The African Union (“AU”) recently resolved to request for an advisory opinion from the International Court of Justice (“ICJ”) through the UN General Assembly (“UNGA”) on the question of the relationship between Articles 27 and 98 of the Rome Statute. This signals hope for a final resolution of the seemingly unresolved question of the immunity of heads of state of non-state parties from arrest by state parties to the Rome Statute.
The ICC’s decisions on this issue have been inconsistent and unpredictable. In the Malawi and Chad decisions (2011), for instance, the Court held that customary international law creates an exception for heads of state immunity in relation to international courts. In the DRC decision (2014), the Court held that UNSC Resolution 1593 (2005) implicitly waived the immunities enjoyed by President Omar Hassan Ahmad al-Bashir (“Al-Bashir”). In the recent South Africa and Jordan decisions (2017), the majority determined that Sudan had rights and duties analogous to a state party by virtue of Resolution 1593 and, therefore, that Article 98(1) would not apply. This implies that only three out of seven judges have reached the same decision on the matter despite all of them ultimately agreeing that Al-Bashir was not immune from arrest. This hardly makes for convincing jurisprudence and has resulted in a great deal of legal uncertainty. A further concern, noted by Dov Jacobs, is that one of the judges of the Pre-Trial Chamber (“PTC”) was part of all the PTC judges’ panels that reached different determinations on the same issue!
While the AU resolution might be a welcome move in terms of its potential to harmonize international law in the face of the inconsistent jurisprudence from the PTC, it does give rise to some practical issues. First, the Rome Statute does not provide for a mechanism by which the ICJ can be asked to give an advisory opinion on a matter that has been dealt with or is pending before the ICC. Second, while it is within the powers of the UNGA to request such an advisory opinion, such a request would be tantamount to circumventing the authority of the ICC and would allow the AU to engage in forum shopping. This is likely to produce tension between the ICC and the ICJ. From another angle, the request for an advisory opinion might be viewed as an attempt to control the ICC; as such a request would be tantamount to side-lining the Court in favour of another forum for adjudication . Moreover, the ICC has no obligation to follow the ICJ’s reasoning, should it be different to its own. Ultimately, it will reflect badly on the legacy of both courts if the ICC and ICJ where to adopt opposing legal positions on the same issue.
Lack of a referral mechanism under the Rome Statute
In his separate opinion in the South African case, Judge Brichambaut decried the lack of a mechanism by which the ICC would be able to refer legal questions to the ICJ for resolution. However, it is not clear on what basis he would invite such a referral having also argued that the Rome Statute is self-sufficient to determine any dispute concerning the judicial functions of the court in accordance with article 119(1), which emphasizes the principle of competence-competence (see para.4). Further, Rule 195(1) of the ICC’s Rules of Procedure and Evidence empowers the court to resolve any dispute that arises out of the application of Article 98. In fact, the Rome Statute only envisages a situation where the help of the ICJ would be sought through the Assembly of State Parties where a conflict arises as “between two or more States Parties” in regard to the interpretation of the Statute. The Statute empowers the ASP to request the UNGA to refer the question to the ICJ if it is unable to resolve the dispute. Has there truly been a dispute between states in the interpretation of the relationship between articles 27 and 98 that would warrant such a referral? While different states party to the Rome Statute have adopted different understandings of the obligations arising from the Statute - especially regarding the obligation to arrest a sitting head of state of a non-party state - this would not constitute a dispute as between those states as contemplated by the Statute.
It is also likely that the ICC, in applying the principles and rules of international law as per Article 21 of the Rome Statute, can interpret such principles and rules without having to refer to another international court for its interpretation. Judge Brichambaut’s suggestion therefore wrongly implies that the ICC lacks the competence to determine such a question. On the contrary, the Rome Statute’s provisions on election of judges for the Court envisage a Court with competency in both criminal law and international law.
Potentially Conflicting Jurisprudence
The effect of attempting to circumvent the ICC’s jurisdiction on this matter (which is headed for appeal) would be a potential conflict in approaches between the two courts, similar to the ICTY’s rejection in the Tadić case of the ICJ’s test for effective control as formulated in the Nicaragua case. It is without a doubt important that international courts should make deliberate attempts to achieve predictability in their decisions. However, a situation where different approaches to the same question are adopted by different supranational courts may not be entirely avoidable in the long term.
Disagreements with the reasoning of the various PTC decisions, however persuasive they may be, do not entitle a party to circumvent the appeal process provided for under the Rome Statute. It is possible that the Appeals Chamber may agree with the position of the AU. Without a doubt though - and in view of the academic debate and general interest this issue has attracted - the decision of the Appeals Chamber will be carefully considered. Jordan has initiated the process of appeal by filing an application for leave to appeal.
