The International Criminal Court and Individual Responsibility of Senior State Officials for International Crimes

Chapter 24
The International Criminal Court and Individual Responsibility of Senior State Officials for International Crimes

Manisuli Ssenyonjo

1. Introduction

The effective protection of human rights requires that individuals who commit serious crimes (such as genocide, crimes against humanity and war crimes), amounting to serious human rights violations, must be held individually criminally responsible for those crimes without any distinction based on official capacity. This helps to end impunity, deter the future commission of international crimes and deter serious violations of human rights. Although the United Nations (UN) General Assembly, in Resolution 260 of 9 December 1948 adopting the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), invited the International Law Commission (ILC) ‘to study the desirability of establishing an international judicial organ for the trial of persons charged with genocide’, it was not possible to establish a permanent international criminal court until 17 July 1998, 50 years after the UDHR1 and the Genocide Convention, when the Rome Statute of the International Criminal Court (hereinafter ‘Rome Statute’ or ‘Statute’)2 was adopted in Rome by 120 votes against 7 (Iraq, Israel, Libya, China, Qatar, the USA, and Yemen) and 21 abstentions.

The Rome Statute, which entered into force on 1 July 2002, has been ratified by the vast majority of states, demonstrating an increasing international recognition by states of the need to hold individuals accountable for international crimes within the jurisdiction of the International Criminal Court (ICC or the court).3 However, it is important to note that some of the world’s most powerful states, including three of the five permanent members of the UN Security Council (the USA, China, and the Russian Federation), and other states such as India, Pakistan and Iran have not yet ratified the Rome Statute. In accordance with Articles 11 and 12 of the Rome Statute, the ICC can only prosecute crimes committed on or after it entered into force, and it is subject to the principle of complementary jurisdiction, which means it only has competence over situations and cases where competent national courts are ‘unwilling’ or ‘unable’ genuinely to carry out the investigation or prosecution. Thus, like other international criminal tribunals, the ICC was established to fill in for national courts, which tend to refrain from prosecuting state officials enjoying immunity from prosecution under national law and private individuals suspected of having committed international crimes that national authorities implicitly instigate, or at least tolerate. These crimes are often committed by state officials or with their complicity or acquiescence.4

As shown below, since the ICC became operational, all its active investigations carried out by the Office of the ICC Prosecutor by the end of 2009 were in Africa in four situations in the Democratic Republic of Congo (DRC), northern Uganda, the Darfur region of Sudan, and the Central African Republic. Other situations were under preliminary examination by the Office of the ICC Prosecutor in Afghanistan, Colombia, Côte d’Ivoire, Georgia, Guinea, Kenya, and Palestine.5 By 2009, the ICC’s highest-profile case, which is examined in this chapter, was the case against Omar Hassan Ahmad Al Bashir (hereinafter Al Bashir),6 the president of the state of Sudan, Africa’s largest country, since 16 October 1993 and commander-in-chief of the Sudanese armed forces. The ICC Pre-Trial Chamber I issued the first arrest warrant on 4 March 2009 against President Al Bashir as an indirect (co)perpetrator of war crimes and crimes against humanity. This arrest warrant has raised several key questions related to the individual criminal responsibility of serving senior state officials of non-state parties to the Rome Statute examined in this chapter, particularly in relation to the following three issues: (1) the personal immunities accruing to senior state officials, in particular the head-of-state immunity of non-state parties to the Rome Statute; (2) criminal responsibility for indirect (co)perpetration under the Rome Statute; and (3) the standard of evidence required to prove genocide at the pre-trial stage under the Rome Statute.

The structure of this chapter is as follows. Section 2 provides a background to the situation in Darfur giving rise to Al-Bashir’s arrest warrant. Brief consideration is given to the armed conflict in Darfur, and the Security Council referral of the situation in Darfur to the ICC. It is argued that while the Security Council in Resolution 1593 urged ‘all states’ to ‘cooperate fully’ with the ICC, it discriminates on the basis of nationality, a fact that undermines the independence of the ICC. It is noted that since the Security Council has to exercise its powers in accordance with the provisions of the UN Charter, which prohibits discrimination, it must not make discriminatory referrals to the ICC. Section 3 examines the decision of the chamber for a warrant of arrest against Al Bashir, focusing on his official capacity as a sitting head of state and his immunity thereby; Al Bashir’s alleged criminal responsibility as an indirect (co)perpetrator; the chamber’s approach to the crime of genocide; and how arresting Al Bashir remains a challenge and an obstacle to the intended trial. It is concluded in Section 4 that given that there is currently no international court of human rights, the ICC can play an essential role by holding individuals responsible for international crimes within its jurisdiction. For this to be successful, the ICC requires the full cooperation of all states parties to the Rome Statute, which is still lacking. It is also observed that while the warrant of arrest for Al Bashir is a major step in the struggle against impunity, a deferral might be desirable if such a deferral of the case and the warrant is used to bring about broader accountability measures in Sudan, end a conflict that has devastated the lives of millions, and transform the internal politics of Sudan so as to end the cycles of conflict that have prevailed for decades.

