The battle of interpretation between the ICC and Jordan in The Prosecutor v. Al-Bashir (2010) judgments
The Prosecutor v. Al-Bashir (2010) has generated multiple clashes between the application of customary international law, treaty interpretation and the connection between immunities and territory.
This case gave rise to several other cases before the ICC Chambers. Various factors, including ambiguity between custom and treaty obligations, obscurity behind the ICC’s decision to activate Jordan’s responsibility before the Court but neither Malawi’s nor South Africa’s, corroborates this case as a landmark.
The ICC issued two arrest warrants for the former president of Sudan – Omar Al-Bashir – for war crimes, crimes against humanity and genocide. The main problem in the case is that the state of Sudan is not a party to the Rome Statute except for the provisions that reflect customary international law as explained in Articles 34 and 38 of the Vienna Convention on the Law of Treaties (VCLT). Thus, the jurisdiction of the Court could only be triggered by a binding UNSC resolution.
Consequently, the UNSC Resolution 1593 (2005) was adopted under Chapter VII of the UN Charter. However, the problem arose when Mr Al-Bashir travelled to several Rome Statute state parties including Jordan without being arrested despite the arrest warrants. These states argued that they had an obligation under customary international law to respect his immunity. The ICC, on the other hand, ruled that these states were obligated to cooperate and arrest Mr Al-Bashir.
Jordan was found to be uncooperative by the ICC in refusing to arrest Mr Al-Bashir when he visited Jordan. Jordan appealed this decision, arguing that the Pre-Trial Chamber had erred in its interpretation of the Rome Statute, in particular, the effects of Article 27. Jordan further argued that the Pre-Trial Chamber had erred in law regarding the effects of UNSC Resolution 1593 and that the Pre-Trial Chamber had abused its discretion when referring Jordan to the Assembly of State Parties and the UNSC.
The Appeals Chamber upheld the Pre-Trial Chamber's interpretation of Article 27(2) that the effect of this provision was to hold that states parties were unable to invoke immunities as a ground for refusing arrest and surrender of a person to the court. Most controversially, the Appeals Chamber argued that Article 27(2) reflects customary international law as also excluding the laws on immunity in relation to the head of states’ arrest and surrender. This indicates that, according to Articles 34 and 38 of the VCLT, Jordan was then obliged to respect Article 27(2) as it was a reflection of customary international law.
The rules on absolute and functional immunity of sitting and former heads of state are based on customary international law, as confirmed by the ICJ in the Arrest Warrant Case. The rationale behind this immunity is that any proceedings against a sitting head of state would violate the principle of sovereign equality and the principle of non-interference. Jordan could thus argue for an in dubio mitius interpretation of this rule, which is the notion that treaties are to be interpreted in favour of state sovereignty in case of doubt in a criminal case.
The Appeals Chamber further found that the effect of paragraph two of Resolution 1593 was to bring Sudan into the cooperation regime, as applicable to states parties, and that this would mean that the statutory legal framework would apply to Sudan as if it were a state party. As a result, Article 27(2) would be applicable, and Mr Al-Bashir would not have any immunity before the court.
Jordan argued that, pursuant to Article 98(1), Sudan would have had to waive its immunities. In this case, the Appeals Chamber found that no waiver was required, since Mr Al-Bashir had no immunity due to Article 27(2) and UNSC Resolution 1593.
The judgment and corresponding concurring opinion by four of the five judges were subject to considerable criticism. Batros criticised the Appeal Chamber’s conclusion concerning the removal of immunity relating to ICC arrest warrants based on custom. Galand similarly argued that if the Chamber’s findings on custom was correct, it would not have needed to discuss the effects of UNSC resolutions at all. Both Batros and Galand, also stressed that most of the judges overlooked Article 12(2)(a). This Article concerns the cases where the court would have jurisdiction based on the territoriality principle. According to Batros, there seems to be little substance left for Article 98(1) if there is no immunity for head of states before the International Criminal Court.
The tension between international custom and treaty law in this context reflects a broader issue as to how immunity or other principles of international law are perceived. This concerns the dissenting opinion of different judges as well as different rulings among different international courts with regard to a similar case before their Chambers. This implication does not only concern the ICC but, as observed, the implications of this tension are also evident in the Arrest Warrant case before the ICJ and potential future cases before other international courts.
Thus, in order to limit the existence of such conflicts, it is important to establish mechanisms for interpretation. It is evident that in the case of conflict between interpretation of various sources of the law, the jurisprudence plays a vital role. However, as demonstrated in the case of The Prosecutor v. Al-Bashir (2010), only relying on the existing jurisprudence would not be enough. In the course of this case, one solution would be that of prior consultation among different parties as relevant to the judgment.