The African Union’s Response to the ICC’s Decisions on Bashir’s Immunity: Will the ICJ Get Another Immunity Case?

The African Union’s Response to the ICC’s Decisions on Bashir’s Immunity: Will the ICJ Get Another Immunity Case?

After deciding the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) case (about which I and others will have more to say on the blog soon), there is the prospect of the International Court of Justice (ICJ) being asked to decide another immunity case. At the summit of the Assembly of the African Union held last week in Addis Ababa, Ethiopia, African Heads of States and Heads of Government  requested:

“the [AU]  Commission to consider seeking an advisory opinion from the International Court of Justice regarding the immunities of state officials under international law.”

As has been the pattern over the past three or four years, the AU Assembly has, at its biannual meetings, adopted a number of decisions regarding cases at the  International Criminal Court. In the latest meeting,  the AU Assembly reiterated its request that the UN Security Council defer the proceedings against Sudanese President Bashir in accordance with Article 16 of the Rome Statute. It also “ urge[d] all [AU] Member States to comply with [AU] Assembly Decisions on the warrants of arrest issued by the ICC against President Bashir of the Sudan pursuant to Article 23(2) of the [AU] Constitutive Act and Article 98 of the Rome Statute of the ICC.” Those prior decisions had called on African States not to comply with the request by the ICC for the arrest and surrender of Bashir.

The AU Assembly’s latest decision on the ICC proceedings are different from prior decisions in that this time around, there is no call for deferral of the ICC proceedings arising out of the situations in Kenya or in Libya (as had been called for in earlier decisions). This absence should be seen as improving the tone of the African reaction to ICC proceedings. It is now clear that the AU’s objections, at least at present, are really only with respect to one case – the Bashir case. The other difference in the AU Assembly decision is the call for an advisory opinion from the ICJ on the immunities of State officials under international law. Although the AU decision does not make this clear, presumably what the AU wants is an opinion that would clarify the immunity (or otherwise) of State officials from prosecution by the ICC and from enforcement action taken by States acting at the request of the ICC. Given the context of the decision, it does not seem to be the case that the AU wants the ICJ to rule on the immunity of state officials from the jurisdiction of other States that are not acting at the behest of the ICC. In any case, the ICJ, in the Arrest Warrant Case (DRC v Belgium), has already set out its view on aspects of immunity of state officials from the jurisdiction of other States.

The ICC Pre-Trial Chamber ruled, just last December, on the immunity of President Bashir from ICC Prosecution and from arrest in ICC State parties (see my comments on those decisions here). Asking the ICJ to provide an advisory opinion on this issue would be akin to trying to appeal the decisions of the ICC Pre-Trial Chamber to the ICJ rather than to the ICC Appeals Chamber. It would be an express invitation for judicial confrontation. I discuss below whether there is any real prospect of the ICJ rendering an advisory opinion on the immunity of State officials from ICC prosecution or arrest for the purposes of ICC prosecution. In my view, there is no legal bar to the Court deciding on this issue. The main obstacle would be whether African States can muster enough political support within the United Nations to get the request for an advisory opinion.

AU Commission Press Release on ICC Pre-Trial Chamber’s Decisions on Bashir’s Immunity

Prior to the AU Summit, the AU Commission issued a press release on January 9 reacting to the decisions of the ICC regarding the immunity of Bashir. In the Press Release,

“the African Union Commission expresses its deep regret that the decision has the effect of:

(i) Purporting to change customary international law in relation to immunity ratione personae;

(ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless;

(iii) Making a decision per incuriam by referring to decisions of the African Union while grossly ignoring the provisions of Article 23 (2) of the Constitutive Act of the African Union, to which Chad and Malawi are State Parties, and which obligate all AU Member States ‘to comply with the decisions and policies of the Union’.”

With regard to point (1) the AU Commission takes exception to the ICC Pre-Trial Chamber’s decision that “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.” The AU Commission argues that:

“As a general matter, the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal. Indeed, contrary to the assertion of the ICC Pre-Trial Chamber I, article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. This is because immunities of State officials are rights of the State concerned and a treaty only binds parties to the treaty. A treaty may not deprive non-party States of rights which they ordinarily possess. In this regard, it is to be recalled that the immunity accorded to senior serving officials, ratione personae, from foreign domestic criminal jurisdiction (and from arrest) is absolute and applies even when the official is accused of committing an international crime.”

As I explained in my post in December commenting on the ICC decision, I agree with these points regarding the applicability of international law immunities before international tribunals. However, I have also argued that the ICC Pre-Trial Chamber could simply have said that the effect of the referral of the Darfur situation by the UN Security Council has the consequence that Sudan is bound by the Statute (including by the removal of immunity in Art. 27). The effect of this would mean that Sudan is to be regarded as being in the same position as a State party to the Rome Statute. In its press release, the AU Commission engages with this argument of mine, and disagrees with me. They argue that:

“The Security Council has not lifted President Bashir’s immunity either; any such lifting should have been explicit, mere referral of a “situation” by the UNSC to the ICC or requesting a state to cooperate with the ICC cannot be interpreted as lifting immunities granted under international law. The consequence of the referral is that the Rome Statute, including article 98, is applicable to the situation in Darfur.

