Does the ICC Statute Remove Immunities of State Officials in National Proceedings? Some Observations from the Drafting History of Article 27(2) of the Rome Statute

Following oral hearings held in September, the Appeals Chamber of the International Criminal Court (ICC) is currently deliberating in Jordan’s Appeal of the Pre-Trial Chamber’s decision holding that it had failed to cooperate with the ICC by refusing to arrest and surrender Sudan’s President, Omar Al-Bashir, when he visited Jordan. Central to the determination of whether Jordan, a party to the ICC Statute, failed to comply with its obligations of cooperation under the Statute is the issue of whether Jordan was obliged to respect the immunity ratione personae that the Sudanese President would ordinarily be entitled to as a serving head of state.

As is well known, when the ICC seeks to exercise its jurisdiction over a state official who ordinarily possesses immunity under international law from foreign criminal jurisdiction, the question of immunity may, potentially, arise at two levels. First, the issue of international law immunity with respect to the ICC may possibly arise at the so-called ‘vertical level’, i.e in the relations between the ICC, on the one hand, and the accused person and his or her state, on the other. The question that arises here is whether the accused person (as a state official entitled to international law immunities) or his or her state, may plead those immunities before the ICC itself, such as to prevent the Court from exercising jurisdiction over him or her. Second, and more commonly, the issue of immunity will arise at the so-called ‘horizontal level’, i.e in the relations between a state that is requested by the ICC to effect an arrest or surrender, on the one hand, and the state of the accused person, on the other. Here, the question is whether a state that is requested by the ICC, to arrest or surrender the official of another state, may do so, where to do so would require the requested state to violate the immunities that the foreign state official ordinarily possesses under international law. In particular, the question at this horizontal level is whether there is something about the ICC’s request for cooperation that would mean that the obligations which a state ordinarily owes to another to consider inviolable the person of a serving foreign head of state no longer apply. This is the main question that the Appeals Chamber is called upon to resolve in the Bashir case. In this post, we do not propose to examine the range of arguments put to the Chamber on this question. Rather this post will consider one specific question that is critical to the Court’s assessment and to the more general question of how the ICC Statute affects the immunity of state officials.

The post considers whether the provision of the Rome Statute that removes immunity – Art. 27(2) – only removes immunity at the ‘vertical level’ (before the Court itself) or whether it does so at the ‘horizontal level’ (before national authorities) as well. In particular, the post throws new light on this question through an examination of the drafting history of that provision. Consideration of the drafting history shows that the drafters of the provision considered, throughout the period of elaboration of the Statute, that what would become Art. 27 was to have effect not just in proceedings before the ICC itself but also in national proceedings related to the ICC’s exercise of jurisdiction.

It will be recalled that the principal argument made by the Office of the Prosecutor in the Jordan Appeal is that SC Resolution 1593, which referred the situation in Darfur, Sudan, to the ICC, had the effect of imposing the removal of immunity contained in Art. 27(2) on Sudan. This argument, to which we subscribe (and which one of us set out in full in 2009 and the other elaborated upon more recently on this blog) had been accepted by the Pre-Trial Chamber in the Jordan and South Africa proceedings in the Bashir Case (for brief consideration of the evolution of the views of the ICC Pre-Trial Chambers with respect to immunity, see this recent AJIL Unbound piece). The argument proceeds on the basis that the removal of immunity contained in Art. 27(2) of the ICC Statute does not only operate at the horizontal level but also removes immunity at the ‘vertical level’ before national courts and national authorities. One of us has previously (see this 2003 AJIL article (pp. 419-426) and this 2009 JICJ article (pp. 337-339)) set out arguments as to why this is so. That strand of the argument was also accepted in the Jordan and South African Pre- Trial Chamber decisions. This post addresses just this latter strand of the argument and does not address the question of the effect of the Security Council resolutions on immunity.

Article 27(2) provides that:

“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.”

The view that Article 27 removes immunities, not just before the ICC itself, but also with respect to action taken by national authorities, where those authorities are acting in response to a request by the Court has been put forward for a number of reasons. Those reasons derive support from the rules of treaty interpretation to be found in Art. 31 of the Vienna Convention on the Law of Treaties. First, there is the argument that follows from the text of Art. 27(2). Where national authorities give effect to immunity as a reason for not arresting or surrendering someone subject to a request for cooperation by the Court, the immunity would indeed “bar the Court from exercising its jurisdiction over such a person.” (See South Africa Pre-Trial Chamber, para. 74). Second, there is the argument that is derived from the principle of effectiveness. To read Art. 27(2) as applying only to immunity before the Court would render at least one part of that provision completely meaningless and other parts practically meaningless. The reference to immunity under ‘national law’ will be completely meaningless since international tribunals do not apply national law. Furthermore, because the Court has no independent powers of arrest and must rely on national authorities, a proclamation that immunities shall not bar the exercise of jurisdiction by the Court while leaving such immunities intact with respect to arrests by national authorities would mean that the Court would hardly be in a position to apply Article 27 and exercise its jurisdiction. This is because the ICC would not gain custody of persons entitled to immunity except where such persons are surrendered by their state (in which case their immunity would be waived and Article 27 would be irrelevant) or through voluntary surrender. This would confine Article 27 to the rare case where a person entitled to immunity surrendered voluntarily, in which case the person is unlikely to claim immunity. The third reason for interpreting Art. 27 as applying to the vertical level is that the effect of the contrary argument would be to make an important provision directed at combating impunity inoperable for most practical purposes. As the Pre-Trial Chamber noted in the South African decision, reliance on immunities to deny cooperation with the court would create an insurmountable obstacle to the Court’s ability to exercise its jurisdiction and “[s]uch a situation would clearly be incompatible with the object and purpose of article 27(2) of the Statute [para. 75].” Fourth, the practice of at least some parties to the ICC Statute, in legislation implementing their obligations under the Statute, suggests that they view Article 27 as removing immunity not only at the stage where the defendant is before the Court, but also at the national level. A number of states have adopted domestic implementing legislation which implicitly or explicitly take the view that officials of other states may not be entitled to international law immunity from arrest when a request for arrest has been made by the ICC. [See the list from this 2009 JICJ article, n. 19, with reference to legislation by Canada, New Zealand, UK, Switzerland, Malta, South Africa, Croatia, Trinidad & Tobago, Ireland, Samoa, Estonia and the Commonwealth’s Model on Implementation of the Rome Statute.]

