personal immunities in the ICTY, ICTR and SCSL does not establish customary international law because it doesn’t satisfy customary international law’s requirements: It is not a practice by states, and it does not have opinio juris. First, the practice of removing personal immunities in the ICTY, ICTR and SCSL is not a state practice. Customary international law “arises out of state practice”—not “UN Resolutions and other majoritarian political documents.”29 Since the ICTY, ICTR and SCSL were either created or co-created by Security Council resolutions,30 they are not a state practice and thus cannot establish customary international law.

Additionally, the practice of removing personal immunities in the ICTY, ICTR and SCSL does not have opinio juris because states do not comply with the Security Council’s removal of personal immunities out of a sense of legal obligation under customary international law. Rather, states comply with the removal of personal immunities because they have a legal obligation under Articles 25 and 103 of the UN Charter to accept the Security Council’s removal of personal immunities.31 Complying with legal obligations under the UN Charter does not establish opinio juris.32 Instead, opinio juris exists when states feel psychologically bound to a widespread and uniform practice—not when they are legally bound to a Security Council resolution.33

Furthermore, in several Security Council resolutions, the Security Council indicated that these tribunals are exceptions to the customary international law of inviolate personal immunities and do not establish a new customary international law that removes personal immunities for international core crimes before an international tribunal. For example, in Security Council Resolution 1593, the Council stated: “[Officials] from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions....”34 Similarly, in Security Council Resolution 1422, the Council declared that the ICC shall not exercise jurisdiction over government officials of states that are not party to the Rome Statute for their “acts or omissions relating to a United Nations established or authorized operation....”35 Thus, since these resolutions prohibit the ICC from even exercising jurisdiction over non-parties, the Security Council clearly did not intend its practice of removing personal immunities in the ICTY, ICTR and SCSL to establish a customary international law removing personal immunities before any international tribunal.

2. Specific cases from these tribunals are irrelevant

Although I argue that these international tribunals do not establish customary international law, some scholars incorrectly argue that specific cases from these tribunals—in addition to the tribunals themselves—help establish customary international law. Specifically, they argue that a customary international law that removes personal immunities for international core crimes before an international tribunal has been established because (1) in the ICTY case of Prosecutor v. Milošević36, the ICTY didn’t even consider the possibility of personal immunity barring the indictment and (2) in the SCSL case of Prosecutor v. Taylor37, the SCSL held the head of state did not have personal immunity.38

This argument is mistaken because specific cases of the ICTY and SCSL are irrelevant to establishing customary international law.39 Rather, these cases are merely illustrations of each court’s respective statute in action and do not provide an additional basis for establishing customary international law. Thus, the ICTY didn’t consider personal immunity potentially barring the head of state’s indictment because the court applied the ICTY Statute, which clearly removed his personal immunity.40 Similarly, the SCSL held the head of state did not have personal immunity because it applied the SCSL Statute, which clearly removed his personal immunity.41

B. The Rome Statute

Similar to the three international tribunals created by the Security Council, government officials do not have personal immunities for international core crimes before the ICC.42 However, unlike the three Security Council-created tribunals, the ICC is based on a treaty, the Rome Statute, that is ratified by 114 countries.43 The Rome Statute, as a treaty, cannot remove President Al Bashir’s personal immunity because Sudan is not a party to the Rome Statute. However, if the Rome Statute’s principle of removing personal immunities for international core crimes before the ICC has become customary international law, Al Bashir would not have personal immunity for the ICC-Darfur matter.

I argue that the Rome Statute’s principle of removing personal immunities has not established a customary international law because (1) the Rome Statute lacks widespread and universal acceptance, (2) the Rome Statute itself limits its application solely to its parties and (3) several parties to the Rome Statute do not practice this principle in matters involving non-parties. Furthermore, comparing the Rome Statute to the Genocide Convention helps illustrate why the Rome Statute has not established customary international law.

First, the Rome Statute does not have widespread and universal acceptance because nearly half the world and the world’s most powerful countries reject it. Only 114 nations accept the Rome Statute,44 which is barely a majority of the world’s roughly 192 countries.45 Furthermore, six G20 states reject the Rome Statute.46 These six G20 states are China, India, Indonesia, Saudi Arabia, Turkey and the United States.47 The population of these six states alone amounts to nearly half the world.48 Thus, the Rome Statute cannot establish customary international law because it lacks the crucial requirement of widespread and uniform acceptance by both the world’s most powerful states and states generally.

In addition to the Rome Statute lacking sufficient acceptance to establish customary international law, the Rome Statute itself declares that its practice of removing personal immunities is not customary international law because Article 98(1) of the Rome Statute recognizes that officials of non-party states still have personal immunities.49 Article 98(1) of the Rome Statute states: “The [ICC] may not proceed with a request for surrender…[when it] 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....”50 Thus, the Rome Statute expressly recognizes that an official of a non-party state may have immunity under customary international law that law prohibits the ICC from arresting her.51

Additionally, several states party to the Rome Statute do not practice a principle of removing the personal immunities of government officials of non-party states before the ICC. For a treaty’s principle to become a customary international law, states party to the treaty must actually practice that principle.52 Yet, three African states that are party to the Rome Statute refuse to practice the principle of removing the personal immunities of non-parties that were referred to the ICC. Chad, Ghana and Kenya, all of whom are party to the Rome Statute, believe Al Bashir has personal immunity and have refused to comply with the ICC’s warrant for Al Bashir’s arrest.53

Finally, comparing the Rome Statute to the Genocide Convention helps illustrate why the Rome Statute has not become customary international law.54 Unlike the Rome Statute, there is a strong argument that the Genocide Convention has become customary international law. Comparatively, the Genocide Convention has significantly greater acceptance than the Rome Statute: 141 states have ratified the Genocide Convention, including nineteen G20 states.55 Additionally, the Genocide Convention itself purports to apply some of its principles to all states, including states not party to the Genocide Convention,56 whereas the Rome Statute limited its application solely to parties.

C. ICJ Arrest Warrant case

Some scholars incorrectly argue that dicta in the ICJ Arrest Warrant case acknowledges the existence of a new customary international law that removes personal immunities for international core crimes before an international tribunal. However, this argument is incorrect because it is an unsupported and unnecessarily expansive reading of the ICJ’s dicta. In the Arrest Warrant case, the ICJ addressed the issue of whether a minister of foreign affairs had personal immunity for international core crimes before a national court.57 The ICJ, while answering in the negative, stated in passing: “[A] Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”58 To support this statement, the court cited the ICTY and ICTR Statutes and the Rome Statute.59

This dicta should not be interpreted as the ICJ acknowledging the existence of a new customary international law because the court was merely referring to examples of where personal immunities are removed—not stating that these examples have established a new customary international law.60 Additionally, even if this dicta could be interpreted as the court mistakenly acknowledging the existence of a new customary international law, the dicta still does not acknowledge a customary international law that removes the personal immunities of heads of state. Rather, the court expressly limited its dicta to removing only the personal immunities of ministers of foreign affairs.61 Furthermore, it’s reasonable to limit this dicta to ministers of foreign affairs because the rationale for providing personal immunities is stronger for heads of state than it is for ministers of foreign affairs.

