In October 2020, Sudan’s Prime Minister Abdalla Hamdok expressed his commitment to support the Office of the Prosecutor at the International Criminal Court in gathering information about and prosecuting war crimes in Sudan. In doing so, he also hinted at discussions regarding the possibility of trying Sudanese indictees in Sudan before a ‘hybrid court’. While it is unclear whether Sudan will honor its commitment to surrender former President of Sudan, Omar Hassan Ahmad Al-Bashir, the shift in Sudanese attitude towards ICC intervention has been hailed as a welcome change.
The debate surrounding the international criminal case against Omar Al-Bashir, however, has given rise to an ideological split amongst the ICC and stakeholders such as the Organization of the African Union over the validity of procedural bars, in the form of immunity ratione personae, against the overarching fight against impunity for international crimes. In a slew of contrary judicial pronouncements beginning from December 2011, the ICC has sought to strike down the customary immunity enjoyed by Al-Bashir by hook or by crook. In May 2019, with its judgment on Jordan’s appeal against Jordan Non-Compliance Decision, the Appeals Chamber finally settled on an original twist of the nature of cooperation requested under Part IX of the Rome Statute. It painted the Member States to which requests had been addressed under Part IX as surrogates of the ICC, rather than sovereigns bound by their own horizontal obligations under treaty or customary law. In turn, the Appeals Chamber nullified the substantive protections envisaged under Article 98 of the Rome Statute, holding, in addition, that the recognition of immunity ratione personae before an international criminal court had not acquired customary norm character. It also reiterated the ‘Security Council route’ (see also Alexande Galand’s alternate interpretation), first adopted by the Pre-Trial Chamber II in its South Africa Non-Compliance Decision, and again in its Jordan Non-Compliance Decision. Thus, while not without causing a dissensus as to the means, the ICC has managed to achieve the end of Omar Al-Bashir’s impunity.
This comment explores, in hindsight, the path not taken, shifting focus from the Rome Statute and the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 (‘Genocide Convention’) to the Geneva Conventions of 1864-1977 (‘Geneva Conventions’) to dispense with Sudan’s right to claim immunity on behalf of Al-Bashir.
Inter alia, Al-Bashir has been charged with violations under Article 8(2)(e)(i) of the Rome Statute, i.e., “other serious violations of the laws and customs applicable in armed conflicts not of an international character” for “intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities”. Articles 49, 50, 129, and 146 of the respective Geneva Conventions impose a jus cogens obligation upon State Parties to effectively combat ‘grave breaches’ of the Geneva Conventions by investigating and prosecuting alleged offenders. The normative theory of hierarchy, argued by scholars, such as Antonio Cassese and Thomas Kleinein, and Judge Al-Khasawneh in Arrest Warrant of 11 April 2000 (2002), holds that the mere fact that conduct is prohibited as a jus cogens violation allows immunity or any other bar whatsoever to be dispensed with. It does not necessarily try to prove that the enforcement of jus cogens norms is a jus cogens norm in itself, but simply holds that a norm cannot provide for absolute non-derogable restriction and then impose procedural bars on the enforcement of the same.
However, the provisions of Article 8 of the Rome Statute adopt both ‘grave breaches’ and ‘serious violation’ in referring to the laws and customs applicable in international armed conflict or non-international armed conflicts. Doubts may thus arise as to whether this latter regime of criminalization also bars the acts and omission listed thereunder as jus cogens violations. Here, we argue that the ‘serious violation’ and the ‘grave breaches’ regime must be read as synonymous to one another.
Per the textual rule of treaty interpretation under Article 31(1) of the Vienna Convention on the Law of Treaties, the terms ‘grave breaches’ and ‘serious violations’ must be interpreted in light of the ordinary meaning of terms and their object and purpose. Serious violations have been defined as “breaches of rules protecting important values which involve grave consequences for the victim”. Evidently, both terms signify synonymous qualifications of situations of both international and non-international armed conflict. This synonymity is also not lost in translating to French since ‘grave breaches’ translates to “les infractions graves” and ‘serious violations’ translates to “les violations graves”. Further, it is important to note here that any reference to “any other conduct apart from grave breaches” refers not to serious violations, but to minor breaches, a term that denotes instances of failure to comply with international humanitarian law which does not “fundamentally affect protected interests” under the Geneva Conventions.
