International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2016/Winter 2017 Issue

Special Report


African Interpretation of Immunities Before the International Criminal Court

Mohammad Hadi Zakerhossein
By: Mohammad Hadi Zakerhossein, Ph.D. Researcher, Tilburg University, The Netherlands

The autumn 2016 was the end of the honeymoon in the relationship between Africa and the International Criminal Court (the ICC/Court). South Africa, Burundi, and later, Gambia expressed their intentions to put an end to their membership to the ICC. The wave of withdrawals from the Rome Statute has led to the legitimacy crisis for the Court; the Court is losing its old partners in Africa. The present confrontation originates from the arrest warrants against the president of Sudan, Omar Hassan Al-Bashir, issued by the Pre-Trial Chamber of the Court in 2009 and 2010 respectively.

These challenging decisions were a turning point in the mutual affairs between the continent and the Court. Upon the issuance of the arrest warrant against Al-Bashir, the African Union in July 2009 passed a resolution stating that “the AU member states shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities for the arrest and surrender of Sudanese President Omar al Bashir to the ICC”. Based on this generous and firm support, Al-Bashir started a campaign to prove the invalidity of the warrants in the continent and to show his power and legitimacy therein. Nonetheless, the Court did not retreat. To the contrary, the Court persisted on the validity of warrants and on the obligation to implement them.

The ICC has demanded all African states that host Al-Bashir to implement the warrants issued against him by arresting and surrendering the wanted president of Sudan who is accused of the commission of war crimes, crimes against humanity and genocide. However, the Court’s requests have constantly rejected by the African states. Legally speaking, the cost of failure to cooperate with the Court sounds considerable: finding of non-compliance by the host states.  So far, Malawi (2011), Chad (2013), Nigeria (2013), Congo (2014), Uganda (2016) and Djibouti (2016) have confronted the Court by failing to cooperate in arresting Al-Bashir when the President visited their countries. Non-compliance of these countries were reported and referred to the Assembly of States Parties of the Court and the Security Council of the United Nations as the organ had originally referred the situation in Darfur, Sudan to the Prosecutor of the Court.

It should be noted that the relevant organs have not taken any measure with regard to the findings yet.  However, the case of South Africa faced a different fate. Although the Court has not determined the non-compliance of South Africa yet, the conflicting interpretation on the issue of immunities before the International Criminal Court triggered the withdrawal of South Africa from the Rome Statute in 2016. In the summer 2015, Omar Al-Bashir visited South Africa to attend an African Union summit in Johannesburg. Bashir’s visit put South Africa in serious trouble with the Court and with its judiciary at the domestic level. South Africa as a member to the ICC, had an obligation to implement the arrest warrant issued against Al-Bashir. Although the high court of South Sudan had barred Al-Bashir from leaving the country, thanks to the South African government’s assistance, Al-Bashir avoided arrest. Later, the South African court called the failure of the government ‘disgraceful’. The government of South Africa, like the aforementioned African countries, was not in agreement with the Court that it is under an evident obligation to cooperate with the Court in arresting and surrendering Al-Bashir. Indeed, the tension between Africa and the Court arose from a difference in legal interpretation of the scope of immunities.

The ICC does not enjoy universal jurisdiction. To exercise its jurisdiction over the most serious crimes of concern to the international community, namely crimes against humanity, war crimes and genocide, there should be some preconditions. The ICC crimes may be investigated and prosecuted only if those crimes are committed on the territory of a State Party to the Court or by its nationals. The Court is a treaty-based international organization and its jurisdiction does not extend beyond its members.

Regarding the personal jurisdiction, the Court may exercise its jurisdiction over all perpetrators committing a crime on the territory of a State Party, regardless of their nationality or over all perpetrators of a nationality from a State Party, regardless of the location of crimes. There is no more restriction as to the personal jurisdiction, except for age. The Court has no jurisdiction over children under 18. However, there is no distinction among all other persons based on their official capacity. Indeed, Article 27 (1) of the Rome Statute explicitly invalidates the official capacity as a substantive defense before the Court. Being a head of state is not an excuse to commit the core crimes. All perpetrators of the core crimes are individually responsible for their criminal behavior even if they occupy high positions at the domestic level.

