Rule of law or realpolitik? The role of the United Nations Security Council in the International Criminal Court processes in Africa

1 Introduction

The adoption and entry into force of the Statute establishing the International Criminal Court (ICC) raised much hope, with some commentators describing it as a ‘Grotian’ moment for international law. 1 At its inception in 1998, the ICC was perceived as offering a permanent solution to the problem of accountability for past crimes. With a clearly-defined mandate embodied in a philosophy to shun impunity,2 the ICC exercises jurisdiction over the most serious crimes of concern to the international community.3 Its objectives are, therefore, to prosecute those perpetrators bearing the greatest responsibility and to ensure reparation to victims.4 This may explain the initial excitement about the ICC among member states of the African Union (AU). The majority of African states took part in the negotiation rounds and the signature and ratification of the Rome Statute.5 In 2003, the Democratic Republic of the Congo (DRC) was the first state to trigger the ICC jurisdiction through its self-referral mechanism. Efforts by African states and the international community to rid the continent of impunity through ‘self-referrals’ and referrals by the United Nations (UN) Security Council (UNSC) to the ICC ensued.6 This euphoria has come to naught. The enthusiasm about the ICC being the solution to impunity seems to have faded as numerous criticisms continue to be levelled against it amidst calls by the AU for an African solution to Africa’s problem of impunity.7

The UNSC is one of the central players in international criminal justice whose political acumen compromises effective collaboration between Africa and the ICC. General criticism against the UNSC may be traced back to the aftermath of World War II. Packaged as ‘victors’ justice’, the big five - China, the United States of America (US), France, Russia and Great Britain - formed themselves into permanent members of the UNSC, bestowing upon themselves the veto power. The undemocratic nature of the UNSC in relation to veto powers, coupled with the fact that chapter VII of the Charter of the United Nations (UN Charter) bestows the UNSC with primary jurisdiction over matters of peace and security, which makes binding decisions, has exposed the UNSC to criticism amidst calls for the reform of its membership.8

The UNSC has equally faced regional criticism from the AU and its member states for its imposing powers in numerous Court processes, mainly manifested through the exercise of its referral and deferral powers. In fact, the article argues that the UNSC is at the centre of the AU and ICC collision. 9

In this regard, the article critically analyses the role of the UNSC in the processes of the ICC and how this has impacted on Africa’s perception of the Court. After a brief introduction follows an analysis of the UNSC’s powers of referral and deferral of situations and cases to the Court. This is followed by a critique of the UNSC’s role in the question of immunity in relation to the Court. The article further evaluates Africa’s position in this discourse. Finally, conclusions are drawn.

2 Referral and deferral powers of the United Nations Security Council

The UNSC and the ICC are independent entities.10 The UNSC is able to refer a situation to the ICC, thus prompting the Court to exercise its jurisdiction over international crimes.11 In line with these powers, the UNSC has previously referred the situation in Sudan and Libya to the ICC. However, it is of concern that the UNSC has exercised its referral powers with respect to African-based situations, yet heinous crimes committed in other areas go unnoticed. In this regard, the case of Israel and Palestine is an illustration. Following Hamas’s electoral win in 2006 and 2007, Israel and Palestine have been involved periodically in hostilities.12 For example, on 27 December 2008, Israel launched the famous ‘operation cast lead’ against Palestine. During the three-week operation, Israel carried out 2 360 air strikes combined with ground assaults.13 This left 50 000 Palestinians displaced, 1 300 Palestinians dead and more than 5 300 wounded.14 Of these 34 per cent were children.15 In response, Hamas bombed Israel, killing three civilians and wounding more than 500 others, while nine Israeli soldiers were killed in Gaza.16 Again, on 7 July 2014 Israel launched ‘operation protective edge’ in which numerous atrocities were committed.17 It has generally been agreed that international crimes - within the jurisdiction of the ICC - were committed in Gaza18 To date, these crimes do not seem to have persuaded the UNSC to refer these situations for possible investigation and prosecution.