On 31 March 2005, the UN Security Council determined that the situation in Darfur, Sudan, constituted ‘a threat to international peace and security’.7 Acting under Chapter VII of the UN Charter and in accordance with Article 13(b) of the Rome Statute,8 the UN Security Council adopted Resolution 1593, referring ‘the situation in Darfur since 1 July 2002’ to the ICC prosecutor for investigation and prosecution.9 Darfur thereby became the first (and so far the only) situation referred by the UN Security Council to the ICC.10 The ICC prosecutor opened an investigation into the situation in Darfur on 1 June 2005. On 14 July 2008, the ICC prosecutor sought the issue of an arrest warrant for Al Bashir on charges of the alleged crimes of genocide, crimes against humanity and war crimes in the Darfur region.11

After eight months of consideration, on 4 March 2009, Pre-Trial Chamber I of the ICC (herein after ‘chamber’) held that it was satisfied that there were ‘reasonable grounds to believe’ that Al Bashir was criminally responsible under Article 25(3)(a) of the Rome Statute as an indirect perpetrator, or as an indirect co-perpetrator, of war crimes and crimes against humanity.12 The chamber issued a warrant for the arrest of Al Bashir, on two counts of war crimes and five counts of crimes against humanity (but not for genocide).13 In particular, Al Bashir was suspected of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur; murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians; and pillaging their property.14 The chamber issued the warrant after noting that the arrest of Al Bashir appeared necessary under Article 58(1) of the Rome Statute to ensure that he (1) will appear before the court; (2) will not obstruct or endanger the investigation into the crimes for which he is allegedly responsible; and (3) will not continue with the commission of the above-mentioned crimes.15 Thus, on 4 March 2009, Al Bashir joined a growing list of individuals (all, so far, exclusively in sub-Saharan Africa) against whom the ICC has issued warrants of arrest, accused mainly of crimes against humanity and war crimes.16

The ICC has continued with its focus on investigating and prosecuting crimes in Africa, in some cases even when national courts may well have been an option.17 Since the ICC was set up in 2002, all the 13 warrants it had issued by March 2009 had been for political or rebel leaders on the African continent: five for the Lord’s Resistance Army (LRA) senior commanders in Uganda;18 four for rebel leaders from the DRC;19 one for the alleged president and commander-in-chief of the Movement for the Liberation of Congo, arising out of the situation in the Central African Republic;20 two for Sudanese government officials, arising out of the situation in Darfur, Sudan;21 and one for the alleged militia (Janjaweed) commander in the Sudan.22 The ICC had issued one summons to appear against the president of the United Resistance Front (URF), rebel leader Bahar Idriss Abu Garda, on three counts of war crimes;23 and was considering two new summonses against rebel leaders in Darfur. Rebel leader Bahar Idriss Abu Garda voluntarily appeared in the court on 18 May 2009. It is striking to note that, so far, all other individuals against whom warrants of arrest or summons to appear have been issued are leaders of armed rebel movements except for Al Bashir and his Minister of State for Humanitarian Affairs – Ahmad Harun.24

The warrant of arrest for Al Bashir is particularly important because it is the first warrant ever issued for a sitting head of state and/or government by the ICC and the first case involving an allegation of the crime of genocide before the ICC. In addition, such a warrant, if applied without discrimination to other leaders who are alleged to have committed crimes within the jurisdiction of the ICC (in case there is a reasonable basis to proceed), is an important signal that everyone, including a head of state, can be held accountable for international crimes within the jurisdiction of the ICC. It is not surprising that human rights organizations welcomed the warrant.25

