On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.11 n.2 Pretoria 2011
Johan D van der Vyver
IT Cohen Professor of International Law and Human Rights, Emory University School of Law, Atlanta, United States of America; Extraordinary Professor, Department of Private Law, University of Pretoria, South Africa
The indictment of the President of Sudan has provoked negative responses from the African Union, including a resolution that instructed member states of the AU not to co-operate with the ICC in arresting the President and surrendering him for trial in the ICC. The AU relied on article 98(2) of the ICC Statute in terms of which the ICC may not proceed with a request for surrender that would require a state to act inconsistently with its obligations under international law with respect to the sovereign immunity of, inter alia, heads of state. However, it has been decided that under the rules of international law, sovereign immunity applies only to prosecutions in national courts and not to prosecutions in an international tribunal, and article 27(2) of the ICC Statute accordingly provides that sovereign immunity shall not bar the ICC from exercising jurisdiction over persons enjoying such immunity. It is argued in this article that article 98(2) contradicts article 27(2): If a head of state does not enjoy immunity against prosecution in the ICC, there is no immunity to be waived by the national state. A pre-trial chamber of the ICC did not base the obligation of state parties (Kenya and Chad) to arrest and surrender the Sudanese President for prosecution in the ICC on the provisions of article 27, but on the fact that the situation in Sudan was referred to the ICC by the Security Council of the United Nations and a passage in the Security Council resolution calling on Sudan and all other parties to the conflict in Darfur to co-operate fully in bringing the President of Sudan to justice. The exact implications of article 98(2) therefore remain unresolved.
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1 Prosecutor v Omar Al Bashir (Decision on the Prosecutor's Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir) Case ICC-02/05-01/09-3 (4 March 2009).
2 Prosecutor v Omar Hassan Ahmad Al Bashir (Second Warrant of Arrest for Omar Hassan Ahmed Al Bashir) Case ICC-02/05-01/09-59 (21 July 2009).
3 SC Res 1593 (2005) of 31 March 2005, UN Doc S/RES/1593 (2005).
4 Decision of the Meeting of African State Parties to the Rome Statute of the International Criminal Court, UN Doc Assembly/AU/13(XIII) (3 July 2009) para 10.
5 Art 98(1) Statute of the International Criminal Court, UN Doc A/CONF 183/9 (17 July 1998) as corrected by procês-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 Jan 2002 (ICC Statute).
6 See D Akande 'Denmark invited Sudanese President Bashir to Climate Change Conference' EJIL Talk 19 November 2009 http://www.ejiltalk.org/denmark-invited-sudanese-president-bashir-to-climate-change-conference (accessed 31 July 2011). [ Links ]
7 Rules of Procedure and Evidence Rule 195(2) Official Records of the Assembly of State Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3-10 September 2002, Part IIA (2002) (RPE).
8 Art 98(2) ICC Statute.
9 Rule 195(1) RPE (n 7 above).
10 As above.
11 Art 27 ICC Statute.
12 No peace without justice, International Criminal Justice Programme 'NPWJ calls on ICC and state parties to respond strongly to Chad=s failure to arrest President Bashir of Sudan' http://www.npwj.org/ICC/NPWJ-calls-ICC-and-States-Parties-respond-strongly-Chad=s-failure-arrest-President-Bashir-Sudan (accessed 31 July 2011).
13 ICC Press Release of 21 September 2010 'President of the Assembly of States Parties meets Minister of Foreign Affairs of Kenya' Doc ICC-ASP-20100921-PR575.
14 Decision on the Implementation of the Assembly Decisions on the International Criminal Court Doc EX.CL/670 (XIX) para 6.
15 Prosecutor v Omar Al Bashir (n 1 above) para 41.
16 n 1 above, para 241.
17 n 1 above, para 93.
18 ICC Press Release of 26 October 2010, UN Doc ICC-CPI-20101026-PR589.
19 WA Schabas The International Criminal Court: A commentary on the Rome Statute (2010) 1042. [ Links ]
20 K Prost & A Schlunck 'Co-operation with respect to waiver of immunity and consent to surrender' in O Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (1999) 1131. As to those immunities, see the Vienna Convention on Diplomatic Relations 1961 UN Doc A/Conf 20/13 (16 April 1961). [ Links ]
21 D Rinoldi & N Parisi 'International co-operation and judicial assistance between the International Criminal Court and states parties' in F Lattanzi & WA Schabas (eds) Essays on the Rome Statute of the International Criminal Court (1999) 339 389; [ Links ] and see also P Saland 'International criminal law principles' in RS Lee (ed) The International Criminal Court: The making of the Rome Statute: Issues, negotiations, results (1999) 189 202 (observing that there seems to be a contradiction between the two articles, [ Links ] 'at least if "the third State" mentioned in article 98 is interpreted to not only a non-party state but also a party to the Rome Statute'); P Gaeta 'Official capacity and immunities' in A Cassese et al (eds) The Rome Statute of the International Criminal Court: A commentary (2002) 975 986 (referring to 'a problem of co-ordination of arts 98(1) and 27(2)'). [ Links ]
22 O Triffterer 'Irrelevance of official capacity' in O Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (1999) 501 513; [ Links ] and see also Gaeta (n 21 above) 992.
