This article considers the law of head of State immunity through an analysis of the indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC). Contrary to most commentaries, this essay argues that al-Bashir remains protected by head of State immunity, and that ICC jurisdiction over him can only be maintained through one of two controversial claims: either that the Security Council can override customary international law rules of treaties and immunities, or that the law of immunities already provides an exception that invalidates al-Bashir's protection. This article provides a detailed explanation of why both propositions are unsustainable and require considerable revision of public international law. While the desire to prosecute al-Bashir is understandable, the ICC's legal arguments actually threaten the Court's ability to protect victims by alienating some States Parties and prompting those States and others to reduce co-operation with the Court. It concludes by suggesting that the Court's arguments represent a problematic assertion of its position as an institution of global governance.
1. In spite of its noble aspirations, international criminal law has not been exempted from regular warnings about the danger of international judicial institutions abandoning the rule of law.1 This concern has been raised again with the contentious indictment of Sudanese President Omar al-Bashir by the International Criminal Court (ICC).2 This controversy arises because, for all the agreement that al-Bashir should be prosecuted,3 there is little agreement on why the ICC has the authority or jurisdiction to do so.4 In an effort to bring some order to this widespread uncertainty, this article undertakes a detailed and comprehensive analysis of the jurisdictional issues in the case. Contrary to most commentaries,5 it concludes that al-Bashir remains protected by his immunity as the head of a State that is not a party to the Rome Statute.6 At the risk of introducing even more controversy to the debate, this article argues that the ICC's jurisdictional claims over al-Bashir are tenuous at best; that the Court's position can only be sustained by relying on controversial and peripheral restatements of public international law; and that the manner of the pursuit of al-Bashir will undermine the goals and effectiveness of the ICC.
2. Although the charges against al-Bashir were first confirmed by the Pre-Trial Chamber (PTC) of the ICC in 2009, the issue remains relevant for two reasons. Firstly, the confusion surrounding the scope of head of State immunity continues. The indictment of al-Bashir has not lain dormant since the issuance of warrants for his arrest; the PTC recently invited the United States to arrest al-Bashir when the possibility of his visiting the UN General Assembly in New York was raised.7 Head of State immunity surfaces in other cases as well. Before his death, Muammar Gaddafi of Libya was in the same unclear position as al-Bashir,8 and the election of indictee Uhuru Kenyatta as Kenyan President means that the issue has arisen again.9 Properly delineating the relationship between the immunity and the ICC therefore remains an important and unfinished task.10 Secondly, there has been little analysis of how the ICC arguments on the immunity fit within the traditional constraints of public international law,11 or how they may affect the future work of the Court. The risks of adopting the ICC position include States withdrawing from or no longer co-operating under the terms of the Rome Statute;12 a disincentive for non-party States to join the ICC in the future; and the weakening of the rule of law in the international system. Of course, these outcomes do not explain why the ICC's stance is wrong, but they do demonstrate the need for a more careful analysis of the legal issues given the stakes. The importance of this article therefore lies in its resolution of the convoluted question of head of State immunity generally, and its explanation of how the ICC's flawed reasoning about this narrow legal issue substantially revises fundamental aspects of public international law.
3. Two clarifications must be offered as to the scope of this article. Firstly, no position is taken on whether the arrest or trial of al-Bashir itself will affect the prospects for peace in Sudan. The “peace versus justice” debate is a separate question. The argument here is not that holding al-Bashir accountable will undermine the peace process, but that the particular methods and reasoning relied upon by the Court are both legally dubious and will also have important negative repercussions for the ICC. Secondly, this article does not argue that al-Bashir is innocent or ought to be left free from judicial process. The desire to hold him accountable is correct, especially given the cogent evidence of government involvement in crimes in Darfur.13 The misgivings expressed in this essay are not about the general ethical motivation behind prosecuting al-Bashir, but about the particular legal arguments utilized by the ICC and the consequences of adopting those positions. While arresting alleged war criminals such as al-Bashir is important, the Court is pursuing that goal in a manner that compromises its long-term goals. The deficiencies in the Court's reasoning will undermine the Court's ability to protect future victims of atrocity, either by alienating States Parties to the Rome Statute or giving non-States Parties an incentive to not ratify the treaty, reducing or eliminating the local co-operation that is necessary for the Court's success.
4. These conclusions are examined in more detail after a thorough analysis of the legal issues. Section II focuses on the principles of head of State immunity that lie at the core of the case. Sections III through V critically evaluate and respond to the substantive arguments relied upon by the PTC to justify indicting al-Bashir. Section III addresses the claim that the Security Council can directly or indirectly override al-Bashir's immunity; Section IV explains how rules of treaty law restrict the ICC in this case; and Section V demonstrates that both statutory and case-law precedent provide little support for the PTC position. Section VI turns to the political context of the dispute to explain how the anti-immunity arguments are not only legally suspect but counter-productive to the goals of the ICC. The short-term “success” of arresting al-Bashir threatens to be offset by future difficulties in securing co-operation from States Parties and persuading non-States Parties to ratify the Rome Statute. Some of those States would oppose the ICC regardless, but the decisions of the Court in the al-Bashir case will provide legal justifications for their intransigence, and induce doubt in other States about the methods and trustworthiness of the Court.
The ordinary rules of head of State immunity
5. The central issue is al-Bashir's immunity as a head of State, which al-Bashir says protects him from ICC jurisdiction. The ICC's response is that there is a rule of customary international law that prevents the application of immunity, and additionally that the Security Council's Chapter VII actions have stripped al-Bashir of his immunity in this instance.14 Revisiting the basic rules of head of State immunity provides the foundation for assessing these twin arguments by showing, firstly, that head of State immunity is a rule of customary international law and, secondly, by highlighting the significant differences between al-Bashir and previous trials: all the precedents concern former heads of State, or heads of State whose immunity was waived. The distinctions are meaningful because former heads of State have drastically different immunities than incumbents such as al-Bashir, and Sudan's refusal to waive al-Bashir's immunity means that he remains in a unique position when compared to predecessors such as Slobodan Milošević and contemporaries such as Uhuru Kenyatta.15 Relying on past cases as precedents is therefore unhelpful to the ICC position.
6. Sitting heads of State have traditionally had “personal” immunity, such that while in office, they are immune from all foreign criminal jurisdiction.16 Whether or not this immunity is jus cogens is debatable, but it is certainly a rule of customary international law,17 and the scope of immunities are determined almost exclusively by reference to customary international law.18 This immunity applies whether the head of State is traveling or not, and whether he or she is abroad for government business or private purposes.19 For this reason, head of State immunity is more comprehensive than diplomatic immunity or ordinary functional immunities. The expansive nature of the immunity recognizes the functions of heads of State, which include high-level diplomacy, negotiations, and the pacific settlement of disputes.20 These are more extensive and all-encompassing functions than those held by ordinary diplomats, who often perform much narrower diplomatic tasks, let alone former heads of State who have no official role at all. This is not to say that there is no rationale for potentially abrogating the immunities of sitting heads of State, only that—as recognized by the Institut de droit international21—there are important countervailing reasons for both preserving them and distinguishing incumbents from former heads of State, even when the persons involved are accused of serious international crimes.