2.1 The Armed Conflict in Darfur

Since Sudan achieved independence from the UK in 1956, it has experienced several armed conflicts.26 The most recent armed conflict, in which widespread and systematic serious human rights violations have been committed, possibly amounting to war crimes and crimes against humanity, has been in Darfur, western Sudan.27 The population of Darfur is Muslim, but recent political developments have stressed ethnic divisions between ‘Arabs’ and ‘Africans’.28 The division of Darfur into racial identities had its roots in the British colonial period. As early as the late 1920s, the British tried to organize two confederations in Darfur: one ‘Arab’, and the other ‘Zurga’ or black.29 Identities based on race were incorporated in the census and provided the frame for government policy and administration.30 In spite of official policy, Arabs never constituted a single racial group.31 The conflict in Darfur began as a localized civil war in 1987–9 (before Al Bashir became the president of Sudan) and had turned into a rebellion by 2003.32 The warrant of arrest for Al Bashir arose out of this armed conflict in Darfur which began in 2003 when rebel ethnic African groups, complaining of discrimination and neglect, took up arms against the Arab-dominated government in Khartoum.33

The immediate cause of the armed conflict was a conflict over land, triggered by four different but related causes: the land system, environmental degradation, the spill-over of the four-decade-long civil war in Chad, and the brutal counter-insurgency waged by the Al-Bashir government in 2003 and 2004.34 However, the long-term cause was the colonial system, which reorganized Darfur as a discriminatory patchwork of tribal homelands where settled peasant tribes were granted large homelands in which they were considered natives.35 In contrast, camel-owning nomads with no settled villages found themselves without a homeland and so were not acknowledged as natives anywhere.36

As noted by the chamber, from March 2003 to at least 14 July 2008, the date of the filing of the prosecution’s application for the warrant of arrest for Al Bashir, a protracted armed conflict not of an international character within the meaning of Article 8(2)(f) of the Rome Statute existed in Darfur between the government of Sudan (‘the GoS’) and several organized armed groups, in particular the Sudanese Liberation Movement/Army (‘the SLM/A’) and the Justice and Equality Movement (‘the JEM’).37 This campaign started soon after the attack on El Fasher airport in April 2003. The GoS issued a general call for the mobilization of the Janjaweed Militia in response to the activities of the SLM/A, the JEM, and other armed opposition groups in Darfur, and thereafter its forces, including the Sudanese armed forces and the allied Janjaweed Militia, the Sudanese police force, the National Intelligence and Security Service (‘the NISS’), and the Humanitarian Aid Commission (‘the HAC’), conducted a counter-insurgency campaign throughout the Darfur region against the said armed opposition groups.38 The counter-insurgency campaign continued until the date of the filing of the prosecution application on 14 July 2008.39

A core component of the GoS counter-insurgency campaign was the unlawful attack on that part of the civilian population of Darfur – belonging largely to the Fur, Masalit and Zaghawa groups – perceived by the GoS as being close to the SLM/A, the JEM, and the other armed groups opposing the GoS in the ongoing armed conflict in Darfur.40 As part of this core component, the GoS forces systematically committed acts of pillaging after the seizure of the towns and villages that were subject to their attacks,41 including (1) the first attack on Kodoom on or about 15 August 2003; (2) the second attack on Kodoom on or about 31 August 2003; (3) the attack on Bindisi on or about 15 August 2003; (4) the aerial attack on Mukjar between August and September 2003; (5) the attack on Arawala on or about 10 December 2003; (66) the attack on Shattaya town and its surrounding villages (including Kailek) in February 2004; (7) the attack on Muhajenya on or about 8 October 2007: (8) the attacks on Saraf Jidad on 7, 12 and 24 January 2008; (9) the attack on Silea on 8 February 2008; (10) the attack on Sirba on 8 February 2008; (11) the attack on Abu Suruj on 8 February 2008; and (12) the attack on Jebel Moon between 18 and 22 February 2008.42

As a result of the above unlawful attacks, the GoS forces allegedly committed war crimes and crimes against humanity consisting of murder, extermination, forcible transfer, torture and rape.43 Al Bashir, as the de jure and de facto president of the state of Sudan and commander-in-chief of the Sudanese armed forces from March 2003 to 14 July 2008, allegedly played an essential role in coordinating, with other high-ranking Sudanese political and military leaders, the design and implementation of the above-mentioned GoS counter-insurgency campaign.44 In addition, he was allegedly in full control of all branches of the ‘apparatus’ of the state of Sudan, including the Sudanese armed forces and their allied Janjaweed Militia, the Sudanese police force, the NISS, and the HAC, and he used such control to secure the implementation of the common plan.45

The armed conflict in Darfur has attracted several actors in the region including the African Union (AU) and the UN hybrid peacekeeping force,46 as well as the UN Security Council, which, as noted above and further discussed below, referred the situation in Darfur to the ICC.