Incidents in Guantanamo Bay parallel those over which the ICC jurisdiction has been or is being exercised in Africa. Despite the UN finding that Guantanamo Bay was characterised by massive violations of human rights and humanitarian law, coupled with the UN’s call for its closure,19 Guantanamo Bay is still in operation with no condemnation or even preliminary investigations for crimes against humanity. Similarly, in 2014 ‘unthinkable atrocities’ were committed in Syria under the leadership of Bashar Hafez al-Assad, yet the UNSC remained unmoved.20 More so, the merciless killing of civilians in Iraq by American forces and the controversial use of drones,21 which have been classified as possibly constituting war crimes,22 have seemingly not attracted any form of intervention from the UNSC. This fortifies the perception that the UNSC serves the interests of major powers. I am, however, aware that attempts by the UNSC in this regard are likely to face challenges that may render prosecution efforts futile. It cannot be ignored, for instance, that a probable veto by the US is most likely, given the reality that any such case directly implicates the US who is a member of the UNSC. It is, however, not sufficient that the UNSC has made no such initiatives. An initiative of this nature is most likely to assuage concerns of African states, the AU and like-minded scholars that the ICC is Afro-centric.

While crimes of similar magnitude are committed elsewhere on the globe, the UNSC has been quick to refer African-based situations to the ICC and is most hesitant to refer situations from other regions. As far as Africa is concerned, the UNSC has adopted a very liberal interpretation of article 12 of the Rome Statute. The UNSC’s referral of Libya and Sudan to the Court - both non-state parties to the Rome Statute - best exemplifies this.23 Legally, this is a sound step. Article 25 of the UN Charter recognises the binding nature of UNSC decisions on member states. The UNSC’s decisions on referral and deferral are made in terms of Chapter VII of the UN Charter. Thus, such referrals do not necessarily require state consent.24 Nonetheless, genuine questions such as why this should only be exercised in Africa must be tackled. Despite the imminent possibility of a veto, the UNSC ought to have made attempts to refer the Gaza situation much earlier, or it could as well refer incidences in Guantanamo Bay. I am aware of the complex questions arising from UNSC’s referrals to the ICC.25 First, given the political dynamics of the UNSC, such referrals are likely to be ‘nothing more than point scoring’.26 This is because of the high probability of such a resolution failing to pass. Second, although such referrals are motivated by the need to end bloodshed, the Darfur referral was incapable of having this effect.27 Nonetheless, the failure to equally apply the doctrine of referral compromises the legitimacy of the UNSC’s role in the Court’s processes.

The Rome Statute allows the UNSC not only to refer cases to the ICC28 in which international crimes have been committed, but also to defer cases from investigations or prosecution by the ICC. 29

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

According to Nsereko, even though the wording is couched as a ‘request’, in reality this is a command to the Court to defer its jurisdiction.30 Similarly, while the deferral is initially limited to 12 months, the UNSC has the power under article 16 of the Rome Statute to subsequently renew it on similar conditions. This, however, may be indefinite since the Rome Statute does not seem to impose any time limitations on such renewals, implying that the UNSC has the absolute power to obstruct any probable prosecution that may not be in their interest.

Connivance within the UNSC on how to maintain control over the Court seems to have begun much earlier during the drafting of the Rome Statute. It is worth noting that article 23(3) of the draft Rome Statute (drafted by the International Law Commission (ILC) provided:31

No prosecution may be commenced under this Statute arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides.

This draft, which was most preferred by the ‘big five’,32 essentially forbids the ICC from prosecuting any case arising from a situation that the UNSC was dealing with under Chapter VII of the UN Charter unless the UNSC so decided. Effectively, the UNSC had become the ICC’s gatekeeper.33 Through this provision the US, in particular, wanted to have effective control of all ICC prosecutions.34 It would, therefore, have the ability to block any unfavourable prosecutions, especially those relating to its nationals.35 The draft of the International Law Commission (ILC) made it possible to bar the Court’s jurisdiction from certain situations, especially where the interests of the ‘big five’ were at stake. Middle power and developing countries found this provision an encroachment on judicial independence.36 Although this particular provision was done away with, the Rome Statute in article 16 continues to bestow deferral powers upon the UNSC. A deferral would effectively have similar consequences as was the initial intention - to keep the ICC at bay where the UNSC was dealing with a situation. It may be argued that the UNSC, eventually, indirectly managed to retain the ILC draft provisions intended to bar the Court from situations seized by the UNSC under chapter VII of the UN Charter. In this case, the only difference is that there has to be a deferral.