7. Of course, head of State immunity is not permanent. Once heads of State are no longer in office, they lose any special protection afforded to them through their personal immunity as heads of State, and are only protected by the same rules of functional immunity22 as applicable to other former State officials.23 Furthermore, as a matter of law, immunities—including the “personal” immunities of the head of State—belong to the State and not the individual, and can therefore be waived at any time by the government.24 These waivers can be done on an individual-by-individual basis, or can be on-going in nature. An example of the latter is Article 27(2) of the Rome Statute, which states that a person's official capacity or immunities do not prevent the ICC from obtaining jurisdiction over that individual.25
8. For our purposes, there are three key aspects to head of State immunity.26 Firstly, it is a rule of customary international law. Secondly, there are important reasons to distinguish the immunities of sitting heads of State from other types of immunities, including any that may protect former heads of State. Finally, the immunity may be waived by the State that holds it even if the individual is currently holding the office of head of State. As shown below, each of these propositions undermines important elements of the ICC's claims of jurisdiction over al-Bashir.
The Security Council referral
9. This section refutes the position that the Chapter VII authority of the Security Council renders al-Bashir's immunity inoperative for the purposes of the Rome Statute. Al-Bashir is being investigated in relation to crimes allegedly committed in Darfur, which were referred to the ICC by Resolution 159327 of the Security Council. The PTC did not specify exactly how Resolution 1593 might bind Sudan to the Rome Statute and remove al-Bashir's immunity, but there are three possibilities. One is through the delegation of the Security Council's Chapter VII powers to the ICC, which then exercises that authority to compel co-operation from Sudan. Another is by binding Sudan to the Rome Statute and Article 27(2) through a Chapter VII resolution of the Security Council. The third is deleting the immunity through direct action by the Council itself. The last two arguments both depend on Article 103 of the UN Charter, and so are considered together. The common problem with all three of these arguments is that neither Chapter VII nor Article 103 of the Charter allows the Security Council to extend the jurisdiction of the Court.28 The ICC is not able to exercise any Chapter VII powers because it is not part of the UN, and the Security Council itself does not have the authority to revise the rules of public international law in order to negate al-Bashir's immunity. Those rules—which include the UN Charter itself,29 the customary law rules of immunities outlined above, and the law of treaties—severely restrict the Security Council's powers in this case.
The inability to delegate Chapter VII powers to the ICC
10. The first position to be addressed is that of delegation. Even if it is assumed that the Security Council has the power to remove immunities,30 this does not necessarily mean that power may be delegated to the ICC. Assigning a discretionary decision-making power to a tribunal requires that the tribunal is actually competent to receive the Chapter VII power in the first place.31 According to the UN Charter, competent entities are: UN member States32; “regional arrangements” as contemplated by Article 51 of the Charter33; and organs of the UN itself. The ICC does not fall into any of these categories.
11. The ICC is obviously not a UN member State, nor is it a regional arrangement under Article 51 of the Charter. While there is no definition of “regional” in the Charter, the types of organizations considered to be regional agencies include the Organization of American States (OAS), the Arab League, and the African Union (AU).34 To permit a decentralized agency such as the ICC status as a regional arrangement under Chapter VIII would undermine the role of the UN in securing international peace35 by rendering meaningless the proximity requirements of the Article 51 restriction.36 Yet even if the ICC were classified as a regional arrangement, the problem arises that the only Chapter VII powers that can be delegated to regional arrangements are military enforcement powers,37 as per Article 53(1) of the Charter.38 The intention of Article 53(1) is further evidenced by the UN Secretary-General's Agenda for Peace39 plan, which sought to put regional organizations to use in the political and military tasks of preventive diplomacy and peacekeeping.40 It does not contemplate judicial tasks.41
12. The only remaining way in which the ICC might receive Chapter VII powers is through recognition as part of the UN system. Yet there is no basis for the position that the ICC is either a principal or subsidiary organ of the UN. The Rome Statute is a treaty that was negotiated outside the auspices of the UN, and Articles 1 and 4(1) of that treaty state that the Court is permanent (i.e. it does not exist at the pleasure of the UN) and that it has “international legal personality”. The Preamble and Article 2 of the UN-ICC Agreement similarly recognize the independence of the Court from the UN system.42 Unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), the ICC is governed entirely by its Assembly of States Parties. While judicially independent, the ICTY and ICTR are able to exercise Chapter VII authority because they are organs of the UN that have been established by the Security Council and delegated such authority.43 The authority of the ICC, on the other hand, is based on the consent of States to the Rome Statute44 and is wholly independent of the organizational structure of the UN. Aside from the ability to refer matters to the Court, the only substantive role that exists for the UN is in relation to Article 16 suspensions of the ICC's jurisdiction over a particular situation by the Security Council. Neither of these roles are mentioned or elaborated upon in the UN–ICC agreement, and neither the Rome Statute nor its drafting history make any clear provision for accepting or exercising Chapter VII powers.45 Similarly, the Security Council cannot supervise any other aspect of the Court's work, including the appointment of its personnel. Contrast this with the SCSL, where the Secretary-General is responsible, either solely or jointly with other members of the SCSL, for the appointment of judges, prosecutors and the registrar of the court.46 The far-reaching independence of the ICC suggests that there is no basis on which to suggest the ICC can receive Chapter VII powers, including the power to bind non-parties to the Rome Statute.
Article 103 and the supremacy of the Security Council
13. The second set of arguments states that Sudan must comply with the Security Council referral because of Sudan's membership in the UN, its concomitant consent to the priority of the UN via Article 10347 of the Charter,48 and the mandatory nature of Chapter VII resolutions. Instead of Chapter VII powers flowing through the ICC, the obligation to arrest al-Bashir is directly imposed upon Sudan and other UN Member States by the Security Council itself. The basic flaw with this argument is that the UN Charter only takes precedence over other international treaties,49 not customary international law rules such as head of State immunity or the laws governing treaties. In this case, those customary rules defeat the argument that the UN referral can negate al-Bashir's immunity.