D. Rationale for providing personal immunities

Current heads of state should have inviolate personal immunities because the rationale for providing personal immunities still exists before an international tribunal, even if a head of state committed international core crimes. Current heads of state have personal immunities to address two concerns. And although one of those concerns does not exist before an international tribunal, the other concern still remains. Thus, to address this remaining concern, current heads of state need personal immunities before international tribunals.

Customary international law provides personal immunities for primarily two reasons: (1) To prevent a foreign state from exercising—and potentially abusing—jurisdiction over another state’s high-ranking government official and (2) to protect a state’s interests in the international community by protecting its “prime representative.”62 Some incorrectly argue that the rationale for personal immunity does not support granting heads of state personal immunities before international tribunals because there is no danger of other states abusing jurisdiction over a foreign official.63 Furthermore, they argue that international tribunals cannot exercise jurisdiction abusively because they “act on behalf of the international community as a whole to protect collective or even universal values.”64

This argument fails for three reasons: (1) It ignores personal immunities’ “prime representative” rationale, (2) it ignores the salient peacekeeping functions of providing a current head of state with inviolate personal immunity and (3) it ignores the danger of judicial tyranny. First, this argument only addresses one of the primary rationales for providing personal immunities: It entirely ignores the “prime representative” rationale. A head of state, as a country’s prime representative, needs inviolate personal immunity to effectively represent her state’s interests in international affairs.65 Allowing an international tribunal to prosecute a head of state—or even merely issue a warrant for her arrest—hinders her ability to represent her state’s interests in the international community.66 For example, if an international tribunal issues an arrest warrant for a current head of state, she may be reluctant to visit another country to discuss important matters of state interest, such as peace talks.67 Thus, even before international tribunals, heads of state, as their states’ prime representative, should have inviolate personal immunities so that they can fully represent their states’ interests in international affairs.68

In addition to ignoring the prime representative rationale, this argument also ignores the salient peacekeeping functions of personal immunities. Providing heads of state with inviolate personal immunities helps maintain both “international and internal peace.”69 Contrarily, if international tribunals could freely indict, arrest or prosecute current heads of state, it would substantially increase the risk of war or violence.70

Lastly, this argument ignores the inherent dangers of abuse by an unfettered international court. Removing personal immunities creates the danger of an international court abusing judicial process over a country’s head of state, thus “substituting the tyranny of judges for that of governments....”71

III. Security Council removed personal immunities

Since current heads of state have inviolate personal immunities under customary international law, the only way the ICC can legally indict, arrest or prosecute Al Bashir while he is president is if the Security Council’s referral of the Darfur conflict to the ICC overrode customary international law and removed his personal immunity. Although the Security Council did not expressly remove personal immunities for the ICC-Darfur matter,72 the Council implicitly removed these immunities because it invoked its Chapter VII powers under the UN Charter to grant substantial jurisdiction to the ICC to adjudicate serious violations of international humanitarian law. Furthermore, the Security Council did not expressly remove personal immunities both because it did not have the opportunity and because the Rome Statute already removed personal immunities for matters within the ICC’s jurisdiction. Additionally, the Security Council confirmed its removal of personal immunities both by implying that these immunities don’t exist under international law for the Rome Statute’s Article 98(1) and in statements by some of its members.

A. A Security Council referral can remove personal immunities

When the Security Council refers a situation to the ICC, the Council can override customary international law and remove the personal immunities of government officials of states not party to the Rome Statute.73 The Security Council has the power to refer any situation involving international core crimes to the ICC—even if the situation entirely involves states not party to the Rome Statute.74 In order to refer a situation to the ICC, the Security Council must invoke its Chapter VII powers under the UN Charter in the referral.75 The effect of a Security Council referral is that it allows the ICC to exercise its jurisdiction over all international core crimes committed in the referred situation, including crimes committed by government officials of states not party to the Rome Statute.76

Furthermore, a Security Council referral to the ICC can do more than just merely confer jurisdiction to hear a matter:77 It can also override customary international law and remove the personal immunities of government officials of states not party to the Rome Statute.78 The Security Council can remove the personal immunities of non-parties because the Council has substantial power when acting under Chapter VII of the UN Charter.79 For example, the Security Council invoked its Chapter VII powers to remove the personal immunities of government officials within the ICTY and ICTR’s jurisdiction.80

B. Security Council removed personal immunities in the ICC-Darfur matter

The Security Council removes government officials’ personal immunities whenever it invokes its Chapter VII powers to grant an international tribunal substantial jurisdiction to adjudicate serious violations of international humanitarian law. Thus, since the Security Council invoked its Chapter VII powers to grant the ICC substantial jurisdiction to adjudicate the serious violations of international humanitarian law that occurred in the Darfur conflict, the Council implicitly removed government officials’ personal immunities, including Al Bashir’s, in the ICC-Darfur matter.

1. Security Council’s prior removals of personal immunities

Whenever a conflict involves serious violations of international humanitarian law and the Security Council invokes its Chapter VII powers to grant an international tribunal substantial jurisdiction to adjudicate those violations, the Security Council removes personal immunities in that tribunal’s jurisdiction.81 For example, the Security Council created the ICTY and ICTR and co-created the SCSL to adjudicate serious violations of international humanitarian law.82 For all three tribunals, the Security Council removed government officials’ personal immunities within each tribunal’s jurisdiction.83 Contrastingly, when the Security Council co-created the Special Tribunal for Lebanon (“STL”), it did not remove government officials’ personal immunities because the conflict did not involve serious violations of international humanitarian law.

When the Security Council created the ICTY and ICTR and co-created the SCSL, the Council noted the existence of serious violations of international humanitarian law that necessitated creating the international tribunals.84 For example, when the Security Council created the ICTY, the Council:

[e]xpress[ed]…its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia,…including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ‘ethnic cleansing’, including for the acquisition and holding of territory....85

Similarly, when the Security Council created the ICTR, the Council “[e]xpress[ed]…its grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda....”86 Likewise, when the Security Council co-created the SCSL, the Council expressed “[d]eep concern[]…[with] the very serious crimes committed within the territory of the Sierra Leone....”87

In addition to the Security Council’s noting the existence of serious violations of international humanitarian law, the Council granted the ICTY, ICTR and SCSL substantial jurisdiction to adjudicate those violations. For example, the Security Council granted the ICTY and ICTR substantial subject matter jurisdiction to “prosecut[e]…serious violations of international humanitarian law committed in” Yugoslavia and Rwanda, respectively.88 Additionally, the Security Council granted substantial temporal jurisdiction to the ICTY for all crimes committed between January 1st, 1991, and a date to be later determined.89 Similarly, the Security Council granted substantial temporal jurisdiction to the ICTR for all crimes committed between January 1st, 1994, and December 31st, 1994.90 Furthermore, in granting this substantial jurisdiction to the ICTY and ICTR, the Security Council invoked its significant powers under Chapter VII of the UN Charter in an effort to “maintain[]…international peace and security.”91 Thus, since the Security Council granted the ICTY and ICTR substantial jurisdiction to adjudicate serious violations of international humanitarian law, the Council removed personal immunities within each tribunal’s jurisdiction.