The AU has seriously lamented the UNSC’s discriminatory approach in the implementation of this power. For example, the AU has previously sought to have the UNSC defer the indictment of the Sudanese President as well as the Kenyan cases.37 South Africa and Libya also jointly proposed the inclusion of a deferral of the ICC proceedings against Al Bashir in the resolution renewing the mandate of the African Union/United Nations Hybrid Operation in Darfur (UNAMID). The United Kingdom, the US and France opposed a deferral. The US threatened to veto a deferral, forcing the adoption of a compromised Resolution 1828 in which the UNSC took note of the AU’s request for a deferral and their intentions to further consider the issue.38 Kenya subsequently sought a UNSC deferral of its cases under article 16. In January 2011, the AU endorsed this request. The UNSC then engaged Kenya in a dialogue on 18 March 2011 and later in an informal discussion on 8 April 2011.39 The subsequent inaction by the UNSC in these matters prompted the AU to express its displeasure.40 As a result, the AU declared its non-co-operation with the ICC in so far as the arrest and surrender of Al Bashir were concerned.41 This further prompted the AU to recommend an amendment to article 16 of the Rome Statute to allow the General Assembly of the UN (UNGA) to exercise the power to defer cases where the UNSC had failed to do so within six months.42 The basis of this proposal was the UN General Assembly Resolution 377A(V), the ‘Uniting for peace resolution’. In August 1950, the Union of Soviet Socialist Republics (USSR) vetoed a US draft resolution condemning North Korea’s continued defiance of the UN. This prompted the US to persuade the UNGA to ‘claim for itself subsidiary responsibility with regard to international peace and security’43 in line with article 14 of the UN Charter, which allows it discretion to ‘recommend measures for peaceful adjustment of any situation’.44

Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise it primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain and restore international peace and security.

The International Court of Justice (ICJ) has upheld the validity of this resolution. In its advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory, the ICJ confirmed that the UNGA could properly be seized of a matter in case of inaction on the part of UNSC.45 Thus, both UNGA and UNSC can deal in parallel with the same matter concerning the maintenance of international peace and security.46 The AU’s suggested proposal was, therefore, not off the mark but well-grounded in international law and practice.

This suggestion, however, raised numerous genuine legal concerns. The first is the import of article 16 of the Rome Statute. In reality, the crimes under the Rome Statute are similar to and can be subject to the UNSC’s mandatory powers under Chapter VII of the Charter of the United Nations. In this regard, the US ambassador to the Rome conference underscored the need to guard against conflicts of interest.47

The Council’s mandatory chapter VII powers will be absolutely essential to the workings of the Court - not only for enforcement but also to ensure the true universality of its jurisdiction and powers. From the point of view not only of law but of vital policy, the Court must operate in coordination - and not in conflict - with the Security Council and its role and powers under the UN Charter.

This implies that if the UNSC is seized of a matter under chapter VII - conducting an investigation to determine whether it constitutes a threat to international peace - then the Office of the Prosecutor (OTP) must refrain from conducting any investigations in the matter where the UNSC requests otherwise. This further explains the import of article 23(3) of the draft Rome Statute. The spirit of the draftsmen seemed to guard against a conflict of interest between the ICC and the UNSC where the UNSC was dealing with a situation. In both the Darfur and Libyan cases, although the AU sought the UNSC to defer the situations, the UNSC was not seized of these situations. In fact, it was the UNSC that referred the two situations to the Court. It would have been ridiculous for the UNSC to seek a deferral of situations it was not dealing with, as there was no conflict of interest as envisaged under article 16.

More so, an African expert study group has asked whether the proposed change under article 16 fits well with the powers bestowed on the UNGA under the UN Charter or whether it introduces a conflict that will yet again necessitate an amendment of the UN Charter, since an amendment under the Rome Statute cannot purport to amend the UN Charter.48 Alternatively, it may also be asked whether the Rome Statute can be amended in a way that conflicts with the UN Charter.

