Background
The concept of immunity exempts a person from jurisdiction of foreign domestic courts, international courts and even domestic courts. It has its own relevance under international law and international relations. With the increasing discourse on human rights and the need to end impunity for those who commit international crimes, such immunity has been a subject of debate on several occasions, particularly relating to Heads of States and State functionaries in their personal and official capacity.
President Omar al-Bashir seized power in 1989 where after an already existing but a relatively less intense conflict over land, crops, and resources between nomadic Arab tribes and African farmer tribes saw escalation, and soon after turned into deadly clashes. In this, the Government allegedly put its weight in support of nomadic Arab tribes resulting in genocide, murders, destruction of property and mass raping of the latter faction in Darfur, located in western Sudan.
The major groups from both sides were The Sudan Liberation Movement, composed of the Fur and Masalit African tribes, The Justice and Equality Movement composed of the Zaghawa African tribe versus the Janjaweed, the Arab militia supported by the Government with weaponry and air shield.
In this civil war, according to estimates, 300,000 to 500,000 people were killed, countless numbers of rapes were committed, and more than 2.5 million peoples were displaced from their ruined homes, villages, and cities. The blog post will briefly examine legal conundrum that surrounds the immunity of the then President of Sudan, Omar-Al- Bashir, in light of the situation in Sudan when alleged genocide, mass rapes, and murders were committed.
Referral to ICC: Immunity, Jurisdiction and Arrest Warrants
The massive killings in Sudan started raising alarms in the international community and voices in favor of taking action against the Sudanese Government began gaining strength. Resultantly, the UN Security Council took up the matter in 2004 and passed Resolution No.1556 on 30th July 2004 declaring the situation in Sudan as a threat to international peace and security and demanded the disarmament of Janjaweed Militia and trial of its leaders. [i] This resolution was not paid heed to by the Sudanese Government, and therefore, another resolution No.1593 on 31st March 2005 was passed by the UN Security Council under Chapter VII of the UN Charter whereby the matter in Sudan was referred to the International Criminal Court (“ICC”) for investigation.
The ICC was established by a UN treaty in 2002 in pursuance of Rome Statute of 1998 and has been ratified by 123 countries. The scope of jurisdiction of ICC is taking action in cases of genocide, crimes against humanity, and war crimes. The ICC is competent to intervene when national authorities cannot or refuse to prosecute or the local courts are not willing or unable to take action.
Pursuant to the referral to the ICC, the Prosecutor of the ICC opened an investigation in June 2005. Sudan objected to such reference on the pretext that it was not a party to Rome Statute. Sudan signed the Rome Statute in 2000 but did not ratify it. The Chief Prosecutor submitted evidence before the ICC which in 2007 issued arrest warrants of Ahmed Muhammad Harrun, former interior minister of Sudan and Ali Kushayb, the militia leader of Janjaweed.
The former was charged for organizing and funding the Janjaweed militia and later for murder, torture, and mass rape of innocent civilians in numerous villages in West Darfur. A total of 51 charges were framed under counts of war crimes and crimes against humanity.[ii] The Prosecutor in 2008 went ahead and framed 10 counts charging President Omar al-Bashir.[iii]
The counts included five crimes against humanity that is murder, extermination, forcible transfer, torture, and rape; two counts of war crimes that are intentionally directing attacks against a civilian population or against individual civilians not taking part in hostilities, and pillaging; and three counts of genocide allegedly committed against the Fur, Masalit and Zaghawa ethnic groups in Darfur from 2003 to 2008. The Pre-Trial chamber of the ICC did not agree with the findings of the Prosecutor against Omar al-Bashir on genocide and dropped the charges but issued warrants of his arrest on 4th March 2009 for crimes against humanity and murder.
Thus, in March 2009, al-Bashir became the first sitting president to be indicted by the ICC. The Prosecutor filed an appeal against this decision to the ICC’s Appeal chamber, which, on 3rd February 2010, overturned the earlier decision and included the genocide in the list of charges against Omar al-Bashir. Thereafter, on 12th July 2010, another warrant of arrest was issued against Bashir.