If, after considering these rules of interpretation that are to be found in Art 31 of the VCLT, ambiguity remains as the scope of Art. 27(2), Art. 31 of the VCLT provides that recourse may be had to the drafting history. When one digs into the travaux préparatoiresof this provision, three important findings emerge.

First, several earlier versions of Article 27(2) had a slightly different, but clearer wording:

 ‘Any immunities or special procedural rules attached to the official capacity of a person, whether under national or international law, may not be relied upon to prevent the Court from exercising its jurisdiction in relation to that person.’ (emphasis added) (see, e.g. here, at p. 4; here, at p. 22; here, at pp. 54-55; and here, at p. 51)

This text seems to indicate that not only are states parties precluded from relying on immunities before the ICC itself, but also on any other immunities, before domestic or international courts, that would otherwise prevent or bar the Court from exercising its own jurisdiction. In other words, the immunity exception did not just cover immunities from the ICC’s own jurisdiction, but also any other immunities or procedural rules that would somehow prevent the Court from exercising this jurisdiction. We are mindful that several reasons might have justified the change in the wording of this provision. However, there is no record of controversy or debate between the drafters surrounding the content or the text of what later became Article 27(2). Indeed, the discussion of the content of this provision was left to the drafting committee in charge of Part 9 on judicial cooperation with the Court (See Otto Triffterer and Christoph Burchard ‘Article 27 Irrelevance of official capacity’ in Otto Triffterer and Kai Ambos (eds), Rome Statute of the International Criminal Court: A Commentary (Beck/Hart 2016), at p. 1048). This suggests that there was indeed a relationship between Articles 27(2) and 98. It also seems to indicate that the content of Article 27(2) did not change between its first and second versions.

Secondly and relatedly, the preparatory works reveal that, from the moment of inclusion of what was to become Article 27(2) in the Draft Statute, the drafters were already mindful of the relationship that existed between the removal of immunity provided for in that provision, and the provisions setting out the Court’s cooperation regime. In fact, the following footnote is found in various documents containing the earlier formulation of Article 27(2):

‘Further discussion of paragraph 2 would be required in connection with […] international judicial cooperation.’ (see, for instance, here, at p. 22, footnote 14; here, at pp. 54-55, footnote 86;  here, at p. 51, footnote 9, and here).

That footnote would be meaningless if what became Art. 27(2) was to have effect only before the ICC itself, and would have no impact on immunities before domestic authorities in the context of the cooperation regime.  That footnote seems to be indication of the drafters’ view that what became Art. 27(2) would have some effect on the cooperation regime and on national authorities. This point is significant because some have argued that Art. 27(2) cannot be seen has having an effect at the horizontal level (i.e before national authorities) because that is a matter that deals with cooperation but Art. 27 is not in Part 9 of the ICC Statute dealing with state cooperation.

Thirdly, even after what was to become Article 27(2) gained its final wording during the Rome Conference itself in June 2018, the drafters were still mindful of the impact of this provision on the possible exercise of domestic jurisdiction by states. After adoption of this text by the Drafting Committee of the Rome Conference, a new footnote was added explaining that:

‘The Drafting Committee will re-examine this text after receiving from the Committee of the Whole the provisions on complementarity, in order to determine whether the present provision overrides or is subject to the principle of complementarity.’ (see here)

As is well known, complementarity has to do with the primary role of states and their domestic courts in the prosecution of conduct amounting to the international crimes which are subject to the Court’s jurisdiction. Thus, the reference to complementarity chiefly implies a concern with states’ own domestic jurisdiction over those crimes. Significantly, in the context of Article 27(2) of the Statute, a reference to ‘overriding’ or being ‘subject to’ complementarity could mean that the removal of immunity contained in that provision also applied to states and their domestic courts, either to allow them to exercise their own domestic jurisdiction, with primacy over the ICC, or to allow the Court to take over the case.

These materials to be found in the drafting history provide a picture indicating that the drafters of Art. 27(2) always considered that this provision would have some effect at the national level, at least in the contexts of cooperation by states. When this reference to the drafting history is combined with methods of treaty interpretation, they provide strong support for the view that for those states that are bound by Article 27(2), the provision does not merely operate at the ‘vertical level’ (removing immunity before the ICC), but also at the ‘horizontal level’ (removing, before national authorities of states parties, the immunity of those states bound by the Statute).