I. Introduction
The International Court of Justice (ICJ)’s contribution to legal change may have been more in its obiter dicta than in its rationes decidendi. Through such obiter statements, the court can indicate, by way of a qualification of what may be perceived as an unjust outcome in the case at hand or in an earlier case, that international law has concepts or rules that would lead in the opposite direction if only the facts had been different. It is a “sorry, but…”. It is thus that the court introduced the concept of erga omnes in its Barcelona Traction judgment of 1970, an implicit making good for its decision in the South West Africa cases of 1966.Footnote 1
It is also thus that in 2002 the court stated that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction”.Footnote 2 This was the “sorry, but” for its finding that there is no exception to the law according to which heads of state, heads of government and ministers of foreign affairs enjoy immunity before foreign courts, even in case of allegations of crimes against humanity and war crimes. In a seeming attempt to reassure, the court argued that this respect for immunity did not have to amount to impunity and listed four scenarios in which an incumbent or former minister could nonetheless be prosecuted. As the fourth one it mentioned “before certain international criminal courts, where they have jurisdiction”.
This one obiter comment has since then become the basis of a line of case law that can be characterised as “international-criminal-court exceptionalism”: domestic courts must respect personal immunities, even in case of allegations of international crimes, but international criminal courts need not. And, according to a recent decision of the Appeals Chamber of the International Criminal Court (ICC), states need not respect immunities either if they are acting at the request of an international court.Footnote 3 However, the basis seems too weak for the structure that has been built on it because no sufficient justification has been provided yet as to why states would be allowed to do collectively what they are not allowed to do individually. Tracing the way this structure has been built over the past two decades – by the Special Court for Sierra Leone, by an ICC Pre-Trial Chamber, and now, most recently but also most ambiguously, by the ICC Appeals Chamber – this article argues that it is necessary to return the statement to the originator, giving the ICJ an opportunity to justify or qualify the exception.
II. The Origins: The ICJ in Arrest Warrant
The origins of the national-international court dichotomy lie in two parts of the Arrest Warrant judgment. First, impliedly, in the way the court dismissed Belgium's arguments as to why it had not violated the international law on immunities when it issued an arrest warrant on the basis of allegations of war crimes and crimes against humanity against Congo's minister of foreign affairs. Belgium had invoked the practice of the Nuremberg and Tokyo tribunals and that of the International Criminal Tribunal for the former Yugoslavia. The court found that the practice of these tribunals did not relate to the question as to immunity before domestic courts.Footnote 4 Second, and more explicitly, when providing scenarios in which incumbent or former foreign ministers can nonetheless be prosecuted, the court stated:
Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that “[i]mmunities 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”.Footnote 5
It being an obiter statement, the court did not have to explain which courts were included in the category of “certain” international courts that did not have to respect the ordinarily applicable law on immunities, and why and under which circumstances they did not have to do so. But its list of examples is telling: it seems to have carefully selected those international criminal tribunals and courts that can justifiably ignore, to some extent and in some circumstances, the ordinarily applicable law on immunities. Thus, it refers to the international criminal tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), whose statutes did not explicitly say that these tribunals could ignore immunity,Footnote 6 but did not tell the tribunals to respect immunities either. And while for international courts created by international agreements not respecting immunities could raise problems vis-à-vis states not parties to the relevant instrument, in the case of the ICTY and ICTR this could be justified on the basis of the fact that they had been created by a decision of the United Nations (UN) Security Council binding on all states and that such a decision could override customary international law. The ICJ also referred to the ICC, citing the provision in the Rome Statute that renders immunity irrelevant before the court, but it could have done so having only states parties in mind. In that case, too, the legal basis is unproblematic: states parties can waive immunity vis-à-vis the ICC and even inter se in relation to the ICC. In sum, the ICJ referred to those international criminal courts for which a justification for them ignoring ordinarily applicable immunity law was at hand, at least in some of the cases that could come before them: a Security Council mandate and states parties’ direct consent to the instrument stipulating the irrelevance of immunity. It did not address the question whether these, let alone other, international criminal courts or states acting at the request of these courts, could also ignore immunities in case both these legal bases are absent.