The arrest warrants issued by the ICC never saw the day of implementation because President Omar al-Bashir remained at the helm of affairs and did not submit to the jurisdiction of the ICC. However, the coup d’état of 11th April 2019 has ousted Bashir after thirty years in power. The present regime announced that Omar al-Bashir will be handed over to the ICC along with three others to stand trial for the charges formulated against him by the ICC’s Prosecutor.[iv] This came during peace talks between the new government and rebel groups of Darfur.
However, no formal notification has been issued by the Sudanese government in this respect. These intricate facts and legal procedures lead to several pertinent issues including but not limited to his immunity from criminal prosecution being ex-Head of State; legality of the arrest warrants issued against Omar al-Bashir and whether Omar al-Bashir be brought to ICC to stand trial.
The Prosecution of Omar Al-Bashir: A New Precedent on Immunity Ratione Personae?
In 2014, the Pre-Trial Chamber, while dealing with the issue of Democratic Republic of Congo, failing to arrest President Bashir on its soil, not only disregarded the 2009 and 2010 requests related to its obligation to cooperate in the arrest and surrender of Omar Al Bashir, pursuant to articles 86 and 89 of the Statute, but also Security Council Resolution 1593. It referred the matter to the Security Council and Assembly of State Parties and called upon them to take the necessary measures they deemed appropriate in the matter. [v]
The PTC also clarified that it was incumbent upon all state parties to arrest President Bashir on their territories irrespective of his immunity as the Head of State. In the previous instances of Malawi and Chad hosting President Bashir on their soil, the reasoning that was followed in those decisions was based on an exception to the personal immunity of the heads of state while facing prosecution before an International Court whereas in the 2014 decision, the court did not refer to the customary law of immunity; rather it took into consideration the Security Council Resolution 1593 waiving the immunity of President Bashir.
At this point it may also be relevant to discuss the two types of immunities namely, the immunity ratione personae (personal immunity) and immunity ratione materiae (act of state immunity). Immunity ratione personae is absolute and applies regardless of whether the Head of State committed the acts in question in his official capacity. The underlying theory behind immunity ratione materiae the concept of immunity was that heads of States and Government officials should be freely able to perform their functions in another State without any fear of arrest.
Thereby, the international community formulated procedural rules out of comity to bar courts of the foreign jurisdiction to exercise authority against heads of States and Government officials working in their official capacity.[vi] In 18th and 19th centuries, a concept of absolute immunity was floated by legal thinkers granting total immunity to Head of States and State functionaries from any legal proceedings or prosecution no matter how grave the charges are (as elaborated by Chief Justice Marshall of the US Supreme Court in the Schooner Exchange v. McFaddon).
But this thinking witnessed major changes in the 20th century, so that a Head of State ceased to enjoy diplomatic protection and immunity when he ceased to be the Head of State. The House of Lords decided in the case of former President of Chile that he did not enjoy the diplomatic immunity because he was no longer a Head of State. It was in the backdrop of an arrest warrant issued in 1998 by a Spanish Magistrate to arrest Augusto Pinochet, former president of Chile, and to present him before his court.
Pinochet was visiting the United Kingdom for medical treatment when the court of UK received warrants of execution from the Spanish court.[vii] This was considered to be an exception to the rule. Another exception would be when the foreign state itself waives the immunity of its former Head of States, expressly, impliedly or physical handover.[viii]
The determination of jurisdiction has been one of the most contentious issues in the prosecution of Omar al-Bashir with many arguing that the local authorities of Sudan try the charges against the leader in consonance with the principle of complementarity. The said principle, based on the concepts of ‘partnership’ and ‘vigilance’, vests the first responsibility and right to prosecute international crimes in the State itself.[ix] The role of the International Criminal Court will come into picture only if the concerned State refuses or, due to varied circumstances, is unable to carry out a legal action against the accused party.
This also follows from the rationale that the State in question will be in possession of the primary evidence, witnesses and other documents, which are paramount to the investigation of a case. In the current scenario, where the state machinery of Sudan is in a transitory phase, relying on the impartiality of the ruling dispensation may prove to be prejudicial to the dispensation of justice, notwithstanding the fact that Article 17 of the Rome Stature requires acquiescence of the International Criminal Court to a genuine investigation and/or prosecution carried out by a State.