2.2 Was the UN Security Council Referral of the Situation in Darfur to the ICC Discriminatory?

It is important to recall that Sudan signed the Rome Statute on 8 September 2000, but has not yet ratified it. However, this fact has not barred the ICC from investigating the crimes allegedly committed in Darfur because UN Security Council Resolution 1593 decided that ‘the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ (emphasis added).47 Clearly, the mandatory language used in Resolution 1593 – shall cooperate fully – obliges Sudan to cooperate fully with the court. However, in relation to non-state parties to the Rome Statute other than Sudan, as well as regional and international organizations, Resolution 1593, ‘while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully’ (emphasis added).48 It is notable here that Resolution 1593 does not provide that non-state parties ‘shall cooperate fully but instead uses non-mandatory language – simply ‘urges’ (i.e. recommends) such states and concerned organizations such as the AU and the UN to cooperate fully. The implication here is that while non-state parties are recommended to cooperate fully with the court, including cooperation required in the execution of the arrest warrant, they are not obliged to do so.

It is important to note that while the UN Security Council created a territorial basis for jurisdiction in Resolution 1593, namely Darfur, it added the nationality exception, included as a result of US insistence, which purports to limit the jurisdiction of the ICC (and other states apart from the state of nationality of the suspect) by deciding (paragraph 6) that

nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.

The legality of this provision has been widely questioned.49 Does it amount to a discriminatory referral (discriminatory investigation and prosecution)? If so, does this invalidate the entire referral, or can paragraph 6 (if it constitutes unacceptable discrimination at all) be severed from the Resolution? The Pre-Trial Chamber did not consider these questions, which were not raised before it. It is vital to note that non-discrimination and equality are fundamental components of international law and essential to the exercise and enjoyment of human rights. It is for this reason that the preamble and Articles 1(3) and 55 of the UN Charter prohibit discrimination. Since the UN Security Council has to act in accordance with the provisions of the UN Charter, its referrals to the ICC must not be discriminatory. This is consistent with the prohibition of discrimination in international treaties on several grounds including discrimination based on ‘national origin’. Freedom from discrimination might give rise to obligations that concern or bind all states (obligations erga omnes), such as freedom from racial discrimination.50 It is to be noted that discrimination constitutes any distinction, exclusion, restriction, or preference or other differential treatment that is directly or indirectly based on the internationally prohibited grounds of discrimination and that has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights.51

Clearly, under paragraph 6 of UN Security Council Resolution 1593, nationals of other states are excluded from the jurisdiction of the ICC even though they had participated in the Darfur conflict, and that is discriminatory. As the US representative Mrs Patterson observed:

This resolution provides clear protections for United States persons. No United States person supporting the operations in the Sudan will be subjected to investigation or prosecution because of this resolution.52

This has the potential to affect the credibility and independence of the ICC.53 Sudan has noted that UN Security Council resolution 1593 was ‘unfortunate and ultimately defective since it exempted some parties and not others’.54 The effect of paragraph 6 is an investigation and prosecution which clearly discriminates on the basis of nationality and can, in principle, give rise to a discriminatory prosecutorial policy contrary to treaty provisions binding upon virtually all UN member states, including the USA.55 This is relevant where there is a reasonable basis to believe that individuals covered by paragraph 6 have committed crimes within the ICC’s jurisdiction that have not been adequately dealt with at the national level and are of sufficient gravity to justify an investigation by the ICC.56 Does the discriminatory nature of UN Security Council resolution 1593 mean that the resolution as a whole is invalid? This question is not addressed in the Rome Statute and remains debatable until the ICC decides this matter. William Schabas has noted that:

Assuming that paragraph 6 of Resolution 1593 is illegal, the question of severability arises. If the impugned paragraph cannot be excised from the resolution, then the entire referral might be invalid.57

It is submitted that the normal consequence of such an unacceptable discriminatory provision is not that the resolution will not be in effect at all. Rather, such a discriminatory provision will generally be severable, in the sense that the resolution will be operative for all individuals alleged to have committed crimes in Darfur without benefit of the discriminatory paragraph (i.e. regardless of nationality).