Contrastingly, when the Security Council and the Lebanese government created the hybrid tribunal of the STL,92 the Council did not remove personal immunities of government officials for the STL’s jurisdiction93 because the conflict did not involve serious violations of international humanitarian law. Unlike the ICTY, ICTR and SCSL, the STL was not created to adjudicate systemic conflicts involving serious violations of international humanitarian law. Instead, the Security Council co-created the STL “to prosecute persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons.”94 This attack was not a serious violation of international humanitarian law.95 Furthermore, the Security Council did not even grant the STL subject matter jurisdiction over international crimes.96 Additionally, the Security Council limited the STL’s temporal jurisdiction primarily to the single date of February 14th, 2005.97 Thus, since the STL only had limited jurisdiction and no jurisdiction to adjudicate serious violations of international humanitarian law, the Security Council did not remove government officials’ personal immunities before the tribunal.

2. Security Council’s grant of jurisdiction to the ICC for the Darfur conflict

The Security Council removed personal immunities for the ICC-Darfur matter because it invoked its Chapter VII powers to grant the ICC substantial jurisdiction to adjudicate the Darfur conflict’s serious violations of international humanitarian law. Thus, the Security Council’s referral of the Darfur conflict to the ICC is akin to when the Council granted the ICTY, ICTR and SCSL substantial jurisdiction to adjudicate their respective conflicts.

Like the ICTY, ICTR and SCSL, the Security Council noted that the Darfur conflict involved serious violations of international humanitarian law. In referring the Darfur conflict to the ICC, the Security Council “note[d]…the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur,”98 which had concluded:

[T]he Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law,…including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement.... These acts were conducted on a widespread systematic basis, and therefore may amount to crimes against humanity.99

After noting the existence of serious violations of international humanitarian law in the Darfur conflict, the Security Council invoked its Chapter VII powers to grant the ICC substantial jurisdiction.100 The Security Council granted the ICC substantial subject matter jurisdiction to adjudicate all serious violations of international humanitarian law in the Darfur conflict.101 Additionally, the Security Council granted the ICC substantial temporal jurisdiction for all crimes committed “in Darfur since 1 July 2002....”102 Thus, since the Security Council invoked its Chapter VII powers to grant the ICC substantial jurisdiction to adjudicate serious violations of international humanitarian law, the Council implicitly removed government officials’ personal immunities for the ICC-Darfur matter.

Furthermore, the nature of a referral to the ICC explains why the Security Council implicitly removed personal immunities, as opposed to removing them expressly.103 First, the Security Council did not have an opportunity to expressly remove personal immunities. With the ICTY, ICTR, and SCSL, the Security Council created the tribunals and their governing legal frameworks.104 It was in these legal frameworks that the Security Council removed personal immunities.105 However, when the Security Council referred the Darfur conflict to the ICC, the ICC already existed and already had a governing legal framework, the Rome Statute. Thus, the Security Council did not have an opportunity to remove personal immunities because the ICC’s already-existing Rome Statute prohibited the Council from creating its own legal framework that expressly removed personal immunities. Moreover, the Rome Statute already expressly removed personal immunities for matters within its jurisdiction,106 thus negating the need for the Security Council to expressly remove them.

C. Security Council confirmed its removal of immunities

The Security Council confirmed its implicit removal of personal immunities for the ICC-Darfur matter in Security Council Resolution 1593 by implying that personal immunities do not exist under international law for Article 98(1) of the Rome Statute. Additionally, the Security Council also confirmed its removal of personal immunities in both its actions taken and statements made after Resolution 1593.

1. Article 98(1) of the Rome Statute

The Security Council confirmed its removal of government officials’ personal immunities in the ICC-Darfur matter by implying that these officials do not have personal immunities under international law for Article 98(1) of the Rome Statute. Article 98 of the Rome Statute contains two provisions limiting the ICC’s ability to arrest: Article 98(1), for when international law prohibits the ICC from arresting a person, and Article 98(2), for when an international agreement prohibits the ICC from arresting a person. In Security Council Resolution 1593, the Council implied that Article 98(1) doesn’t limit the ICC’s ability to arrest—even though Sudan is not a party to the Rome Statute. Thus, the Security Council implied that these officials do not have personal immunities under international law for the ICC-Darfur matter because the Security Council had removed them.

Article 98 of the Rome Statute limits the ICC’s ability to arrest in two circumstances, where requesting a state to arrest would make the prospective arresting state violate its obligations under international law or international agreements. The first circumstance, provided in Article 98(1), prohibits the ICC from requesting a state to arrest where that state has conflicting obligations under international law. Article 98(1) states: “The [ICC] may not proceed with a request for surrender or assistance 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…of a third State....”107 For this provision, “obligations under international law” include a state’s obligations under customary international law.108

Article 98(1) effectively prohibits the ICC from arresting the head of a state that is not a party to the Rome Statute because all states have an obligation under customary international law to not arrest her.109 Since the ICC does not have the capacity to make its own arrests, it must rely on states to effectuate arrests.110 Thus, when all states have an obligation under international law to not arrest the head of a non-party state, the ICC is effectively prohibited from arresting that head of state because there is no state capable of making the arrest.111 Furthermore, the ICC cannot even issue an arrest warrant for the head of a non-party state because it would tantamount to a “request” for all states to act inconsistently with their obligations under customary international law.112

The second circumstance limiting the ICC’s ability to arrest, provided in Article 98(2), prohibits the ICC from requesting a state to arrest where that state has conflicting obligations under international agreements. Article 98(2) states:

The [ICC] may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court....113

The Security Council confirmed its removal of government officials’ personal immunities for the ICC-Darfur matter because, in Resolution 1593, it implied that these officials do not have personal immunities for Article 98(1). In Security Council Resolution 1593, the Council stated that Article 98(2) limited the ICC’s ability to arrest because the “[international] agreements referred to in Article 98-2 of the Rome Statute [existed].”114 However, the Security Council did not state that Article 98(1) limited the ICC’s ability to arrest.115 Since the Security Council noted the existence of international agreements that triggered Article 98(2) and didn’t note the existence of personal immunities under international law that would trigger Article 98(1), the Security Council implied that it overrode customary international law and removed government officials’ personal immunities for the ICC-Darfur matter.

2. Subsequent resolutions and statements

The Security Council also confirmed its removal of government officials’ personal immunities in the ICC-Darfur Matter in both its actions taken and statements made after Resolution 1593. First, the Security Council has not acted in any way that even implies government officials have personal immunities for the Darfur matter.116 Furthermore, the Security Council has entirely ignored the African Union’s repeated urgings for the Council to publically declare that President Al Bashir has personal immunity.117

Additionally, statements by some Security Council members indicate that these members intended to remove personal immunities for the ICC-Darfur matter, even though these members abstained from the resolution referring the Darfur conflict to the ICC. These members stated that their abstention was solely due to political opposition to the ICC—not opposition to removing personal immunities. For example, United States representative Anne Woods Patterson explained why the United States abstained from the vote: “While the United States believed that a better mechanism would have been a hybrid tribunal in Africa, it was important that the international community spoke with one voice in order to help promote effective accountability.”118 Since all past Security Council-created international tribunals with jurisdiction for international core crimes removed personal immunities,119 the United States implicitly endorsed the removal of personal immunities for the Darfur Conflict.120

IV. Conclusion

The ICC can legally indict, arrest and prosecute President Al Bashir because the Security Council implicitly removed his personal immunity when it referred the Darfur conflict to the ICC. This removal of immunity is implied from the Security Council’s invoking its Chapter VII powers under the UN Charter to grant jurisdiction to the ICC to adjudicate the serious violations of international humanitarian law in the Darfur conflict. Furthermore, this removal of immunity is confirmed by the Security Council’s indicating that Al Bashir does not have personal immunity under international law for Article 98 of the Rome Statute. Additionally, it’s also confirmed by the Security Council’s subsequent actions and statements.