III. The Continuation: The Special Court for Sierra Leone in Taylor
None of these legal bases was at hand when, two years later, the Special Court for Sierra Leone was confronted with the question whether it, as a court created by an international agreement between the UN and Sierra Leone, was bound to respect the ordinarily applicable law on immunity ratione personae vis-à-vis Charles Taylor, the then President of Liberia. Unlike the ICTY and ICTR, the Special Court had not been created by the UN Security Council: the Security Council had merely asked the UN Secretary-General to establish the court through an agreement with Sierra Leone. Liberia was not a party to that agreement.
The Special Court first emphasised and discussed why, in its view, it was a “truly international” court.Footnote 7 It could have dealt with the question of its legal status in a straightforward manner: by virtue of having been created by an international agreement, it was an international court. But rather than basing the finding of its legal status purely on the international agreement, the court went on to emphasise the Security Council's involvement in its creation. It seems that this is what it believed to make it “truly international”. While it did not discuss in this section the impact of being a “truly international” court on immunity, it did emphasise exactly those elements that could, if other criteria had been fulfilled, justify not respecting immunities. For instance, it stated that “[t]he Agreement between the United Nations and Sierra Leone is … an agreement between all members of the United Nations and Sierra Leone”,Footnote 8 hinting at state consent: the argument seems to be that because Liberia is a member of the UN, it has consented to the non-applicability of immunity since that organisation has concluded an agreement establishing a court that does not have to respect immunities. The argument is unconvincing, however, because the UN can enter international agreements independently and does not bind its Member States by doing so. Similarly, the Special Court emphasised the involvement of the Security Council in its creation, but the key feature of Security Council action that could override customary international law remained missing: a decision binding on all Member States, or, for that matter, Liberia specifically.
Then turning to the immunity question, the Special Court advanced a rationale for the ICJ's distinction between national and international courts that differed from that of a Security Council basis or that of direct consent to the instrument creating the court:
A reason for the distinction, in this regard, between national courts and international courts, though not immediately evident, would appear due to the fact that the principle that one sovereign state does not adjudicate on the conduct of another state; the principle of state immunity derives from the equality of states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community.Footnote 9
The Special Court thus read the ICJ's category of “certain international criminal courts” as courts that “derive their mandate from the international community”. It also invoked as “another reason” one provided by amicus Professor Diane Orentlicher: “states have considered the collective judgment of the international community to provide a vital safeguard against the potential destabilizing effect of unilateral judgment in this area”.Footnote 10 The court concluded: “[b]e that as it may, the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.”Footnote 11
Thus, even though emphasising features resembling Security Council decisions or direct state consent when discussing its international status, the Special Court, probably aware that these criteria were not fulfilled, eventually added a third ground on which, in its view, ordinarily applicable immunity law can be displaced: “a mandate from the international community.” In the context of the immunity discussion, it did not elaborate what that means and what is required for it. Who is the international community? The collective of all states? Most states? 122 states? Or would two states also do? The UN? If so, how much UN involvement in the establishment is required for it to be considered to have given it a “mandate”? For instance, do the Extraordinary Chambers in the courts of Cambodia have a “mandate from the international community” on the ground that the UN General Assembly and Secretariat were involved in their creation, even though the Chambers were established by Cambodian law?
IV. Exceptional Exceptionalism: The ICC's Pre-Trial Chamber in Malawi
The question of whether, under what circumstances and on what basis the ICC can ignore the ordinarily applicable customary law on immunities has been hotly contested ever since 2009, when the Prosecutor requested an arrest warrant for Omar al-Bashir while he was still president of Sudan. Unlike in Taylor, the question is not so much whether the ICC has to respect President Bashir's immunity in its relation to him. Sudan is not a party to the statute, so the ground of state consent directly to the treaty is unavailable. However, Sudan is a member of the United Nations and the Security Council has decided to refer the situation in Darfur to the ICC and to oblige Sudan to cooperate, thus making the legal regime of the Rome Statute applicable to Sudan. And, as already mentioned by the ICJ in Arrest Warrant, the statute provides in Article 27(2) that “[i]mmunities … which may attach to the official capacity of a person … shall not bar the Court from exercising its jurisdiction over such a person”.
