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RETURN TO SENDER: LET THE INTERNATIONAL COURT OF JUSTICE JUSTIFY OR QUALIFY INTERNATIONAL-CRIMINAL-COURT EXCEPTIONALISM REGARDING PERSONAL IMMUNITIES

Published online by Cambridge University Press:  11 October 2019

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Abstract

This article argues that it is important for the International Court of Justice to be given an opportunity, for instance through a request for an Advisory Opinion, to explain what exactly it meant when it suggested that the ordinarily applicable international law on immunities need not be an obstacle “before certain international criminal courts, where they have jurisdiction”. Two international criminal courts have built a structure of case law on this one obiter comment, which it seems unable to support.

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Copyright © Cambridge Law Journal and Contributors 2019 

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Footnotes

*

Reader in International Law and Co-Deputy Director of the Lauterpacht Centre for International Law, University of Cambridge, and Fellow of Pembroke College, Cambridge.

References

1 See Crawford, J., “Chance, Order, Change: The Course of International Law” (2013) 365 Recueil des Cours 9, at 196Google Scholar.

2 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] (Merits) ICJ Rep. 3, at [61].

3 Judgment in the Jordan Referral re Al-Bashir Appeal, Appeals Chamber Decision, ICC-02/05-01/09-397-Corr, 6 May 2019.

4 Arrest Warrant, at [58].

5 Arrest Warrant, at [61].

6 Note that, unlike with respect to the ICC, the court did not refer to a specific provision in the statutes of the ICTY and ICTR. For the statutes of these tribunals did not have a provision dealing with the question of whether or not the tribunals had to respect the personal immunity of incumbent officials. They only had a provision according to which official status would not relieve a person of “criminal responsibility”, which excludes a substantive defence but does not speak to a procedural rule of immunity. A similar rule is included in Art. 27(1) of the Rome Statute, which the court did not cite either, instead citing only Art. 27(2), which does explicitly address immunities.

7 Prosecutor v Charles Ghankay Taylor, Decision on Immunity from Jurisdiction, SCSL-2003-01-I, 31 May 2004, at [38]. I have discussed this decision, and the early literature on it, more elaborately in Nouwen, S.M.H., “The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued” (2005) 18 L.J.I.L. 645Google Scholar.

8 Taylor, at [38], emphasis in the original.

9 Ibid., at para. [51].

Ibid.

10 Ibid., at para. [51].

Ibid.

11 Ibid., at para. [52]. It then added that it agreed with Lord Slynn of Hadley in Pinochet: “there is … no doubt that states have been moving towards the recognition of some crimes as those which should not be covered by claims of state or Head of State or other official or diplomatic immunity when charges are brought before international tribunals.”

Ibid.

12 Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrests and Surrender of Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber II Decision, ICC-02/05-01/09-139-Corr, 13 December 2011, at [43].

13 Decision on the Failure by the Republic of Malawi to Comply with the Cooperation Requests, at [46].

14 See also Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I Decision, ICC-02/05-01/09-140-tENG, 13 December 2011, at [13]–[14].

15 Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir's Arrest and Surrender to the Court, Pre-Trial Chamber II Decision, ICC-02/05-01/09-195, 9 April 2014, at [26].

16 Ibid., at para. [29].

Ibid.

17 Ibid., at para. [68].

Ibid.

18 Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Pre-Trial Chamber II Decision, ICC-02/05-01/09-302, 6 July 2017, at [107].

19 See Akande, D., “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities” (2009) 7 J.I.C.J. 333Google Scholar.

20 Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, Minority Opinion of Judge Marc Perrin de Brichambaut, ICC-02/05-01/09-302-Anx, 6 July 2017.

21 Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest surrender [of] Omar Al-Bashir, Pre-Trial Chamber II Decision, ICC-02/05-01/09-309, 11 December 2017.

22 Jordan appealed both the Pre-Trial Chamber's decision concerning immunity, as well as its decision to refer Jordan's non-cooperation to the Assembly of States Parties and the UN Security Council. Jordan won the appeal on the latter point, but this article focuses on the immunity issue.

23 See Order inviting expressions of interest as amici curiae observations (pursuant to rule 103 of the Rules of Procedure and Evidence), Appeals Chamber Decision, ICC-02/05-01/09-343, 30 April 2018; Decision on the requests for leave to file observations pursuant to rule 103 of the Rules of Procedure and Evidence, the request for leave to reply and further processes in the appeal, Appeals Chamber Decision, ICC-02/05-01/09-351, 21 May 2018. For full disclosure, the present author also submitted such a request, together with Elisabeth Wilmshurst and Max du Plessis. They were not invited.