However, even though President Al Bashir does not have personal immunity before the ICC, current heads of state generally have inviolate personal immunity under customary international law because the Rome Statute lacks sufficient acceptance to establish a new customary international law that removes personal immunities. Thus, until the Rome Statute gains greater acceptance, the only way an international tribunal can indict, arrest or prosecute the current head of a state that is not party to the Rome Statute is if the Security Council removes her personal immunity.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Rep. of the Int’l Comm. of Inquiry on Darfur to the Secretary-General, 3, U.N. Doc. S/2005/60 (Feb. 1, 2005) [hereinafter Rep. of the Int’l Comm. of Inquiry on Darfur]. ↩
2.
S.C. Res. 1593, ¶ 1, U.N. Doc. S/RES/1593 (Mar. 31, 2005). ↩
3.
Genocide Continues as Sudan’s Indicted Leader Games World—ICC Prosecutor, United Nations (Dec. 9, 2010), available online. ↩
4.
E.g., Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, U. Chi. L. Rev. 1113, 1116 (1999); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665, 669 (1986). ↩
5.
Trimble, supra note 4, at 669; see also Goldsmith & Posner, supra note 4, at 1116. ↩
6.
Vienna Convention on the Law of Treaties art. 34, May 23, 1969, 1155 U.N.T.S. 331 (“A treaty does not create obligations for a [non-party] without its consent.”); Goldsmith & Posner, supra note 4, at 1116; see also Ilias Bantekas, Head of State Immunity in the Light of Multiple Legal Regimes and Non-Self-Contained System Theories: Theoretical Analysis of ICC Third Party Jurisdiction Against the Background of the 2003 Iraq War, 10 J. of Conflict & Security L. 21, 29-31 (2005) (stating that a treaty creates a “distinct legal regime” and its principles only apply to the parties of that regime); Trimble, supra note 4, at 669. ↩
7.
See, e.g., Goldsmith & Posner, supra note 4, at 1117 (“Treaties—especially multilateral treaties, but also bilateral ones—are often used as evidence of [customary international law]....”). ↩
8.
E.g., Trimble, supra note 4, at 669; see also Goldsmith & Posner, supra note 4, at 1116. ↩
9.
Goldsmith & Posner, supra note 4, at 1113, 1116; cf. Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”) (emphasis added); but see Trimble, supra note 4, at 679 (stating that the state practice “need only be general, not universal”). ↩
10.
Goldsmith & Posner, supra note 4, at 1114, 1117 (“The content of [customary international law] seems to track the interests of powerful nations.... Customary international law] is usually based on a highly selective survey of state practice that includes only major powers and interested nations.”); see Statute of the International Court of Justice art. 38(1), 38, June 26, 1945, 59 Stat. 1055 [hereinafter ICJ Statute] (stating that in determining customary international law, the court shall apply “the general principles of law recognized by civilized nations”) (emphasis added). ↩
11.
See ICJ Statute, supra note 10, at art. 38. ↩
12.
See Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 Am. J. Int’l L. 757, 758 (2001); see also R. R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 Brit. Y.B. Int’l L. 275, 277 (1966). Since parties to a treaty expressly accept the treaty’s legal obligations, the opinio juris requirement for establishing customary international law is usually satisfied. Roberts, supra, at 758. ↩
13.
E.g., Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. Int’l L. 407, 409 (2004). ↩
14.
E.g., Id. ↩
15.
E.g., Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853, 862-65 (2002). ↩
16.
Akande, supra note 13, at 412-13; Cassese, supra note 15, at 863; Micaela Frulli, The Question of Charles Taylor’s Immunity: Still in Search of a Balanced Application of Personal Immunities?, 2 J. Int’l Crim. J. 1118, 1125 (2004); Steffen Wirth, Immunities, Related Problems, and Article 98 of the Rome Statute, 12 Crim. L. Forum 429, 431 (2001). ↩
17.
Andrea Bianchi, Immunity Versus Human Rights: The Pinochet Case, 10 Eur. J. Int’l L. 237, 262-66 (1999); Cassese, supra note 15, at 864-65; Frulli, supra note 16, at 1126; Wirth, supra note 16, at 437; Salvatore Zappallà, Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation, 12 Eur. J. Int’l L. 595, 601 (2001). ↩
18.
Cassese, supra note 15, at 863; Frulli, supra note 16, at 1125; Wirth, supra note 16, at 432. ↩
19.
Cassese, supra note 15, at 864 (stating that “the two classes of immunity coexist and somewhat overlap as long as the foreign minister (or any state official who may also invoke personal or diplomatic immunities) is in office”); see Wirth, supra note 16, at 431-32. ↩
20.
Hazel Fox, The Law of State Immunity 423, 429 (2002) (stating that the 1969 Convention on Special Missions granted personal immunities only to heads of state but the 1972 Convention on Internationally Protected Persons granted personal immunities to heads of state, heads of government, and ministers for foreign affairs); Akande, supra note 13, at 409 (stating that personal immunity “is conferred on officials with primary responsibility for the conduct of the international relations of the state”); Frulli, supra note 16, at 1125-26; Wirth, supra note 16, at 432; see Cassese, supra note 15, at 864; Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest, 7 J. Int’l Crim. Just. 315, 320 (2009). ↩
21.
Cassese, supra note 15, at 863-64; Wirth, supra note 16, at 432. ↩
22.
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 61 (Feb. 14) (“[A]fter a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all the immunities accorded by international law in other States.”); Akande, supra note 13, at 409; Frulli, supra note 16, at 1126; Wirth, supra note 16, at 432.

However, the personal immunity of a current high-ranking government official may be removed by her own state. See Fox, supra note 20, at 430-31; Joe Verhoeven, Inst. of Int’l Law, Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law art. 7, ¶ 1 (2001) (“Head[s] of State may no longer benefit from the inviolability, immunity from jurisdiction or immunity from measures of execution conferred by international law, where the benefit thereof is waived by his or her State.”); Sarah Williams & Lena Sherif, The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court, 14 J. Conflict & Security L. 71, 75 (2009) (stating that the “state may always waive the immunity of an incumbent senior official”). ↩
23.
Arrest Warrant, 2002 I.C.J. at ¶ 61; Akande, supra note 14, at 409; Frulli, supra note 16, at 1126; Wirth, supra note 16, at 432. ↩
24.
E.g., Gaeta, supra note 20, at 320; see also Paola Gaeta, Official Capacity and Immunities, in The Rome Statute of the International Criminal Court: A Commentary 975, 991 (Antonio Cassesse, Paola Gaeta & John R.W. Jones eds., 2002). ↩
25.
Contrarily, personal immunities always protect a high-ranking government official before a foreign state’s national criminal tribunal. E.g., Arrest Warrant, 2002 I.C.J. at ¶ 58; Gaeta, supra note 20, at 318; Dapo Akande, The Legal Nature of the Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7 J. Int’l Crim. J. 333, 334 (2009) (“Under customary international law, the person of the head of state is regarded as inviolable when abroad and immunity from criminal jurisdiction includes immunity from arrest.”); Akande, supra note 13, at 411; Frulli, supra note 16, at 1122 (2004); Zappallà, supra note 17, at 599. The ICJ acknowledged this principle in the Arrest Warrant case:

[The Court] has been unable to deduce from [State] practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.