Rather, the issue is whether the court was allowed to issue to states parties requests for arrest and surrender of an incumbent head of state of a state not party to the Rome Statute, and whether those states parties were obliged to comply with such requests when President Bashir visited their states, given that the Rome Statute also provides, in Article 98(1):
[t]he Court may not proceed with a request for surrender … 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, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
Several of the ICC states parties who had hosted President Bashir and the African Union argued that this article, located in a part of the statute that governs the relationship of states and the ICC, prohibits the court from creating a conflict of obligations with the customary law on immunities. In their view, this article is unaffected by Article 27(2), because that article applies only in the relationship between the person benefitting from the immunity and the court, namely in a vertical relationship, as is confirmed by its location in a part of the statute that provides for general principles of criminal law to be applied by the ICC, not states parties.
In a decision concerning Malawi's non-execution of the request to arrest and surrender President Bashir, the first Pre-Trial Chamber dealing with the question followed the “international-criminal-court-exception” route, prominently invoking the quoted paragraph in the Arrest Warrant Case and the Special Court for Sierra Leone's decision in Taylor. Pre-Trial Chamber I found that “customary international law creates an exception to Head of State immunity when international courts seek a Head of State's arrest for the commission of international crimes”.Footnote 12 As a result of this exception, so the Chamber held, Article 98(1) of the statute did not apply. It seemed to try to justify extending the customary rule of no immunity before international criminal courts to the state-state relationship by arguing that “when cooperating with [the ICC] and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within its jurisdiction”.Footnote 13
Despite the early following,Footnote 14 the international-criminal-court-exception route soon became exceptional among ICC Pre-Trial Chambers. Other Pre-Trial Chambers, dealing with the same question after President Bashir had visited other states parties, reached the same conclusion as Pre-Trial Chamber I in Malawi, namely that the states parties in question had been obliged to arrest and surrender President Bashir, but each Chamber followed its own legal route, sometimes explicitly rejecting the international-criminal-court-exception route. Contrary to Pre-Trial Chamber I, Pre-Trial Chamber II – notably, with one judge who had also served on the bench that had rendered Malawi – observed with respect to Article 27(2) that the Rome Statute could not impose obligations on third states without their consent.Footnote 15 It stressed the relevance of Article 98(1) in case the court prosecuted a head of state of a state not party. However, it held that the Democratic Republic of the Congo could not rely on Article 98(1) because the Security Council, in Resolution 1593, had obliged the Government of Sudan to cooperate fully with the court, and that this involved eliminating procedural obstacles to proceedings, including immunities. In the Chamber's view, the waiver referred to in Article 98(1) had been obtained, implicitly, by virtue of the duty to cooperate in the Security Council resolution.Footnote 16 Among the problems of this “Security Council implied waiver route”, however, are that first, this obligation to waive was not explicit and that in the law on immunities waivers have to be explicit, and that even if it was implied, a violation of a duty would lead to a breach of the obligation to cooperate, not to immunity actually having been waived.