14. The drafting history of Article 103 shows that, after considerable debate about whether the Charter should be supreme over all international law, the drafters made a deliberate choice to specify “international agreements” instead of “all international obligations”, elevating the Charter only above treaties and other international agreements.50 This was affirmed by the General Assembly in the Declaration on Friendly Relations,51 which distinguished between “obligations under the generally recognized principles and rules of international law” and “obligations under international agreements valid under the generally recognized principles and rules of international law”, and clearly stated only the latter were superseded by the Charter.52 This understanding has appeared in numerous declarations by the General Assembly53 without contradiction, and has also been confirmed by the International Court of Justice (ICJ),54 and numerous scholars writing about the UN55 and the ICJ's Lockerbie decisions.56
15. If the Charter only has primacy over international agreements and not customary international law, then Member States are not obliged to comply with all directions that emanate from the UN. Any Security Council directive to violate a principle of customary international law is ultra vires, because any obligation to comply “is conditional upon the Council's compliance with the Charter principles: Article 103 cannot make a resolution which is unlawful under the Charter prevail over other legal norms”.57 This point, first made by Hans Kelsen in 1950,58 was repeated by the ICJ in the Lockerbie case59 and reinforced by other commentators.60 In other words, UN Member States are bound to comply with Security Council resolutions under Chapter VII, but only when those decisions themselves do not breach the boundaries of UN competence—such as norms of customary international law. As argued in the following sections, this amounts to a crucial restriction on the scope of obligations that can be imposed by the Security Council in al-Bashir's case.
The customary law of treaties
16. Resolution 1593 can be seen as violating customary international law, and therefore ultra vires, either through its effects on the customary international law of immunities (discussed in Section V), or through its effects on treaty law. As a treaty-based organization, the UN is bound by the law of treaties: it is restricted by the terms of the UN Charter, as well as the codified and customary international law rules of treaties. Those basic rules prevent the Security Council, the ICC and any other international organization or group of States, from extending the jurisdiction of the Court or binding a non-State Party to any treaty without that State's consent. Depending on one's reading of the Rome Statute, these rules either completely preclude Security Council referrals of any non-State Party, or limit the ICC's powers in such cases.
Treaty law and the treatment of non-parties
17. The foundational principle at issue is that of pacta tertiis nec nocent nec prosunt—treaties neither create obligations upon nor grant rights to third parties.61 This customary international law rule is codified in Article 34 of the Vienna Convention of the Law of Treaties.62 Article 35 of that convention adds that obligations only arise for third party States if those States expressly accept the obligation.63 Articles 39 and 40 specify that only parties to a treaty may amend it, and only after consultation with other parties. The Security Council is not a party to the Rome Statute, nor has it consulted with the Assembly of State Parties on this issue.64 Nor do the provisions of the Rome Statute even permit the alteration of its terms by the Security Council, let alone in a way that would somehow make Article 27(2) applicable to non-States Parties.65 Sudan would therefore seem to have no obligations—to arrest al-Bashir or do anything else—under the Rome Statute.
Reconciling Security Council referrals with the customary laws of treaties
18. Some may disagree with the characterization of the Darfur referral as ultra vires. Michael Wood argues that the referral has not bound Sudan to the Rome Statute, but only imposed the provisions of that treaty, and therefore is not ultra vires.66 Of course, as he acknowledges, the referral imposed on Sudan “obligations to cooperate that were at least as comprehensive as those it would have been if it had been a party”.67 Since this imposition of obligations is unaccompanied by the benefits that accrue through ordinary ratification of the Rome Statute, such as voting rights in the Assembly of States Parties, the distinction Wood draws is more semantic than substantive. Problematic assertions such as these fail to fully address the pacta tertiis principle and the customary nature of immunities, and demand further analysis of the Security Council referral power, how such resolutions are to be interpreted and their permissible effects in relation to Sudan and al-Bashir.
19. The simplest (and perhaps most controversial) interpretation of Resolution 1593 and its effects is to not recognize the validity of the referral at all, because the law of treaties prevents binding non-States Parties to treaties. It is important to note that this interpretation does not make redundant Article 13(b), the Rome Statute provision that permits Security Council referrals in the first place. The Security Council's referral power can still be meaningful even though it cannot extend the Court's jurisdiction.68 This is particularly true in conflict situations that involve ICC members but are not currently being investigated by the ICC Office of the Prosecutor. For example, there may be States Parties to the Rome Statute who, for reasons of domestic politics such as demonstrating to the citizenry that the government maintains sovereignty or control of a country or region (or, alternatively, who seek the continuation of atrocities by the government), will not self-refer to the ICC under Article 13(a). At the same time, the Office of the Prosecutor itself—burdened perhaps by the volume and difficulty of its existing work, or concerned with other crimes that appear more serious—may be unable to devote the resources to engage in a proprio motu investigation under Article 13(c). If these uninvestigated situations were deemed a threat to international peace and security, the Security Council could refer the matter to the Office of the Prosecutor and therefore make it a priority for the Court. While the Court and Prosecutor would still have discretion over whether and how the case was pursued, this limited referral power could advance the anti-impunity and justice-seeking goals of both the ICC and the UN without stretching basic principles of international law to the extreme.
Reading down the Rome Statute
20. Another way of interpreting the referral is to say that it has a limited effect because the Rome Statute must be “read down” when applied to non-States Parties. To the extent the referral does place obligations on Sudan, it can be said to have limited effect by precluding the application of certain provisions of the statute, including Article 27(2). As a result, Sudan would still have no obligation to co-operate with the ICC, but ICC members would be required to co-operate only so long as they did not violate rules of customary international law, including those concerning head of State immunity.
21. The idea of “reading down” is not a novel concept; it is found in both domestic legal systems and international law. When statutory powers appear to conflict with other powerful legal norms, those powers are regularly interpreted in a non-conflicting manner, i.e. “read down” when appropriate. This saves the trouble of redrafting the statute so that it is no longer in conflict by providing a common-law rule of limited application with the same effect.69 In international law, “reading down” statutes gives effect to another common rule of the law of treaties—that treaties not conflict with customary international law. Aust notes that it is “legitimate to assume parties did not intend a treaty to be incompatible with customary international law”.70 In accordance with the lex generalis, “a treaty is to be interpreted in a way consistent with general principles and rules of international law”,71 and “[w]here a treaty rule is ambiguous and could be construed to require ‘violation’ of a customary norm, it seems appropriate to apply a principle that the treaty should be interpreted in so far as possible to be consistent with the customary norm.”72 Weinberger argues for a modification of the rule in Charming Betsy73 with the following result: “A treaty ought never to be construed to violate customary international law, if any other possible construction remains, and can never be construed to violate rights under customary law.”74 Indeed, the ICJ has already gone down this path, stating that even where a treaty might otherwise appear to grant jurisdiction over a foreign official, “such extensions of jurisdiction in no way affects immunities under customary international law.”75 For non-State Party referrals, the Rome Statute's treaty-based override of head of State immunity would conflict with the customary law rule that continues to apply to non-States Parties. In such a situation, Article 27(2) should be interpreted as simply not applying.76
22. Others have argued that reading down the Rome Statute violates principles of the law of treaties because it makes Article 27(2) redundant or inutile.77 This interpretation is flawed in three respects. Firstly, as mentioned earlier, this interpretation violates a separate principle of law of treaties, which is that treaties cannot bind third parties.78 The second problem is that reading down Article 27(2) in the case of al-Bashir does not make it redundant. Rather, it recognizes the exceptional nature of the clause. Recall that Article 27(2) is an example of an on-going waiver from the ordinary customary law rules of immunities; without it, even States Parties to the Rome Statute could claim the protection afforded by personal immunities. In almost every case before the ICC, Article 27(2) does exactly what it is meant to do: override the immunities of individuals in those States that have consented to ICC jurisdiction. Indeed, the vitality of Article 27(2) is being demonstrated by the current proceedings against Kenyan President Uhuru Kenyatta. Precluding the application of Article 27(2) to al-Bashir has no impact on its utility against Kenyatta and others; Article 27(2) is only inoperative in that specific and narrow class of cases where two criteria are met: a non-State party has not voluntarily accepted the jurisdiction of the Court and persons clothed with personal immunity are indicted. As it stands, Darfur is the only current situation that meets these criteria, and only al-Bashir is in the class of persons that could be exempted from its application.79 The fact that Article 27(2) has not been relied upon in the other cases does not mean that it is redundant, but that the Prosecutor has chosen not to utilize it by not pursuing anyone else protected by personal immunities. This exercise of prosecutorial discretion does not render a provision inutile, let alone justify the expansive interpretation of that clause.