Arrest Warrant, 2002 I.C.J. at ¶ 58. Although the court does not expressly articulate whether this sentence is referring to immunities before both national and international tribunals, the sentence’s overall context elucidates that the court is referring only to immunity before national tribunals. But see Akande, supra, at 334. For example, later in the paragraph, the ICJ states that ICTY and IMT Nuremberg trials “likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts.” Arrest Warrant, 2002 I.C.J. at ¶ 58. ↩
26.
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). ↩
27.
Statute of the Special Court for Sierra Leone art. 6, S.C. Res. 1315, ¶ 3, U.N. Doc. S/RES/1315 (Aug. 14, 2000) [hereinafter SCSL Statute] (recommending that the SCSL “have personal jurisdiction over persons who bear the greatest responsibility[,]…including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace”); Statute of the International Criminal Tribunal for Rwanda art. 6, S.C. Res. 955, Annex, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 art. 7, U.N. Doc. S/25704 Annex (1993), S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]; see also S.C. Res. 1626, U.N. Doc. S/RES 1626 (Sept. 19, 2005) (“reiterating its appreciation for the essential work of the Special Court for Sierra Leone and its vital contributions to the establishment of the rule of law in Sierra Leone and the subregion”).

The ICTY and ICTR were international tribunals created entirely by the UN Security Council. However, the SCSL was a hybrid international tribunal created by both the Security Council and the government of Sierra Leone. E.g., William A. Schabas, Amnesty, the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone, 11 U.C. Davis J. Int’l L. & Pol’y 145, 154 (2004); Celina Schocken, The Special Court for Sierra Leone: Overview and Recommendations, 20 Berkeley J. Int’l L. 436, 436 (2002). For background on the establishment of the SCSL, see generally Schabas, supra. ↩
28.
SCSL Statute, supra note 27, art. 6; ICTR Statute, supra note 27, art. 6; ICTY Statute, supra note 27, art. 7. ↩
29.
Anthony D’amato, Trashing Customary International Law, 81 Am. J Int’l L. 101, 102 (1987). ↩
30.
See Part III.B.1, infra; see also Beth K. Dougherty, Right-Sizing International Criminal Justice: The Hybrid Experiment at the Special Court for Sierra Leone, 80 Int’l Aff. 311, 311 (2004); see generally William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (2006). ↩
31.
U.N Charter arts. 25, 103 (Article 25 stating that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter” and Article 103 stating that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”); Akande, supra note 13, at 417 (stating that nations only comply because they “are bound by and have indirectly consented (via the UN Charter) to the decision to remove immunity”); Gaeta, supra note 20, at 326; see also U.N. Charter art. 29 (“ The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.”).

In fact, some states have refused to comply with the SCSL’s removal of personal immunities because the Security Council did not invoke its Chapter VII powers when it co-created the tribunal. Williams & Sherif, supra note 22, at 78-79 (stating that immunities can be removed by a “Security Council resolution adopted under Chapter VII,” but arguing that the Security Council resolution must be adopted under Chapter VII). For example, in the SCSL case of Prosecutor v. Taylor, the prosecutor issued a sealed indictment for the head of state Charles Taylor’s arrest. See, e.g., Frulli, supra note 16, at 1118. The prosecutor made the indictment public when Taylor was visiting Ghana for peace talks and urged the Ghanan government to arrest Taylor and turn him over to the court. See, e.g., Frulli, supra note 16, at 1118. The Ghanan government refused on the grounds that Taylor had personal immunity. See, e.g., Frulli, supra note 16, at 1118. ↩
32.
D’amato, supra note 29, at 102. ↩
33.
See Id. ↩
34.
S.C. Res. 1593, supra note 2, at ¶ 6 (emphasis added). ↩
35.
See S.C. Res. 1422 ¶ 1, U.N. Doc. S/RES/1422 (July 12, 2002). Security Council Resolution 1422 prohibited ICC jurisdiction “for a twelve-month period starting 1 July 2002,” and the Security Council “expresse[d] the intention to renew [the resolution’s prohibition of ICC jurisdiction]…for as long as may be necessary....” Id. at 1-2 (emphasis removed). The Security Council renewed it the following year in Resolution 1487. See generally S.C. Res. 1487, U.N. Doc. S/RES/1487 (June 12, 2003). For background on Security Council Resolution 1422, see generally Carsten Stahn, The Ambiguities of Security Council Resolution 1422, 14 Eur. J. Int’l L. 85 (2003). ↩
36.
Case No. IT-02-54 (Int’l Crim. Trib. For the Former Yugoslavia). ↩
37.
Case No. SCSL-2003-01-I. ↩
38.
See Gaeta, supra note 20, at 320-21. In both Prosecutor v. Milošević and Prosecutor v. Taylor, the international tribunals indicted two current heads of state. E.g., Mikhail Wladimiroff, Former Heads of State on Trial, 38 Cornell Int’l L.J. 949, 961, 963 (2005). However, the heads of state were not arrested until after they vacated the position. E.g., Id. at 961; Craig Timberg, Liberia’s Taylor Found and Arrested, Wash. Post (Mar. 30, 2006), available online. ↩
39.
This argument is also mistaken because both Milošević and Taylor—though indicted as current heads of state—were arrested as former heads of state. E.g., Wladimiroff, supra note 39, at 961; Timberg, supra note 39. Even if these cases could support establishing customary international law, they would arguably only support establishing a customary international law that removes personal immunities for indictment but not arrest. See notes 67-70, infra, and accompanying main text; see generally Part II.D, infra . ↩
40.
ICTY Statute, supra note 27, art. 7; see Williams & Sherif, supra note 22, at 78-79. ↩
41.
SCSL Statute, supra note 27, art. 6. ↩
42.
Rome Statute of the International Criminal Court arts. 5, 27, entered into force on July 1, 2002, 2187 U.N.T.S. 3 [hereinafter Rome Statute] (Article 5 stating that the ICC only has jurisdiction over “the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression” and Article 27 stating that government officials do not have personal immunities before the ICC). ↩
43.
Rome Statute of the International Criminal Court, United Nations Treaty Collection (Jan. 6, 2011, 9:06 AM), available online; The States Parties to the Rome Statute, International Criminal Court, available online (last visited Jan. 6, 2011). ↩
44.
Rome Statute of the International Criminal Court, supra note 44; The States Parties to the Rome Statute, supra note 44. ↩
45.
To estimate the number of countries in the world, I used the number of official UN members as a proxy. UN at a Glance, United Nations, available online (last visited Jan. 6, 2011) (stating that there are 192 UN Member States). ↩
46.
See Rome Statute of the International Criminal Court, supra note 44; The States Parties to the Rome Statute, supra note 44. ↩
47.
See Rome Statute of the International Criminal Court, supra note 44; The States Parties to the Rome Statute, supra note 44. ↩
48.
Total Midyear Population for the World: 1950-2050, U.S. Census Bureau (Dec. 28, 2010), available online (estimating the world population in the year 2010 at 6.853 billion); World Population Prospects: The 2008 Revision Population Database, United Nations (Mar. 11, 2009), available online (estimating the cumulative population of these six states in the year 2010 at 3.218 billion people). ↩
49.
Bantekas, supra note 6, at 29-31. ↩
50.
Rome Statute, supra note 43, at art. 98(1). ↩
51.
Bantekas, supra note 6, at 29-31; see Roberts, supra note 12, at 758; see generally notes 110–115, infra, and accompanying main text. This argument assumes that “third State” refers to a non-party to the Rome Statute, as many have argued. E.g., Akande, supra note 25, at 339; Gaeta supra note 20, at 328. ↩
52.
See Roberts, supra note 12, at 758 (stating that “[w]hether [treaties] become [customary international law] depends on factors such as whether they are…confirmed by state practice”) (citing Michael Akehurst, Custom as a Source of International Law, 47 Brit. Y.B. Int’l L. 1, 2, 35 (1974); Jonathan I. Charney, Universal International Law, 87 Am. J. Int’l L. 529, 544-45 (1993)). ↩
53.
E.g., Materneau Chrispin, Some Remarks on the Legal Implications of Foreign Visits by Sudanese President Omar Al Bashir After the ICC Arrest Warrant, EJIL: Talk! (May 11, 2009, 5:29 PM), available online; Obama Criticizes Kenya over Bashir’s Visit, Local Divisions Emerge in Nairobi, Sudan Trib. (Aug. 28, 2010), available online; see Ghana will not arrest Al Bashir if…, Modern Ghana (Aug. 5, 2009), available online.

