Background
Ex-President Al-Bashir of Sudan is accused of several counts of crimes against humanity, war crimes and genocide. The International Criminal Court (ICC) issued a warrant for Al-Bashir’s arrest in 2009 and then again in 2010. In March 2017, Jordan hosted the 28th Summit of the Arab League in Amman. As Sudanese President at the time, Al-Bashir, attended the summit. Jordan did not arrest the visiting Head of State while he was in the country.
In May 2019, the ICC Appeals Chamber ruled that Jordan had failed to comply with its obligations under the Rome Statute by not executing the warrants. As a State Party to the Rome Statute, Jordan is required to ‘cooperate fully’ with the ICC,[1] precluding them from relying on the doctrine of State Immunity to refuse to execute an ICC warrant. UNSC Resolution 1593 had referred the situation in Darfur, Sudan to the ICC and obliged Sudan to ‘cooperate fully’ with the court.[2] Controversially, the ICC found that this meant Sudan, a country which is not party to the Rome Statute, was equally bound by the Statute’s requirements and could not have relied on State Immunity to protest its Head of State’s arrest by Jordanian authorities.
This so called ‘Security Council Route’ into the ICC’s jurisdiction has been widely criticised since the decision was published. The ICC found that UNSC Resolution 1593 meant that Sudan was bound by Art. 27(2) of the Rome Statute, which says that immunities ‘shall not bar the Court from exercising its jurisdiction over such a person.’ Therefore, Sudan could not rely on State immunity to evade the ICC’s jurisdiction. This leaves open the possibility that other States not party to the Rome Statute could be similarly compelled to give up their right to immunity. All members of the UN are obliged by Art. 25 of the UN Charter to comply with UNSC resolutions, greatly widening the potential application of the ‘Security Council Route.’
The Critics
Unsurprisingly, the ramifications of this decision have been divisive.
UNSC Resolution 1593 contains no explicit reference to State Immunity. The ICC’s reliance on the broader requirement imposed on Sudan to ‘cooperate fully’ suggests the UNSC may now implicitly prohibit reliance on immunity in response to an ICC warrant. This discretionary power enables the UNSC, already largely controlled by Western powers, China and Russia, to infringe the sovereignty of less powerful States by forcing their compliance with the Rome Statue and removing their right to immunity. The capacity to do so without the consent of the affected State only increases the UNSC permanent members’ hegemony over the international justice system.
Moreover, this power has been inconsistently used. Despite similar allegations against Bashar al-Assad, President of Syria, and a request co-sponsored by 65 States, for the UNSC refer the situation in Syria to the ICC,[3] no such resolution has been made. Meanwhile, the United States itself is not subject to the ICC’s jurisdiction and vehemently opposes ICC enquiries into its nationals. Therefore, whether the United States should hypocritically play a role in obliging other States to comply with the ICC’s directives is debateable.
The African Union has also raised concerns over whether such decisions by the ICC threaten the long-term stability of the region, stressing that ‘justice should be pursued in a way that does not impede or jeopardise efforts aimed at promoting lasting peace.’[4] The practical realities of compelling States to arrest foreign officials, who otherwise enjoy immunity from national jurisdictions, may undermine the purpose of State Immunity in facilitating international relations. International gatherings, like the Arab League’s summit in this case, and visits by foreign delegations to other States are crucial in ensuring international cooperation and civility as they provide irreplaceable forums for peaceful discussion and dispute resolution. If Heads of State cannot participate in such diplomatic events, without fear of arrest and prosecution, they are unlikely to meaningfully engage with other States. This may then only increase regional tensions and alienate States already operating on the periphery of legality, escalating conflicts in the long-term.
Why it’s not so bad
However, Al-Bashir’s alleged commission of genocide, war crimes and crimes against humanity was a heinous contravention of accepted jus cogens norms, so by all measures it is certainly preferable for Al-Bashir to be prosecuted if legally possible.
The ICC criticised the alternative proposed by some States, where States Parties to the Rome Statute or those referred to the ICC could be permitted to rely on State Immunity to refuse to execute warrants: ‘the Court depends on State cooperation to execute warrants of arrest. The result would be that, in effect, the Court would be barred from exercising its jurisdiction because of the existence of immunities.’[5] Such a result would incapacitate the ICC. Currently, the ICC is the only permanent international court capable of prosecuting individuals who have been accused of perpetrating the most reprehensible crimes: genocide, war crimes, crimes against humanity and crimes of aggression. Many of these crimes have jus cogens status and attract the universal condemnation of States. Therefore, preventing the ICC from exercising its jurisdiction when such crimes have been committed would be incongruous with the international community’s expectation that these crimes cannot go unpunished.
Additionally, concerns that this decision is an unprecedented infringement of State sovereignty are perhaps also overstated. As Talita de Souza Dias from Oxford University observes, ‘limitations on State sovereignty are the very purpose of Chapter VII resolutions, which are meant to impose coercive measures on UN member States.’[6] Members of the UN have already acquiesced to the possibility of being bound by UNSC resolutions by assenting to Art. 25 of the UN Charter. To accept that the UNSC may also oblige them to submit their nationals to the ICC’s jurisdiction, in the limited situations where these nationals have behaved with the utmost disregard for the most fundamental jus cogens norms, does not put a substantially greater burden upon the principle of State sovereignty.
While requiring States to execute warrants against the heads of other States may indirectly jeopardise future peace, the continuing commission of war crimes, genocide or crimes against humanity more directly endangers peace in the present. The very nature of these violent unconscionable crimes invites rebellion and intervention by other States. In turn this precipitates wars, like in Syria, or equally violent reactions in pursuit of justice, like the actions of rebel groups in Palestine. Allowing States to harbour accused war criminals like Al-Bashir would reflect an implicit acknowledgement by the ICC of its inability to effectively prosecute these crimes. In the absence of individual accountability, Heads of States would not be deterred from committing such crimes and would not resign from their positions, voluntarily relinquishing their immunity. Therefore, with this decision, the ICC possibly counters the perception that Heads of State, so long as they remain in power, are in effect immune from prosecution, discouraging the perpetuation of violence and the corresponding emergence of cycles of violence.
Conclusion
The ‘Security Council Route’
is an imperfect system, still allowing powerful States to escape the ICC’s
jurisdiction. However, the net good achieved by prosecuting the perpetrators of
the most egregious crimes, even when these perpetrators are current Heads of
State, outweighs any strain it places on the principle of State sovereignty or
international relations.
[1] Rome Statute, Art. 86.
[2] https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf
[3] https://www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution-refer-syria-international-criminal-court
[4] http://www.iccnow.org/documents/AU_142-communique-eng.pdf
[5] Prosecutor v Al-Bashir (Pre Trial) (International Criminal Court, Appeals Chamber Case No ICC-02/05-01/09 OA2, 6 May 2019), [122]. https://www.icc-cpi.int/CourtRecords/CR2019_02856.PDF
[6] https://www.ejiltalk.org/the-discussion-of-the-security-council-roots-to-the-derogation-from-personal-immunities-in-the-al-bashir-case-how-explicit-must-security-council-resolutions-be/#more-16485