Omar al Bashir – War Criminal at Large

By: Lisa-Marie Rudi, L.L.M. Candidate, Berkeley Law

On August 12, 2012,  Omar al Bashir, president of Sudan, freely traveled to Iran and met with United Nations Secretary General Ban Ki-moon while he was there. In 2008, al Bashir became the first sitting Head of State to be indicted by the International Criminal Court (ICC), the first treaty-based international court that handles cases of individual criminal responsibility. The Court has jurisdiction over so-called “jus cogens crimes” such as crimes against humanity, war crimes and genocide. Yet, despite this formal charge, many states such as Kenya have continued to welcome al Bashir, and have not arrested him in order to bring him before the ICC to face his charges. Foreign Policy called him the “world’s most mobile accused war criminal” which brings to light the controversy around al Bashir’s indictment and whether the ICC was permitted to displace the traditional Head of State immunity and indict al Bashir.

Traditionally, under international customary law, state officials are immune from prosecution, at least as long as they are in office. The indictment is particularly interesting both because of al Bashir’s status as a sitting Head of State and because Sudan has not consented to the ICC’s jurisdiction as it has not ratified the treaty that established the ICC: the Rome Statute (it is therefore a so-called non-party state). In 2009, the ICC issued an arrest warrant for al Bashir, calling on all signatories of the Statute to arrest him. The warrant is a landmark order because it marks the first time that the question of immunity for a representative of a non-party state is raised before the ICC. The warrant for al Bashir’s arrest caused an outcry among African Union as well as Arab League members with China and Russia similarly condemning the bold actions of the ICC prosecutor. Since the issuance of the arrest warrant, al Bashir has freely traveled to different ICC states parties which clearly did not feel obliged to arrest him. In 2012, President Joyce Banda of Malawi was the first to warn the Sudanese president that he would be arrested if he set foot in Malawi. However, Banda, in honoring the arrest warrant, stands virtually alone among African leaders with the African Union protecting al Bashir, citing the urgent need for peace in the region. Additionally, it should not be disregarded that the arrest warrant had disastrous consequences for the people of Sudan as Bashir expelled aid organizations in an angry response to the warrant and no state party stepped in to stop him.

Besides exposing the ICC’s inability to enforce its orders, the warrant reveals a lack of agreement on the concept of Head of State immunity in international law. In the 21st century in which “never again” is supposed to be a reality and impunity is supposed to be non-existent, does the concept of Head of State immunity still exist?

ICC and Jurisdiction over the Darfur Situation

Under the Rome Statute, the ICC has jurisdiction over nationals of states that have ratified the Statue and over all jus cogens crimes committed on the soil of states parties. Jurisdiction is triggered when a state refers a situation to the Prosecutor of the ICC or when the Prosecutor initiates an investigation on her own initiative. Under Article 27 of the Rome Statute, indicted individuals cannot raise the defense of immunity. However, the ICC can also have jurisdiction over nationals of non-party states that have committed a crime on their national territory if the United Nations Security Council (UNSC), acting under Chapter VII, refers a particular situation to the ICC. The immunity from prosecution of those individuals, indicted under extraordinary circumstances is the topic of this post.

On March 31 2005, the UNSC referred the Darfur Situation in Sudan to the Prosecutor of the ICC under Resolution 1593. The term “Darfur Situation” used in the resolution referred to a civil war in the Sudanese Darfur region that was caused by an uprising in 2003 by mainly non-Arab rebels who complained of marginalization and neglect. The Sudanese government reacted by arming, training and financing Arab nomads to attack villages across Darfur. With jurisdiction over the situation having been created by Resolution 1593, the ICC prosecutor accused al Bashir of being responsible for this brutal counter-insurgency campaign and indicted him on counts of crimes against humanity, genocide and war crimes (note that the warrant was amended to add genocide). Sudan refused to recognize the arrest warrant and denied any cooperation with the ICC, as did many African ICC member states.

While the ICC can legally exercise jurisdiction over the “Darfur Situation,” this does not necessarily mean that it can legally exercise jurisdiction over all individuals involved in the Darfur conflict. As the International Court of Justice (ICJ) stated in its famous Arrest Warrant opinion, “[j]urisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.” Hence, even though the ICC can legally exercise jurisdiction over the Darfur situation, al Bashir could still be immune under customary international law or, as addressed by this post, under immunity provisions provided in the Rome Statute.