23. The third flaw flows from this problem. Objecting to the “reading down” of the Rome Statute because it supposedly nullifies some provisions of the treaty is both incorrect and contradictory. Whereas negating the application of Article 27(2) in the al-Bashir case would not render it null for the vast majority of cases, applying it here would render Article 98(1) entirely ineffective and inutile. Article 98(1) precludes the Court from requesting States to arrest persons if that request would violate other international obligations owed by those States, such as obligations to respect immunities.80 Even when “read down”, Article 27(2) can apply to individuals other than al-Bashir,81 but if Article 98(1) cannot apply to individuals such as al-Bashir—a national of a non-state party who would otherwise seem to be protected by customary law immunities—then what effectiveness can it claim?
24. Indeed, the only way to achieve a harmonious reading of Articles 27(2) and 98(1) that is both internally coherent as well as consistent with external rules of international law is either to disregard the referral entirely or to read down Article 27(2). The conflict between Article 27(2) and the rules of the law of treaties is otherwise unresolvable. The tension between them may be understood as a conflict between a product of the treaty system and the norms that are fundamental to the existence of that system, one that must be adverted to regardless of the object and purpose of the treaty in question.82 If applied in the present case, this rule would not permit the arrest of al-Bashir so long as he remained President of Sudan, but would have other positive benefits. It would reinforce existing customary international law on both immunities and treaty interpretation, while still giving some effect to the important anti-impunity goals of the ICC by allowing the pursuit of those Sudanese suspects who are not covered by personal immunities.83
A customary international law exception for immunities?
25. In Section II, it was shown that the immunity of a head of State is part of customary international law. Any Security Council action that directly or indirectly removes this immunity is therefore ultra vires and not binding upon Member States.84 The only alternative is to argue that another rule of customary law has created an exception to head of State immunity.85 This alleged exception states that immunities do not protect individuals charged with international crimes by international criminal tribunals.86 This eliminates the need to rely on the authority of the Security Council, and perhaps explains why—after ignoring this argument in its confirmation of al-Bashir's indictment—the PTC relied almost exclusively on this alleged exception two years later.87
26. This customary law argument follows several lines: that the 1919 Report of the Commission on the Responsibility of the Authors of the War88 and the statutes of previous international criminal tribunals show historical belief in the exception; that the rationale for personal immunities does not hold up vis-à-vis international courts because they are free from the bias of domestic courts; relatedly, that these statutes and the Arrest Warrant89 decision of the ICJ demonstrate that the ICC, as an international court, automatically has jurisdiction over al-Bashir; and that there is a growing practice of international criminal tribunals removing the immunities of sitting heads of State.
27. Yet the evidence the PTC relies upon often demonstrates something quite different from what is claimed. The supposed precedents lack the historical pedigree or legal significance attributed to them for a variety of reasons. Statutes and prior cases that supposedly demonstrate the exception do not in fact deviate from the basic rules of head of State immunity outlined in Section II. Previous examples of heads of State being prosecuted either concern former heads of State or incumbents whose immunity was waived, and the statutes of previous tribunals actually provide evidence of a separate rule that affects substantive defenses, not personal immunities. Finally, the argument that international courts are impartial because they are international depends upon an unsustainable interpretation of unclear statements made by the ICJ and an unduly optimistic reading of both international relations and the past and present state of international criminal courts. For these reasons, it cannot be said there is a customary law exception to head of State immunity.
A lack of supporting case law
28. A rule of customary international law can only be said to exist when there is evidence of State practice following the rule, and belief in the legal validity of that rule. There is little evidence of State practice or opinio juris that sitting heads of State can be arrested and tried for international crimes. The cases that purportedly establish this rule usually suffer from one or both of the following flaws: the individuals concerned were no longer sitting heads of State at the relevant time, and therefore lacked the personal immunity that al-Bashir currently has; or, they had been transferred, with the consent or co-operation of the State, to the court in question, which amounts to a waiver of the immunity by the State concerned. These reasons fit perfectly with ordinary understandings of head of State immunity, and show no evidence of an exception to those rules.90
29. The PTC relies upon what it claims are four examples of sitting heads of States who have lost their personal immunities before international criminal courts and tribunals: Laurent Gbagbo, Muammar Gaddafi, Charles Taylor and Slobodan Milošević. The first two cases are dubious precedents for indicting al-Bashir. The arrest and transfer of Laurent Gbagbo, the former president of the Ivory Coast, cannot be claimed as precedent given that he was a former head of State at the time of his arrest and transfer to the ICC,91 and his immunities had been waived by Gbagbo's own government.92 Gbagbo was President from 2000 until a disputed election in 2010. In April 2003, his government declared its ad hoc acceptance of ICC jurisdiction “sans retard et sans exception”,93 thereby accepting the statutory waiver of immunity under Article 27(2). Nearly a year before Gbagbo's eventual arrest in 2011, his successor confirmed the continuing unconditional acceptance of ICC jurisdiction.94 Arresting individuals whose immunity has been waived and who are former heads of State is perfectly in accordance with the ordinary customary rules of immunities; they neither present nor provide support for any exception.
30. As for the deceased Muammar Gaddafi, his case95 cannot count in any meaningful sense. Including Gaddafi as a “precedent” seems an inaccurate embellishment given that he was indicted after al-Bashir, and placed in precisely the same unsettled legal position. Even had Gaddafi lived, there is little doubt that the new Libyan government either would have waived his immunity and surrendered him to the Court, or initiated domestic proceedings against him.96 Again, this is in line with the present law on immunities.