Can the ICJ Decide on Immunity of State Officials Sought by the ICC?

The ICC Pre-Trial Chamber’s Decisions and the AU Commission response form the background to the AU summits call for an advisory opinion by the ICJ. The AU summit asks the AU Commission to consider seeking an advisory opinion from the ICJ. Under Article 96 of the UN Charter  and Art. 65 of the Statute of the ICJ, only organs of the United Nations or UN specialised agencies may be authorised by the UN General Assembly to request advisory opinions. So the AU Commission cannot itself seek an advisory opinion from the ICJ. For a request to be made,  it would most likely have to come from either the General Assembly or the Security Council. It is unlikely that the Security Council would seek an advisory opinion on this question since the advisory opinion is an attempt to do what the Security Council has thus far failed to do (to stop the case against Bashir). Any request would more likely come from the General Assembly, where African States might be able to muster greater support for an ICJ advisory opinion.

A significant issue that would arise in seeking an advisory opinion would be what question or questions should be put to the ICJ. Christopher Gevers in an interesting post at the War and Law blog notes that:

“If an advisory opinion is sought it could address a broad range of legal issues such as (i) immunity before international courts under international law (although this was addressed obiter in the Arrest Warrant case, it might be further clarified), (ii) immunity under the Rome Statute, both generally and in respect of cooperation obligations on states in particular, and (iii) the effect (if any) of Security Council resolutions referring matters to the Court on (i) and (ii).”

Christopher also explores the different options for taking the matter ot the ICJ and notes that in addition to the advisory opinion route, “Sudan could bring a case against an ICC state party – in particular those countries subject to PTC decisions such as Kenya and Malawi.” The problem with this option is that if the decision goes against Sudan, that State would be bound by the adverse decision.

A further option is that the matter is referred to the ICC Assembly of States Parties under Art. 119(2) of the Rome Statute under which any dispute relating to the interpretation or application of the ICC Statute, other than those concerning the judicial functions of the ICC, may be referred to the Assembly of States Parties. The Assembly may either seek to settle the dispute itself or make recommendations as to how it may be settled, including referral to the ICJ. One issue that arises here is whether the dispute should be regarded as concerning a judicial function of the ICC, in which case the Assembly does not have competence to deal with it. In any case, the Assembly cannot itself refer a matter to the ICJ. All  that this provision means is that the Assembly may recommend that disputing parties refer a dispute under the Rome Statute to the ICJ.

Assuming that  a request for an advisory opinion is made by the UN General Assembly, the ICJ would undoubtedly have jurisdiction to render the opinion since the request would deal with a legal question. However, as the ICJ has stressed in several advisory opinions, the fact that it has jurisdiction to render an advisory opinion does not mean that it will. The Court has a discretion to refuse to render an advisory opinion since Article 65 of its Statute only says that it “may” give an advisory opinion requested of it. Though the Court has this discretion it is one that is very rarely exericised. I think I am right in saying that the ICJ has never exercised this discretion though the PCIJ did refuse to render an opinion in the Eastern Carelia case. The Court has stated in many cases that giving advisory opinions requested by UN organs represents the Court’s participation in the activities of the UN and, that in principle, such a request should not be refused. The ICJ has gone on to say that there must be “compelling reasons” for it to exercise this discretion. Even if the request came from the General Assembly, the fact that Bashir case arises out of a Security Council referral to the ICC or that the case would involve interpretation of UN Security Council resolutions referring the situation would not be sufficient grounds for the Court to refuse to give the opinon (see the Kosovo Advisory Opinion).

One issue that might lead the Court to refuse to render an opinion on this question might be considerations of judicial comity. In other words, it remains to be seen whether the Court would be happy to be used as a form of appellate court over the ICC.  Some might feel it inappropriate for the ICJ to be used in this way. There have been different views among ICJ judges as to whether steps can and should be made to put the ICJ at the apex of a judicial structure involving international courts. Judge Guillaume, former ICJ President, was of the view that steps should be taken to allow other internationl courts to request advisory opinions from the ICJ on question of general international law (Guillaume ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848 and ‘Advantages and Risks of Proliferation: A Blueprint for Action’ (2004) 2 Journal of Intl Criminal Justice 300). However, Judge Higgins, also a former ICJ President, thought that the suggestion of institutionalising the ICJ as a sort of appeals court (or court to whom others referred questions of general international law) was unworkable (see Higgins, “A Babel of Judicial Voices? Ruminations from the Bench”, (2006) 55 ICLQ 791). It remains to be seen whether there would be political will to use the ICJ in this way. However, if such will did exist, I would not have thought that it is inconsistent with the ICJ’s role as a Court of Justice for it to decide on matters that have been decided on by other tribunals. For one thing, the ICJ would be able to decide on the matter from the perspective of customary international law without being specifically tied to the provisions of the Rome Statute.