Furthermore, Kenya openly defied the ICC’s arrest warrant by inviting Al Bashir to attend the “signing ceremony for the new Kenyan Constitution.” E.g., Nangayi Guyson, ICC Presses Kenya to Arrest Bashir, Shout-Africa (Oct. 27, 2010), available online; Kenya Criticised for Refusing to Arrest al-Bashir, Africa News (Sept. 10, 2010), available online. ↩
54.
Some have incorrectly argued that the Genocide Convention removes President Al Bashir’s personal immunity before the ICC for the charge of genocide. See, e.g., Akande, supra note 25, at 350-51. However, this argument fails because the ICC is not competent to adjudicate charges based on the Genocide Convention. Article VI of the Genocide Convention states:

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Convention on the Prevention and Punishment of the Crime of Genocide art. 6, entered into force on Jan. 12, 1951, 78 U.N.T.S. 277 [hereinafter Genocide Convention]. Applying Article VI of the Genocide Convention to a potential ICC prosecution against Al Bashir, the ICC is not a competent tribunal for adjudicating charges based on the Genocide Convention because it is neither a “tribunal of the State in the territory of which the act was committed” nor has Sudan “accepted its jurisdiction.” ↩
55.
Convention on the Prevention and Punishment of the Crime of Genocide, United Nations Treaty Collection (Jan. 6, 2011, 9:59 AM), available online. The only G20 state that has not ratified the Genocide Convention is Indonesia. See generally id. ↩
56.
Genocide Convention, supra note 55, at art. IV (stating that “[p]ersons committing genocide or any of the other acts enumerated in article III shall be punished”) (emphasis added); but cf. Genocide Convention, supra note 55, at art. V (stating that “[t]he Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III”) (emphasis added). ↩
57.
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 1 (Feb. 14). ↩
58.
Id. at ¶ 61. ↩
59.
Id. ↩
60.
See Cassese, supra note 15, at 867 (implying that the ICJ was not acknowledging the existence of a new customary international law because the dicta was limited to “when treaty law or binding international instruments[,] such as Security Council resolutions taken under Chapter VII,” already removed personal immunities). ↩
61.
Arrest Warrant, 2002 I.C.J. at ¶ 61. ↩
62.
Fox, supra note 20, at 427 (stating that the purpose of personal immunities is to “protect[]…the ability of [a State’s] prime representative to carry out his international functions....”); see Hazel Fox, Inst. of Int’l Law, Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes art. II, ¶ 1 (2009) (stating that the purpose of immunities is “[(1)]to ensure an orderly allocation and exercise of jurisdiction[,]…[(2)] to respect the sovereign equality of States and [(3)] to permit the effective performance of the functions of persons who act on behalf of States”); Akande, supra note 13, at 412; Gaeta, supra note 20, at 320; Wirth, supra note 16, at 432. For background information on personal immunities for heads of state, see generally Fox, supra note 20, at 421-48. ↩
63.
Prosecutor v. Taylor, Case No. SCSL-2003-01-I Decision on Immunity from Jurisdiction, ¶¶ 51-52 (May 31, 2004); Gaeta, supra note 20, at 320-21. ↩
64.
Gaeta, supra note 20, at 320-21. ↩
65.
See Akande, supra note 13, at 412; Wirth, supra note 16, at 432; see generally Verhoeven, supra note 22 (stating that “[w]hen in the territory of a foreign State, the person of the Head of State is inviolable”). ↩
66.
Cassese, supra note 15, at 855 (stating that “the mere issuance of an arrest warrant[] may seriously hamper or jeopardize the conduct of international affairs…”); Wirth, supra note 16, at 432 (stating that “procedures—including arrest—against a head of state or leading state officials might seriously impair the state’s ability to discharge its functions properly, including the function to maintain peace”); cf. Williams & Sherif, supra note 22, at 74 (stating that “[t]his freedom would be restricted if such officials were susceptible to legal proceedings before foreign courts, including arrest and detention”) (emphasis added). ↩
67.
See Wirth, supra note 16, at 432. ↩
68.
See Id. ↩
69.
Akande, supra note 13, at 410; Steffen Wirth, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case, 13 Eur. J. Int’l L. 877, 888 (2002) (providing quoted phrase). ↩
70.
Wirth, supra note 71, at 888; Wirth, supra note 16, at 444-45. ↩
71.
Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, Foreign Aff., July-Aug. 2001, available online. Judicial tyranny in international courts is not merely a hypothetical danger: It’s evidenced in a recent STL decision. The court essentially attempted to change the well-established principles of customary international law. Marko Milanovic, Formation of Custom and the Inherent Powers of the Special Tribunal for Lebanon, EJIL: Talk! (Nov. 11, 2010), available online. The court claimed that customary international law could be established by international practice and lack of states’ objection to the practice—as opposed to customary international law’s well-established requirements of widespread practice and opinio juris. Id.; see Prosecutor v. El Sayed, Case No. CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, ¶ 47 (Special Trib. For Lebanon Nov. 10, 2010); cf. Part I, supra. ↩
72.
See generally S.C. Res. 1593, supra note 2. ↩
73.
E.g., Williams & Sherif, supra note 22, at 78. ↩
74.
Rome Statute, supra note 43, at art. 13; see, e.g., Akande, supra note 25, at 34-41. ↩
75.
Rome Statute, supra note 43, at art. 13 (“The [ICC] may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:…(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations....”). ↩
76.
Rome Statute, supra note 43, at art. 13. ↩
77.
But see Gaeta, supra note 20, at 324 (stating that “a referral by the Security Council is simply a mechanism envisaged into the [Rome] Statute to trigger the jurisdiction of the ICC: it does not and cannot turn a state non-party to the [Rome] Statute into a state party”). ↩
78.
Aristotle Constantinides, An Overview of Legal Restraints on Security Council Chapter VII Action with a Focus on Post-Conflict Iraq 4, available online (stating that “the [Security] [C]ouncil is empowered to derogate temporarily from rules of both treaty and customary [international] law, as long as it is acting under Chapter VII to maintain and restore international peace and security”); Williams & Sherif, supra note 22, at 78. ↩
79.
Williams & Sherif, supra note 22, at 78-79 (arguing that the Security Council must invoke its Chapter VII powers to remove personal immunities); Constantinides, supra note 80, at 4 (arguing that the Security Council must invoke its Chapter VII powers to remove personal immunities); see generally note 94, infra, and accompanying main text.

