The ICC Appeals Chamber’s Judgment in the Jordan Referral: Oh! What a tangled web it weaves when first it practices to conceive

There is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. (para. 1)

Article 98(1) of the Statute does not itself stipulate, recognise or preserve any immunities. It is a procedural rule that determines how the Court is to proceed where any immunity exists such that it could stand in the way of a request for cooperation. (para. 5)

Resolution 1593 gives the Court power to exercise its jurisdiction over the situation in Darfur, Sudan, which it must exercise ‘in accordance with [the] Statute’. This includes article 27(2), which provides that immunities are not a bar to the exercise of jurisdiction. … Sudan cannot invoke Head of State immunity if a State Party is requested to arrest and surrender Mr Al-Bashir. … Accordingly, there was also no immunity that Jordan would have been required to ‘disregard’ by executing the Court’s arrest warrant. And there was no need for a waiver by Sudan of Head of State immunity. (para. 7)

Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019

Finally, the long-awaited International Criminal Court (ICC) Appeals Chamber Judgment on Head of State immunity arrived. Unsurprisingly, it contrives to bridge the disparate reasonings of the Pre-Trial Chambers’ decisions while, in no small measure, attempting to expand its international personality and jurisdictional reach. If the United States (US), Russia, and China did not get the Malawi memo – that by virtue of United Nations Security Council (SC) Resolution 1593 they endorse that Heads of States not party to the ICC Statute are not immune from ICC jurisdiction, then the Appeals Chamber’s Judgment in the Jordan Referral re Al-Bashir Appeal (Judgment) puts them on clear notice.

Some will rejoice; others (legal purists and sticklers for applying, as opposed to making, the law) will not. Based on the Judgment, Head of State immunity before international courts is virtually abolished.

The farcicality of SC referrals

Before getting to the substance of the Judgment, a  slight digression: assuming the jurisprudence from the Judgment is sound (doubtful, and, more importantly, not reflective of applicable international law beyond the ICC), it will find no traction with at least three (US, Russia and China) of the five permanent members (P5) of the SC.

One of my takes on the Judgment (mind you, I’m no scholar and other well-qualified experts have admirably commented on this Judgment and attendant Pre-Trial Chamber decisions, see e.g. here, here, here, here, and here) – is that were the SC to make a referral to the ICC that is then accepted (under Article 53, the ICC has the discretion to decline), and were the referral to involve a state not party to the ICC Statute (most likely the case since States Parties are required to abide by the ICC Statute), for all intents and purposes, the ICC Statute – in its entirety – would apply to that state. In other words, a SC referral, inexorably, transforms non-States Parties – in relation to the referred case – into States Parties. And while there is no exception carved out for P5 states, can it seriously be entertained that the SC would refer a case to the ICC without the US or Russia or China exercising their veto power? Can’t you just see US Secretary of State Mike Pompeo with, say, US National Security Advisor John Bolton behind him (see here and here for their views on the ICC), calling on the SC to pass a resolution calling on the ICC to launch an investigation and, if appropriate, to charge and prosecute US military or high level civilian personnel for any of the host of international crimes falling under the ICC’s jurisdiction? Hilarious.

As an aside, one has to wonder about the utility of the SC having the right to refer cases to the ICC when the three heavyweights of the P5 are unwilling to subordinate any of their sovereignty/jurisdiction to the ICC (though let’s face it, the ICC is increasingly proving to be a failed project), and when the US, in particular, is going out of its way to delegitimize the ICC. Not to mention the SC’s abject failure to follow-up on its resolutions – to aid the ICC in carrying out the mandate prescribed to it through SC referrals. One explanation is that the ICC, craving recognition as an international court with an international personality (see my post here), saw some benefit in hitching its wagon to the SC despite the obvious shortcomings. I suspect the day may yet come when the ICC rejects a SC referral, but were this to occur, I dare say, the ICC would find itself even more at odds with some of the P5.

