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Referrals to the International Criminal Court Under Chapter VII of the United Nations Charter and the Immunity of Foreign State Officials

  • Erika de Wet (a1)
Extract

This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute. While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC, disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In particular, it remains disputed whether the broad obligation placed on Sudan by UNSC Resolution 1593 (2005) had the implicit effect of doing so. In referring the situation in Darfur (Sudan) to the ICC under Chapter VII of the UN Charter, the UNSC determined that “the government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the prosecutor pursuant to this resolution.”

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 The Charter of the United Nations, June 26, 1945, 1 UNTS XVI; Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 38553 [hereinafter Rome Statute].

2 Rome Statute, supra note 1, art. 13(b) determines that the ICC may exercise jurisdiction if “a situation in which one or more of [the crimes in Article 5] appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” See also Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and Its Impact on Al Bahir's Immunities, 7 J. Int'l Crim. Just. 340 (2009).

3 The customary law immunity of heads of state includes immunity from arrest and is absolute in nature, i.e., applying also in situations where the head of state is accused of having committed an international crime. Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), 2008 ICJ Rep. 177, para. 170 (June 4); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, para. 54 (Feb. 14).

4 SC Res. 1593, para. 2 (Mar 31, 2005).

8 See Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09, Decision Following the Prosecutor's Request for an Order Further Clarifying that the Republic of South Africa is under the Obligation to Immediately Arrest and Surrender Omar Al Bashir (June 13, 2015) [hereinafter Bashir/South Africa 2015 decision]. This decision mirrored that of Prosecutor v. Al-Bashir, Case No. ICC-02/05-01/09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al-Bashir's Arrest and Surrender to the Court (Apr. 9, 2014) [Bashir/DRC 2014 decision].

9 Rome Statute, supra note 1, art. 27(1).

10 Bashir/South Africa 2017 decision, supra note 7, at paras. 78–79.

11 See Paula Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?, 7 J. Int'l Crim. Just. (2009) 315, 325; De Wet, supra note 5, at 1055.

12 De Wet, supra note 5, at 1055.

13 Rome Statute, supra note 1, art. 98(1) provides as follows: “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.”

14 Gaeta, supra note 11, at 328; De Wet (note 5), 1056.

15 Akande, supra note 2, at 338; De Wet, supra note 5, at 1056.

16 See Luigi Condorelli & Annalisa Ciampi, Comments on the Security Council Referral of the Situation in Darfur to the ICC, 3 J. Int'l Crim. Just. 591 (2005); Akande, supra note 2, at 339; Dire Tladi, The Duty on South Africa to Arrest and Surrender President Al-Bashir Under South African and International Law, 13 J. Int'l Crim. Just. 1035 (2015); De Wet, supra note 5, at 1056.

17 Bashir/South Africa 2017 decision, supra note 7, at para. 82.

18 Bashir/DRC 2014 decision, supra note 8, at paras. 26, 29; Bashir/South Africa 2015 decision, supra note 8, at paras. 6, 7. These decisions all deviate from those of ICC Pre-Trial Chamber I against Malawi and Chad respectively on Dec. 12 and 13, 2011 (ICC-02/05-01/09-139; and ICC-02/05-01/09-1), which also related to a failure to comply with the ICC's request for arrest and surrender of President Bashir. In those decisions, ICC Pre-Trial Chamber I claimed the existence of a customary international law exception to immunities of heads of state, regardless of the existence of Art. 98(1) of the ICC Statute.

19 Bashir/South Africa 2017 decision, supra note 7, at para. 86.

20 Id. at para. 87.

21 Id. at para. 88.

22 Id. at para. 91.

23 Id. at para. 93.

24 Id. at para. 96.

25 This reasoning was supported by the Bashir/DRC 2014 decision, supra note 8, at para. 29; and the Bashir/South Africa 2015 decision, supra note 8, at paras. 6, 7.

26 Bashir/South Africa 2017 decision, supra note 7, at para. 89.

27 However, see the minority opinion of Judge De Brichambaut; id. at para. 83. He submits that international law is unclear on this point. See also Göran Sluiter, Obtaining Cooperation from Sudan – Where is the Law?, 6 J. Int'l Crim. Just. 877–78 (2008); Gaeta, supra note 11, at 330; Tladi, supra note 16, at 1042.

29 SC Res. 276, para. 2 (Jan 30, 1970).

30 Namibia Advisory Opinion, supra note 28, at paras. 114–16; Akande, supra note 2, at 347; De Wet, supra note 5, at 1062.

31 Akande, supra note 2, at 347; Boschiero, supra note 6, at 646–47; De Wet, supra note 5, at 1062.

32 See Akande, supra note 2, at 342; De Wet, supra note 5, at 1062. However, see Tladi, supra note 16, at 1043, who does not consider the implications of the Namibia Advisory Opinion, supra note 28.

33 E.g., when authorizing the use of all necessary measures against the Libyan government in SC Res. 1973 para. 4 (Mar. 11, 2011), the UNSC explicitly excluded ground troops (“foreign occupation force”). See De Wet, supra note 5, at 1061.

34 UN Charter art. 25 provides: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” See also Akande, supra note 2, at 341; Condorelli & Ciampi, supra note 16, at 593; De Wet, supra note 5, at 1059.

35 See Akande, supra note 2, at 335; Boschiero, supra note 6, at 631; De Wet, supra note 5, at 1059–60.

36 A concrete example includes the UNSC resolutions addressing piracy before the coast of Somalia and which were adopted under Chapter VII of the Charter. These resolutions inter alia permit states to pursue suspected pirates in the territorial waters of Somalia, a deviation from both treaty and customary norms pertaining to the law of the sea. See, e.g., SC Res. 1846 para. 10 (Dec. 2, 2008). See De Wet, supra note 5, at 1060.

This work is based on the research supported by the South African Research Chairs Initiative of the Department of Science and Technology and National Research Foundation of South Africa (Grant No. 98338).

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