Institute of Democracy and Cooperation

The legality of the ICC indictment of President Bashir

Publication day: 4/6/2009

International Legal aspects
of the ICC Pre-Trial Chamber Decision on the
Arrest Warrant against the President of Sudan

Alexander Mezyaev

On 4 March 2009 the Pre-Trial Chamber of The International Criminal Court (ICC) delivered its Decision on the Prosecutor’s Application for an Arrest Warrant against President Omar Hassan Ahmad al Bashir of Sudan. The Chamber had taken seven months to reach its decision.[1] The judges rejected the Prosecutor’s request to indict the President for genocide but they the agreed to issue an arrest warrant on the majority of the other counts contained in the original indictment.[2] This decision raised several very serious questions about the application and interpretation of international law.

The two main problems are:

1. The legality of an arrest warrant for an incumbent head of state;

2. The legal consequences of this decision for international law in general, for certain international treaties including the UN Charter, and finally for the ICC Statute itself.

1. The legality of an arrest warrant for an incumbent head of state.

Like all courts, the first step the ICC has to take in reaching such a decision is to decide on whether it has jurisdiction. This includes the question of whether it has jurisdiction over the crimes alleged. In paragraphs 40-45 of its decision, the ICC Pre-Trial Chamber found that it did have jurisdiction ratione personae in this case. What were the legal arguments of the Court?

First, the Court said that according to the Preamble of the ICC Statute, one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious international crimes.

Second, it quoted Article 27 of the ICC Statute which says that, “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a 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.” The second paragraph reads: “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.”

Finally, the Pre-Trial Chamber recalled that the situation in Darfur (the issue on which the indictment had been issued) had been referred to the ICC Prosecutor by the United Nations Security Council.[3]

How convincing are these arguments?

a. The ICC Statute Preamble.

The reference to the norms of the Preamble and its aims could serve as an additional or subsidiary means for the interpretation of a certain precise source of international law, applicable to Sudan, which directly allowed the issuance of an arrest warrant against the Head of State. But in the absence of any such precise norm, this argument has no legal sense. A Preamble serves to explain the goals of a treaty while only the text itself has true legal force.

b. Article 27 of the ICC Statute

At first sight, the Court’s second argument appears more serious, as it is based on a precise and clearly formulated norm expressed in an international treaty.

However, the main defect of this argument is that the Court does not resolve the question of the applicability of this article to Sudan and its citizens. Sudan is not a state party to the ICC Statute: according to the basic principles of international law, Sudan is therefore not bound by any of its provisions.

It is true that the Pre-Trial Chamber tried to explain this blatant violation of one of the core principles of international law. It said that, in view of the fact that the situation in Darfur had been referred to the Prosecutor by the Security Council, and “in the light of materials presented by the Prosecutor in support of the Prosecutor’s Application”, the Chamber considers that the current position of Omar Bashir as Head of a State which is not a party to the ICC Statute has no effect on the Court’s jurisdiction over the present case.[4]

But such an argument is very surprising; in fact, it demonstrates that the Court was well aware that it is applying a norm which is not applicable in this case. One cannot invoke “materials presented by the Prosecutor” in support of this argument: these materials are secret and therefore could not have contributed to any legal reasoning. More importantly, reference to Prosecution materials can never, as a matter of legal principle, resolve the question of the jurisdiction of the ICC ratione personae.

It is also a defective argument to say that the situation in Darfur was referred to the ICC by the Security Council (paragraph 40 of the Decision) Indeed, such an argument only serves to highlight that we are dealing here with a whole series of violations of international law.

The referral of the situation in Darfur by the UN Security Council to the ICC.

To assess the validity of this part of the Pre-Trial Chamber’s reasoning, we need to ask on what legal basis the Security Council acted. The Pre-Trial Chamber says that the Security Council acted “pursuant to Article 13b of the Rome Statute" (paragraph 40). But the powers of the Security Council are regulated by the United Nations Charter, not by any other treaty. Maybe the Security Council has powers of referral for situations in the territory of States which are parties to the Rome Statute and the UN Charter. But the Security Council does not have the right to use powers which it does not enjoy according to the UN Charter with respect to a State which is not a party to the Rome Statute.