Apologies for frolicking on this farcicality, this perversion. Hard to overlook the reality, not to mention the duplicity in having the SC referring matters to the ICC only for the SC to do nothing thereafter (see my posts here and here). The SC’s involvement in ICC affairs is perhaps a topic for a future post. Until then, I yield to more learned authorities to opine on the utility (and legitimacy) of the SC’s prerogative of conferring jurisdictional authority to the ICC, when not only three of the P5 states have no intention of subjecting themselves to the ICC’s jurisdiction, but also when at least one of them, explicitly, does not recognize the ICC as a legitimate international court.

The Judgment – more weeds than roses

Back to the Judgment. Considering its size, shape and style, I will merely provide some quick and rough sketches. Anyone seriously interested in the discrete immunity issues raised in the Judgment will have to soldier-on through it, the Joint Concurring Opinion (JCO), the briefs filed, the transcripts from the oral arguments, and much of what was decided before, which the Judgment sets out to correct. Warning: The Judgment and JCO are a slog; caffeinate well before advancing on the long trek that awaits.

The Judgment is 98 pages long. It covers three issues, of which the first two deal with immunity. On these issues, the judges are unanimous. The third issue – whether to refer Jordan to the Assembly of States Parties (ASP) and the SC is of lesser importance, and frankly, it seems that the majority (Judge Chile Eboe-Osuji, Presiding, Judge Howard Morrison, and Judge Piotr Hofmański) punted to avoid the obvious emperor has no clothes reality – so what if a referral is made to the ASP or the SC; nothing will come of it (see here and here).

Even longer is the JCO dealing with the first two issues on immunity. Bizarrely, it is nearly twice as long as the Judgment, running at 190 pages. More bizarrely is that the JCO is the concurring opinion of four of the five judges who unanimously agreed – without exception or qualification – on the two issues dealing with immunity. Curiously, what Judge Luz del Carmen Ibáñez Carranza does not reveal her reason(s) for not  joining the majority of the JCO (I guess it would then have been called Unanimous Concurring Opinion, or Unanimous Opinion, or simply opinion); there is no dissenting or partially concurring, or separate opinion. Apparently, something in the JCO was a bridge too far to cross for Judge Ibáñez Carranza. Maybe it was nothing of substance. Maybe it was just the pertinence or exhibitionism of drafting an accompanying unanimous concurring opinion to what was unanimously agreed to in the judgment, that, aside from its spectacular length, was essentially gratuitous.

Written in an embroidered style, the Judgment and JCO impress with references to historical events, legal scholars, jurists, and political figures. Combined they are effectively an expanded version of the Malawi decision, save for the added analysis on Resolution 1593, which, in my opinion, would have sufficed in making an arguably passable claim as to why Jordan may not have needed a Head of State immunity waiver from Sudan in order to arrest Al-Bashir and surrender him to the ICC. Not that it is settled that a SC referral – even when issued under Chapter VII of the UN Charter – axiomatically abolishes Head of State immunity (as argued below), but, as noted, at least it seemingly flows.

The brilliant and recently departed US Federal Judge and the Chief US Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit, Patricia M. Wald, who also sat as a judge at the ICTY and was critical of the lengthy decisions by judges coming mostly from academia and eager to impress and make law, would be flabbergasted by the size and style of the Judgment and JCO (see her observations on her ICTY experience here). And rightly so. The JCO, in particular, reads like an LLM thesis or a symposium paper – especially the first 110 pages, whereas the rest of the text meanderingly attempts to link-up to the Judgment, often through annoyingly repetitive passages, which, curiously, are referenced in the Judgment, directing the reader to the JCO for further enlightenment. Which begs a question: if only four of the five judges agree with the JCO, how is it that the Judgment references for further elucidation to the JCO, as, say, footnote 336, directing the reader to “See further paras 76-174, 414-418. See also paras 175-252, 431-445” of the JCO. Presumably, Judge Ibáñez Carranza concurs with these 195 referenced paragraphs (and all other instances of such cross-refencing) to the JCO, which she did not join for inexplicable reasons. Never mind the inordinate inconvenience of having to extract the needles from these haystack-passages. And if that was not enough, assuming one manages to find the time and energy to trudge through this JCO Leviathan, just as the end nears (to no small satisfaction, mind you), the poor reader is condescendingly schooled with Two Vital Lessons. How fortunate.

