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 issues; secondly, it evaluates the effect of Resolution 1593; thirdly, it argues that Resolution 1593 cannot make Sudan (who has not signed up to the Rome Statute) participate with the ICC as if it were a party to the Statute.
Different approaches adopted in the ICC
The main issue before Pre-Trial Chamber II was how to remove the personal immunity of a sitting head of a non-party State. The ICC in previous decisions has developed three divergent approaches. Pre-Trial Chamber I in the 2009 Arrest Warrant Decision tried to justify its issuance of the arrest warrant against Al-Bashir 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, 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 with regard to arrest warrants from a national authority.
Lastly, in 2014 the DRC Decision did not follow the same customary law approach as in the Malawi and Chad decisions but rather it adopted a waiver approach that Bashir’s immunity was implicitly waived by Resolution 1593. This approach has been adopted by the 2016 Djibouti and Uganda Decisions.
In the 2017 South Africa Decision, the majority of Pre-Trial Chamber II 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 conclusion. 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 puts Sudan in the same position as a 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 is controversial.
Effect of Resolution 1593
Firstly, the Security Council has the power to modify the territorial 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 Article 13(b), thus, the ICC has jurisdiction over the Darfur situation by virtue of Resolution 1593. Both the majority and Judge Brichambaut in his minority opinion adhere to this. (It should be noted that it is not Resolution 1593 but the Rome Statute that is creating jurisdiction for the ICC over Bashir.)
Unlike the 2014 DRC Decision, the majority in this decision clarifies that no waiver is implied in Resolution 1593. The majority of Pre-Trial Chamber II do not analyse or interpret Resolution 1593 in the way that 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 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, although it is persuasive that Sudan is obliged to fully cooperate with the ICC based on Resolution 1593, the scope of this obligation is unclear, namely, whether it extends to a duty 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.
Secondly, a Security Council resolution might be considered as providing jurisdiction to an international criminal 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. Judge Brichambaut might be influenced by these proposals as 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; consequently, as Sudan and South Africa are contracting parties to the Genocide Convention the immunity issue before the ICC has been solved.
However, debates among scholars indicate that apart from the fact that Sudan is a contracting party to the Genocide Convention, an acceptance of the ICC’s jurisdiction is required so as to link the Genocide Convention to the ICC. The acceptance can be addressed through either other international law rules or a Security Council Resolution. Until now, it is controversial to conclude that Resolution 1593 implies Sudan’s acceptance of 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 last issue is whether the effect of Resolution 1593 temporarily makes Sudan a State Party. The majority gives a positive answer without providing any 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.’ It is not the South Africa Decision that first regarded Sudan as a ‘State Party’ on the basis of Resolution 1593. The 2015 Sudan Decision has decided that by virtue of Resolution 1593, Sudan failed to comply with rules governing State Party cooperation. The court’s findings on the power of Resolution 1593 depart from the generally accepted principle of State consent to a treaty which it overcomes by citing the 1971 South West Africa ICJ Advisory Opinion; according to this case, the Security Council can impose obligations on States. Whilst the idea is uncontroversial, it does not help to justify such an expansive application.
Additionally, commentators have not reached agreement on whether a binding Security Council resolution can effectively make a State Party to a treaty 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 denies such a proposition. 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 transform a non-party State into a State Party, even if it issues a binding resolution imposing obligations on that State. Judge Brichambaut also finds that a firm answer cannot be given about the status of Sudan on the basis of Resolution 1593.
In summary, these different approaches evidence the disagreement with regard to the effect of Resolution 1593; such inconsistency in the ICC’s findings may undermine the predictability of its law. In the opinion of this author, the ICC is not an organ of the UN and therefore the effect of Security Council resolutions on the ICC should be interpreted restrictively so as to reduce the Security Council’s political influence on the ICC, thereby guaranteeing the ICC’s independence. The South Africa Decision is unconvincing when it concludes that Resolution 1593 can render Sudan in a position of State Party to the Rome Statute.