The UN Security Council was established by the UN Charter and must act on that basis. The Charter does not give the Security Council the right to refer any situations to the ICC. Such a power is too serious not be to included in the Charter as the legal basis for the Security Council’s actions. Thus, in the absence of any amendments to the UN Charter itself, the Security Council does not have the right to refer situations in States which are not parties to the Rome Statute. Members of the United Nations have given their consent only to those powers of the UN Security Council which are enunciated in the UN Charter, not to powers expressed in other treaties.

Let us now analyse the arguments used in support of UNSC Resolution 1593 on 31 March 2005. This is the Resolution which decided to refer the situation in Darfur to the Prosecutor of the ICC. What was the legal reasoning for this decision? The Resolution contained references to articles of the ICC Statute (16, 75, 79, 98.2) and one reference to a chapter of the UN Charter. But the references to the articles of the Rome statute have no legal value because Sudan is not a party to it. As for the reference to the Chapter VII of the Charter, this argument is not convincing either, because the adoption of a legal decision may not be based on a chapter in general. Legal decisions must be based on specific articles and even clauses of articles of a treaty, not on whole chapters. The vague reference to the chapter as a whole is itself clear proof of the absence of any legal basis for this decision.

In recent years, the UN Security Council has adopted a number of resolutions based on Chapter VII in this way. It is as if the Council want us to get used to this reference, or as if it believes that it is sufficient to repeat something for it to become legal. This same tactic was used for the establishment of the so-called international criminal tribunals for the former Yugoslavia and Rwanda: the creation of both tribunals was based on general references to Chapter VII of the UN Charter. But, as with Resolution 1593, the absence of any clear reference to specific articles of the Chapter also underlines the lack of any proper legal basis for the creation of the ad hoc international criminal tribunals as well.

It has to be stressed that UN Security Council cannot adopt any decision it likes. Like all other chapters, Chapter VII, can provide be a legal foundation only for lawful decisions, adopted by the Security Council strictly within the framework of the powers of the Council as laid down by the Charter. All the Security Council decisions, whether based on Chapter VIII or VII or any other chapters, must be in any way in accordance with international law. If a decision of the Security Council contradicts international law, it is unlawful even if supposedly based on Chapter VII. For example, the references to Chapter VII in the Security Council Resolutions which established the ICTY and ICTR could not get round the fact that Security Council violated the general principle of law - Nemo ad alium plus juris transferre potest, quam ipse habet or Nemo dat qui non habet (“No one can transfer more power than he himself has” or “No one can give what he does not have”) In order to be able to create judicial organs, the Security Council would have to have judicial powers itself, which is not the case. Mere reference to Chapter VII is not sufficient to make a Council decision lawful.

There are many other legal problems with Resolution 1593. First, what is the legal value of a decision forcing a state to be submit to the obligations laid out in a treaty of which the Security Council members are not even signatory states themselves? In March 2005, only 9 of the 15 member states of the Security Council were state parties to the ICC Statute. Among the permanent members, the situation was even worse - only 2 of the 5 permanent members were state parties. What is the legality of a decision taken by states which are not parties to a treaty to force another state to be a party to it, or to be bound by obligations under it? In fact, even if all the members of the Security Council had been state parties to the Rome Statute then this would not have changed the illegality of their decision. The message is obvious: the decision establishes a precedent where the Security Council has forced a state to be subjected to the norms of a treaty it has not signed. It is unnecessary to emphasise that such a precedent is absolutely illegal and that it violates the very foundations of the international legal order. Later we will show that this was probably the whole purpose of the exercise.

Moreover, paragraph 1 of UNSC Resolution 1593 says that it is referring the situation in Darfur “since 1 July 2002” to the ICC Prosecutor. On what legal basis does the Security Council claim the right to apply criminal law with retroactive effect? Where is it stated that the Security Council has such a power? Let us imagine the following situation. If Sudan signed and ratified the ICC Statute now, after the decision by the Pre-Trial Chamber of 4 March 2009, what would be the legal effect of Article 11 of the ICC Statute? The paragraph which regulates the jurisdiction ratione temporis of the ICC states that, “The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. Paragraph 2 of the same Article says, “If a State becomes a party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.”