Additionally, the Rome Statute does not limit a Security Council referral to merely conferring jurisdiction. See Rome Statute, supra note 43, at art. 13(b). Even if the Rome Statute expressly prohibited removing immunities in referral, the Security Council could arguably still remove a non-party’s personal immunities. This is because Article 103 of the UN Charter provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the Present Charter [(e.g., the obligation to comply with Security Council resolutions)] and their obligations under any other international agreements [(e.g., the Rome Statute)], their obligations under the present Charter shall prevail.” ↩
80.
Williams & Sherif, supra note 22, at 78-79. Moreover, all nations must accept the Security Council’s removal of personal immunities because Article 25 of the UN Charter obligates “[m]embers of the United Nations…to accept and carry out the decisions of the Security Council....” ↩
81.
The Security Council has created five international criminal tribunals: The ICTY, ICTR, SCSL, Special Tribunal for Lebanon and the International Residual Mechanism for Criminal Tribunal (“Residual Mechanism Tribunal”). William A. Schabas, Security Council establishes “International Residual Mechanism for Criminal Tribunals’, PhD Studies in Human Rights (Dec. 23, 2010, 9:25 AM), available online. The Residual Mechanism Tribunal was intended as a replacement for the ICTY and ICTR. Id. ↩
82.
For greater background of these three tribunals, see generally Schabas, supra note 30. ↩
83.
SCSL Statute, supra note 27, art. 6, ICTR Statute, supra note 27, art. 6; ICTY Statute, supra note 27, art. 7. ↩
84.
See generally S.C. Res. 1315, U.N. Doc. S/RES/1315 (Aug. 14, 2000); S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994); S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993). ↩
85.
S.C. Res. 827, supra note 87 (emphasis removed). ↩
86.
S.C. Res. 955, supra note 87 (emphasis removed). ↩
87.
S.C. Res. 1315, supra note 87 (emphasis removed). ↩
88.
S.C. Res. 955, supra note 87, at ¶ 1; S.C. Res. 827, supra note 87, at ¶ 1. Similarly, when the Security Council co-created the SCSL, the Council recommended the international tribunal have jurisdiction for “crimes against humanity, war crimes and other serious violations of international humanitarian law....” S.C. Res. 1315, supra note 87, at ¶ 2. ↩
89.
S.C. Res. 827, supra note 87, at ¶ 1. ↩
90.
S.C. Res. 955, supra note 87, at ¶ 1. ↩
91.
David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice 33 (2001) (discussing the Security Council’s powers under Chapter VII of the UN Charter); see Christopher C. Joyner, 6 Duke J. Comp. & Int’l L. 79, 88, 94-95; Williams & Sherif, supra note 22, at 79; see also James A.R. Nafziger & Edward M. Wise, The Status in United States Law of Security Council Resolutions under Chapter VII of the United Nations Charter, 46 Am. J. Comp. L. Supp. 421, 428 (1998) (stating that “decisions by the Security Council under Chapter VII carry greater legal weight”); Ralph Zacklin, Bosnia and Beyond, 34 Va. J. Int’l L. 277, 279 (2004).

Contrarily, the Security Council did not invoke its Chapter VII powers when granting jurisdiction to the SCSL. Williams & Sherif, supra note 22, at 78-79 (arguing that the Security Council’s failure to invoke its Chapter VII powers meant the Council could not legally remove personal immunities in the SCSL’s jurisdiction); see generally S.C. Res. 1315, supra note 87. ↩
92.
The Security Council co-created the STL in Resolution 1757. Nidal Nabil Jurdi, The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon, 5 J. Int’l Crim. Just. 1125, 1125-26 (2007); see S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007). ↩
93.
Prosecutions Program, Int’l Ctr. for Transnational Just., Handbook on the Special Tribunal for Lebanon 11 (2008), available online [hereinafter ICTJ, Handbook on the STL]; see generally Statute of the Special Tribunal for Lebanon, approved in S.C. Res. 1757, supra note 95, at Annex. ↩
94.
S.C. Res. 1757, supra note 95, at Annex art. 1; Jurdi, supra note 95, at 1125-26. Additionally, the Security Council and Lebanese government granted the STL jurisdiction to adjudicate:

other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, [that] are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005....