The aim of the JCO, supposedly, is to “reveal further analysis in a connected way” to the normative question of immunity of Heads of State before the ICC – as “the importance and circumstance of that question recommend a certain view of the further analysis that underscores the correctness of the Appeals Chamber’s judgment on that subject” (para. 1). But if this question is so important, and if the purpose of a judgment is to resolve questions by articulating a holding that is well-reasoned based on a proper interpretation and application of relevant and reliable authority, then why not say it all in the Judgment. Why the need for a JCO that is twice as long as the Judgment by four of the five judges who unanimously found a meeting of the minds on the issues in question. It is not as if four of the five judges were staking-out a more nuanced position or agreeing with some but not all of the reasoning despite being in agreement with the holding.

Anything that was in the JCO that needed to be in the Judgment should have been included in the Judgment – especially if it has or is expected to have jurisprudential value. The JCO may be informative as an academic exegesis, but other than offering musings expressed as a commentary to a Judgment that seems by design, to have been purposefully left incomplete so as to lend utility to the analytical reasoning in the JCO, one must query whether it has any authoritative or precedential value. Apologies if I am missing something.

But then perhaps the aim of the JCO is not so much to bolster the reasoning of the Judgment, as it is a far-sighted marker being put down – to be rolled out and paraded in future decisions, lending rationale to legal issues mentioned in or touched upon in the JCO. Just a hunch.

In any event, for my tastes – and anyone valuing simplicity and cogency in legal decisions – the Judgment and JCO are excruciatingly lengthy and bewilderingly structured. Were I less charitable, I would say that the JCO, and to a lesser extent the Judgment, exude more than a whiff of vanity and superciliousness.

Quick and rough sketches

Recap On 31 March 2005, the SC adopted Resolution 1593 (2005), referring the situation in Darfur to the ICC urging all States and concerned regional and other international organizations to “cooperate fully” with the Court. Nearly four years later, on 4 March 2009, the ICC Pre-Trial Chamber issued its Decision on the Prosecution’s Application for a Warrant of Arrest against Al-Bashir, noting:

41.  Furthermore, in light of the materials presented by the Prosecution in support of the Prosecution Application, and without prejudice to a further determination of the matter pursuant to article 19 of the Statute, the Chamber considers that the current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case.

42.  The Chamber reaches this conclusion on the basis of the four following considerations. First, the Chamber notes that, according to the Preamble of the Statute, one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, which “’must not go unpunished”. 43. Second, the Chamber observes that, in order to achieve this goal, article 27(1) and (2) of the Statute provide for the following core principles:

(i) “This Statute shall apply equally to all persons without any distinction based on official capacity;”

(ii) “[…] official capacity as a Head of State or Government, a member of 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;” and

(iii) “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”

44.  Third, the consistent case law of the Chamber on the applicable law before the Court has held that, according to article 21 of the Statute, those other sources of law provided for in paragraphs (l)(b) and (l)(c) of article 21 of the Statute, can only be resorted to when the following two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements of Crimes and the Rules; and (ii) such lacuna cannot be filled by the application of the criteria of interpretation provided in articles 31 and 32 of the Vienna Convention on the Law of the Treaties and article 21(3) of the Statute.

45.  Fourth, as the Chamber has recently highlighted in its 5 February 2009 “Decision on Application under Rule 103”, by referring the Darfur situation to the Court, pursuant to article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole. (footnotes omitted)

On the same day, and subsequently on 12 July 2010, the Pre-Trial Chamber issued warrants of arrest against Al-Bashir (see here and here). Also, on 6 March 2009 and on 21 July 2010, the Registry sent the Pre-Trial Chamber’s request1   The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, Request to All States Parties to the Rome Statute for the Arrest and Surrender of Omar Al-Bashir, 6 March 2009. and supplementary request2   The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, Supplemental Request to All States Parties to the Rome Statute for the Arrest and Surrender of Omar Al-Bashir, 21 July 2010. to all States Parties to the ICC Statute for the arrest and surrender of Al-Bashir.