31. Charles Taylor, the former warlord leader of Liberia, was a sitting head of State at the time of his indictment,97 but had been out of office for nearly three years at the time of his arrest and transfer to the SCSL. Again, the transfer of a former head of State is in line with ordinary rules of personal immunities.98 The trial of Slobodan Milošević, who was indicted while still serving as President of the Federal Republic of Yugoslavia (FRY),99 is a more complex case, but still not nearly as straightforward as suggested by the Court. By the time Milošević was produced before the ICTY in 2001, he had lost his bid for re-election, resigned as President of the Federal Republic of Yugoslavia (FRY), and been arrested on domestic corruption and abuse of power charges.100 He was therefore a former head of State, at which time the ICTY reissued a warrant for his arrest.101 As with Gbagbo, Gaddafi and Taylor, who were also former heads of State, Milošević lacked any personal immunities at the time of his arrest and trial.102 Again, this creates no exception to the traditional customary law of head of State immunity.103
Article 27(2) has no statutory predecessor
32. In addition to these very recent international cases, the PTC also relies on historical statutory precedents. Yet there are equally compelling alternate explanations of this evidence that the PTC does not engage with. An example is the 1919 Commission Report presented at the Preliminary Peace Conference after the First World War, which implied that immunities should not apply for international crimes.104 While the Commission may itself have envisaged a change in the nature of immunities, States failed to implement the Commission's proposals.105 The Commission Report led to Article 227 of the Treaty of Versailles, in which “[t]he Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.”106 The obvious problem is that this again deals with the immunity of a former head of State. Additionally, Article 227 recognized that any jurisdiction the Allies enjoyed over the former Kaiser was not absolute. Instead of obliging the Netherlands to transfer the former Emperor, the Allies could only “request” his transfer,107 an entreaty that was promptly rejected. None of this creates an exception to the standard understanding of personal immunities,108 and the failure to realize Article 227 has been labelled “the least satisfactory aspect” of the Treaty of Versailles.109
33. The PTC also claims the statutes of previous international criminal tribunals provide further evidence of an established customary law exception. However, this position overlooks the important distinction in criminal law between substantive defenses and procedural constraints such as immunities.110 Article 27(1)111 of the Rome Statute contains a nearly identical statement to declarations contained in the Nuremberg112 and Tokyo Charters,113 as well as the ICTR and ICTY Statutes.114 These provisions all remove the substantive defense of official capacity—the defense that an individual cannot be held responsible for acts of the State. Yet what makes the Rome Statute unique is Article 27(2), which removes personal immunities—the procedural barriers that prevent a court from exercising its authority over particular individuals. Article 27(2) has no statutory predecessor; none of the other statutes even mentions immunities.115 In addition, the ICJ has twice stated that immunity from jurisdiction is not the same as absence of responsibility,116 and this point is so commonly repeated that it is a “cliché”117; to conflate the two is to mis-state basic principles of criminal law. Our earlier introduction of immunity and waivers further illustrates the important difference between substantive defenses and procedural bars: if the two were identical in meaning, then head of State immunity could never be waived by a State against the wishes of the accused.118 This directly contradicts the nature of immunities, and strongly undermines the PTC's argument that statutory precedent is on its side.
Bias and neutrality in international courts
34. In the absence of supporting case-law and statutory precedent, the final position the PTC relies upon is the theoretical argument that the rationale for immunities is inapplicable to the ICC because it is an international and not a domestic court. This adopts Cassese's argument that (a) the reason why personal immunities may be raised before national courts is that State A might otherwise use prosecutions to unduly impede or limit the ability of State B to engage in international action, and (b) this rationale does not apply to international courts because they are “totally independent of states and subject to strict rules of impartiality”.119
35. This understanding is questionable in at least three ways. The first reply is that it is irrelevant to the determination of customary international law whether a practice is supported by a good rationale. What matters is that the practice exists and exhibits a belief in the rule, not its rationality. As shown above, State practice has consistently supported the traditional interpretations of head of State immunity, not the exception argued for by the PTC.
36. Cassese's argument suffers even if this positivist approach is abandoned and one takes it on its substantive terms. One immediate response is that, surely, the cleavage between the national and international is not as clean as imagined here. As far as the ICC is concerned, enforcement action originates at the State level, making the actions of national legal and police systems integral to the Court's work, and opening the door to at least some degree of bias. For example, domestic authorities might be inclined to only arrest anti-government suspects, or—when dealing with persons clothed in immunity—only pursue the leaders of unfriendly States. Secondly, there is a great deal of disagreement about the impartiality and neutrality of international judicial institutions. The Tokyo and Nuremberg military tribunals have been poorly reviewed on neutrality grounds,120 as—to a lesser degree—have the ICJ121 and ICTY.122 As for the ICC, many States have asserted claims of bias with respect to the pursuit of al-Bashir.
37. The idea that international courts are somehow uniquely impartial is based in part on overly ambitious interpretations of the Arrest Warrant decision. In that case, the ICJ considered whether Belgium's indictment of Abdoulaye Yerodia for crimes against international law violated his immunities as the serving Minister of Foreign Affairs for the Democratic Republic of Congo (DRC). After making its dispositive finding in Yerodia's favour, the ICJ added that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts where they have jurisdiction”, including the ICTY, ICTR and ICC.123 There is limited precedential value to this statement for a number of reasons. The case was about diplomatic immunity, not head of State immunity, and the statement itself did not even distinguish between incumbent and former immunity holders. Nor did the Court discuss immunities in the context of non-parties to the ICC Statute, immunities before international courts in general or the ability of the Security Council to effect treaty-based overrides of customary immunities. The comment was made in obiter, and not based on a specific analysis of facts relating to the ICTR, ICTY or ICC. In fact, none of the pleadings even raised this argument. This perhaps explains why the ICJ did not fully distinguish the ad hoc tribunals from the ICC, or specify what is common about them so as to justify the abrogation of immunities before all of them.
38. The argument that the Arrest Warrant case conclusively determines the question of head of State immunity is only sustainable if one accepts the grand but demonstrably untrue assertion that all international criminal tribunals are identical in creation, regulation and jurisdiction, and that this commonality results exclusively from their supra-national status. The more reasonable interpretation of the court's brief comments is that it simply restates that nationals of ICC States Parties are not able to claim protection through personal immunities. At best, the ICJ can be criticized for its brevity in not distinguishing tribunals constituted under the Chapter VII powers of the Security Council from treaty-based courts such as the ICC.124 Any determination that the ICJ purported to provide a complete analysis that covered extraordinary cases such as al-Bashir's, or do more than list some of the courts before which immunities may not apply, is an unjustified extrapolation.
39. Ultimately, the fact that a court or institution is international says little about its perceived or actual impartiality. The ICC and Security Council, the key international institutions involved in the al-Bashir case, have long been seen with suspicion, particularly by less powerful States. In addition, at least some of the precedents relied upon by the PTC can be questioned for failing to meet Cassese's own criteria. All of this suggests that the rationale for immunities continues to be relevant even for international courts.