23 R v Bow Street Metropolitan Stipendiary Magistrate & Others, Ex Parte Pinochet Ugarte (Amnesty International & Others Intervening) (No 3)  2 All ER 97; and for an overview of the court=s decision in regard to sovereign immunity, see S Wirth 'Immunities, related problems, and article 98 of the Rome Statute' (2001) 12 Criminal Law Forum 429 434-439. [ Links ]
24 See Siderman De Blake v Republic of Argentina 965 F 2d 699 718-19 (9th Cir 1992); LaFontant vAristide 844 F Supp 128 131-32 (EDNY 1994).
25 Hatch vBaez 14 S Ct Rep New York (7 Hun 596) 600 (1876); 5 American International Law Cases (1873-1968) 434 435 (1876) (official acts of a former president of the Dominican Republic); and see also A Watts 'The legal position in international law of heads of states, heads of government and foreign ministers' (1994-III) 247 Recueil des cours 19 88-89; [ Links ] R Jennings & A Watts (eds) Oppenheim's international law (1992) para 456. [ Links ]
26 Marcos & Marcos v Federal Department of Police (1990) 102 International Law Reports 198 203-204 (Switzerland Federal Tribunal) (2 November 1989).
27 In re Goering & Others (1946) 13 International Law Reports 203 221 (noting that sovereign immunity does not apply to 'acts condemned as criminal by international law'); Democratic Republic of Congo v Belgium 2002 ICJ 3, dissenting judgment of Van den Wyngaert J para 36 (14 February 2002) (noting that war crimes and crimes against humanity will never be part of official duties); and see also D Akande & S Shah 'Immunities of state officials, international crimes, and foreign domestic courts' (2011) European journal of International Law 815 (agreeing that international crimes will not come within the reach of immunity ratione materiae, but basing that conclusion not on the jus cogens disposition of the norms rendering the conduct criminal or on the assumption that international criminal conduct cannot form part of official acts, but rather on the jurisdiction conferred on municipal courts).
28 G Palmisano 'The ICC and third states' in Lattanzi & Schabas (n 21 above) 391 410; and see A Bianchi 'Immunity versus human rights: The Pinochet case' (1999) 10 European journal of International Law 237 259-60 (noting that considerable support can be drawn from state practice in support of the proposition that individuals can be held responsible for international crimes regardless of their official position); [ Links ] GM Danilenko 'ICC jurisdiction and third states' in Cassese et al (n 21 above) 1871 1881 (noting that one cannot claim immunity for ius cogens crimes).
29 Prosecutor v Anto Furund iya Case IT-95-I-T para 140 (10 December 1998).
30 Democratic Republic of Congo v Belgium 2002 ICJ 3 (14 February 2002) para 60.
31 See also Prost & Schlunck (n 20 above) 1132.
32 Democratic Republic of Congo v Belgium (n 30 above) para 61.
33 Prosecutor v Taylor 128 International Law Reports 239 (31 May 2004).
34 Democratic Republic of Congo v Belgium (n 30 above) para 42.
35 Democratic Republic of Congo v Belgium (n 30 above) para 51.
36 Dissenting judgment of Van den Wyngaert J (n 27 above) para 36; and see also J Dugard & G Abraham 'Public international law' (2002) Annual Survey of South African Law 140 165-166. [ Links ]
37 Sec 4(2)(a) Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
38 The presumption is encapsulated in the maxim verba accipienda ut sortiantur affec-tum (words are to be construed in such a way that they have some [legal] effect).
39 D Akande 'The legal nature of Security Council referrals to the ICC and its Impact on Al Bashir's Immunities' (2009) 7 journal of International Criminal justice 333 339.
40 See eg A Dworkin & K Iliopoulis 'The ICC, Bashir, and the immunity of heads of state' Crimes of war 3 http://www.crimesofwar.org/commentary/the-ICC-bashir-and-the-immunity-of-heads-of-state/ (accessed 31 October 2011) (stating that state parties must respect the immunity of officials of non-party states and can only be compelled to surrender officials of another state party); and see also Palmisano (n 28 above) 410; D Robinson 'The Rome Statute and its impact on national law' in Cassese et al (n 21 above) 2; M du Plessis 'International criminal courts, the International Criminal Court, and South Africa's implementation of the Rome Statute' in J Dugard International law: A South African perspective (2005) 174 209 n 193.
41 See Prost & Schlunck (n 20 above) 1132.
42 LN Sadat The International Criminal Court and the transformation of international law: Justice for the new millennium (2002) 202-203 (also mentioning the possibility that the perpetrator can be brought before the ICC without, or independent of, the court=s request); and see also Triffterer (n 22 above) 513; Gaeta (n 21 above) 994.
