CHAPTER 2 CONCEPTUAL AND THEORETICAL FRAMEWORK
2.2 Background and overview on the Rome Statute
2.2.5 The “trigger” mechanisms
2.2.5.2 Referral by the Security Council
The second means by which the jurisdiction of the ICC can be triggered is when a situation is referred to the Prosecutor by the UN Security Council, acting under Chapter VII of the UN Charter.248 Chapter VII of the UN Charter provides that:
[T]he Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.249
It is in accordance with the above provision that the Security Council established the ad hoc tribunals for the former Yugoslavia and Rwanda.250 With respect to future atrocities, it was agreed at Rome that the Security Council, instead of creating ad hoc tribunals, may refer situations to the ICC.251
The modalities of referring a situation by the Security Council to the ICC as well as those relating to co-operation between the ICC the Security Council are detailed in the Negotiated Relationship Agreement between the International Criminal Court and the United Nations.252 For instance, article 17 of the Agreement provides that:
[W]hen the Security Council, acting under Chapter VII of the Charter of the United Nations, decides to refer to the Prosecutor pursuant to article 13, paragraph (b), of the Statute, a situation in which one or more of the crimes referred to in article 5 of the Statute appears to have been committed, the Secretary-General shall immediately transmit the written decision of the Security Council to the Prosecutor together with documents and other materials that may be pertinent to the decision of the Council. The Court undertakes to keep the Security Council informed in this regard in accordance with the Statute and the Rules of Procedure and Evidence. Such information shall be transmitted through the Secretary-General.
Although the Security Council has the power to refer situations to the ICC, it cannot extend the jurisdiction of the Court beyond what is stipulated in the Rome Statute. For
246 The Prosecutor v Jean-Pierre Bemba Gombo ICC-01/05 -01/08.
247 Situation in the Republic of Mali Decision Assigning the Situation in the Republic of Mali to Pre- Trial Chamber II ICC-01/12-1 (19 July 2012).
248 Art 13(b) Rome Statute.
249 Art 39 UN Charter.
250 Schabas An Introduction 168.
251 Schabas An Introduction 168-170.
252 Negotiated Relationship Agreement between the International Criminal Court and the United Nations (2004).
example, it cannot request the ICC to prosecute perpetrators of the atrocities committed by the Khmer Rouge in Cambodia during the late 1970s because in accordance with article 11 of the Statute, the ICC cannot judge crimes committed prior to the entry into force of the Statute (in 2002).253 In such cases, the Council would be required to set up a distinct ad hoc tribunal.254
As of 30 March 2014, the Security Council has referred only two situations to the ICC:
the situation in Darfur, Sudan,255 and the situation in Libya.256 Both countries are not party to the Rome Statute.257
The Security Council referral of the Darfur situation has been received with negative responses from the African Union (AU). The AU is of the view that the ICC warrant for the arrest258 of President Omar Bashir was inconsistent with article 98(1) of the Rome Statute in terms of which the ICC may not proceed with a request to surrender a suspect if that would require a 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.
In the light of the above provision, the AU views the ICC arrest warrant against Bashir as an attempt “to change customary international law in relation to immunity ratione personae” and as rendering “Article 98 of the Rome Statute redundant, non-operational and meaningless”.259 Accordingly, in a resolution260 adopted at the 13th Ordinary
253 Schabas An Introduction 169. On the jurisdiction ratione temporis of the ICC, see 2.2.4.2 above.
254 Schabas An Introduction 169.
255 UN SC Resolution 1593 of 31 March 2005.
256 UN SC Resolution 1970 of 26 February 2011.
257 ICC Date Unknown http://www.icc-
cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx 258 On 4 March 2009, the ICC issued a warrant for the arrest of President Omar Hassan Al Bashir
to stand trial in the ICC on several charges based on crimes against humanity (murder, extermination, rape, torture and forcible transfer) and war crimes (intentionally directing attacks against the civilian population or individual civilians, and pillage) committed in Darfur. See The Prosecutor v Omar Hassan Ahmad Al Bashir Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir CC-02/05-01/09-3 (4 March 2009).
On 12 July 2010 charges based on the crime of genocide were subsequently included in the warrant for his arrest. See The Prosecutor v Omar Hassan Ahmad Al Bashir Second Decision on the Prosecution's Application for a Warrant of Arrest ICC-02/05-01/09-94 (12 July 2010).
259 AU Press Release nº 002/2012 on the Decisions of Pre-Trial Chamber I of the International Criminal Court (ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of the Sudan (9 January 2012) 1.