And what about Article 24 which specifies that “no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute”?[5] Obviously the decision of the Security Council is discriminatory against Sudanese citizens indicted by the ICC because different rules apply to them than to citizens of states which have signed the ICC statute. Many international human rights treaties specifically prohibit discrimination in criminal proceedings: if we accept that it is possible to initiate proceedings against a State which is not a party to the ICC (whether through the UN Security Council or by any other means) then we must accept the legality of discrimination. But it is absurd to say that an international treaty may legalize such discrimination. It is difficult to believe that states decided to discriminate between accused persons from a state party and accused persons from a non-state party, for such discrimination would be contrary to the most basic human rights. If a thesis leads to an absurd conclusion, then the thesis should be abandoned. Thus is must be concluded that without the amendment of the UN Charter, any referral to the ICC of a situation in a non-signatory state is not possible.

The travaux préparatoires of the Rome statute are useful in determining the content and application of Article 13b. The discussions on this article at the Rome Diplomatic Conference show that several delegations did indeed accept the notion of a referral to the ICC of situations in non-signatory states. But many other delegations expressed their strong disagreement with this idea, saying that it would be contrary to the Vienna Convention on the Law of Treaties (1969) for situations in non-signatory states to be so referred.[6] Many states also said they rejected any role for the Security Council in the work of the ICC.[7] Consequently, the only possible interpretation in good faith, and within the context of the whole body of international law, of Article 13b is that the Security Council may refer to the ICC only situations in states which are parties to the ICC Statute.

Further legal problems

Immunity

According to international law, heads of state are immune from criminal prosecution by any foreign state. There are no reasons for believing that this rule does not apply to international organisations or courts. The Vienna Convention on Diplomatic Relations (1961) and other treaties (for instance the Convention on Special Missions of 1969) establish or confirm the immunity of the incumbent head of state. The International Court of Justice, the principal judicial organ of the United Nations, has confirmed the customary character of this norm.

This immunity and its absolute character was confirmed again in the ICJ Judgment in the case Arrest Warrant (Democratic Republic of the Congo v. Belgium). In this Judgment, the Court stated this it “accordingly concludes that the functions of a Minister of Foreign Affairs are such that, throughout the duration of his or her term in office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another state which would hinder him or her in the performance of his or her duties.”[8] It is true that the same Judgment enumerated several exceptions from this principle, i.e. criminal proceedings in an international court (and the ICC was named as an example). Supporters of the ICC Pre-Trial Chamber decision have cited this part of the Judgment in support of their arguments, but they omit to quote the phrase in full because the ICJ says, “An incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”?[9] We have shown above that the ICC does not have jurisdiction in the present case, so a truncated quote from the ICJ cannot help to prove that it does.

Obligation to cooperate

In its decision on 4 March 2009, the ICC Pre-Trial Chamber states that Sudan is under an obligation to cooperate with the ICC. In support of this claim, the Pre-Trial Chamber referred to Articles 25 and 103 of the United Nations Charter and emphasised that Sudan’s obligation to cooperate shall prevail over all other obligations in all international treaties. In fact, this argument is a travesty since it is in fact the ICC which is violating international law by claiming that its Statute takes precedence over it.

2. Conclusion: the legal consequences of this decision for international law

What are the possible consequences of the decision taken by the Pre-Trial Chamber on 4 March 2009? There are several possible outcomes of this blatant violation of international law and of this attempt to put the ICC Statute above other international treaties. Some States who have signed the ICC Statute may decide not to ratify it; other States may decide not to sign the Statute at all; some States who have signed or ratified may decide to withdraw and denounce their earlier accession.