43 Prosecutor v Bahar Idriss Abu Carda (Decision on the Confirmation of Charges) Case ICC-02/05-02/09-243-Conf (8 February 2010). Application by the prosecutor for leave to appeal that decision was refused; Prosecutor v Bahar Idriss Abu Garda (Decision on the Prosecutor's Application for Leave to Appeal the Decisions on the Confirmation of Charges) Case ICC-02/05-02/09-267 (23 April 2010).
44 Saland (n 21 above) 189 205 n 25; and see also Akande (n 39 above) 337.
45 Gaeta (n 21 above) 986.
46 Art 1 ICC Statute; and see B Swart & G Sluiter 'The International Criminal Court and international criminal co-operation' in HAM von Hebel et al (eds) Reflections on the International Criminal Court: Essays in honour of Adriaan Bos (1999) 91 105.
47 P Benvenuti 'Complementarity of the International Criminal Court to national criminal jurisdictions' in Lattanzi & Schabas (n 21 above) 21 22 23-25 29 39.
48 M Morris 'Complementarity and conflict: States, victims, and the ICC' in SB Sewall & C Kaysen (eds) The United States and the International Criminal Court (2000) 195 197; and see also A Dieng 'International Criminal Court: From paper to practice -Contribution from the International Criminal Court for Rwanda to the establishment of the International Criminal Court' (2002) 25 Fordham International Law Journal 688 697; JT Holmes 'Complementarity: National courts versus the ICC' in Cassese et al (n 21 above) 1.
49 Holmes (n 48 above) 675.
50 Sadat (n 42 above) 114; JE Alvarez 'Crimes of states/Crimes of hate' (1999) 24 Yale Journal of International Law 365 476-78; Holmes (n 48 above) 673.
51 Res ICC-ASP/RC/Res 1 (8 June 2010).
52 Resolutions Adopted by the Assembly of State Parties, Annex IV, Appendix, para 16 Assembly of State Parties to the Rome Statute of the International Criminal Court, Resumed Eighth Session, New York, 22-25 March 2010, UN Doc ICC-ASP/8/20/Add 1 24; and see also WW Burke-White 'Proactive complementarity. The International Criminal Court and national courts in the Rome system of international justice' (2008) 49 Harvard International Law Journal 53 54 (appealing to the ICC to 'participate more directly in efforts to encourage national governments to prosecute international crimes themselves').
53 Res ICC-ASP/RC/Res 1 (n 51 above) para 8.
54 See Dissenting Judgment of Van den Wyngaert J (n 27 above) para 37.
55 Art 19 read with art 17 ICC Statute.
56 See eg Dworkin & Iliopoulis (n 40 above) 3-4 (stating that 'in referring the situation in Darfur to the ICC, [the Security Council] imposed on Sudan by implication all the obligations of a state party to the Court').
57 SC Res 1593 (2005) (n 3 above) para 2.
58 Art 87(7) ICC Statute, which provides: 'Where a state party fails to comply with a request to co-operate ... the Court may make a finding to that effect and refer the matter to the Assembly of State Parties or, where the Security Council referred the matter to the Court, to the Security Council.'
59 Prosecutor v Omar Hassan Ahmad Al Bashir (Decision informing the United Nations Security Council and the Assembly of State Parties to the Rome Statute about Omar Al-Bashir's presence in the territory of the Republic of Kenya) Case ICC-02/05-01/09-107 (27 August 2010); Prosecutor v Omar Hassan Ahmad Al Bashir (Decision informing the United Nations Security Council and the Assembly of State Parties to the Rome Statute about Omar Al-Bashir's recent visit to the Republic of Chad) Case ICC-02/05-01/09-109 (27 August 2010).
60 ICC Press Release of 9 September 2010, UN Doc ICC-CPI-20100921-PR575.
61 SC Res 1593 (2005) (n 3 above) para 2. Resolution 1593 also quite redundantly took note of 'the existence of treaties referred to in article 98-2 of the Rome Statute'. Article 98(2) deals with status of forces agreements and was abused by the United States under the Bush administration to secure that states enticed into signing 'article 98(2) agreements' with the United States will never surrender an American national to stand trial in the ICC. Reference to 'treaties under article 98-2' was without doubt a condition precedent for the United States not to veto Resolution 1593 (the United States and China abstained but did not veto the resolution).
62 Art 87 ICC Statute (relating to 'Requests for co-operation: General provisions'). One might have expected that a reference to art 86, which deals with 'General obligation to co-operate', would have been more appropriate.
63 Preamble para 4 ICC Statute.
64 Non-party states can on an ad hoc basis contract an obligation to co-operate with the ICC. Art 12(3) ICC Statute.
65 Declaration on Co-operation Doc RC/ST/CP/2 para 5 (8 June 2010).
66 See JE Méndez 'The importance of justice and security' para 23 ICC Doc RC/ST/PJ/ INF 3 (30 May 2010) (noting that President Al Bashir 'has become isolated').