The ICC, the US and Public International Law

Didas Gasana

By Didas Gasana

Two interesting things happened in Public International Law; one concerning Bashir’s case at the ICC and US’s revitalized anti- ICC stance.

On December 11, 2017, the Pre-Trial Chamber II of the International Criminal Court held that Jordan, a State Party to the ICC Rome Statute since 2002, failed to comply with its obligations under the Statute by not executing the Court’s request for the arrest of Omar Al-Bashir and his surrender to the Court while he was on Jordanian territory attending the League of Arab States’ Summit on 29 March 2017. The Chamber decided to refer the matter of Jordan’s non-compliance to the Assembly of States Parties of the Rome Statute and the United Nations Security Council.

The Chamber’s Majority composed of Judges Cuno Tarfusser, Presiding, and Chang-ho Chung clarified that Security Council Resolution 1593 (2005) imposed on Sudan the obligation to cooperate fully with the Court and provide to it any necessary assistance and that one consequence of this is that article 27(2) of the Statute applies equally with respect to Sudan, rendering inapplicable any immunity on the ground of official capacity belonging to Sudan that would otherwise exist under international law.

Judge Marc Perrin de Brichambaut appended a minority opinion concurring with the Majority’s conclusions while considering that the Convention on the Prevention and Punishment of the Crime of Genocide (1948) to which Jordan and Sudan are parties offers the basis for the non-immunity of Sudan’s Head of State in the present case.

This Monday, September 10, 2018, the ICC Appeals Chamber commenced hearings in the appeal of Jordan against the above decision of the Pre-Trial Chamber. The most important legal delivery to expect from the eventual ruling is whether a party to the Statute must respect immunity of the head of state of a non-signatory to the Rome statute in a case where the arrest warrant has been issued by the ICC. This question has gone on for years and has been a subject of four decisions by the Pre-Trial Chambers, sometimes contradicting each other. Looking forward to this ruling.

On the same Monday (September 10, 2018) US National Security Advisor, John Bolton, in the face of ICC’s planned investigation in US citizens in Afghanistan, made the most scanting attack against the ICC, and threatened that the US: “… will respond against the ICC and its personnel to the extent permitted by U.S. law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

ICC’s planned move resurrects the old legal debate on whether or not, in absence of a UN referral, the ICC can have jurisdiction over non-party states citizens but the most important legal payload shall be whether or not the US can carry out the above mentioned measures against ICC officials without violating International Law.

While the US is not a state party to Rome Statute and has no international obligation arising from article 18 of the Vienna Convention on the Law Treaties, it is a party to the 1947 Headquarters Agreement between the US and the UN. The fact that the ICC has an observer status at the UN and is by law required to brief the UN in NY places upon the US an international obligation to accord ICC officials access to NY, immunities and privileges pursuant to the Headquarter agreement.

Should the measured be implemented, we are likely to witness a serious legal contest between the UN and the US. John Bolton stated that the ICC threatens US security, and in prior cases, US has denied visa to UN invitees and delegates (Arafat case in 1998) pursuant to what it calls a reservation to sections 11 and 13 of the Headquarters Agreement, found in section 6 of Public Law 80-357.

The UN legal team has always argued that the above provision is not a reservation and was never even discussed before the agreement came into force. Should these measures be implemented, we are likely to find an answer to one of the most compelling legal questions: US power over access to UN headquarters. Probably, the ICJ shall be given a chance to pronounce itself on the matter.