Some scholars have observed that the UNGA cannot make such a decision since, first, under the UN Charter, unlike the UNSC, it has no mandate to make binding decisions. In the case of the Rome Statute, it would only make sense if such a decision to defer was binding on the Court.49 More so, the request for a deferral should be made when the situation in question is a threat to peace and security, in which case only the UNSC has a mandate to make such a determination.50

Since the UN Charter and the Rome Statute are two independent legal regimes, it has been argued that nothing bars the Rome Statute from providing the UNGA with the power to make binding decisions in relation to the deferral of cases.51 Conversely, the UNSC cannot, in theory, exercise its powers under the UN Charter to make binding decisions to the ICC unless it has been expressly provided for under the Rome Statute, which article 16 does.52 Similarly, the fact that the UN Charter bestows upon the UNSC the primary mandate over peace and security would not bar the UNGA from deferring cases, unless the UNSC is dealing with the matter. Besides, even though the maintenance of peace and security is a power vested primarily in the UNSC, the UN Charter also envisages some limited and secondary circumstances under which the UNGA can have such powers.53 However, this stance has been dismissed by some international scholars who argue that it would be unsuitable to change the roles of the UNGA and UNSC in relation to the ICC.54

Interestingly, while it has become impossible for the UNSC to defer ongoing African cases, perhaps on sound legal grounds, it has been easy for the UNSC to pre-emptorily defer cases relating to any ‘would-be’ American national indictees of the ICC. This should, however, not be read as the US’s demonstrated ability or willingness to conduct prosecutions at national level. The following discussion dismisses this kind of thinking.

On 14 December 1995, the leaders of Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia signed a peace agreement.55 This prompted the UNSC to adopt several resolutions aimed at settling the conflict in the region.56 Key among these includes Resolution 1035 of 1995 establishing the United Nations International Police Task Force and a UN Civilian Office in Bosnia and Herzegovina (UN Mission in Bosnia and Herzegovina).57 Resolution 1422 of 12 July 2002 is also remarkable in the sense that it was adopted immediately after the coming into force of the Rome Statute on 1 July 2002. This implied that members of the forces committing international crimes were likely to face prosecution before the ICC. The US sought to have its nationals exempted from prosecution at the ICC.58 Initially this proposal was overwhelmingly opposed by states.59 The US, however, threatened to veto the resolution and also to withhold its funding of the UN peace-keeping operations if its text was not adopted.60 On 30 June 2002, the US actualised its first threat and vetoed the draft resolution following the UNSC’s refusal to adopt its text.61 In fear of another US veto, the UNSC accepted the compromised version incorporating the US text that deferred all ICC investigations under article 16, to be automatically extended for 12 months, without limit. In its Resolution 1422 of 12 July 2002, the UNSC essentially gave immunity from prosecution to US nationals for their future acts and omissions amounting to international crimes in the UN Missions in Bosnia and Herzegovina. The resolution reads:

1 Requests, consistent with the provisions of article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing state not a party to the Rome Statute over acts or omissions relating to a United Nations established or authorised operation, shall for a 12-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise;

2 Expresses the intention to renew the request in paragraph 1 under the same conditions each July for further 12-month periods as may be necessary.

A deferral under article 16 was not applicable in this context. The ICC had not yet been seized of the matter. Despite heavy criticism and complaints against the discriminatory nature of this resolution,62 it was renewed in 2003.63 Again, a similar resolution was adopted the same year with regard to the Security Council’s Multinational Stabilisation force for Liberia.64 UNSC Resolution 1970 which, inter alia, referred Libya to the ICC has attracted similar criticism, as Libya is not a member state of the Rome Statute.