In a controversial decision in 2002, in a case titled as Democratic Republic of the Congo v. Belgium,[x] the ICJ, however, advocated absolute immunity to State officials even in heinous crimes like genocide, war crimes and the war against humanity. However, the court set out situations under which an incumbent or former Foreign Minister could be prosecuted.
Firstly, prosecution in his own country according to the domestic law (the international law of immunity is not recognized before a person’s national courts); secondly, if his country waives his immunity, then prosecution may be initiated before a foreign court; thirdly, once he ceases to be the Foreign Minister, he no longer enjoys immunity before foreign courts for private acts committed during his tenure as Foreign Minister; and for all acts committed before or after his tenure in office; and finally, prosecution before an international criminal body with the necessary jurisdiction (for example the ICC). Thus, it essentially said that, “jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction.”[xi]
The Rome Statute of 1998 actually waived all the types of immunities given to heads of States earlier, in that, according to Article 27, ICC is competent to hold trials of all types of individuals whether sitting or ex-heads of States. Hence, immunity is no more a bar for ICC to exercise its jurisdiction.[xii] However, the question pertains to the situations like the current one, where there is a Head of the State of a country which had not ratified the Rome Statute. There are several ways whereby ICC can take cognizance of the matter referred to it.
According to Article 13 of the Rome Statute, the ICC may exercise its jurisdiction in a case that is referred to it either by a State Party, by the prosecutor as a result of his or her investigation, or by the Security Council acting under Chapter VII of the Charter. Latter being the case in the matter of Omar al-Bashir where his matter was referred to the ICC by a resolution of the UN Security Council under Chapter VII of the UN Charter, to which Sudan was a signatory. Sudan became a member of United Nations in 1956 after signing and ratifying the UN Charter which states that the principle of sovereignty shall not prejudice the Security Council from taking any decision under Chapter VII.
Thus, according to Article 13(b) of the Rome Statute, the Security Council, acting under Chapter VII of the U.N. Charter, with the purpose of maintaining international peace and security can refer situations to the Prosecutor of the ICC. Hence, non-accession of Sudan to Rome Statute of 1998 is immaterial, thus conferring jurisdiction on the ICC to try al-Bashir and others for the crimes as alleged by the Prosecutor.
Hence it could be said that the power of the UN Security Council to refer a matter to ICC under Chapter VII for investigation and trial supersedes the sovereignty of a State even if that particular State is non-signatory to a particular statute. It also binds other UN members to cooperate with the ICC in investigating, prosecuting and implementing the ICCs decisions and precepts.
Furthermore, as discussed above, the local courts of Sudan did not try Omar al-Bashir for alleged crimes hence giving all-encompassing jurisdiction ICC to take cognizance of the matter and Article 17 of the Rome statute states that the ICC will exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute the alleged crime. Sudan somehow established the Darfur special criminal court to bring to stand trial those culprits who were responsible for the genocide in Darfur, but the Prosecutor concluded that there was no case to proceed for.
This was seen by the ICC as an attempt to cover up the heinousness of the offenses and to stop the ICC from exercising its jurisdiction on the pretext of the mischief of Article 17 referred above.
Political Patronage by Friendly Nations
After the warrants for the arrest of President Bashir were disseminated, many member countries of Africa and other continents were advised to execute the arrest warrant in their respective jurisdictions albeit in vain. African nations including South Africa, Chad, Uganda, Malawi, and Djibouti[xiii] were bound by the obligations of the International Criminal Court, being member nations, to detain, confine or arrest President Bashir in their territory so that the warrants originally issued could be executed and the proceeding initiated against him could be set in motion.
The aforementioned countries failed to execute the arrest of the President either due to their diplomatic tribulations or political considerations to maintain a cordial relationship with Sudan and, essentially, peace in the region.