The term ‘immunity’ generally means that ‘a court cannot entertain a suit, not that the defendant is immune from criminal liability altogether’.58 While it is recognized that immunities are ‘valuable in preventing interference with representatives, and thereby maintaining the conduct of international relations, they can also lead to serious injustice’.59 This normally arises where a head of state or government, a member of government or parliament, or an elected representative or a government official relies on immunity which may attach to the official capacity to avoid criminal prosecution.

Generally, under customary international law, serving heads of state are accorded immunity from the criminal jurisdiction of foreign states.60 Those immunities, as stated by the International Court of Justice (ICJ) in the Arrest Warrant case,61 ‘protect the individual concerned against any act of authority of another state which would hinder him or her in the performance of his or her duties’. Treaties may also confer immunity on serving heads of state when abroad – for example, as state representatives to international organizations62 or special missions.63 This immunity from criminal jurisdiction includes immunity from personal arrest or detention and extends even to cases where heads of state are suspected of having committed war crimes or crimes against humanity.64 As noted by the ICJ:

A Head of State enjoys in particular ‘full immunity from criminal jurisdiction and inviolability’ which protects him or her ‘against any act of authority of another State which would hinder him or her in the performance of his or her duties’.65

However, serving heads of states parties to the Rome Statute are not immune from ICC jurisdiction because such states have agreed to an exception under Article 27(1) of the Rome Statute, which provides that the ‘Statute shall apply equally to all persons without any distinction based on official capacity’. While discussing immunities enjoyed under international law by an incumbent or former minister for foreign affairs in the Arrest Warrant case, the ICJ held that the immunities enjoyed under international law by an incumbent or former minister for foreign affairs do not represent a bar to criminal prosecution in certain circumstances, including the following:

[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that ‘[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’66

It makes sense to apply the above position to a head of state. Thus, serving heads of state parties to the Rome Statute cannot invoke immunity of heads of state because of Article 27. However, Sudan has not ratified the Rome Statute and so is not bound by Article 27. In the case of non-states parties to the Rome Statute such as Sudan, the question arises of whether Sudan is bound by the Rome Statute, including its Article 27. Does President Al Bashir enjoy immunity from arrest and prosecution as a head of state not party to the Rome Statute? Should Sudan as a non-state party to the Rome Statute be treated as a party to the Rome Statute (and thus bound by the provisions of the Rome Statute including Article 27) by virtue of the compulsory nature of the UN Security Council powers under Chapter VII of the UN Charter?

The Rome Statute cannot create obligation for a non-state party without its consent67 and, as such, the statute cannot remove the official immunity enjoyed by a head of state of a non-state party. Indeed, under the Rome Statute, states parties to the Rome Statute must not act inconsistently with the state or diplomatic immunity obligations of non-state parties.68 It must be recalled that under the UN Charter, Security Council resolutions adopted under Chapter VII are binding on all UN member states, including Sudan.69 Although the ICC chamber applied Resolution 1593 to justify its jurisdiction over Al Bashir,70 its interpretation of Resolution 1593 was broad. The chamber did not explicitly address the question of immunity. It only considered immunity implicitly when dealing with the question of jurisdiction. As a preliminary matter, the chamber considered summarily the question of whether the case against Al Bashir falls within the jurisdiction of the ICC. In answering this question in the affirmative, the chamber held that

without prejudice to a further determination of the matter pursuant to article 19 of the Statute, the Chamber considers that the current position of Omar Al Bashir as Head of a state which is not party to the statute, has no effect on the Court’s jurisdiction over the present case (emphasis added).71

In effect, Sudan was treated as a state party to the Rome Statute not by its consent but as a result of Resolution 1593. However, Resolution 1593 did not expressly deal with the question of immunity. It should be recalled that in its refusal to cooperate with the ICC Sudan has argued that it ‘would never cooperate with the Court since it was not a signatory [sic; note that Sudan is a signatory but not a party] to the Rome Statute’.72 The argument that Sudan is not a party to the Rome Statute is likely to be raised with respect to immunity if Al Bashir stands trial. Therefore, it could be argued that, since Sudan is not a party to the Rome Statute, its head of state’s immunity in customary international law has not been affected by Article 27, as the Rome Statute cannot clearly bind a non-state party. Other states, acting collectively, cannot remove immunity by a treaty to which the state possessing the immunity under customary international law is not a party, when they cannot do this individually. Therefore, the fact that the ICC is an international court does not, ipso facto, mean that immunity cannot be invoked before it, as the ICC member states could not have transferred to an international organization the power to try persons whom, for want of jurisdiction, they could not try themselves, such as the head of state of a non-party.73