Immunity under the Rome Statute

Article 27 of the Rome Statute invalidates all forms of immunity that could shield individuals from the ICC’s actions. It is, however, not clear whether this article also applies to individuals such as al Bashir who is subject to the ICC’s jurisdiction by virtue of a UNSC Referral and a representatives of a state that never signed the Statute. Arguably, the drafters of the Rome Statute did not consider all immunities to be invalidated by a Security Council referral and obligations under international customary law to remain intact, as exemplified by the existence of Article 98(1) of the Rome Statute: “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…” Thus, the question that arises is whether the ICC violated its own statute in issuing the warrant and in disregarding Article 98(1). As the Statute clearly attempts to avoid conflicts of obligations for states parties, it is difficult to imagine why the drafters would have addressed the immunity issue at all in any other article besides article 27 if they had assumed that official immunity under customary international law was invalidated in all cases in which the ICC has jurisdiction, even when jurisdiction was created through a UNSC referral.

In the Pre-Trial Chamber’s decision on the prosecution’s application for the Arrest Warrant, the judges cited Article 21 of the Rome Statute as a legal basis for the warrant. According to Article 21, the Statute is the primary source of law to be applied by the ICC. Thus, the Pre-Trial Chamber declared that the referral of the Security Council meant that any prosecution arising in connection with it “will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.” According to this argument, since the whole Statute applies to the situation, Article 27 invalidates any immunity that might exist. However, if the Pre-Trial Chamber did indeed consider the whole Statute in deciding on the warrant, why did it not consider Article 98(1)? Had the Pre-Trial Chamber addressed Article 98(1) and delved into an analysis of international customary law on immunities, it might have concluded that there can be no immunity for the gravest crimes under international customary law. Subsequently, the chamber could have found that there was no conflict of obligations for states parties when faced with the warrant. In absence of such a justification, however, the ICC’s interpretation of international customary law as well as of its own Statute remain remains unclear.

One could adopt the argument supported by Akande that if immunity was not invalidated by referral, the ICC would not be able to fulfill its objective of preventing impunity and, therefore, resolution 1593 must have the effect of subjecting all actors in the Darfur Situation to the entire Rome Statute and making Sudan a de facto party state for the duration of the conflict. According to this argument in order to ensure the proper functioning of the ICC, the Rome Statute extends to invalidate al Bashir’s immunity under the ICC due to the applicability of Article 27. As a counterargument, however, it could be put forth that the UNSC cannot force a state to ratify a treaty against its will, a far-reaching power that is arguably not foreseen in the UN Charter.  However, as the Court did not make this point clear and simply ignored the existence of Article 98(1) and the obligation it places on the ICC, observers are left to wonder.

Reactions to and Consequences of the Arrest Warrant

The African Union and other states that called on the ICC to revoke the warrant and have failed to enforce it are worried about stability in the region. While this is not a legal argument in favor of al Bashir’s immunity, their actions do neither serve to reinforce the ICC’s unclear interpretation of the Statute. While the argument that Sudan has become a de facto party state of the Rome Statute through Resolution 1532 seems logical, it does not appear to be supported by a plurality of states parties and has not been sufficiently discussed in the warrant in order to conclude that it is in line with the ICC’s view. If the ICC continues to apply Article 27 to non-party states and continues to ignore Article 98(1) without sufficient explanation, it could be faced with an overall weakening of its credibility. Naturally, the mere existence of Article 27 of the ICC is a sign for the law on immunities to progress towards a prevention of impunity. However, the reaction of states parties to which al Bashir has traveled shows that the main actors of the international legal system and parties to the Statute might not be adopting the ICC’s progressive vision, for whatever reason. Hence, consistent state practice is lacking.

Even though the desire to outlaw impunity is noble, desirable and in line with the objectives of the Nuremberg and Tokyo Tribunals, if the ICC’s ambitions outrun the speed of the development of international customary law, the result will be a weakening of its authority and trustworthiness. Instead of constructing abstractly and without sufficient legal reasoning that it is not bound by immunities under customary international law and even ignoring parts of its own Statute, it needs to actively work on developing customary international law by making its reasoning more clear. Naturally, one wants to see perpetrators of the gravest crimes being prosecuted. However, attempts at achieving this without a clear legal basis and, consequently without a functioning enforcement mechanism due to a resistance amongst parties states, will eventually weaken the whole system of international justice and international criminal law.

This post by no means attempt to depict all legal arguments with respect to the arrest warrant or to provide a comprehensive conclusion as to the state of customary international law on immunity. Rather, it is an effort to provide a glimpse of some legal problems that ICC jurisdiction over and prosecution of a head of state of a non-member state may face. As Gaeta rightly points out: “There is no doubt that justice for the horrendous crimes committed in Sudan must be done, and that even those in power should be brought to justice.” Nevertheless, the rules enshrined and agreed upon in the Rome Statute must be respected. To hold otherwise would undermine the credibility of the entire system set up by the Statute. The ICC is putting itself in a tenuous position with the al Bashir indictment and is subject to criticism that its legal system is susceptible to being manipulated in order to attain certain goals, however noble they might be.