DOES ARTICLE 98(1) OF THE ROME STATUTE APPLY TO AFRICAN NON STATE PARTIES WHEN EUROPE DANGLES THE EXECUTIONERS ROPES?

The issuance of Arrest warrant against Al-Bashir notwithstanding the fact that it emanated from an investigation requested by the SC is contrary to customary international and the Rome Statute itself by a joint construction of Article 12, 98(1) and even 99 of the Rome Statute. Even though jurisdiction of the ICC can be activated by a referral from the Security Council, the jurisdiction acquired therefrom must be consistent with international by virtue of customary international law or a state consenting by treaty. Any other prosecutorial powers conferred or alleged to be conferred under Article 13 of the Rome Statute would be contrary to international. I am of this view based on a harmonious interpretation of the Rome Statute. Article 12 which is titled Pre-condition to jurisdiction, means that there cannot or should not be jurisdiction till at least one of the limbs of that Article is play. If there is no “pre” there should be no “jurisdiction”. Secondly, Article 98(1) of the Rome Statute that:

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.

Article 12 and 98 cannot be said to be less important than the referral powers of the Security Council, because Statutes should be given a harmonious interpretation as long as it does not infringe on the Preamble of the UN and sovereignty of States...Question is, will the Security Council refer any European Country or the United States....Or will Bush be subject to the jurisdiction of the ICC for war crimes in Iraq??? I think not

The disturbing trend about the ICC with regard to Africa is its willingness to prosecute in Africa even when the Pre-Condition to Jurisdiction provisions have not been complied with. The most important norm in international law is sovereignty of States which is protected in Article 12 of the Rome Statute, in fact we are informed that the Security Council can override State Sovereignty by requiring an investigation into a State that is not a signatory to the ICC. If this is the case, then titling Article 12 of the Rome Statute as Pre-Condition to Jurisdiction is of no consequences. Article 27 of the Statute provides that official capacity is of no consequence to the jurisdiction of the Court, however that should be read to mean that a State that has ratified the Statute has decided to waive head of state immunity with regard to the ICC. Professor Akande opinion is succinct on this (Even though in a recent article he seems to have flipped the coin with regard to the arrest warrant on Al-Bashir) that:

The concern of State parties to the said article was recognised when the President of France and prime Minister requested the Conseil Constitutionnel to consider whether the ratification of the Rome State would involve an amendment to the French Constitution, in its finding on the immunity of officials, the council observed that:

The Council found that Article 27 of the Statute, according to which criminal responsibility exists irrespective of official capacity, conflicts with several constitutional provisions concerning the immunity of public officials…

However, despite Article 27, France still ratified the Statute, this speaks volume about the effect of Article 98(1) of the Rome Statute, which makes Article 27 wasted ink on the Rome Statute.

The first conclusion would be that the two Articles are in conflict with each other, but in fact they are not. The former says that, the ICC would not be stopped from going on with a Prosecution because someone is an Official, the latter, says however, the ICC would not hold a State to have failed in its State responsibility if they refuse to surrender a Head of State. However, if the decision in Loubna El Ghar v. Libyan Arab Jamahiriya is to be used as a yardstick, the States who are signatories to the ICC can surrender each other’s Heads of State, as States are the only police of the ICC. Akande has taken time to explain this position adopted by this writer thus:

Although it is clear that Article 98(1) applies to immunities enjoyed by officials of nonparties, it is less clear whether that provision also refers to immunities ordinarily enjoyed by officials of ICC parties. The question is whether Article 98(1) prevents the Court from requesting that one state party surrender the official of another state party present on the territory of the first, where the official would normally have immunity under international law.

If this be the case it is curious that Professor Akande himself agrees that the arrest warrant against Al-Bashir is regular while Tony Blair still roams freely and even works for the UN. I am certain that President Bush would be totally immune from prosecution anytime anyday as the US is non party state.