Session of the Assembly of Heads of State and Government in July 2009, the AU decided that:
the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan.261
When later in 2010 the ICC informed the Security Council that the government of Chad262 had failed to arrest President Bashir when he visited that country, and that he was expected to visit Kenya,263 requesting the Security Council and the Assembly of States Parties “to take any measure they may deem appropriate”, the AU issued a press release264 stating that its decisions (referring to the decision not to arrest Bashir) are binding on Chad and Kenya as Member States and that it would be wrong to
“coerce” them to violate or disregard their obligations towards the African Union.265 It is submitted that the views expressed by the AU regarding the immunity of President Bashir from arrest and surrender to the ICC are not correct. In terms of article 27(2) of the Rome Statute, immunities which may attach to the official capacity of a person, may not bar the Court from exercising its jurisdiction over such person. In accordance with this article President Bashir may thus stand trial before the ICC. The only question is whether President Bashir can be arrested in a foreign country for the purposes of surrendering him to the ICC. Although article 98(2) of the Rome Statute could have been better drafted to avoid ambiguities, it does not grant to heads of State (and other senior State officials) immunity from being arrested by foreign States for the purposes of surrendering them to the Court. According to Du Plessis,266 the Rome Statute creates a
“two-tier” immunity structure for State officials accused of crimes before the ICC: one for
260 AU Decision of the Meeting of African States Parties to the Rome Statute of the International Criminal Court UN Doc Assembly/AU/13(XIII) (3 July 2009)
261 Para 10.
262 The Prosecutor v Omar Hassan Ahmad Al Bashir Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al- Bashir's recent visit to the Republic of Chad ICC-02/05-01/09 (27 August 2010).
263 Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir's presence in the territory of the Republic of Kenya ICC-02/05-01/09 (27 August 2010).
264 AU Press Release n° 119/2010 on the Decision of the Pr e-Trial Chamber of the ICC Informing the UN Security Council and the Assembly of the States Parties to the Rome Statute About the Presence of President Omar Hassan Al-Bashir of The Sudan in the Territories of the Republic of Chad and the Republic of Kenya (29 August 2010).
265 At 2.
266 Du Plessis “The International Criminal Court that Africa Wants” 78. See also Akande 2009 Journal of International Criminal Justice 339.
officials from States Parties and one for officials from non-States parties. He argues that by signing the Rome Statute, which provides that personal immunities (immunity ratione personae)267 may not bar the ICC from exercising its jurisdiction, States Parties waived such immunities for their officials and, accordingly, such officials may be arrested in foreign States and be surrendered to the ICC.268 However, Du Plessis269 argues, since the ICC is a treaty-based court, as a matter of treaty law,270 the Rome Statute does not bind States that are not party to it. Accordingly, article 27(2) of the Rome Statute does not remove personal immunities of officials of non-States parties. In this later case, therefore, the ICC must secure from a non-State party the waiver of that State’s official’s immunity before another State can be requested to hand the concerned individual over to the ICC for trial.271
With regard to the Darfur referral, however, the AU opinion was not correct. This is so because when a situation is referred to the ICC jurisdiction by the Security Council, States are no longer dealing with the ICC as a treaty-based tribunal, but now as an institution that is acting with a Security Council’s mandate.272 In accordance with article 25 of the UN Charter273 all Member States are obliged to implement the decisions of the Security Council. Consequently, since President Bashir’s case was referred to the ICC by the Security Council,274 all States are allowed and obliged to enforce the ICC’s arrest warrant for the purposes of enabling the ICC to fulfil the mandate which it was given by
267 Immunity ratione materiae is also not a defence before the ICC in terms of art 27(1) which provides as follows: “The Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”.
268 Du Plessis “The International Criminal Court that Africa Wants” 78.
269 Du Plessis “The International Criminal Court that Africa Wants” 78.
270 Art 34 Vienna Convention on the Law of Treaties: “A treaty does not create either obligations or rights for a third State without its consent”.
271 Du Plessis “The International Criminal Court that Africa Wants” 78. On this point, the AU was correct to assert that “states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal”. See AU Press Release nº 002/2012 on the Decisions of Pre-Trial Chamber I of the International Criminal Court (ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of the Sudan (9 January 2012) 2.
272 Du Plessis “The International Criminal Court that Africa Wants” 79.
273 Art 25 UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
274 UN SC Resolution 1593 of 31 March 2005.
the Security Council.275 This interpretation of the provisions of the Rome Statute and the UN Charter is not only logical but also warranted as a matter of practicability. The ICC has no police powers to enforce its arrest warrants; it must always rely on national authorities to do so. Thus, without States being required to enforce the ICC arrest warrant, the Security Council’s referral of the Sudan’s case would in substance be meaningless.276
The AU’s general claim that “the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals”,277 is also not correct. As it was stated earlier in this study,278 customary international law does not provide any immunity whatsoever (whether ratione materiae or ratione personae) when State officials, including heads of State, are tried before an international criminal tribunal. The reference by the AU to the statement by the ICJ in the Arrest Warrant case that the Court had been “unable to deduce” that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction to incumbent Ministers for Foreign Affairs, where they are suspected of having committed international crimes, is also misleading because in that case the ICJ was referring to immunity ratione personae, not before international criminal tribunals, but before the domestic courts of foreign States. This issue is discussed in detail in Chapter three of this study.