ICC Appeals Chamber resurrects controversial customary international law argument to find Al-Bashir has no immunity before international courts – Keilin Anderson

Last Monday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the question of Omar Al-Bashir’s immunity from prosecution for international crimes. In addition to the majority judgment, four Judges penned a Joint Concurring Opinion. A joint dissenting opinion from two Judges is yet to be published.

The decision has already been described in early commentary as ‘stunning’ ‘deeply misguided’ and ‘extremely controversial’.

Considering that the judgment follows six other instances where the ICC (and two domestic courts) have found that State Parties have an obligation to arrest Al-Bashir, the fury that has erupted online might seem surprising to those new to the immunity debate.

Indeed, it is unlikely that anyone is necessarily surprised with the actual outcome. Instead, it is the basis on which the AC found Jordan was obliged to arrest Al-Bashir that has stirred the pot.


On 31 March 2005, the Security Council adopted Resolution 1593 referring the situation in Darfur, Sudan to the Prosecutor. Warrants for the arrest of Al-Bashir were then issued on 4 March 2009 and 12 July 2010. Al-Bashir is wanted by the ICC on charges of genocide, crimes against humanity, and war crimes.

Since those arrest warrants were issued, immense confusion has developed over whether State Parties to the Rome Statute have an obligation to arrest Al-Bashir when he visits or travels through their respective territories.

The Prosecution and various Pre-Trial Chambers (PTC) have maintained that State Parties must arrest and surrender Al-Bashir or risk a finding of non-compliance under Article 87(7) of the Rome Statute. States that have hosted Al-Bashir contend that they are unable to affect arrest due to the immunities he enjoys as a Head of State, particularly in light of Article 98(1).

The controversy culminated with Jordan appealing the PTC’s finding of non-compliance under Article 87(7).

This post summarises a few key points in the AC’s decision. However, it only scratches the surface of the entire controversy which includes the 100 page judgment, 190 page Joint Concurring Opinion and numerous complex arguments that have evolved from the eight year saga over the arrest of Al-Bashir.

The Appeal Chambers Judgment

The AC confirmed the decision of the PTC that Jordan had failed to comply with its obligations under the Statute by not arresting Al-Bashir. However, the AC reversed the referral of Jordan to the Assembly of State Parties and the UN Security Council on the basis that such an exercise of discretion was erroneous.

Over the course of the Al-Bashir litigation, two main ‘avenues’ have emerged: first, arguments founded on customary international law and, second, arguments concerning the effect of Security Council Resolution 1593.

It is the AC’s return to the first of these two avenues that has taken many by surprise. Customary arguments had formed the basis of early PTC reasoning regarding Malawiand Chad which, at the time, received strong criticism. By 2011, the PTC had, with little explanation, entirely abandoned this reasoning in its South Africadecision. That is, until last week.

After considering the customary arguments that are outlined below, the AC did move to consider the impact of Resolution 1593. While the AC makes some interesting comments about the Resolution, these have limited practical impact given their strong conclusions on the status of customary international law.

Resurrecting the customary international law avenue

Straight out of the gate in its first sentence, the AC declare that ‘there is neither State Practice nor opinio juris that would support the existence of Head of State immunity under customary international law vis-à-vis an international court’: see [1]. Article 27(2) of the Rome Statute is not only ‘a clear provision in conventional law; but it also reflects the status of customary international law’: see [103].  Article 98(1), on the other hand, is a procedural rule determining what occurs where conflicting obligations arise. It is not, on its own, ‘a fountain of immunity’ and therefore provides no safe harbour for Al-Bashir: see [130].

During the appeal proceedings, the AC had regard to submissions from the parties, regional bodies and amicus curiae. Contrary to what the Joint Concurring Opinion indicated, very few of the amici actually made any detailed observations in their written submissions about the existence of a customary rule or exception, focusing instead on questions related to the Security Council Resolution. This is unsurprising given, as pointed out by Jordan, the customary argument was not strictly on appeal. In the circumstances, they can probably be forgiven for thinking custom was so 2011.

Of the twelve amicus curiae briefs accepted by the AC, Professor Claus Kreß put the customary argument at its highest. He was of the firm belief that it is preferable for the Court to take the customary international law avenue instead of relying on Security Council resolutions that are inherently political and, obviously will not exist in all situations beyond the Darfur referral.

While Kreß championed the custom argument, he was also very quick to concede that establishing this custom required some deductive reasoning and a foray into discussions beyond state practice and opinio juris alone. In a vital line that the AC unsurprisingly do not quote, Kreß ultimately concludes that his proposed custom is ‘admittedly not (yet) firmly entrenched and fortified’: see [8].