Political bias in international courts
40. Concerns about the neutrality and impartiality of the ICC pre-date125 and exist independently of the Darfur situation.126 At the same time, many States suspicious of the supposed neutrality and legitimacy of the ICC and the Security Council argue that the al-Bashir case provides particularly strong evidence of bias and impropriety. The willingness of the ICC and Security Council to stretch basic concepts of public international law in order to indict yet another African, has led Sudan, the AU and other States to contest the actions of both of these organizations from the outset. When the Security Council voted to refer the situation in Darfur to the ICC, Sudan's Ambassador to the United Nations protested that the referral was reminiscent of colonial practices, and of dubious legality. It was “fraught with a series of procedural impediments and legitimate reservations”, rested on the belief “that the scales of justice and law are based on exceptions”, and demonstrated that the ICC was “a tool for the exercise of the culture of superiority and to impose cultural superiority”.127
41. The AU has repeatedly objected to al-Bashir's indictment and stated that its members would not co-operate with the ICC to arrest him128 because the indictment exists in the context of a “double standard” applied to “poor countries”129 and reflects the abuse of universal jurisdiction to target African leaders.130 Some AU Member States “unreservedly attributed the indictment of the Sudanese president to a glaring practice of selective justice.”131 The AU has remained consistent in its objection to the role of the Security Council in the referral of Sudan, the non-deferral of the situation under Article 16, and the effect of the Security Council's involvement on the interpretation of the Rome Statute and the development of public international law.132 It has also argued that Article 98(1) of the Statute133 justifies non-co-operation with respect to al-Bashir.134 The Arab League has rejected the validity of the indictment as well,135 and even China—a Permanent Member of the Security Council—has openly flouted the referral by welcoming al-Bashir with a full State reception.136
42. As a result, the AU and some member States have engaged in symbolic non-co-operation. At one point, there was discussion of a mass withdrawal from the ICC by AU members, but this was rejected in favour of pressuring the Security Council instead.137 Other examples of non-co-operation include refusing the ICC permission to open a liaison office in Ethiopia,138 and stating that AU members which welcomed al-Bashir after his indictment “were discharging their obligations under Article 23 of the Constitutive Act of the African Union and Article 98 of the Rome Statute as well as acting in pursuit of peace and stability in their respective regions”.139 Even after the ICC referred non-co-operating States to the Assembly of State Parties and Security Council,140 and the PTC found that Malawi had acted contrary to the Rome Statute by failing to arrest al-Bashir in 2011,141 the AU repeated its support for those States, and further asked that African States work to “ensure that African proposals and concerns are properly considered by the UN Security Council and the Assembly of States Parties to the Rome Statute”.142 While AU members are not unanimous in their support of al-Bashir,143 there remains concern about the legality of the pursuit of al-Bashir, and suspicion of the ICC's relationship to Africa.144 This suspicion is manifested in growing support for local, non-ICC court processes in Libya and Kenya,145 a renewal of calls for a mass withdrawal from the ICC,146 and repeated criticisms of the Security Council's refusal to engage with the AU to resolve the impasse.147 The al-Bashir indictment is no longer an isolated case; it is the first and most notorious flashpoint of general dissatisfaction with the ICC and its “race hunting” of African States.148
The role of the Security Council in international courts
43. As implied by the AU's steady complaints, these arguments reflect long-standing concerns about the procedures and neutrality of international institutions, including the Security Council. A key deficiency with the PTC commingling its jurisdictional claims with the Security Council referral is that this fails to confront the central issues of legitimacy and legality that arise when the Council enters into “legally grey areas”149 such as the Sudan referral. This is not a new problem. The SCSL, for example, acknowledged that not every international court is automatically competent to delete immunities, and that one group of States cannot join together to abrogate the immunities of another State simply by saying their court is international.150 As groups of States can easily have shared, politicized interests, including the punishment of a common enemy, there must be some additional element beyond “internationality” for international courts to justify the deletion of immunities.151 For the SCSL, the extra justifying condition was the Chapter VII resolution152 of the Security Council that initiated the treaty process establishing the court.153 The problem with this reasoning is the same as in the al-Bashir case: it fails to acknowledge the contested nature of the Security Council's powers, how that affects the legitimacy of international courts, or the dubious legality of the Security Council's judicial and quasi-judicial acts.154
44. Any justification of ICC action that rests on Security Council authorization must at least acknowledge the important on-going debate about the legitimacy of many of the Security Council's actions.155 The suggestion that States have consented to any exercise of Security Council power by virtue of Articles 24(1), 25 and 103 of the UN Charter overlooks not only the reality of political resistance to Council resolutions at the State level (such as the refusal of Sudan to co-operate), but legal resistance that confronts Council action.156 The Council's limited and undemocratic membership is insufficient to demonstrate neutrality or provide the referral with the legitimacy necessary to assert jurisdiction over al-Bashir.157 Nor is it enough to say that since both the Security Council and the Court ostensibly seek to end impunity that their respective powers may be combined to that end, or that the powers of one may be interpreted expansively so as to aid the aims of the other: “This ‘Security Council as legal demiurge view’, which is controversial on its own grounds, is obviously difficult to transpose to the situation of the ICC where, in the relations of the Court with non-state parties, it would amount to no less than a sort of cosmopolitan hold-up.”158 To the extent that the ICC both accepts Security Council referrals and relies upon them to make highly controversial arguments about jurisdiction, it is undermining the claims of neutrality that are central to any court's legitimacy.
45. All these issues demonstrate that many States do not trust international institutions in the way Cassese suggests they do. Importantly, their reasons for distrust are meaningful even if they are simultaneously politically self-interested. The publicly stated reasons for opposing the ICC centre on many of the same issues discussed in this article: the unprecedented nature of the indictment; the democratic deficit of the Security Council; the contravention of basic principles of the law of treaties; and the apparent impropriety demonstrated by the Office of the Prosecutor. All of these factors undermine the ICC's claim to neutrality, and therefore the argument that the rationale for immunities is inapplicable to international tribunals.
46. Focusing on the legitimacy of tribunals in this way has three results: it clarifies that mere international status is insufficient to permit deletions of immunity; it calls into question the argument that there is consistent State practice abrogating immunities; and it further contradicts Cassese's argument. Cassese may be right that immunities should not apply before neutral courts, but it is an oversimplification to equate “international” with “neutral”. By extension, in so far as the PTC adopts Cassese's position,159 it cannot then rely on either the 1919 Commission or the military tribunals as evidence of a customary exception. The selectivity160 and politicization problems of those bodies161 are examples of the false multi-lateralism that undermines their claim to neutrality.162
47. This section leads to two important conclusions. Firstly, there is a dearth of customary international law precedent to support the PTC. The alleged State practice from the First and Second World Wars can be explained as deficient on three grounds: no individual ever lost his or her personal immunities, including the former German emperor; the Tokyo and Nuremberg Charters only removed the substantive defense of official responsibility, not the procedural bar of personal immunity; and the lack of multi-lateralism behind those tribunals. When combined with the absence of precedent in ICC, ICTY and ICTR jurisprudence, it is difficult to recognize a customary law rule that immunities are inapplicable before international criminal tribunals.