The AU resolution should also be seen in the context of the relationship between the ICC and the AU since the issuing of the arrest warrant for Al-Bashir. Viewed collectively, the chronology of events portrays concerted efforts on the part of the AU to either marginalize or control the ICC. The AU unsuccessfully sought the deferral of the investigation against Al-Bashir by the Security Council pursuant to Article 16 of the Rome Statute, arguing that the ICC was impeding peace efforts in Darfur. This was followed by the promulgation of the Malabo Protocol, which is intended to confer criminal jurisdiction in respect of various international and transnational crimes upon the African Court of Human and Peoples Rights. It is also significant that the Malabo Protocol provides for immunity for heads of state and government while they are in office. On top of this, the AU has threatened a mass African withdrawal from the Rome Statute. Thus, while it has been argued elsewhere that this new resolution signifies engagement with the ICC, it should be seen for what it is; an attempt to control the court.
Case for a referral
Would a referral to the ICJ for an advisory opinion be necessitated in any case? Writing in 2016, Dapo Akande argues that a final resolution by the ICJ may be justified for both political and legal reasons. On the political front, he argues that it is necessary to cure the mistrust between the AU and the ICC. Legally, Akande argues that the ICJ is better placed to address all the international law issues raised by the AU in addition to those arising directly from the Rome Statute. For their part, Dire Tladi and Max du Plessis have argued that the conflicting PTC decisions on this issue and varied positions taken by academia on one of the most important issues currently before the court necessitate a final determination of the issues. They offer two possibilities for resolution: either through an appeal to the Appeals Chambers or a referral to the ICJ for an advisory opinion through the Security Council or UNGA. In their opinion, the latter option has the potential of straining the relationship between two independent international courts despite having the advantage of according the questions an all rounded inquiry that would lead to a final determination. In his separate opinion in the South African case, Judge Brichambaut opined that it is necessary to refer the outstanding questions on the relationship between Articles 27 and 98 to the ICJ for interpretation.
Akande, Tladi, Du Plessis and Judge Brichambaut are right about the general nature of the ICJ’s jurisdiction. Perhaps their arguments are bolstered by the fact that the ICJ has handled similar questions relating to the status of immunities under customary international law (the Arrest Warrant case) and the status of Security Council Resolutions. The problem with this approach, however, is that it assumes that the ICJ is hierarchically superior to other international tribunals on matters of international law. While the effects of the proliferation of international tribunals are well known, an attempt to check fragmentation of international law through creation of a false hierarchy has the potential to negatively impact the legitimacy of both the ICC and the ICJ.
It would make sense that in exercise of judicial economy, the ICJ would defer a question that arises from a specialized treaty to the dispute resolution body provided for therein unless that treaty establishes a mechanism that would give jurisdiction to the ICJ (as, for example, provided for in Article 119(2) of the Rome Statute).
A cautious approach would demand a deferral to a specialized court of any matter falling within its specific competency. As argued by Buergenthal, this is a two-way affair with the specialized court expected to defer to the ICJ on questions touching on the interpretation of general principles and rules of international law. Whereas it makes sense to defer to the ICJ on questions of the customary international law status of specific principles, this is hardly such a case. The dispute in question relates to whether Article 98(1) of the Rome Statute confers immunity from arrest on a sitting head of state of a non-party state (in the context of a Security Council referral of a situation to the ICC) pursuant to the customary international law rule regarding immunity of heads of state. It is clear from the PTC decisions that it deferred to the ICJ findings in regard to the customary international law nature of immunity of heads of state but determined that this immunity was not available to Al-Bashir. Moreover, the ICJ has already made a detailed determination of the question in the Arrest Warrant case and may not find it necessary to wade into the matter again when another tribunal with concurrent jurisdiction is actively seized of the matter.
However, it is possible that the ICJ may exercise its discretion in a manner that would both ensure uniformity of the law and avert tension between the two courts. One such way would be through delaying the process until the Appeals Chamber has finally disposed of Jordan’s appeal (if leave is granted) and then narrowing the issues for the advisory opinion down to only those that have not already been addressed by the Appeals Chamber. The two courts might achieve an optimal outcome through a division of labour where the ICJ considers the interpretation of Resolution 1593, while the Appeals Chamber of the ICC considers the relationship between Articles 27 and 98 of the Rome Statute.
 In his book, Rough Justice: The International Criminal Court in a World of Power Politics, David Bosco refers to this strategy and describes its various manifestation, which includes the use of alternative mechanisms of adjudication.
* About the author, Nabil M. Orina.