Indeed, any customary exception is arguably undermined by the diverging practice and views of States on the issue of Al-Bashir’s arrest.  Splintered state practice is also patent in debates over Article 7 of the ILC’s Draft Articles on the Immunity of State officials from foreign criminal jurisdiction. Many of the instances of prosecution of Heads of State relied on by the PTC in Malawi and Chad and now revived by the AC, feature either former heads of states, those whose immunities were waived, or States that were party to a relevant treaty.

The PTC in South Africa concluded that it ‘was unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court’ ([68]). In a similar vein, the South African Supreme Court concluded they were ‘unable to hold’ a customary exception had emerged (Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others (967/15) [2016] ZASCA 17 at [84]).

Despite all of this, the AC confidently declared their view of custom, ‘rejecting’ any proposition to the contrary and choosing to ‘fully agree’ with the Malawi PTC: see [113]. The judgment provides little evidence of state practice or opinio juris beyond what was initially offered in Malawi – although the Joint Concurring Opinion seems to track these so called ‘milestones’ in some greater detail.

A customary rule, exception or lack of custom?

Some of the confusion over the customary argument seems to stem from whether the AC is proposing a positive rule of custom, an absence of custom, or some exception to a rule of custom.

At times the AC notes that immunity before international courts ‘has never been recognised in international law as a bar to the jurisdiction of an international court’ – which seems like an entire absence of any customary rule: see [113]. However, at other times the AC seems to be establishing a positive rule of customary international law, reflected in conventional form in Article 27(2) and built upon evidence such as the ICTY and ICTR statutes.

This might seem like semantics until questions of burden of proof are raised. In fact at [116] the AC are quick to declare that it is not for those who claim an exception exists to mount a case. Instead the burden lies with those claiming there was ever any immunity before international courts to start with.

With critics likely to pick apart any proposed state practice with a fine tooth comb, it is interesting to note that the AC (at least most of the time) seems to consider itself as simply pointing out a lack or absence of custom – the alleged status quo – rather than identifying some new and controversial rule. This approach also largely circumvents difficult questions as to when exactly a customary rule would have emerged or crystallised.

Where do national courts end and international courts begin?

After hundreds of pages we are also still none the wiser as to the definition of an international court.

The ICJ in the Case concerning the Arrest Warrant(Democratic Republic of Congo v Belgium)  noted in obiter dictum, that ‘an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction’: see [61].

This quote became the cornerstone for customary arguments in Al-Bashir. But what exactly are certain international courts? This question is considered in slightly more detail by the Joint Concurring Opinion. There, the answer appears simple: all that is needed is for two states to enter into a bilateral treaty establishing a tribunal or court for immunity to be waived (or more accurately to have never existed): see [56].

This is an important question for two reasons: first we have no concrete idea of where immunity from domestic proceedings ends, and the unbarred jurisdiction of international courts begins. Considering that we are likely to continue seeing the proliferation of more regional mechanisms and alternatives to the ICC, greater clarity is needed.

Second, the AC use the very nature of international courts and the fact they act on behalf of the international community as a whole, as a justification for why immunity doesn’t need to exist at an international level as it does domestically. This normative reasoning is far less compelling when one envisages a tribunal established by just two States (as contemplated by the Joint Concurring Opinion). The AC at [115] declare that the principle of par in parem non habet imperium has no application to the ICC. Even if we take them on that point, can this be truly said of every potential future court, tribunal, commission or specialist chambers created in the name of ending impunity?

Where to from here?

With States such as the Philippines and Burundi withdrawing from the Court, and Malaysia reneging on its ratification, understanding the extent to which the ICC has jurisdiction over non State parties is more relevant than ever.

Professor Roger O’Keefe, who also submitted amicus observations, was the first to leave a cryptic comment on an article about the AC decision: fiat stultitia ruat caelum (‘let justice be done though the heavens fall’).

Broadly speaking, the AC decision is another step towards justice being done in respect of Darfur – although perhaps now less powerful given less than a month before the AC judgment, Al-Bashir was ousted as President.

The judgment represents a huge expansion in the reach of international criminal law – any Head of State anywhere can be prosecuted before an international court (established by at least two states), even if their State is not a party to the Rome Statute or another similar instrument and even without any form of Security Council action

While the heavens don’t seem to have fallen just yet, the AC decision is likely to be the source of heated dialogue and debate about the cost of justice. It is safe to say most critics of the reasoning in Al-Bashir to date do not oppose justice being done – they simply seek out sound legal reasoning. The question is therefore whether this arguable customary innovation secures long term and sustainable action against impunity.

The ball is now likely to fall in the ICJ’s court should the General Assembly be prompted to act on the African Union’s request for an Advisory Opinion on the issue.

Keilin Anderson is an Assistant Editor of the ILA Reporter.

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