48. The second point is that denying the customary international law argument would not alter the past practice of international criminal law in any meaningful way. It was perfectly acceptable to arrest and prosecute Charles Taylor, Laurent Gbagbo and Slobodan Milošević not because there was some customary law exception to the ordinary rules of head of State immunity, but because those ordinary rules already allowed for their prosecutions: all three were former heads of State and, in the case of Gbabgo, had seen the immunity waived by the State holding it. An exception cannot be drawn from cases that comply with the regular rule.
Practical implications of the ICC position
49. The analysis to this point has focused on the strictly legal arguments raised in support of the PTC position. It has argued that the Security Council cannot empower the ICC to bind Sudan to the Rome Statute, or obligate other States to violate al-Bashir's immunity. A review of past cases and tribunals demonstrates that the cases relied upon by the ICC as proof of an exception to customary international law are in fact perfectly aligned with the ordinary rules of head of State immunity, and that the statutes of previous tribunals do not support the exception either. This section supplements this technocratic legal argument by examining the political and legal consequences of the PTC's arguments. Arresting al-Bashir threatens the future of work of the ICC, and to radically reshape public international law without either consulting those most affected by the change or fully addressing the consequences of doing so.
Undermining the Court and future prosecutions
50. The first and most compelling response to the suggestion that it is worth sacrificing certain principles of public international law in order to put al-Bashir on trial is that doing so actually decreases the likelihood that such prosecutions will occur in the future. As stated above, the Sudanese response to Resolution 1593 was not only legally targeted, but crafted in language that created special resonance with histories of colonialism, exceptionalism and exploitation. That powerful mix of law and politics has been supplemented by the AU response that adopts that language but also articulates several legal points that need to be addressed by the Court.163 The AU has paired its legal analysis with specific demands to its member States to not co-operate in arresting al-Bashir, including—at one time—the possibility of a regionally organized withdrawal from the Rome Statute.164 While that stance has been deferred,165 the potential for non-co-operation and withdrawal remains; the Kenyan parliament recently voted for the second time to withdraw from the Rome Statute.166
51. The loss of States Parties, either through withdrawal or non-co-operation, would be devastating to the ICC. For one, the symbolic statement would be a tremendous blow to the symbolism and credibility of the Court. What would it say about the legitimacy of an international organization that cannot count among its supporters a regional bloc of States from the only continent where it has initiated trials? Why would less powerful States who are not yet parties want to ratify the Rome Statute, when so many others do not trust the Court either to act in an unbiased manner or to acknowledge their concerns about ICC rules and procedures? The Arab League's members, for example, would surely feel reassured about their non-participation in the Court.
52. Withdrawal and other forms of non-co-operation would also have a deleterious effect on the Court's docket. Article 127 of the Rome Statute requires a one-year notice of withdrawal from the Statute, and states that withdrawal does not affect a State's obligations to the Court, including co-operation with existing cases and investigations, as well as future cases arising out of the same situation.167 While this is strong, unambiguous language, it is equally clear that it is subordinate to the practical realities of enforcement. The success of the Court is predicated upon co-operation at the national level, and it has no way to compel such assistance. The Court has no enforcement branch, and relies on the flow of information and witnesses from domestic authorities, which are easily obstructed.168 Some cases might be able to continue without State co-operation, but the majority would be unable to proceed.169 While many accused persons would find themselves in situations where they could not travel outside their home countries,170 that would hardly equate to bringing them to justice, let alone provide the other salutary effects of trials.171 The Court would project weakness and ineffectiveness, a danger that arises even without the exceptional step of a mass withdrawal. An expansion of the AU non-co-operation stance so that it includes all ICC situations in Africa would have largely the same result. States might still be in violation of their obligations under the Rome Statute, but would be able to present a more principled explanation for their position, along the lines of a general strike rather than general repudiation. This would give those governments with buyer's remorse—notably Uganda and Kenya—a sham principle with which to justify their current obstruction of the Court's processes.172 It should also be noted that obstruction and non-co-operation can happen in less blunt and more legalistic ways. By way of example, the AU has become so frustrated with the ICC position on al-Bashir and immunities that it has advised member States to rely on Article 98(2) of the Rome Statute and draw up bilateral agreements confirming “the immunities of their Senior State officials”.173 That decision has the potential to increase the number of defendants claiming immunity from the Court; this would both hinder co-operation between the ICC and States and undermine the protective mission of the ICC.
53. The second structural result is the creation of a clear hierarchy of States and their unequal exposure to the jurisdiction of the ICC. At the bottom of this hierarchy, open to prosecution but with little ability to influence its exercise, will be States such as Sudan, who lack a permanent seat on the Security Council and have no real capacity to influence the governance of the Court. States that have ratified the Rome Statute will be in the middle—they will have greater exposure to jurisdiction, but will retain some ability to affect the policies and principles by which that jurisdiction is exercised. At the top will be the United States, Russia and China, the three permanent members of the Security Council who have not ratified the Rome Statute. Under the “Chapter VII Resolution as binding” model, those three States will occupy a hugely privileged position. They will retain the ability to not only push for the referral of situations concerning other non-State Parties, but do so while shielding themselves (and their non-State Party allies) through their veto power. If the referral of a situation by the Security Council and Article 103 of the UN Charter combine to defeat the customary international law protections of Article 98(1), they must also defeat agreements signed under Article 98(2). As a result, little incentive will exist for three of the world's largest military powers to ratify the Rome Statute when they are able to insulate themselves from its reaches through their vetoes, while at the same time defeating the treaty and customary-law protections applying to other States.
54. Ratification of the Rome Statute is therefore the only way for these three States to seriously risk being brought under ICC jurisdiction.174 They are thus essentially exempt from liability yet retain the ability to override the protections that ostensibly apply to any other non-party State. It would be unthinkable for such power brokers and adherents to realpolitik to trade such relative power for the uncertainty and vagaries of the inherent jurisdiction of the Court. While the Court would theoretically have universal reach, the practical upper limit of its jurisdiction would be those permanent members of the Security Council who have not ratified the Rome Statute. This limits the ability of the ICC to protect a number of potential victims, and—perhaps more crucially—calls into question the legitimacy of an institution that not only is incapable of exercising jurisdiction over such major military powers, but actually reasoned itself into that situation. At that point, it matters little whether the ICC would ever have actually dared to indict Russian, Chinese or American officials for international crimes; what is of consequence is that it would be virtually impossible to do so because the Court gave its blessing to a regime where less exacting standards are applied to the most powerful States.