This substantive rule has a procedural aspect and that is the issue of immunity. Personal immunities as a customary rule in international law bar foreign states from prosecuting people in high positions of power from another state. This kind of immunity stems from the official capacity and status of a person. In the words of the International Court of Justice (ICJ) judges, ‘immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system’. However, personal immunity is not a procedural immunity forever. Heads of states and officials are immune from criminal prosecution as long as they remain in office. Therefore, after leaving the power they may be prosecuted for the crimes they committed when they were in power.

Here, a question arises. Are immunities valid before international criminal tribunals? It is clear that this rule is rooted in inter-state relationships. However, in the criminal tribunals era is the rule untouched? Or has it been adapted? Article 27(2) of the Rome Statute provides an answer. It states “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”. It means that there is no immunity before the ICC. This position is consistent with the rule established by the International Court of Justice in the famous ‘Arrest Warrant case’ (2002) following the application filed by the Democratic Republic of the Congo instituting proceedings against the Kingdom of Belgium, in respect of a dispute concerning an international arrest warrant issued on 11 April 2000 by a Belgian investigating judge against the Minister for Foreign Affairs in office of the Congo. In that case, the ICJ made a distinction in the applicability of immunities based on the nature of court that prosecute the officials. Regarding the international tribunals, the Court stated “an inurnment or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction”. Article 27(2) maintains the same reasoning. However, the ICJ did not reject the applicability of immunities before the national jurisdictions. The ICJ explicitly stated that even in case of international crimes there is no exception.

Given Article 27(2) of the Rome Statute and its background before the ICJ, one can ask whether the Court can request a State Party to implement an arrest warrant issued by the Court against a person who enjoys immunities. Article 98 of the Rome Statute answers ‘no’ by saying that “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, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.  Therefore, why did the Court issue two arrest warrants against Omar Al-Bashir as the acting president of Sudan, thus requesting all its members to implement them?


There is a distinction between those wanted officials from a State Party and those who are not. Regarding the officials of the State Parties, there is no disagreement that immunities of these officials have been waived not only before the Court but also before the States Parties. Immunities are waivable. Article 31(1) of the Vienna Convention on Diplomatic Relations provides “The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State”. Ratification of the Rome Statute is an implied way to waive such a privilege. All States Parties by ratification of the Rome Statue simultaneously waive the immunity of their leaders before the Court.

The Pre-Trial Chamber of the ICC in its decision on the failure of Malawi to implement the arrest warrant against Al-Bashir when he had a visit to this country stated “acceptance of article 27(2) of the Statute, implies waiver of immunities for the purposes of article 98(1) of the Statute with respect to proceedings conducted by the Court”. It is clear that if Article 27 was applied only to trials before the ICC and did not include the ability of national authorities from states parties to implement the arrest warrants issued by the Court, the whole structure of the ICC statute would be meaningless. Therefore, all officials of States Parties are under the jurisdiction of the Court and the ICC can request a State Party to arrest and surrender a head of state without having to worry that this would require the requested state to act inconsistently with obligations under international law.

The issue regarding the officials from non-member states is controversial. The Court is of the opinion that Article 27(2) extends to all officials regardless of their nationality. However, the African states and a considerable number of scholars oppose this position. They argue that Article 27(2) has a statutory nature and it cannot change the customary law protecting the officials of other states. Based on the applicability of immunities in favor of those who do not join the Court, the drafters of the Rome Statute put in place Article 98. The recent article imposes a limitation on the Court to issue such a request to put a state in potential conflict with existing obligations that have remained intact even in the post-ICC era. Reading Articles 98 and 27 together shows that non-immunity of the head of state is not a rule of customary international law, otherwise Article 98 should have not recognized an exception.

It seems that the Court initially was of a different view and tried to promote this idea that in the modern international law non-immunity of the head of state with respect to the international crimes is an absolute rule that is applicable at both national and international levels. The Pre-Trial Chamber in finding non-compliance by Malawi stated 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”. Based on this conviction, regarding the cooperation regime between the states and the Court, the Chamber ruled that the States have to cooperate in arresting a head of a non-member State, since “when cooperating with this Court and therefore acting on its behalf States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise”. In other words, the Chamber argued that Al-Bashir lacks any immunity before states because states are acting on behalf of the Court not on their own.