On October 2, 1995, however, the Appeals Chamber of the ICTY, in its ‘Decision on Interlocutory Appeal on Jurisdiction’ under Prosecutor v. Tadić, determined (albeit with four judges dissenting on this point) that the ‘grave breaches’ regime only applied to international armed conflicts due to the accompanying right to exercise universal jurisdiction. Thus, it separated the two regimes of criminalization by holding that “the international armed conflict requirement was a necessary limitation on the grave breaches system in light of the intrusion on state sovereignty that such mandatory universal jurisdiction represents.” Alternatively, under the doctrine of evolutionary treaty interpretation, a treaty must be interpreted in light of the emerging norms of international law. As noted by Judge Abi-Saab, the distinction between the terms ‘grave breaches’ and ‘serious violations’ is rendered artificial in light of the emerging application of the basic principles of humanitarian law to internal armed conflicts. To this effect, the majority of the Appeals Chamber itself acknowledged that it was aware “that this conclusion may appear not to be consonant with recent trends of both State practice and the whole doctrine of human rights.” The practice of the same can be evidenced from, inter alia, the International Criminal Code of Germany, Belgium’s Law on Universal Jurisdiction, Hungary’s War Crimes Resolution, the United States’ War Crimes Act, and Chile’s Prosecution of Oswaldo Mena. Additional practices, such as France’s Prosecution of Wenceslas Munyeshyaka, the Netherlands’ Prosecution of Knesević, and Switzerland’s Prosecution of Grabež and Niyonteze, have also posited a consistent shift in the direction of the applicability of universal jurisdiction for violations committed during non-international armed conflicts.
In any case, as identified by both the ICJ in 1986 Nicaragua Judgment and the International Law Commission in its report on the ‘Peremptory Norms of General International Law (Jus Cogens)’, the Geneva Conventions embody ‘elementary considerations of humanity,’ which have been accepted as ‘intransgressible’ in character. The norms regulating non-international armed conflicts, as enshrined under common Article 3 of the Geneva Conventions, have also acquired peremptory nature. Thus, their recognition imposes an erga omnes obligation on states to prosecute or extradite the accused in order not to allow violation of these norms with impunity. Craid Egget and Sarah Thin’s piece and the accompanying enriching thread of comments provide an illuminating discussion on this point.
The effect of each of these methods of interpretation and application is to nullify any procedural bars to prosecution that are afforded to functionaries under either the immunity ratione personae or materiae protections. More importantly, however, this imposes upon Sudan an obligation not to impede the repression of a violation of the Geneva Conventions by utilizing procedural safeguards as political tools to protect alleged violators. As noted by the International Committee for the Red Cross, in its submissions to the United Nations General Assembly’s debate on the ‘Scope and Application of the Principle of Universal Jurisdiction’:
While States may attach conditions to the application of universal jurisdiction to grave breaches, such conditions must, in each context, be aimed at increasing the effectiveness and predictability of universal jurisdiction and not at unnecessarily restricting the possibility of prosecuting suspected offenders.
A similar argument was posited in light of Article VI of the Genocide Convention, where the International Court of Justice held Serbia in violation of its obligation to prosecute and punish the violations of the Convention by transferring Ratko Mlaić to the ICTY. Sudan, in particular, is bound by Article 86 of the First Additional Protocol to the Geneva Convention of 12 August, 1949 to repress not only the grave breaches of the Convention, but also the failure to do so. Therefore, in the authors’ opinion, the United Nations Security Council or the ICC could have called upon Sudan and the above-mentioned states, all of whom are bound by the Geneva Conventions, to forego the immunity afforded to Al-Bashir.
 Aegean Sea Continental Shelf (Greece v Turkey), 1978 I.C.J. Rep. 3 (19 December), para. 77-78.
Atul Alexander is an Assistant Professor (International Law), The West Bengal National University of Juridical Sciences, Member, Asian Society of International Law. Rohit Gupta is a Third Year Student, B.A.LL.B., The West Bengal National University of Juridical Sciences.