Revision of basic principles of public international law
55. The PTC position also contests at least two basic principles of public international law. Accepting that the Chapter VII Security Council referral binds the government of Sudan to the terms of the Rome Statute alters basic rules about whether and by whom third parties can be bound to treaties against their will. While some international agreements already have unavoidable effects upon third parties, and thereby direct their actions in a certain way, those obligations are usually ones of recognition—of boundaries or governments, for example—and are qualitatively different from the one at issue here. They are not obligations requiring the third party State to surrender its leader to a treaty-based court with which it has no relationship. In so far as these sorts of obligations are ones that ought to be imposed, they require careful calibration through global negotiations or, at the very least, through judicially evaluated restraints developed by truly multi-lateral institutions such as the UN. It might be the case that the Security Council is the only body that should have the power to impose these sorts of third-party obligations, but why and with what restrictions? What does the attribution of this power say about the definition of “international peace and security”, or—crucially for legitimacy purposes—the relationship between the ICC and the Security Council? None of these issues have been addressed by the Security Council or the ICC, and neither of those bodies seems competent to determine all or some of these issues. And yet the reasoning employed by the ICC legitimates the unfiltered expansion of Security Council powers, even though at least one of the likely consequences of doing so is counter-productive to the ICC's larger mission.
56. The second principle affected by the ICC's decision is the relationship between non-treaty law and Article 103 of the Charter. Accepting the Security Council referral despite its effects upon treaty law implies acceptance of a changing relationship between the UN and general international law, re-shaping our understanding of the supremacy clause of the Charter in a way that contradicts past statements of the ICJ and the General Assembly. It is not clear from the al-Bashir case how this internal tension is to be resolved and whether customary international law acts as a restraint on UN or Security Council action. Nor is it clear under what circumstances customary international law does not constrain one or both of these bodies. Should all deviations from customary international law need approval from the General Assembly, or is a Chapter VII resolution sufficient? This leads to a further interrogation—if the organization for collective security is not bound by these principles, is any individual State? Again, these are questions that are best left not to the ICC or the Security Council, but to a more broadly representative body with the expertise and competence to answer them. This might be the ICJ or the General Assembly, but it surely cannot be the remit of an international criminal tribunal with narrow jurisdictional scope over a limited class of individuals to determine, adjust or pronounce upon the appropriate relationship between another international organization and customary international law.
Constructing the ICC as an institution of global governance
57. A similar point can be made about the ICC and its relationship to the AU. The PTC claims that the AU cannot use Article 98(1) to justify its non-co-operation resolutions, and therefore cannot compel individual member States not to co-operate with the Court, because the ICC has determined that customary international law is in its favour.175 The problems with this determination are manifold. Malawi's memberships in the ICC Assembly of States Parties and AU are legally and conceptually distinct, and so while the ICC can contest the AU interpretation of customary international law, the Court comes perilously close to being judge in its own cause when it purports to resolve that question in its favour. Moreover, the ICC cannot legally exercise any jurisdiction over another international organization such as the AU or interpret the terms of the AU Constitutive Act, and any attempt to restrict the powers of the AU to issue binding obligations to AU members is ultra vires. Finally, the Court elides the distinction between States and States Parties to the Rome Statute when it claims for itself the ius puniendi for the international community.176 The ICC may have some rights to punish with respect to States that have accepted the Court's jurisdiction, but it is overstating the case by implying the existence of a residual global right to punish. There are numerous qualifiers to this right within the Rome Statute itself, some of which are clearer177 than others.178
58. These errors seem to stem from the Court's flawed conception of itself as occupying a privileged place in the hierarchy of global governance, albeit in the absence of anything resembling a supremacy clause such as Article 103 of the UN Charter. The effect of such pronouncements may be minimal in the short term, but a longer view of international relations suggests this will be interpreted as an arrogation of power that is controversial because it is of dubious legal pedigree, and made even less palatable by the fact of its exercise against African States both as individual entities and part of a collective. This alienation will likely increase if the ICC takes this position to heart and relies upon it in future cases.
59. This article has argued that in attempting to justify the indictment of Omar al-Bashir, the ICC has risked its legitimacy as an institution of international justice. It has done so by relying on controversial legal propositions, all of which can be rebutted by countervailing arguments outlined above. The manner in which the PTC has pursued al-Bashir, and the disputed legal arguments which it has relied upon, threaten to undermine the future work of the Court by giving some States a disincentive to ratify the Rome Statute, and others good reason to withdraw or at least not co-operate with the Court. In addition, the Court's reasoning seems to require a reshaping of some fundamental tenets of public international law.
60. There is no denying that, at its core, the desire to try those responsible for horrific crimes is understandable, and this moral position is not easily addressed by the counter-arguments raised above. At the same time, the haste with which this humanitarian impulse is pursued should give pause to its supporters. In the drive to hold al-Bashir accountable, vital questions of international criminal law and public international law have been ignored or overlooked, individual States and regional organizations have become resistant and obstructionist, and even members of the Security Council have contradicted the edicts of the Court and Council. The goal may be laudable, but it must be asked whether the methods employed to achieve it are the appropriate ones, and whether the long-term consequences are worth the short-term gains.
61. Assuming that the PTC is correct to call for al-Bashir's accountability but incorrect in its reasoning, how then is he to be brought to justice? The alternatives, unfortunately, are not encouraging. As a sitting head of State, al-Bashir is immune from all foreign processes, and the current Constitution of Sudan protects him from domestic proceedings. It may be that the tide of public opinion turns against him, as it did against Slobodan Milošević, leading to his removal from power and the deletion of his immunities. Or it could be that the government of Sudan sacrifices al-Bashir in the same way that Hosni Mubarak was offered up in Egypt.179 There also remains the possibility that some bold country, one with a differing view of either the legal analysis in the case or the political costs, simply decides to arrest al-Bashir on one of his many sojourns outside Sudan,180 providing the necessary rupture of legal precedent that accompanies all revisions of customary international law.181 More likely, however, is that the ICC will have to play the waiting game to be able to secure jurisdiction over al-Bashir, as was acknowledged by the then-ICC Prosecutor.182
62. Even if al-Bashir is ultimately put on trial, that will be of little comfort, given the length of time it will have taken to do so, and the crimes that continue in the interim. If anything, this imbroglio has made it clear that the time is ripe for the international community to reconsider the double-edged sword of immunities. Though international law and the rules of international diplomacy presently provide no exception for personal immunities, this should not be a barrier to a future exception, perhaps one that removes immunities in cases of large-scale human rights violations.183 It may even be that the arrest and prosecution of al-Bashir is in fact the first step in creating the customary law exception that does not yet exist. The key point is that any such shift must be clearly articulated as such, not created out of a haze of optimistic reconstructions of customary international law and unpredictable extensions of the powers of international organizations. Whatever the precise contours of a new norm, the central issues will be that of its adjudication and application. The body that decides on such issues will have to be clearly impartial, persuasive in its reasoning, and universally recognized as legitimate to take on such cases. The ultimate risk of the current practice is that, after the decades it took to finally establish a permanent international criminal court, that institution is already losing the confidence of some States who believe the Court is assuming, instead of demonstrating, that it possesses those characteristics.