24 See Corrected Transcript of hearing, ICC-02/05-01/09-T-4-ENG, 10 September 2018; Transcript of hearing, ICC-02/05-01/09-T-5-ENG, 11 September 2018; Transcript of hearing, ICC-02/05-01/09-T-6-ENG, 12 September 2018; Transcript of hearing, ICC-02/05-01/09-T-7-ENG, 13 September 2018; Transcript of hearing, ICC-02/05-01/09-T-8-ENG, 14 September 2018.

25 D. Akande, “ICC Appeals Chamber Holds that Heads of State Have No Immunity Under Customary International Law Before International Tribunals”, EJIL: Talk!, 6 May 2019, available at <https://www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-have-no-immunity-under-customary-international-law-before-international-tribunals/> (accessed 20 August 2019); D. Jacobs, “You Have Just Entered Narnia: ICC Appeals Chamber Adopts the Worst Possible Solution on Immunities in the Bashir Case”, Spreading the Jam, 6 May 2019, available at <https://dovjacobs.com/2019/05/06/you-have-just-entered-narnia-icc-appeals-chamber-adopts-the-worst-possible-solution-on-immunities-in-the-bashir-case/> (accessed 20 August 2019).

26 Jordan Referral Appeal, at [97].

27 Ibid., at pp. 18–35.

Ibid.

28 Ibid., at para. [161].

Ibid.

29 Judgment in the Jordan Referral re Al-Bashir Appeal, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, ICC-02/05-01/09-397-Anx1-Corr, 17 May 2019, at [254].

30 Jordan Referral Appeal, at [117].

31 Ibid., at para. [127].

Ibid.

32 Observations by Professor Roger O'Keefe, pursuant to rule 103 of the Rules of Procedure and Evidence, on the merits of the legal questions presented in “The Hashemite Kingdom of Jordan's appeal against the ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir’” of 12 March 2018 (ICC-02/05-01/09-326), ICC-02/05-01/09-360, 18 June 2018; Transcript, ICC-02/05-01/09-T-5-ENG, 11 September 2018, pp. 3ff.

33 Jordan Referral Appeal, at [132]–[133].

34 Jordan Referral Appeal Joint Concurring Opinion, at [445].

35 Ibid., at para. [269], emphasis added.

Ibid.

36 For criticism, see Akande, “ICC Appeals Chamber”; Jacobs, “You Have Just Entered Narnia”; see for support Kreß, C., “Preliminary Observations on the ICC Appeals Chamber's Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal” (2019) 8 Occasional Paper Series 1Google Scholar.

37 See also A. Galand, “A Hidden Reading of the ICC Appeals Chamber's Judgment in the Jordan Referral Re Al-Bashir”, EJIL: Talk!, 6 June 2019, available at <https://www.ejiltalk.org/a-hidden-reading-of-the-icc-appeals-chambers-judgment-in-the-jordan-referral-re-al-bashir/> (accessed 20 August 2019).

38 Jordan Referral Appeal, at [113], emphasis added.

39 Ibid., at para. [116].

Ibid.

40 Ibid., at para. [115].

Ibid.

41 Ibid., at paras. [4], [127].

Ibid.

42 Observations by Professor Claus Kreß as amicus curiae, with the assistance of Ms Erin Pobjie, on the merits of the legal questions presented in “The Hashemite Kingdom of Jordan's appeal against the ‘Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir’” of 12 March 2018 (ICC-02/05-01/09-326), ICC-02/05-01/09-359, 18 June 2018, at [14].

43 Q&A Regarding Appeals Chamber's 6 May 2019 Judgment in the Jordan Referral re Al-Bashir Appeal, ICC-PIOS-Q&A-SUD-02-01/19_Eng, May 2019, available at <https://www.icc-cpi.int/itemsDocuments/190515-al-bashir-qa-eng.pdf> (accessed 20 August 2019).

44 See also Jordan Referral Appeal Joint Concurring Opinion, at [8].

45 See also amicus Robinson: Transcript, ICC-02/05-01/09-T-5-ENG, 11 September 2018, pp. 14ff.

46 See Koskenniemi, M., “The Politics of International Law – 20 Years Later” (2009) 20(1) E.J.I.L. 7Google Scholar.

47 Note, however, the more holistic approach to the Rome Statute in Amicus Curiae Observations of Professors Robinson, Cryer, deGuzman, Lafontaine, Oosterveld, and Stahn, ICC-02/05-01/09-362, 18 June 2018, at [18]ff.

48 See African Union, “Progress Report of the Commission on the Implementation of the Decisions of the Assembly of the African Union of the International Criminal Court” (2018) Doc. EX.CL/1068(XXXII) Rev. 1, at [19]; and African Union, “Decision on the International Criminal Court” (2019) Doc. EX.CL/1138(XXXIV).

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