The probability of these outcomes is especially high for members of the Arab League and the African Union. A resolution of the League of Arab States adopted on 4 March 2009 condemned the ICC decision as violation of the sovereignty of Sudan and of the Vienna Convention on Diplomatic Relations of 1961. In its communiquéissued after the 175th meeting on 5 March 2009, the Peace and Security Council of the African Union said that the ICC’s decision was a danger to peace and security in Sudan. Both international organizations expressed their regret that the Security Council did not accept their requests to invoke the right envisaged by article 16 of the ICC Statute to defer the prosecution against Al-Bashir.

Another possible outcome are legal actions taken by Sudan itself. In my opinion, it would be perfectly correct for Sudan to try to defend its sovereign rights before the International Court of Justice. It might bring a case against the members of the UN Security Council who adopted Resolution 1593; it might request an advisory opinion from the ICJH as well. Such a request could be very useful for Sudan, for other states in future and for international law in general. The recent ICJ case Belgium v. Senegal brought in February 2009, and by which Belgium seeks for force Senegal to extradite the former president of Chad, Hissène Habré, shows the direction in which some states are seeking to make international law develop. Such states may seek to force other States which have not signed the ICC Charter to carry out the arrest warrant against the President of Sudan and, if they fail to do so, to sue them in the courts for alleged violations of their international responsibilities.

Sooner or later the international community needs to decide what are the real powers of the United Nations Security Council under Chapter VII. For this reason, it makes every sense for Sudan to ask the ICJ for an advisory opinion.

A third possible outcome is that the Security Council itself might decide after all to invoke Article 16 of the ICC Statute and defer proceedings against President Al-Bashir. A large number of states (including the states of the African Union, the League of Arab States, the Organisation of the Islamic Conference, China, Russia and others) have already expressed their support for such a decision.

The Russian Federation has condemned the ICC decision. In an official statement, the Russian Ministry of Foreign Affairs said that Omar Al-Bashir is “the head of a State which is not a party to the Rome Statute of the ICC and that “he enjoys the immunities of a senior official under general international law.”[10]

Moreover, on 5 March 2009, the Russian Deputy Minister for Foreign Affairs held a meeting with ambassadors from African states at which he confirmed Russia’s basic position. The ambassadors said they regarded the ICC decision as directed not only against Sudan but also against other states in the region.

Finally, it is possible that the Russian Federation will revise its position on the ICC. As is well known, Russia signed the ICC Statute on 13 September 2000 but has not yet ratified it. In the intervening 9 years many conferences have been held in Russia encouraging ratification, financed by international organisations. But it is now doubtful that Russia will ratify the Statute. It is more likely that Russia will announce its decision not to ratify the Rome Statute and withdraw its signature, in the light of the decision on Sudan. Indeed, after such an abusive decision, this would be the only logical step for any signatory state.

Alexander Mezyaev is Head of the Department of International Law, Academy of Management, Kazan, Russia, and Editor of the Kazan Journal of International Law.

[1] The Prosecutor filed his request to the Pre-Trial Chamber on July 14, 2008.

[2] Prosecutor v. Omar Hassan Ahmad Al Bashir, Warrant of Arrest, ICC, Pre-Trial Chamber I, Situation in Darfur, Sudan, 4 March 2009.

[3] Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC, Pre-Trial Chamber I. Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, (Situation in Darfur, Sudan), 4 March 2009. Para 42.

[4] Ibid. Paras 40 - 41.

[5] Of course one might say that this article refers to the entry into force of the Statute in general as a treaty. However, it is more likely that the article 24.1 meant entry into force for the state party in question.
[6] For example see the position of the delegations of the Republic of Syria and other states, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Official Records. Vol. 2. United Nations. New York. 2002. p.184

[7] Ibid. p. 187, 188, 189, 197, 198.

[8] ICJ. Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment of 14 February 2002. par 54.

[9] Ibid. par 61.

[10] Statement by Russian Ministry for Foreign Affairs Spokesperson Regarding the Issuance by the International Criminal Court of an Arrest Warrant against Sudanese President Omar al-Bashir, March 5, 2009, Official web-site of the Russian Ministry for Foreign Affairs in internet: www.mid.ru, statement 354, 5 March 2009.