S.C. Res. 1757, supra note 95, at Annex art. 1. ↩
95.
U.N. Secretary-General, Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, ¶ 25, U.N. Doc. S/2006/893 (Nov. 15, 2006) (stating that “there was insufficient support for the inclusion of crimes against humanity in [the STL’s] subject matter jurisdiction” and that the STL’s subject matter jurisdiction is “limited to common crimes under the Lebanese Criminal Code”); Jurdi, supra note 95, at 1128; see also ICTJ, Handbook on the STL, supra note 96, at 10. ↩
96.
Jurdi, supra note 95, at 1126-28; see generally S.C. Res. 1757, supra note 95, at Annex art. 1. ↩
97.
See note 94, supra, and accompanying main text. ↩
98.
S.C. Res. 1593, supra note 2 (emphasis removed). ↩
99.
Rep. of the Int’l Comm. of Inquiry on Darfur, supra note 1, at 3. ↩
100.
S.C. Res. 1953, supra note 2 (stating that the Security Council was “[a]cting under Chapter VII of the Charter of the United Nations) (emphasis removed). ↩
101.
S.C. Res. 1593, supra note 2, at ¶ 1 (stating that the Security Council “refer[red] the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court”). ↩
102.
S.C. Res. 1593, supra note 2, at ¶ 1. ↩
103.
Additionally, it’s immaterial that Security Council referred the Darfur conflict to the ICC—as opposed to creating an international tribunal like the ICTY and ICTR to adjudicate the crimes in the Darfur conflict. The Security Council probably chose to refer the Darfur conflict to the ICC because it wished to avoid the difficulties of managing an international tribunal. See Dougherty, supra note 30, at 311-14 (stating that the ICTY and ICTR each “suffer [from] its own particular difficulties, but there is a core set of criticisms routinely leveled at both: they are expensive, enormous, slow, inefficient and ineffective”); Schabas, supra note 84 (stating that the ICTY and ICTR have “have fallen far short of [their completion strategy’s] target”). ↩
104.
See generally Part III.B.1, supra. ↩
105.
Id. ↩
106.
Rome Statute, supra note 43, at art. 27 (“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”). ↩
107.
Id. at art. 98(1). ↩
108.
Wirth, supra note 16, at 453-54. ↩
109.
See Id. at 453-54; see also Gaeta supra note 20, at 325-26 (arguing that states cannot arrest a current head of state, even though the ICC can legally issue an arrest warrant for that head of state); see generally Part II, supra. ↩
110.
See Frulli, supra note 16, at 1128-29; see generally the Rome Statute, supra note 43. ↩
111.
See Frulli, supra note 16, at 1128-29. ↩
112.
But see Gaeta, supra note 20, at 326 (arguing that an arrest warrant is not the equivalent of an Article 98 “request” to arrest and that the ICC can issue an arrest warrant for a head of a state that is not party to the Rome Statute). ↩
113.
Rome Statute, supra note 43, at art. 98(2). ↩
114.
S.C. Res. 1593, supra note 2, at 3 (emphasis removed). ↩
115.
See generally S.C. Res. 1593, supra note 2. ↩
116.
See generally S.C. Res. 1769, U.N. Doc. S/RES/1769 (July 31, 2007); S.C. Res. 1755, U.N. Doc. S/RES/1755 (Apr. 30, 2007); S.C. Res. 1714, U.N. Doc. S/RES/1714 (Oct. 6, 2006); S.C. Res. 1713, U.N. Doc. S/RES/1713 (Sept. 29, 2006); S.C. Res. 1709, U.N. Doc. S/RES/1709 (Sept. 22, 2006); S.C. Res. 1706, U.N. Doc. S/RES/1706 (Aug. 31, 2006); S.C. Res. 1679, U.N. Doc. S/RES/1679 (May 16, 2006); S.C. Res. 1672, U.N. Doc. S/RES/1672 (Apr. 25, 2006); S.C. Res. 1665, U.N. Doc. S/RES/1665 (Mar. 29, 2006); S.C. Res. 1651, U.N. Doc. S/RES/1651 (Dec. 21, 2005); S.C. Res. 1627, U.N. Doc. S/RES/1627 (Sept. 23, 2005). ↩
117.
See generally Press Release, African Union, On the Decision of the Pre-Trial Chamber of the ICC Informing the UN Security Council and the Assembly of the State Parties to the Rome Statute About the Presence of President Omar Hassan Al-Bashir of the Sudan in the Territories of the Republic of Chad and the Republic of Kenya, African Union Press Release No. 119/2010 (Aug. 29, 2010) (stating that “the repeated appeals to the UN Security Council by the Assembly of Heads of State and Government of the African Union as well as the AU Peace and Security Council to defer the proceedings against President Omar Hassan Bashir of The Sudan for one year in application of the provisions of Article 16 of the Rome Statute have never been acted upon by the UN Security Council”); Press Release, African Union, Decision on the Meeting of the African Union Parties to the Rome Statute of the International Criminal Court (July 14, 2009), available online (“The decision by the AU Assembly not to cooperate with the ICC pursuant to the provisions of Article 98 of the Rome Statute relating to immunities for the arrest and surrender of President Omar Hassan Bashir of The Sudan is a logical consequence of…the refusal by the UN Security Council to address the request made by the African Union....”). ↩
118.
Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court, U.N. Press Release SC/8351 (Mar. 31 2005), available online. ↩
119.
See Part III.B.1, supra. ↩
120.
See Payam Akhavan, The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court, 99 Am. J. of Int’l L. 403, 405, 405 n.4 (2005). ↩

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danterzian: The Peace and Justice Initiative argues that customary international law lifts Head of State immunity in cases of international crimes before international tribunals. I disagree. I do not believe they make a persuasive argument for the existence of this customary international law. Establishing a customary international law requires a widespread state practice that is undertaken out of a sense of legal obligation. Thus, since customary international law is based on state practice, the... (more)
Scott McDonald: I agree with the argument that the nexus between U.N.S.C. 1593 and membership in the Genocide Convention means that Sudan and other Contracting Parties have accepted the jurisdiction of the ICC in this instance. However, this argument only utilizes half of the rationale present in the Bosnia Genocide case. By focusing solely on the obligation to punish created by the Convention, you are ignoring the obligation to prevent genocide that was also highlighted by the ICJ. While there are... (more)
Peace and Justice... Introduction The current Sudanese President, Omar Al-Bashir, is subject to two outstanding arrest warrants issued by the ICC. The first warrant includes charges of war crimes and crimes against humanity, arising from the atrocities that have occurred in Darfur over recent years. The second warrant includes charges of genocide, also in relation to Darfur.1 The issuance of these warrants raises the question of whether States are obliged to arrest... (more)
Cecilia: Although Ivory Coast is not a state party to the Rome Statute, the ICC may establish its jurisdiction to investigate the alleged human rights violation that occurred after the 2010 presidential election. Article 12.3 of the Rome Statute provides in relevant part: “If the acceptance of a State in which is not a Party to this Statute is required under paragraph the State may, by declaration lodged with the Registrar, accept the exercise of... (more)
Cardon: Without grappling with the whole of your comment, I’ll just address your contention that the Prosecutor must maintain a presumption of innocence pursuant to Article 66 (not Article 64) of the ICC Statute. That’s a novel idea! Prosecutors are tasked with building a case against a suspect/defendant. A prosecutor has the burden of proving the guilt of the accused. It’s hard to see how they could do so while maintaining a presumption of innocence.... (more)
alk1668: Important facts about the situation in Cote D’ Ivoire. “Some lawyers close to the International Criminal Court (ICC) rebelled against the words of the Prosecutor at the ICC.” We are a group of lawyers near the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, Tanzania, and also near the International Criminal Court based in The Hague in the Netherlands... (more)
davidlee211: The AU decision to not arrest or surrender Al Bashir in accordance with an ICC order does not override or suspend existing obligations of ICC States Parties under the Rome Statute. Therefore, ICC States Parties are obligated to cooperate with the ICC. The African Union (“AU”) has the legal competence to require AU members to not cooperate with the International Criminal Court (“ICC... (more)
JJ Paust: With respect to non-immunity of sitting or former heads of state or officials under international law, our casebook notes the prosecution of Conradin von Hohenstafen in 1268, Peter von Hagenbach in 1474, the “trial” by an int’l congress of Napoleon in 1818 (punishment = exile), the indictment in absentia of Kaiser Wilhelm in the 1919 Treaty of Versailles, the 1919 Responsibilities Commission Report recognizing head of state responsibility, the dicta in the U.S.... (more)
G. L.: I. Introduction: Currently, the International Criminal Court (ICC) case against President Omar Al Bashir faces the reality that no incumbent head of state has ever been arrested and prosecuted by an international tribunal, at least in part due to the well-established principle of head of state immunity. In analyzing the justifications and development of immunities under international law, I will argue that immunity does not protect Al Bashir... (more)
JJ Paust: Under Article IV of the Genocide Convention, there is absolutely no immunity for any person of any present or past status—especially a sitting ruler or official—and the same holds true with respect to any other international criminal instrument. For example, there is absolutely no immunity for a head of state or official under Article 27 of the Rome Statute of the ICC. Clearly, the preamble to the Rome Statute is also relevant when it... (more)