Noticing the increasing pressure from not only international organizations and NGOs but also many countries that refused to engage with or host President Bashir on their soil, a flimsy narrative of International Criminal Court’s bias against African nations was ushered in, emboldened by the fact that all the arrest warrants and indictments issued by the ICC relate only to African nations, including two heads of state – Omar Hassan al-Bashir of Sudan and Uhuru Kenyatta of Kenya.[xiv]
Many members of the African Union and several politicians have time and again refused to co-operate with the mandate of the ICC citing these biases. It is believed that owing to these portrayals many countries of Africa allowed President Bashir to leave their territory with impunity and refused to follow the warrant for his arrest.
As discussed earlier, the first warrant for arrest for Omar al-Bashir was issued on 4th March 2009 and the second on 12th July 2010, but since the suspect was still at large, the ICC resolved that until Omar al-Bashir was arrested and brought before the Court, the court will remain seized of the matter and the case will remain at the pre-trial stage. To ensure the presence of Omar Al-Bashir in court, the ICC requested the Government of Jordan to arrest and surrender Omar al-Bashir during his State visit to Jordan on 29th March 2017 which Jordan did not comply with, hence the ICC referred the matter to the Assembly of State Parties (ASP) and UN Security Council for taking appropriate measures against non-compliance of Jordan of its resolution being a member State.
Jordan filed an appeal before the ICC Appeals Chamber which confirmed the decision of ICC pre-trial chamber of concluding that Jordan was found to have failed to comply with its obligations to arrest Omar al-Bashir but reversed the decision to the extent of referring Jordan’s non-compliance to ASP UN Security Council for appropriate measures.[xv] Thus, in May 2019 the Appeals Chamber of the ICC ruled that Jordan should have arrested Omar al-Bashir, who had been indicted for war crimes, when he travelled to the country in 2017. Further, the court referred to immunity under customary international law and not on the basis of the UN Security Council Resolution 1593.
This would seem to be a correct response to the issue of customary international law raised by Jordan in its submissions in Para 5. [xvi] There has been ample discussion on how the ICC tried to “re-interpret” Article 27 of the Rome Statue and gave preference to Article 98 signalling a need for a new customary international law. However, as is argued by Sadat, this would require explicit steps by the States to include such immunities.[xvii]
Bringing Omar Al-Bashir to Book: A Damp Squib?
Given the gravity of alleged offenses, Sudan’s non-serious behaviour in the past to try the alleged charges in their own country through domestic courts, and refusal to submit to the jurisdiction of the ICC casts a shadow of doubt on its statements. Another important fact that cannot be overlooked is that the current Sudanese regime is a balanced conglomerate between civilian and military personnel.
Mohamed Hamdan Dagalo, the Deputy Chairman of the Sovereignty Council, who also commanded the Rapid Support Forces (RSF), is alleged to have used the paramilitary force to commit war crimes and other serious human rights violations in Darfur.[xviii] Hence, it brings into question the intent of the incumbent government to bring the erstwhile leader, Omar al-Bashir, himself a former officer in the upper echelons of the military, to justice.
As of now, Omar al-Bashir has been sentenced to two years in detention at a reform facility on charges of corruption, possessing foreign currency and receiving illegal gifts[xix], a punishment which is viewed as derisory by the human rights and pro-democracy activists of the state. The Sovereign Council, a transitory arrangement under which the temporary government is to hold power till elections are held in 2022, had initially announced that Al-Bashir would be surrendered to the ICC[xx], however, other possibilities have subsequently been floated, including a hybrid court.[xxi] Others have suggested, that ICC should, “monitor and support anti-impunity in Sudan” like it does in Colombia.[xxii] Even though the new regime in Sudan has promised to handover Omar al-Bashir to ICC and to waive his immunity, it remains no more than a promise.
[i] Resolution 1556, Report of the Secretary-General on the Sudan,http://unscr.com/en/resolutions/1556.
[ii] The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, ICC-02/05-01/07 https://www.icc-cpi.int/darfur/harunkushayb
[iii] The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, https://www.icc-cpi.int/CaseInformationSheets/albashirEng.pdf.