Jordan has been a State Party to the ICC since 2002. Unquestionably, it was on notice of the Pre-Trial Chamber’s decision as of July 2010. Sudan is not an ICC member state. It is thus neither subject to the ICC Statute nor, save for Resolution 1593, obligated to cooperate with the ICC. Since the arrest warrant was issued, and before falling victim to a coup (what goes around comes around), Al-Bashir, as Head of State of Sudan, travelled extensively on official missions to various states, include states party to the ICC Statute (see Michael A. Newton’s Mapping Bashir Research Project). None of the states acted on the arrest warrant, recognizing that Al-Bashir, irrespective of the Pre-Trial Chamber’s decision(s), enjoyed diplomatic immunity under customary international law, and save from an official waiver of the immunity by Sudan, these states, notably, felt legally constrained from arresting and surrendering Al-Bashir to the ICC. Put differently, Al-Bashir’s unhindered travels exposes (as argued by Newton) the lack of crystallization of consistent State practice and opinio juris that states are under an international obligation to ignore Head of State immunity. And these non-cooperating states, obviously, did not consider that “cooperation” as referred to in Resolution 1593 could or should be interpreted to mean that the SC, had by virtue of its authority, had eliminated Al-Bashir’s Head of State immunity.

And herein lies the rub of this saga: Jordan, as other states visited upon by Al-Bashir as Head of State, demurred to the ICC’s request to arrest and transfer Al-Bashir to the ICC.

Queries Did Jordan have a responsibility to act on the arrest warrant? Did Al-Bashir enjoy immunity since Sudan had not lifted it? Aside from the Rome Statute, was Jordan obligated to arrest Al-Bashir under customary international law? Or put differently, did customary international law bind Jordan to arrest Al-Bashir who was wanted by an international court? Does the SC’s referral under Chapter VII strip, unqualifiedly, Al-Bashir of any immunity protection when traveling as the Head of State on official state affairs? Or put differently, does a SC referral trump or invalidate Article 98(1)? Does the SC’s referral under Chapter VII make Sudan, for all intents and purposes, an ICC member state as to matters related to the referral, making Sudan’s lifting of the immunity superfluous, and thus imposing on Jordan and on Sudan the obligation to arrest Al-Bashir? And more.

After nearly a nine-year Odyssey of drama, twists and turns, ebbs and flows, and intermittent and conflicting decisions on Heads of State immunity (see here, here, here, and here) the Appeals Chamber issued the Judgment, as if the shores of Ithaki had finally been reached. But, whereas Odysseus, Homer’s epic hero did not disappoint his fair and long-suffering Penelope by hitting his mark in the contest against her unwanted yet persistent suitors, the Appeals Chamber missed its mark in settling the substance and contours of Head of State immunity before international courts by overreaching, contriving, and conceiving.

Issue The Appeals Chamber set out to determine whether Head of State immunity is applicable where the ICC requests a State Party to arrest and surrender the Head of State of another State (Sudan), which, though not a State Party, is the subject of a SC referral to the ICC (Resolution 1593) which compels full cooperation with the Court. Put differently, whether Al-Bashir, in his capacity as Head of State of Sudan, enjoyed immunity before the Court which Jordan was obligated to respect in the absence of a waiver from Sudan.

Contention The rub for the Appeals Chamber with the Pre-Trial Chamber’s decision(s) centered on its reasoning: though the Pre-Trial Chamber correctly found that Article 27(2) of the Statute prevents immunity as a bar to the ICC exercising its jurisdiction and that SC Resolution 1593 triggered the ICC’s jurisdiction and thus put the entire ICC Statute into play and obliged Sudan to fully cooperate with the ICC, it faltered in finding that Al-Bashir enjoyed Head of State immunity from the exercise of criminal jurisdiction by Jordan under customary international law, and since there were no known rule excluding this immunity, he could not be arrested for international crimes by another state – even if his arrest was sought by an international court. Essentially, the Appeals Chamber set out to correct this later point: the existence of Head of State immunity when the Head of State, charged by an international court (in general) but especially the ICC, hails from a non-State Party.

Gist The Judgment effectively does away with diplomatic immunity covered by Article 98(1) which reads:

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.