Then, a reconstituted Pre-Trial Chamber II – notably, with the same judge who had also decided on both Malawi and the DRC – explicitly rejected the international-criminal-court-exception route as it had been developed and applied in Malawi: “The Chamber is unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court.”Footnote 17 For its part, it adopted a third legal avenue to reach the conclusion that South Africa had been obliged to arrest President Bashir when he attended an African Union summit in Johannesburg. It argued that by accepting Article 27(2) states parties had given up on the applicability of immunity inter se, and that the Security Council referral had the effect of putting Sudan in a position analogous to that of a state party, at least for the purposes of cooperation. Article 98(1) thus did not apply because there was no immunity to be respected.Footnote 18 This can be labelled the “Security Council analogous to a state party route” or, paying tribute to the scholar who provided the judges with this rationale, the “Akande route”.Footnote 19
Judge Perrin de Brichambaut offered a fourth legal avenue in his minority opinion in South Africa: the “Genocide-Convention route”. Also drawing on scholarship, he contended that Sudan was not entitled to respect for Bashir's immunity abroad because Sudan had ratified the Genocide Convention, which contains an obligation to prosecute, possibly before an “international penal tribunal”, and provides that persons committing genocide shall be punished irrespective of official status.Footnote 20
When Jordan appealed Pre-Trial Chamber II's finding that it should have arrested President Bashir during an Arab League summit, following the Security-Council-analogous-to-a-state-party route,Footnote 21 it created the first opportunity for the Appeals Chamber to clarify the ICC's reasoning on the matter.Footnote 22 Aware of the controversy that the Pre-Trial Chambers’ decisions had caused – the divergence of routes having been like fuel to flames – the Appeals Chamber invited “Professors of International Law” to request leave to submit observations, and appointed some of them as amici curiae.Footnote 23 The result was dozens of legal opinions and a week of spectacular hearings, streamed online, in which in addition to the strong teams representing Jordan, the African Union, and the League of Arab States, 16 law professors, including the crème de la crème of the field, gave their (widely diverging) views on the questions presented to them.Footnote 24
V. The Ambiguous Endorsement: The ICC's Appeals Chamber in Jordan
Against this background of increasing demand for clarification and rich diplomatic and scholarly input, the Appeals Chamber's judgment came for many as a disappointment.Footnote 25 The outcome, a finding that Jordan was not allowed to refuse to execute a request to arrest and surrender by invoking Article 98, was not surprising. Few had expected the Appeals Chamber to go against all Pre-Trial Chambers, despite the strong arguments for Jordan's position (and that of many African states) provided by its legal team, the AU, the League of Arab States and amici Roger O'Keefe and Paola Gaeta. But for both opponents and proponents of that outcome, the judgment was disappointing because even though it is unanimous in its answer on the immunity question – the dissent concerns only the decision to refer the matter to the Assembly of states parties and the Security Council – the judgment is ambiguous on the key questions and some of the points on which the judgment hinges are unpersuasively argued. Some of these points are more elaborately discussed in the 190-page Joint Concurring Opinion, but given that only four out of the five judges signed it, it cannot be taken to support the entire judgment, possibly only where the judgment references it. Moreover, it, too, is ambiguous on the key questions. Complicating matters further, in response to criticism in the blogosphere, the court issued a “Questions and Answers” statement in which it explicitly rejected some interpretations of the judgment, but also provided elaborations that raised new questions, and eyebrows.
On the most fundamental issue, whether a state party that has been requested by the court to arrest and surrender a head of state of a state not party to the statute can invoke the customary international law on immunities as a reason not to comply, the Appeals Chamber begins its “determination” by observing that “it is possible to follow different structures of judicial reasoning that may yield reasonable answers to that question”, arguing that “nothing … turns ultimately on the complaint that different compositions of the Pre-Trial Chamber have used varied paths of judicial reasoning to answer [the central] question”.Footnote 26 Next, the Appeals Chamber endorses the route adopted by the Pre-Trial Chamber in the decision that was on appeal. However, before explaining why the Security-Council-analogous-to-state-party route is correct, it takes issue with the section in the impugned decision in which the Pre-Trial Chamber rejected the international-criminal-court-exception route,Footnote 27 for its part dedicating more than half of its pages on immunity to defending that route. In a single, penultimate, paragraph on the immunity question, the Appeals Chamber endorses yet another avenue: the Genocide-Convention route.Footnote 28 The Joint Concurrent Opinion justifies this amalgamation of arguments under the mantra that “[t]he road to Rome was never one”.Footnote 29
The key problem, however, is that the judgment and accompanying texts leave ambiguous whether the international-criminal-court-exception route is an independent avenue to deny the relevance of immunity, or whether the Security-Council-analogous-to-state-party route was still necessary in order to address the horizontal relationship. This is a fundamental question because if the answer is the former, states parties are obliged to comply with the ICC's requests for arrest and transfer of a head of state of a state not party to the Rome Statute also in the absence of a Security Council resolution, for instance, when that head of state is accused of bearing command responsibility for crimes committed on the territory of a state party and the Prosecutor opens an investigation proprio motu (e.g. as in Afghanistan) or pursuant to a referral by a state party (e.g. Georgia).
