In May, the Appeals Chamber of the International Criminal Court (ICC) ruled that Jordan should have arrested then-Sundanese President Omar al-Bashir, who had been indicted for war crimes, when he traveled to the country in 2017. Appealing the Pre-Trial Chamber’s decision last year, lawyers for Jordan argued that because al-Bashir was a head of state at the time of his visit he was immune from arrest. But in its recent ruling, ICC judges concluded “there is no Head of State immunity under customary international law vis-a-vis an international court.” While it affirmed this part of the Pre-Trial Chamber’s decision, the Appeals Chamber did reverse the previous decision to refer Jordan to the U.N. Security Council for its failure to arrest al-Bashir.

Following the ICC’s ruling, the legal blogosphere reacted swiftly and, for the most part, negatively. Dov Jacobs argued that it was “the worst possible solution.” Ben Batros wrote for Just Security that the outcome was “correct” but that the means was “unusual” and “already raising eyebrows.” Dapo Akande wrote on EJILTalk! that the decision was “stunning and . . . deeply misguided.” He added, for good measure, that it was “very dangerous and unwise.” Other voices have now joined the conversation, adding more nuance, including Prof. Claus Kreß, one of the amici in the case, but overall, a wave of criticism has been directed at the Court regarding this decision, adding to the many other recent critical postings about the Court.

I take a different view. I argue that the decision was (1) unsurprising, (2) correctly decided, and (3) consistent with the Court’s judicial mandate. I do not address the issue of cooperation but leave that to other writers and future posts. I would also like to raise three quibbles about the decision, as well as three questions.

Also, it is not the place of this short post to address all the scholarship arguing that there is no difference between head of state immunity at the ICC and before national courts. Rather, here I put forth my view, which I explained at greater length in an essay I wrote earlier this year.

First, the decision is unsurprising. Six earlier ICC decisions had already held that al-Bashir could not benefit from head of state immunity and an arrest warrant could therefore be issued against him that ICC States Parties were required to respect. These six decisions, issued from 2009 until 2017, were penned by ICC judges from nine different countries including Botswana, Brazil, Bulgaria, France, Germany, Ghana, Italy, Latvia and the Republic of Korea. Other courts had decided similar questions along the same lines including the ICTY in the Milosević case, the Special Court for Sierra Leone in the Charles Taylor case, the High Court of South Africa, the Supreme Court of South Africa, and the Kenyan Court of Appeal in national cases involving al-Bashir. In fact, every court and every judge asked to rule on the question of head of state immunity before the ICC or another international court found they had no immunity under international law if properly indicted on charges of committing genocide, crimes against humanity, or war crimes.

Second, the decision is correct as a matter of international law. As I wrote in my earlier essay, in my view, the travaux préparatoires of the Rome Statute, as well as other sources, indicate that Article 27(1) of the Rome Statute codifies the customary international law rule that whatever immunities an official might have before national courts cannot be pled as a bar or a defense to criminal responsibility, ratione materiae, before the ICC regarding the jus cogens crimes in the Rome Statute. Article 27(2) complements this provision by ensuring that no procedural immunities bar the ICC from exercising this jurisdiction. As I have often written, the history of the Rome Statute’s negotiation and an examination of the development of international criminal courts and tribunals during the 20th century reveal that States ratifying the Rome Statute after its adoption in 1998 accepted this understanding of Article 27 because, as the Appeals Chamber notes, they accepted that an international court, such as the ad hoc tribunals or the ICC, exercises jurisdiction in a different manner than national courts. For this reason, Article 27 was the object of virtually no discussion during the Diplomatic Conference, as States understood it to be consistent with the practice of the international community since the establishment of the Nuremberg Tribunal in 1945, as well as the ad hoc tribunals for Rwanda and the former Yugoslavia in the 1990s. This understanding was confirmed in dicta by the International Court of Justice in Yerodia suggesting that impunity would not follow from the invocation of immunity by government officials before national courts, because “certain international criminal courts” would still have jurisdiction. The Appeals Chamber’s pronouncement that al-Bashir had no immunity before the ICC is therefore both unsurprising and consistent with the States’ understanding of this issue in 1998.

Beginning with the issuance of arrest warrants against al-Bashir in 2009 and 2010, however, a campaign was launched arguing that as a head of state, and particularly a head of state of a non-State party to the Rome Statute, al-Bashir was immune from prosecution before the ICC. This short post is not the place to address the complicated issue of African States’ relationship with the International Criminal Court, nor the use of Article 98 by the United States to negotiate bilateral immunity agreements, and the invocation of Article 98 by States as a basis for noncooperation regarding the arrest of al-Bashir – questions I do take up in my essay. It is fair to say, however, that during the Statute’s negotiation, neither use of Article 98 was anticipated, at least not in the manner in which both efforts have unfolded. Thus, in my view, the pushback against al-Bashir’s arrest has to be seen as both a political protest to a perceived targeting of African leaders, as well as an effort to change customary international law, an effort the Appeals Chamber rejected.