However, although Article 27 does not remove the head of state immunity of non-state parties to the Rome Statute, in the case of Al Bashir such immunity may be regarded as having been removed by UN Security Council Resolution 1593 that referred the situation in Darfur to the ICC under Chapter VII of the UN Charter. It is well established that the Security Council can withdraw immunity from anyone, and this is what it had done in establishing the ad hoc tribunals.74 Although UN Security Council Resolution 1593 does not explicitly remove immunity enjoyed by the head of state, it could be argued that such immunity was removed implicitly on the basis of any of the following: (1) Security Council referral to the ICC means that all individuals investigated and prosecuted via the referral are bound by the provisions of the Rome Statute including Article 27;75 (2) that when the Security Council decided in Resolution 1593, operative paragraph 2, that the GoS of Sudan ‘shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ that included a lifting of the immunity; (3) that Article 27 restates an already existing principle of customary international law concerning the exercise of jurisdiction by any international court. Thus, it applies with respect to every person enjoying immunities under customary international law, regardless of whether the state this person represents is a party to the Rome Statute.76

In reaching its decision on jurisdiction, the chamber advanced its reasons upon which its jurisdiction was based. The chamber noted that according to the preamble of the Rome Statute, one of the core goals of the statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, which ‘must not go unpunished’.77 The chamber observed that in order to achieve this goal Article 27(1) and (2) of the Rome Statute provide for the following ‘core principles’:

i. ‘This Statute shall apply equally to all persons without any distinction based on official capacity;’

ii. ‘[…] official capacity as a Head of State or Government, a member of Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence;’ and

iii. ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’78

While putting an end to impunity is a legitimate goal, in itself it does not provide sufficient legal basis which can entitle the ICC to disregard immunities of serving heads of non-state parties. This goal is stated in the Rome Statute to which Sudan is clearly not a party and thus not bound by it. Arguably, the chamber’s decision suggests that any claim to immunity by Al Bashir would be inconsistent with Sudan’s obligation as a signatory state to the Rome Statute to ‘refrain from acts which would defeat the object and purpose of a treaty’,79 which is to avoid impunity for those responsible for the most serious crimes. Similar but less detailed provisions can be found in the statutes of UN international criminal tribunals.80

However, the chamber did not make any analysis of Article 27(1) and (2) of the Rome Statute.81 It is submitted that Article 27(2) of the Rome Statute simply restates an already existing principle of international law concerning the exercise of jurisdiction by any international criminal court. In this regard, it will be recalled that there are two categories of rules granting immunity from criminal responsibility, namely those accruing under international law and those provided for in national legislation.82 Immunities accruing under international law may relate either to the conduct of state agents acting in their official capacity (so-called functional – rationae materiae or organic – immunities), or to protect the private or official acts carried out by some categories of state officials, such as heads of state and diplomats, accredited to a host country, while in office, as well as private or official acts performed prior to taking office, and they are possessed only as long as the official is in office (personal or rationae personae immunities).83

Both functional and personal immunities may be invoked by a state official before foreign courts, while national immunities involve exemption from national jurisdiction. However, immunities that exist in national or in international law (e.g. constitutional law and all rules of general and special international law such as those contained in the 1961 Vienna Convention on Diplomatic Relations) ‘shall not bar the Court [ICC] from exercising jurisdiction’.84 This confirms that in principle the ICC can indict, issue an arrest warrant for, and prosecute a serving head of state provided that the state is a party to the Rome Statute or, as in the case of Sudan, that the situation is referred to the ICC by the UN Security Council under Chapter VII of the UN Charter. Under Article 25 of the UN Charter, Sudan is obliged to accept and carry out decisions of the UN Security Council.85 As noted by the chamber,

by referring the Darfur situation to the Court, pursuant to article 13(b) of the Statute, the Security Council of the United Nations has also accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute, the Elements of Crimes and the Rules as a whole.86

By implication, the chamber took the view that the UN Security Council implicitly adopted Article 27 of the Rome Statute, and as such the ICC has jurisdiction over Al Bashir, notwithstanding his position as a serving head of state of a non-state party to the Rome Statute.

