Prosecution Argues Security Council Resolution Means Sudan’s President Does Not Have Immunity Before ICC

During hearings before the Appeals Chamber at the International Criminal Court (ICC), the prosecution argued that a United Nations Security Council resolution requiring Sudan to cooperate with the court meant some provisions of the ICC’s founding law applied to Sudan, which is not a member of the court.

Senior appeals trial lawyer Helen Brady told the court this meant that the provisions in the Rome Statute against immunity of heads of state applied to Sudan. Brady qualified her argument to say that it was not all of the Rome Statute that applied to Sudan, only the provisions that relate to cooperation and immunity.

In March 2005, the Security Council referred the situation in Sudan’s western region of Darfur to the ICC via Resolution 1593. Following this resolution, the Office of the Prosecutor (OTP) began investigating the Darfur conflict. The OTP eventually applied for arrest warrants to be issued against Sudan’s President Omar Ahmad al-Bashir for his alleged role in the Darfur conflict. One arrest warrant was issued in March 2009 and another was issued in July 2010.

“It (the resolution) obliged Sudan to cooperate and it placed Sudan in a comparable situation to a state party (of the Rome Statute) in terms of its obligations and responsibilities,” said Brady.

She said this was one of the conclusions Pre-Trial Chamber II reached in its December 11, 2017 decision to refer Jordan to the Security Council and the Assembly of State Parties for not arresting al-Bashir when he visited the country.

Brady said Pre-Trial Chamber II’s “reasoning (on this issue) is unassailable and should be upheld.”

Sean Murphy, a member of Jordan’s appeals legal team, told the court on Tuesday that Pre-Trial Chamber II’s reasoning on the Security Council resolution was flawed and this was Jordan’s second ground of appeal.

“Our submission is there has been a situation that has been referred to the court (ICC). It is a leap to say, therefore, the (Rome) Statute applies to Sudan,” said Murphy. He is a member of the United Nations’ International Law Commission and teaches law at George Washington University.

“In our view the obligation to cooperate fully under paragraph two (of the Security Council resolution) may well be interpreted as placing an obligation on Sudan to surrender somebody to the court. For us, it is a leap from that proposition to say it obligates Sudan to waive the immunity of its head of state from the criminal jurisdiction of another state,” said Murphy.

“In summary, Jordan maintains its position that the Security Council resolution did not affect Jordan’s obligations under customs and international law to confer immunity to President al-Bashir,” said Murphy.

Brady and Murphy spoke on the Group B questions the Appeals Chamber had framed to guide submissions and observations on its hearings on Jordan’s appeal against Pre-Trial Chamber II’s decision. The Group B questions are focused on Security Council Resolution 1593.

The Appeals Chamber also listened to law professors it invited to make observations. Roger O’Keefe of Bocconi University and Darryl Robinson of Queen’s University presented their observation on the Group A questions the Appeals Chamber had framed. This group of questions had to do with immunity and international law.

O’Keefe said that the issue of the immunity of a head of state had to be looked at in the context of customary international law. He also said that Jordan, as a member of the ICC, was not just an agent or jurisdictional proxy of the court when considering whether to execute the ICC arrest warrant against al-Bashir. He said this raised the question of whether there an exception to the immunity of a head of state under customary international law.

“In other words, it falls to the (ICC) prosecutor to establish that such a customary exception exists. So, does such a customary exception exist?” asked O’Keefe.

“I think it seems agreed on all sides that no customary exception exists,” said O’Keefe.

Robinson said he and five other law professors he represented were of the view, “The Pre-Trial Chamber was correct, and the Appeals Chamber should affirm its decision.”

“We do want to acknowledge strengths of arguments on both sides,” said Robinson.

He urged the Appeals Chamber to be sensitive to the multiple aims of the Rome Statute and acknowledge concerns that have been raised by members of the ICC on the question of immunity. He said the Appeals Chamber could seek legal avenues that could address one of the strongest concerns of member states, which is the requirement that they should arrest a sitting head of state.

“My group of scholars, we would unanimously urge the Appeals Chamber not to adapt the international court exception. Maybe let’s come back to in 30 years with more practice,” when exceptions to immunity may be more widely accepted, said Robinson.

He said immunity raised the question, “When do you get to legal liability if you are exempt from a legal process?”

Robinson said this, “disturbs jurists in all immunity cases, not just criminal (cases) but also domestic (cases).”

He said one answer is to keep working on the issue and “eventually get universal ratification (of the ICC).”

When Robinson concluded his observations, all the five judges of the Appeals Chamber asked different parties and participants questions on the Group A issues.

The hearing continued on Wednesday.

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