A. Did the Appeals Chamber Endorse the International-Criminal-Court-Exception Route as an Independent Avenue?
At first sight, the reasoning in the judgment suggests that the Appeals Chamber adopts the international-criminal-court-exception route as an independent avenue to deny immunity, even in horizontal relations. After having argued that there is no immunity before international courts, the Chamber jumps to concluding “that there was no rule of customary international law that would have given Mr Al-Bashir immunity from arrest and surrender by Jordan on the basis of the request for arrest and surrender and that therefore it did not comply with its obligation to cooperate with the Court”.Footnote 30
In its defence of the international-criminal-court-exception route, the Chamber does not explain how the putative customary rule according to which President Bashir cannot benefit from immunity before the court also deprives him of immunity in Jordan. It does get back to this extension later in the judgment, in the context of discussing the horizontal effect of the article that, according to the Chamber, reflects the customary law of no immunity before international courts, Article 27. In that section it seems to adopt a line of reasoning that amicus Claus Kreß had offered and that builds on the above-cited sentence in Malawi: the Chamber's “surrogacy argument” is that “the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of proper jurisdiction”.Footnote 31 In other words, because the state party is not exercising its own jurisdiction but that of the ICC, it does not have to apply the ordinary law on immunities. Amicus O'Keefe had offered a strong rebuttal of this argument.Footnote 32
However, we do not have to go into the depth of this argument, because the Appeals Chamber ultimately does not need it: the overall conclusion of this part of the judgment is that Article 27(2) applies in the relationship between states parties; to apply it to Sudan, the Chamber then turns to Resolution 1593, that is, it adopts the Security-Council-analogous-to-state-party avenue.Footnote 33 Thus, whereas amicus Kreß had made the surrogacy argument to give the international-criminal-court-exception route horizontal effect in general, the Chamber uses it only to justify this purported effect of Article 27(2) among states parties. For the scenario at hand, involving a state not party, it still relies on the Security-Council-analogous-to-state-party avenue, closing off the international-criminal-court-exception route as an independent route.
The reading that the Chamber in fact did not go the full way to push the international-criminal-court-exception route as an independent avenue is strengthened by the language and structure of the Joint Concurring Opinion. It, too, adopts the “surrogacy argument”, but emphasises that “this conclusion, as it specifically concerns resolution 1593 (2005), depends on the unique circumstances of that resolution as a Chapter VII measure”.Footnote 34 The fact that the Joint Concurring Opinion discusses the international-criminal-court-exception route before it actually turns to its “dispositive considerations”, which begin only on page 110, also weighs against considering it an independent avenue. Moreover, it begins those considerations by saying that “the primary focus” of the decision has to be on Resolution 1593 and the Rome Statute, merely taking customary international law “into account, in the sense of considering whether there is any extent to which it obstructs the operation of resolution 1593 (2005) and the Rome Statute”.Footnote 35 This suggests that the decision that Jordan had to execute the request for arrest and surrender against a head of state of a state not party to the statute ultimately still depended on the UN Security Council having referred the situation to the court and having put, so the Pre-Trial Chamber argued and the Appeals Chamber accepts, Sudan in a position analogous to that of a state party.
All in all, while many scholars have criticised and a few have praised the Appeals Chamber for supporting the international-criminal-court-exception route,Footnote 36 a close reading reveals that the Chamber has in fact not gone the full way: the judgment still depends on the Security-Council-analogous-to-a-state-party route, which the impugned decision had adopted.Footnote 37 In this sense, the judgment's endorsement of the international-criminal-court-exception route is more reserved than its going to town on it suggests. And yet, what it does say about this route is controversial, too.