It should be noted that prosecuting serving heads of states by the ICC is consistent with the practice of other international criminal tribunals. The International Criminal Tribunal for the former Yugoslavia (ICTY) indicted Slobodan Milošević while he was still the head of state of the Federal Republic of Yugoslavia.87 Likewise, in June 2003, the Special Court for Sierra Leone (SCSL) indicted and issued an arrest warrant for Charles Taylor while he was president of neighbouring Liberia.88 The SCSL held that ‘the principle seems now well established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.’89 It relied on passages in Pinochet and the Arrest Warrant case which make reference to the possibility of prosecution before international criminal courts where such courts have jurisdiction.90 Nevertheless, in both of these cases (Milošević and Taylor), custody of the accused was only secured after they had been removed or stepped down from power. Thus, their trials commenced when they were former heads of states. As indicated in the Arrest Warrant case,91 under international law serving heads of states are immune from the jurisdiction of other states and as such they may not be prosecuted in foreign national courts although they may be prosecuted before ‘certain international tribunals’ (since these are not organs of a particular state or group of states) where these have jurisdiction, and here the examples are given of such tribunals the ICTY, the International Criminal Tribunal for Rwanda (ICTR) and the ICC. In the case of genocide, the Genocide Convention92 states that persons committing genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempted genocide, and complicity in genocide ‘shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. In such cases, the Genocide Convention clearly lifts immunity. It is also significant to note that the ICJ implicitly admitted that under customary international law official status does not relieve responsibility for genocide.93

Although in the first decision to issue a warrant of arrest for Al Bashir, the majority of the chamber did not find reasonable grounds to believe that Al Bashir had committed genocide, there was consensus that there were reasonable grounds to believe that he was an indirect perpetrator (or according to the majority an indirect co-perpetrator) of war crimes and crimes against humanity, as shown in Section 3.3 below. Given that these are among the most serious crimes of concern to the international community as a whole, which ‘must not go unpunished’, it is understandable that official capacity as a head of state or government and the immunities which may attach to such capacity could not bar the ICC chamber from considering Al Bashir’s alleged criminal responsibility under the Rome Statute at the stage of issuing a warrant of arrest. It is likely, however, that if the prosecution proceeds to the trial stage, the admissibility of the Al Bashir case or the jurisdiction of the ICC in the case would be challenged on the basis of Al Bashir’s official capacity as head of state of a state not a party to the Rome Statute.94 As noted by the Pre-Trial Chamber, its decision was ‘without prejudice to a further determination of the matter pursuant to article 19 of the statute’.

3.2 Al Bashir’s Criminal Responsibility as an Indirect Perpetrator, or as an Indirect Co-perpetrator

It should be recalled that in his application for the issuance of an arrest warrant against Al Bashir, the ICC prosecutor argued that Al Bashir did not physically or directly carry out the alleged crimes but committed them (indirectly) through members of the state apparatus, the army and the militia. This means that the application was based on the view that Al Bashir was an indirect perpetrator or an indirect co-perpetrator; of note is that this was the first time a prosecutor before an international tribunal has based a prosecution on the concept of indirect perpetration.95 Indirect perpetration and indirect co-perpetration are provided for in Article 25(3)(a) of the Rome Statute, which recognizes that a person can commit a crime ‘through another person’ or ‘jointly with another’ in the following terms:

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.

The chamber defined the notions of indirect perpetration and indirect co-perpetration. In relation to the notion of indirect perpetration,96 the chamber referred to its decision on the confirmation of the charges in the Katanga and Ngudjolo case, where it highlighted that

[t]he leader must use his control over the apparatus to execute crimes, which means that the leader, as the perpetrator behind the perpetrator, mobilises his authority and power within the organisation to secure compliance with his orders. Compliance must include the commission of any of the crimes under the jurisdiction of this Court.97

The chamber held that the notion of indirect co-perpetration is applicable when some or all of the co-perpetrators carry out their respective essential contributions to the common plan through another person.98 It recalled that in these types of situations

[c]o-perpetration or joint commission through another person is nonetheless not possible if the suspects behaved without the concrete intent to bring about the objective elements of the crime and if there is a low and unaccepted probability that such would be a result of their activities.99