Third, in taking up the question of head of State immunity under customary international law, rather than relying upon the effect of U.N. Security Council Resolution 1593 to answer the question (as it could have done), the Appeals Chamber acted consistent with its judicial mandate and properly reaffirmed the autonomous nature of international criminal law before the ICC.

Many have argued that it would have been possible to rely upon the Security Council referral and Resolution 1593 to decide this case, and conclude that there was an obligation on the part of Jordan as an ICC State Party to arrest and surrender al-Bashir. For this reason, some have expressed discomfiture regarding the Appeals Chamber’s reliance upon customary international law. Certainly, courts should be circumspect and hesitate to decide more than the case and the question presented before them. Yet had the Chamber done so, every future case would have had to evaluate the specific text of the Security Council resolution referring the situation to the Court, meaning that the principle of equality before the law and the fundamental rules governing the Court’s operation would depend upon an external body – the Council could pick and choose which Situations permitted investigation and prosecution of high government officials and which did not.

In addition, Jordan invited the Chamber to take up the question of customary international law by pleading in paragraph five of its submissions that “fundamental rules and principles of international law” required it not to cooperate with the Court by arresting al-Bashir. Jordan also referred to the ICC as a “foreign” court as opposed to an international court and even argued that U.N. Security Council Resolution 1593 did not affect Jordan’s obligations under international law to accord immunity to al-Bashir. While cast as a procedural argument under Article 98 of the Rome Statute, it is clear that Jordan and its amici were asserting that the ICC has no power to require States to cooperate with it as regards the arrest of a head of state, unless that State has waived the immunity of its president. In the view of this writer, the Appeals Chamber had little choice but to squarely confront the customary international law question.

Finally, if, in fact, the intensive effort to reinterpret Article 27 and give priority to Article 98 is an effort to change customary international law, or establish a new rule of customary international law, the judges of the International Criminal Court would presumably have no right to decide the case along those lines, as they must be faithful to the Rome Statute. Instead, as my recent essay argues, if States wish to change the rule, they need to do so explicitly, by taking the difficult political decision to amend the Rome Statute by incorporating head of state and presumably other immunities directly into the text. In other words, in my view, the political objective of immunizing heads of state (and presumably other high government officials) cannot properly be achieved through judicial reinterpretation of the Rome Statute, but can only be undertaken by the States Parties themselves, as the African Union has attempted in the Malabo Protocol.

A few points of criticism and some outstanding questions

Of course, there are elements of the decision that may be problematic. Here, I take up three. First, the section on “what is an ‘international court’” in paragraphs 52-75 of the joint concurring opinion was not necessary to decide the case and went further than necessary. After all, the question presented to the Appeals Chamber was not what the outer limits of the term “international court” would be under the jurisprudence of the International Court of Justice in Yerodia, but whether the ICC, with more than 120 states parties, and exercising jurisdiction only over “core crimes,” is such a court. Second, it is not clear that Section II.B.7(c)(paras. 253-66) was necessary to the Chamber’s decision. It was perhaps a nod to the minority opinion of Judge Perrin de Brichambaut in the South Africa case, but the effect of Judge Brichambaut’s opinion, which would have grounded al-Bashir’s lack of immunity on Sudan and Jordan’s ratification of the Genocide Convention, could make the ICC’s exercise of its own jurisdiction dependent upon ratification of other treaties by States, compromising its independence in the same way that the Security Council route does but for different reasons. Finally, as I have written elsewhere, it would be preferable for the Court to avoid overly prolix, seriatim, and multiple opinions as they tend to be confusing to the reader, and make the Court’s jurisprudence less accessible.

These, however, are quibbles. The Appeals Chamber has rendered a very significant decision regarding the scope and nature of the ICC’s jurisdiction over core crimes.

Yet questions remain. First, the decision will not stop either the political or the scholarly debate over head of state immunity. Second, it does not answer the “vexing” question of when efforts to change customary international law — aiming to reverse the current rule – or introduce a new rule — could reach the tipping point necessary for such a change to come into effect.  Indeed, the relationship of Rome Statute provisions to customary international law, and the evolution of customary international law in regards to the Rome Statute, raise profoundly interesting and difficult interpretive issues that the Appeals Chamber decision does not settle.  Moreover, if the core crimes and the provision of non-immunity for core crimes before international courts are jus cogens (peremptory norms), query whether can they be changed by contrary state practice at all?  Perhaps, since the move to take the question to the International Court of Justice has already been launched, the ICJ will take up some of these questions. As it does so, perhaps it will also consider what it would be like to return to the world prior to 1919, when war and the commission of war crimes and crimes against humanity were deemed the prerogative of the sovereign.

Image: Jordan’s King Abdullah II and Sudanese President Omar al-Bashir attend a welcome ceremony in Amman on March 28, 2017. Photo: KHALIL MAZRAAWI/AFP/Getty Images