B. The Chamber's Finding that there Is No Immunity before International Courts
Whilst the Appeals Chamber explicitly endorsed the Malawi and Taylor decisions, its argument that there is no immunity before international criminal courts differs in three respects. First, the Appeals Chamber speaks of “international courts”, instead of international criminal courts, thereby possibly equating itself with international courts adjudicating on state responsibility, before which states cannot invoke state immunity. Second, whereas Pre-Trial Chamber I and the Special Court had argued that an international-criminal-court exception existed as a matter of customary law, the Appeals Chamber “notes that there is neither State practice nor opinio juris that would support the existence of Head of State immunity under customary law vis-à-vis an international court”.Footnote 38 Without any justification, it reverses the burden of proof: “it would be wrong to assume that an exception to the customary international law rule on Head of State immunity applicable in the relationship between States has to be established; rather, the onus is on those who claim that there is such immunity in relation to international courts to establish sufficient State practice and opinio juris.”Footnote 39 As a result of this trick, it is easy to establish that there is no immunity before international courts. But its legal soundness can be contested. It can be compared to saying: it may be the case that people are prohibited from killing other people, but show me the evidence that this rule also applies when 122 people together kill one person.
Finally, whereas the ICJ had spoken of “certain” international criminal courts before which immunity does not apply, and the Special Court had interpreted this as courts who derive their mandate from the “international community”, which it seemed to interpret as the UN, the Appeals Chamber drops the word “certain”, simply speaking of “international courts” in general. The Appeals Chamber argues that “international courts act on behalf of the international community as a whole” and that therefore, “the principle of par in parem non habet imperium, which is based on the sovereign equality of States, finds no application in relation to an international court such as the International Criminal Court”.Footnote 40 But do all “international” courts, for instance an international court created by only two states, “act on behalf of the international community as a whole?” Ironically, when arguing that Article 27(2) has not only a vertical but also a horizontal effect, the Appeals Chamber itself states that “[t]he law does not readily condone through the back door something it forbids to be done through the front door”.Footnote 41 But the saying applies a priori to states creating an international court: in principle, states creating a court through an international agreement are not allowed, in relation to states not party to the agreement creating that court, to do through an international court what they would not be allowed to do individually. The only amicus to have vigorously argued for the international-criminal-court-exception route, Claus Kreß, had adopted a more nuanced position, suggesting that the distinction between national and international criminal proceedings holds only “if the jurisdiction of the international criminal court in question transcends the delegation of criminal jurisdiction by a group of States and can instead be convincingly characterized as the direct embodiment of the international community for the purpose of enforcing its ius puniendi”.Footnote 42 According to his criteria, very few international courts would be allowed not to respect immunity. The Appeals Chamber's category of “international courts”, however, is unqualified.
