On 6 July 2017, Pre-Trial Chamber II of the International Criminal Court (ICC) rendered a decision on South Africa’s refusal to arrest and surrender the Sudanese sitting President Omar Al-Bashir to the ICC during his visit in June 2015 (2017 South Africa Decision). South Africa submitted that it is obliged to respect personal immunity of a head of a State embedded in customary law and it is under no obligation to cooperate. Pre-Trial Chamber II, however, held that South Africa failed to comply with its obligations under the Rome Statute.
This note critically discusses the effect of Resolution 1593(2005) in three respects: firstly, it briefly summarises different approaches adopted in the ICC about non-compliance issue; secondly, it evaluates the effect of Resolution 1593; thirdly, it argues that Resolution 1593 cannot make a non-party State (Sudan) in a position of a State party.
Different approaches adopted in the ICC
Firstly, the real issue before Pre-Trial Chamber II is how the personal immunity of a sitting head of a non-party State is removed. The ICC in previous decisions has developed three divergent approaches. First and foremost, Pre-Trial Chamber I in the 2009 Arrest Warrant Decision tried to justify its issuance of the arrest warrant against Al-Bahir by arguing that Resolution 1593 implied the application of the whole framework of Rome Statute, including article 27, to the Darfur situation.
In addition, in the 2011 Malawi and Chad Decisions, a same-composed Pre-Trial Chamber I held that both States failed to comply with their obligations because there is a customary rule denying absolute personal immunity before international proceedings and a new customary rule denying personal immunity of arrest at a national court.
Last, in 2014, a Pre-Trial Chamber in the DRC Decision did not follow the custom approach in the Malawi and Chad decisions. Rather, it adopted a waiver approach that Bashir’s immunity was removed by Resolution 1593. This approach has been adopted in 2016 by Djibouti and Uganda Decisions.
In the 2017 South Africa Decision, the majority of Pre-Trial Chamber II also does not adopt any of these approaches but introduces a new one. The majority in the South Africa Decision heavily relies on Resolution 1593 to reach its decision. The main argument of this decision is that
the necessary effect of the Security Council resolution triggering the Court’s jurisdiction in the situation in Darfur and imposing on Sudan the obligation to cooperate fully with the Court, is that, for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of States Parties to the Statute.
Based on the idea that Resolution 1593 makes Sudan in a position of State Party to the Rome Statute, the Chamber explains that article 27 applies to Sudan and no immunity issue has to be considered. It clarifies that the obligations and rights of Sudan are strictly limited to the Darfur situation. This reasoning, however, is not incontestable.
Effect of Resolution 1593
Moving on to the second issue to be addressed, these different approaches show a various effect of Security Council Resolution 1593. First, the Security Council can modify the territory and personal jurisdiction of the ICC by referring a situation to the ICC under Chapter VII of the UN Charter. This power is clearly conferred by the Rome Statute in accordance with its article 13(b). Thus, it is appropriate to say that the ICC has jurisdiction over the Darfur situation by virtue of Resolution 1593. Judge Brichambaut in his minority opinion also adheres to this idea. It should be noted that it is not Resolution 1593 but the Rome Statute creating the jurisdiction of the ICC over Bashir.
Alternatively, unlike the ICC did in the 2013 DRC Decision, the majority in this decision clarifies that no waiver implied in Resolution 1593. The majority of Pre-Trial Chamber II fails to analyse or to interpret Resolution 1593 in a way as Judge Brichambaut does in his minority opinion. Judge Brichambaut examines the interpretation of Resolution 1593 by observing its ordinary meaning, context, object and purpose, statements by members of the Security Council and other UN Security Council’s resolutions, as well as the subsequent practice of relevant UN organs and affected States. He concludes that a definite answer cannot be reached regarding the removal of Bashir’s immunity by virtue of Resolution 1593.
Furthermore, it is persuasive to state that Sudan is obliged to fully cooperate with the ICC based on Resolution 1593. Yet, it is unclear about the scope of the obligation, namely, whether this obligation covers an obligation to waive Bashir’s immunity. As a matter of fact, an answer to this question does not directly assist Pre-Trial Chamber II to analyse South Africa’s obligation for Sudan’s non-cooperation with the ICC to date.
Moreover, a Security Council resolution might be considered as an acceptance of the jurisdiction of an international penal tribunal by relying on the 1948 Genocide Convention. This idea has been proposed by some commentators as well as the Helen Suzman Foundation’s Amicus Curiae observation. This Foundation has requested to submit written and oral submissions, but its request has been rejected because the substance of its submission is insignificantly different from the amicus curiae submission of the Southern Africa Litigation Centre.
Judge Brichambaut might be influenced by these proposals. He tries to establish a relationship between articles IV and VI of the Genocide Convention and the ICC as an ‘international penal tribunal’. He explains that immunity has been removed by article IV; meanwhile, Sudan and South Africa are contracting parties to the Genocide Convention, thus, the immunity issue before the ICC has been resolved. However, as debates among scholars indicating, to link the Genocide Convention and the ICC, the status of a State Party to the Genocide Convention is not sufficient. An acceptance of the ICC’s jurisdiction is required either by a Security Council Resolution or by other international law rules. Until now, it is controversial to conclude that Resolution 1593 implies Sudan’s acceptance of the jurisdiction of the ICC for alleged genocide against Bashir. In fact, Judge Brichambaut does not consider the effect of Resolution 1593 in this respect.
Can Resolution 1593 make a non-party State in a position of a State Party?
The third and last issue is whether through the effect of Resolution 1593 Sudan is in the position of a State Party. The majority gives a positive answer without providing a more convincing reasoning. As Pre-Trial Chamber II itself acknowledged, “this is an expansion of the applicability of an international treaty to a State which has not voluntarily accepted it as such.” Its finding on the power of Resolution 1593 departs from the generally accepted principle of State consent to a treaty.
The South Africa Decision is not the first decision that the ICC considers Sudan as a “State Party”. In the 2015 Sudan Decision, a Pre-Trial Chamber decided that Sudan fails to comply with rules governing State Party cooperation in Part 9 of the Rome Statute on the basis of Resolution 1593. Both decisions recall that the Security Council can impose the obligation on States by citing the 1971 South West Africa ICJ Advisory Opinion. This is an idea uncontroversial, however, it does not help to justify an expansive application.
In addition to this, commentators have not reached an agreement on the question of whether a binding Security Council resolution can make a State in a position of a State Party to a treaty to which it has not signed. Kreß claims that in the Darfur situation the Security Council has “placed Sudan in a position that is analogous to the position of a State party”. By contrast, Gaeta holds a negative answer to this question. As Schabas notes, serving as a trigger mechanism under the Rome Statute, the Security Council has no more power than a State party. The Security Council cannot render a non-party State in the position of a State Party, even if in a form of a binding resolution imposing obligations on that State. After an analysis of South Africa’s submissions, Judge Brichambaut also finds that a firm answer about the status of Sudan cannot be given on the basis of Resolution 1593.
In my view, the ICC is not an organ of the UN. The effect of Security Council resolutions on the ICC should be interpreted in a restrictive way, so as to reduce the Security Council’s political influence on the ICC and to guarantee the ICC’s independence.
To sum up, these different approaches show a disagreement on the effect of Resolution 1593. The inconsistency of the ICC’s findings may undermine the predictability of its law. In addition, this South Africa Decision is less convincing to conclude that Resolution 1593 can render Sudan in a position of State Party to the Rome Statute.