[iv] Samy Magdy, Official: Sudan to hand over al-Bashir for genocide trial, ( 12th February 2020) https://apnews.com/c6698024bdd7f1cade89b9b4101d25c1
[v] The Prosecutor v. Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-195, https://www.icc-cpi.int/CourtRecords/CR2014_03452.PDF
[vi] Gerhard Von Glahn, Law Among Nations: An Introduction to Public International Law, 7th ed. (Boston: Allyn and Bacon, 1996) pages 104-07.
[vii] Gilbert Sison, A King No More: The Impact of the Pinochet Decision on the Doctrine of Head of State Immunity, 78 WASH. U. L. Q. 1583 (2000).
[viii] Brownlie, Principles of Public International Law, 343
[ix] J. T. Holmes, “The Principle of Complementarity”, in Lee (ed.), The International Criminal Court: The Making Of The Rome Statute Issues, Negotiations, Results (Transnational Publishers 1999), at 41-78.
[x] Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) https://www.icj-cij.org/en/case/121/judgments
[xi] Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 24-25 (Feb. 14, 2002)
[xii] Buzzard, Lucas. “Holding an Arsonist’s Feet to the Fire? – The Legality and Enforceability of the ICC’s Arrest Warrant for Sudanese President Omar Al-Bashir.” American University International Law Review 24, no. 5 (2009): 897-941.
[xiii] Human Rights Watch, ICC: Jordan Was Required to Arrest Sudan’s Bashir (May 6, 2019), https://www.hrw.org/news/2019/05/06/icc-jordan-was-required-arrest-sudans-bashir
[xiv] Awol K Allo, The ICC’s problem is not overt racism, it is Eurocentricism (July 28, 2018), https://www.aljazeera.com/indepth/opinion/icc-problem-simple-racism-eurocentricism-180725111213623.html
[xv] The Prosecutor v. Omar Hassan Ahmad Al-Bashir (The Appeals Chamber, No. ICC-02/05-01/09 OA2 Date: 6 May 2019) https://www.icc-cpi.int/CourtRecords/CR2019_02593.PDF
[xvi] Leila Sadat, Why the ICC’s Judgment in the al-Bashir Case Wasn’t So Surprising, ( July 12, 2019) https://www.justsecurity.org/64896/why-the-iccs-judgment-in-the-al-bashir-case-wasnt-so-surprising/
[xvii] Sadat, Leila N., Heads of State and Other Government Officials Before the International Criminal Court: The Uneasy Revolution Continues (January 23, 2019). Forthcoming, The Elgar Companion to the International Criminal Court (Margaret DeGuzman and Valerie Oosterveld, eds.) ; Washington University in St. Louis Legal Studies Research Paper No. 19-01-12. Available at SSRN: https://ssrn.com/abstract=3321998
[xviii] Amnesty International, Sudan: Fresh evidence of government-sponsored crimes in Darfur shows drawdown of Peacekeepers premature and reckless (11th June 2019) https://www.amnesty.org/en/latest/news/2019/06/sudan-fresh-evidence-of-government-sponsored-crimes-in-darfur-shows-drawdown-of-peacekeepers-premature-and-reckless/
[xix] The Guardian, Ex-Sudan leader Omar al-Bashir sentenced to two years for corruption (14th December 2019) https://www.theguardian.com/world/2019/dec/14/sudanese-court-sentences-omar-al-bashir-to-2-years-in-prison
[xx] Aidan Lewis, Khalid Abdelaziz, ICC trial in The Hague one option for Sudan’s Bashir: minister
( 17th February 2020)
[xxi] Mohammed Amin, ‘Suspect still at large’: Why Sudan hasn’t handed Omar Bashir over to the ICC ( 12 March 2020) https://www.middleeasteye.net/news/sudan-why-omar-bashir-icc-international-criminal-court
[xxii] Kerstin Carlson, Bringing Al-Bashir to Justice: The Options Available to the ICC ( 18th February 2020) https://thewire.in/world/bringing-al-bashir-to-justice-the-options-available-to-the-icc
By Dr. Garima Tiwari, Assistant Professor, School of Law, Bennett University, Greater Noida and Mr. Aakash Mishra, Fifth Year Student, RGNUL, Punjab.