Subsequent to the judgment, the court has explicitly dealt with criticism on this reasoning in the above-mentioned Questions and Answers document, but has, in doing so, created additional confusion. In that document, a hypothetical interviewer asks whether commentators are right that the Appeals Chamber judgment stands “for the proposition that a limited number of states may establish an ‘international court’ to prosecute the head of state of a state not party to that court”. The court then answers its own question, stating:
This is an erroneous understanding of the Appeals Chamber's judgment. It was specifically recognised in the Joint Concurring Opinion of four out of the five judges (incorporated by reference in the main judgment) that immunity and jurisdiction are not the same thing. The judges wrote that there is no immunity before an international criminal court in its exercise of “proper jurisdiction” does not mean the court in question has that “proper jurisdiction” to begin with. The existence of jurisdiction depends on its own source. Since customary international law is not known to confer jurisdiction on international courts, it means that the jurisdiction of an international court is prescribed in a written instrument. If that instrument is a treaty, then that treaty binds only those that are party to it. The Rome Statute is a treaty that binds the parties to it. But the written instrument that prescribes the jurisdiction of an international court can also be a Security Council resolution adopted under Chapter VII of the UN Charter, such as was the case here. In conclusion, it was made clear that in the absence of applicability of the Rome Statute or the presence of Security Council resolution, the ICC would have no jurisdiction. … [W]hen there is jurisdiction … and there is claim of immunity from it, then it becomes necessary to examine the basis or source of that claim of immunity. The International Court of Justice has already said that in the Arrest Warrant Case. There, the ICJ made a defining pronouncement about the absence of immunity before “certain international criminal courts, where they have jurisdiction”. Those who read that judgment do not always pay sufficient attention to what is meant by “where they have jurisdiction”, when we speak of absence of immunity before an international criminal court.Footnote 43
The court seems to argue here that the factor that limits the number of “international courts” before which immunity does not apply is provided by the requirement of “having jurisdiction”.Footnote 44 But that does not solve the problem. If two states, or indeed, 122 states as in the case of the ICC, create an international criminal court that can exercise jurisdiction over crimes committed on their territories (in the case of the ICC, see Article 12(2)(a) Rome Statute), such a court would have jurisdiction in case a head of state of a state not party commits a crime on their territory, which could be on the basis of command responsibility (e.g. a US president in Afghanistan or a Russian in Georgia), indeed without ever having set foot on the territory. The existence of such jurisdiction does not explain why these states collectively would be allowed to do what they are individually not allowed to do, namely prosecute a head of state of a state not party to the treaty.
VI. Back to the ICJ?
The Sudanese managed to oust Omar al-Bashir from office three weeks before the ICC's Appeals Chamber's judgment came out, but that should not leave the Jordan Referral Appeal the last word on the question of immunities before the ICC, let alone international criminal courts more generally. The question at hand is relevant not just to the states where President Bashir has travelled, but for all states parties to the Rome Statute: one day, they can have a head of state sought by the ICC on their territory. It also matters to states not parties: do their heads of state risk arrest and surrender when on the territory of a state party?
Almost 20 years after the ICJ suggested obiter that “certain international criminal courts, where they have jurisdiction” could try incumbent or former heads of state, it is time for the court to specify the rationale and conditions. While superficially sometimes portrayed as a battle of law versus dirty politics,Footnote 45 the question of the limits on immunity is more about a prioritisation of values within international law. Head of State immunity has traditionally been considered to protect at least two fundamental values in public international law: initially primarily the equality of states (also the rationale for state immunity) and later on more the importance of ensuring the effective performance of the head of state's functions (in its pragmatism more akin to the rationale for diplomatic immunity). The ascendance of international criminal law has represented the rise of another value in international law: criminal accountability for crimes under international law. From the perspective of the politics of fragmentation, as theorised by Martti Koskenniemi,Footnote 46 it is not surprising that the ICC, a court that sees its mandate as ending impunity, tries to employ whatever argument it can find to defeat immunity.Footnote 47 However, one can expect that the ICJ will also pay attention to other values of public international law, including values that once inspired the law on immunities.
The African Union has already indicated its intention to pursue a General Assembly request for an ICJ Advisory Opinion on the matter.Footnote 48 Whilst the ICJ may be reluctant to be seen to interfere with the ICC's interpretation of its statute, the question is in fact more fundamental than the interpretation of one statute. The deeper question is under what circumstances are states that are not parties to a criminal court created by an international agreement not entitled to respect for personal immunities before that court (the Taylor scenario) or on the territory of states that are parties to the agreement and have been requested to execute a request for arrest and surrender (the Bashir scenario)? Of course, the question could be broader, including international criminal courts with other legal bases (for instance, created by the UN Security Council) or also discussing the question of immunity ratione materiae, also referred to by the ICJ in its international-court-exception paragraph where it refers to a “former” minister of foreign affairs. However, the more the ICJ is expected to write a textbook, the less inclined it may be use its discretionary power to give an advisory opinion. The narrow question seems sufficiently controversial.