According to the Appeals Chamber’s reasoning: a. there is an absence of a rule of customary international law recognizing Head of State immunity before international courts in the exercise of jurisdiction, there was nothing to waive; b. Article 98(1), is merely a procedural rule which guides the ICC on how to proceed when immunity exists, determined on the ICC’s sources of law under Article 21(1); c. under Article 27(2) Head of State immunity is completely barred (vertically among States Parties and the ICC and horizontally between States Parties when cooperation is sought by the ICC); and therefore d. Article 98(1) is irrelevant – there is an absence of Head of State immunity, thus nothing to waive (para.130). Also, once the SC makes a referral to the ICC under Chapter VII through a resolution such as Resolution 1593, UN member states, by virtue of the UN Charter have acceded to the authority of the SC. Thus, by virtue of the referral the state in question, even if not party to the ICC Statute, is under ICC jurisdiction and subject to all provisions of the ICC Statute.

According to the Appeals Chamber, because of the SC’s referral, Sudan, for all intents and purposes, is transformed into a State Party (limited to the situation referred), and thus not in a position to consider whether to waive Al-Bashir’s immunity. As the reasoning goes, the waiver of Head of State immunity is made redundant by the SC referral – and, as noted, as far as the Appeals Chamber is concerned, there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court. According to the Appeals Chamber, Jordan did not need Sudan to waive Al-Bashir’s immunity because the SC referral effectively had lifted it (and, nonetheless, such immunity is not supported by customary international law). With no immunity to be lifted by Sudan, Jordan was obliged to arrest and surrender Al-Bashir to the ICC.

Take-away As appealing as the Appeals Chamber’s reasoning may seem, it is flawed. It requires accepting its pronouncements on customary international law – that there is no quarter left for immunity for a Head of State charged with international crimes, even when on official diplomatic missions, and that the exception carved out by Article 98(1) – presumably adopted by the drafters because this exception is recognized under customary international law – is no longer available (save perhaps when lesser crimes or offences such as under Article 70 for obstruction of justice are charged).

Heads of State are not barred from prosecution; never an issue in dispute. The issue was whether Heads of State immunity recognized under customary international law, can, under certain circumstances, bar a state from executing on an arrest warrant from an international court (in this case the ICC) when such immunity has a. routinely been recognized (as shown by Newton’s Mapping Bashir Research Project) b. affirmed in the international (wanting) courts’ statute, and c. where there is no explicit language by the SC in its referral under Chapter VII of the UN Charter to an international court that waives under all circumstances Heads of State immunity.

Dense as its reasoning may be, the Appeals Chamber fails to show how Head of State immunity is unavailable under the discrete factual matrix in question. Which is why (I am now guessing) the four concurring judges may have felt the need to bolster their reasoning through the tortuously long, mind-numbing JCO, with Two Vital Lessons – to boot.

The Appeals Chamber’s holding (if that is what it is) on customary international law with respect to Head of State immunity is as unconvincing as its finding that a SC referral under Chapter VII lifts any immunity afforded to an ICC-wanted Head of State for Article 5 crimes (the referral negates any Article 98(1) privileges and duties afforded to any state or non-state party overrides any statutory or otherwise immunity afforded under customary international law).

There is a reason that the drafters of the ICC Statute explicitly incorporated Article 98(1). As for SC Resolution 1593, while it calls on states to cooperate with the ICC on the Darfur situation, it does not explicitly revoke Al-Bashir’s immunity – nor did it instruct the ICC – assuming it could – to waive the application of Article 98(1), which, assuming it had done so, would have made it clear to Jordan and other states, that were Al-Bashir to attend an official meeting as a Head of State, it would have no choice but to arrest him and turn him over to the ICC for prosecution.

There is a lot to unpack in the Judgment and the JCO. These are just some quick and rough sketches. I strongly recommend anyone interested in the Heads of State immunity to read the Judgment, the JCO, and all that is referenced therein. But after all of that, don’t be surprised if you are still left wondering. The Judgment may have settled this issue before the ICC, but whether it carries the day elsewhere remains to be seen. I suspect not. And in any event, were the Pre-Trial Chamber to find itself in a situation where it would be inconvenient to apply the finding of the Judgment, conveniently it can now take no action by invoking the (recently appropriated) interest of justice.



Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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