However, this rule was rejected and criticized by many scholars. This caused the Court to later change its reasoning to justify its finding of non-compliance by those African countries that welcomed Al-Bashir on their territory. Following Bashir’s visit to Congo and later to South Africa in 2014 and 2015, the Court grounded the non-applicability of immunities of Al-Bashir on the authorities of the Security Council. The Chamber accepted that the personal immunity is valid before the national jurisdictions by making it clear that “it is not disputed that under international law a sitting Head of State enjoys personal immunities from criminal jurisdiction and inviolability before national courts of foreign States even when suspected of having committed one or more of the crimes that fall within the jurisdiction of the Court”.

This time, in agreement with the critics, the Chamber explicitly confirmed that “the Statute cannot impose obligations on third States without their consent. Thus, the exception to the exercise of the Court’s jurisdiction provided in article 27(2) of the Statute should, in principle, be confined to those States Parties who have accepted it”. Therefore, and in accordance with Article 98(1) of the Statute, if the Court wants a national from a non-member State who has an official capacity, the Court should “secure the cooperation of the third State for the waiver or lifting the immunity of its Head of State”. However, the Court still insisted on the States’ obligation to arrest and surrender Al-Bashir. In the Chamber’s eye, the SC Resolution 1593 (2005) which referred the situation in Darfur to the Office of the Prosecutor, removed simultaneously the immunity of Al-Bashir for the purpose of the proceedings before the Court.

The Chamber has argued that the referring resolution adopted under Chapter VII of the UN Charter has required that Sudan “cooperate fully” and “provide any necessary assistance to the Court”. Such full cooperation, in the Chamber’s opinion, includes the waiver of the immunity”, as required under the last sentence of article 98(1) of the Statute.  In other words, the Chamber reasons that “the cooperation envisaged in said resolution was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities”. Indeed, the Court states that because Sudan is required to fully cooperate with the Court, it has to lift immunities of its officials if the Court wants them to pave the way of the Court’s operation. However, in the Court’s interpretation, even if Sudan fails to waive the immunities, they are removed by the SC’s decision and determination. It deserves to note that the African states added another argument to be exempted from arresting Al-Bashir. They invoked the AU’s resolution obliging them not to cooperate with the Court for this purpose. The Court provided an answer for this matter too. According to the Court, again, because the obligation arising from the SC resolution referring the Darfur situation prevails other obligations, according to Article 25 of the UN charter, all African states should give effect and priority to their obligation before the UN SC.

Since 2014, the Court has constantly followed this reasoning to request states to implement the warrants against Al-Bashir and to find them disobedient if they fail to arrest the Sudanese president. However, even the renewed argument has not satisfied all scholars and there are still some strong voices against the Court’s reasoning. Some cast doubt on the authority of the Security Council to waive the rule of immunities that has a status of customary rule. Others state that even if the SC has such authority it should be explicitly referred to in the referring resolutions. Something that is clearly absent from the resolution referred the Darfur situation. Indeed, the Chamber has imposed its interpretation on the Security Council.

The African states have insisted on their own interpretation too. South Africa requested the Assembly of States Parties in its 14th session to take the initiative and put forward an interpretation to make the relationship between Articles 21 and 98 clear.  That suggestion was not heard. In the 15th Session, South Africa in justifying its decision to withdraw from the Statute referred to the fact that its voice was not heard; and that led to its decision to leave the Court.

Tension between the African states  and the Court is a legal matter rather than political. It arises from difference in interpretations. The Rome Statute as a legal text is inherently open to interpretations. No one can say that there is only one interpretation for a text and then to impose its own interpretation. Tolerance and dialogue are required in this context in order to warrant cooperation. Here, at least, as some scholars have advised this legal diversity could be referred to the ICJ, as a third and neutral party, to have its advisory opinion as the final word. The Court seeks universality and in the world of diversities being dialectic and open to other ideas is necessary.

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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