While this seems a prima facie embrace of impunity, some scholars have adopted a much more liberal interpretation. They argue, for example, that the only problem with this provision is procedural - that the exemption is only limited to the jurisdiction of the ICC and not of other national states.65 As such, it is argued that this resolution was well-founded under the UN Charter, as it does not rubberstamp impunity since it is not concerned with the question as to whether or not to have the individuals exempted from prosecution, but relates to where they should be prosecuted.66

Such an interpretation is not only faulty but also ignores reality. Intuiting that this resolution allows the subjection of US nationals to national justice processes is pure fallacy. In fact, acting in anger over the rejection of the American proposal that a clause be inserted in the Rome Statute proclaiming that the Court will not have jurisdiction over American nationals, the US enacted domestic legislation called the American Service Members Protection Act 2002 (also known as the ‘Hague Invasion Act’). According to this law, the US sought to cushion its nationals and citizens of ‘allied countries’ from the ICC and related national prosecutions including, where necessary, the use of military force and other penal sanctions to member states of the Rome Statute who may attempt to carry out such prosecutions. 67 State parties to the North Atlantic Treaty organisation (NATO), however, are exempt from these penal sanctions.68 Any objective interpretation of this type of legislation only works to fortify the concept of US exceptionalism from the ICC’s processes. Of greater concern is the fact that neither the Court nor the UNSC condemned these acts. Notably, however, the Obama administration re-engaged the ICC albeit in a very cautious manner. During this era, the secretary of State, Hillary Clinton, publicly regretted that the US was not a member state to the Rome Statute,69 despite the fact that they neither ratified the Statute nor did they reject the Bush administration’s ‘unsigning’ of the Statute. In November 2009, for the first time, the US participated in the annual meeting of ICC member states, the Assembly of State Parties.70 It subsequently sent a delegation to the ICC review conference in Kampala in 2010. It remains to be seen how subsequent administrations will take over this perceived ‘non-party co-operation’.

Although the UN Charter affirms equality among all nations ‘large and small’,71 therefore abhorring any form of distinction, these unequal standards were further made explicit in the Darfur case. While seeking criminal accountability for atrocities committed in Darfur, UNSC Resolution 1593 referred the situation in Sudan to the ICC. Interestingly, while accountability seemed most imminent for Sudan, the same resolution sought to shield US nationals from similar accountability,72 perhaps in a bid to prevent a US veto. It is important to note that the existence of domestic prosecution of US nationals was neither a factor that was considered during the adoption of this resolution, nor did the US representative support the Court’s jurisdiction over nationals of non-member states to the Rome Statute.73 If anything, the US abstained from voting on the resolution. Paragraph 6 of this resolution reads as follows: 74

[N]ationals, 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 ... unless such exclusive jurisdiction has been expressly waived by that contributing state.

The inclusion of this clause was profoundly criticised as discrimination on the basis of nationality.75 Yet, the ICC accepted the Darfur referral without condemning its exclusiveness. More so, the Court has not made any pronouncements regarding the discriminative nature of these resolutions. Indeed, the UNSC’s powers of referral and deferral have significantly affected the credibility and legitimacy of the Court.76

The centrality of the interest of the ‘big five’ and, in particular, the US in the role of the UNSC is also manifesting with reference to the crime of aggression. Although it took until 2010 to get a definition of the crime incorporated in the Rome Statute, the ILC draft code already bestowed upon the UNSC the primary power to determine acts of aggression before any complaint relating to the crime is lodged under the Statute.77 This reassured the US of its control of the Court in relation to the crime of aggression.78 A similar provision was later incorporated under sub-articles 15bis (6) & (7) of the Rome Statute. Ultimately, the ‘big five’ have the monopoly to determine which acts amount to aggression before any probable investigations or prosecutions of the crime.

The UNSC is the entrusted ultimate custodian of political decisions on referral and deferral, especially regarding non-member states. Its permanent members - with veto powers - are not members to the Rome Statute. Its power of referral has only been exercised with regard to two African countries. How then does one strike a balance between the delicate reality of trusting UNSC custodianship of such powers and Africa’s concern that the ICC is a stooge for the West? Perhaps what will ultimately mollify Africa’s fears is ‘a strong, independent and successful ICC’79 devoid of ‘cynical exercise of authority by great powers’. 80

3 Intercourse between the role of the United Nations Security Council and immunities for international crimes

Although the UNSC has the mandate to refer a situation to the Court, the decision on who to investigate or prosecute lies entirely with the Office of the Prosecutor (OTP). Yet, the UNSC plays a central role in the recognition and waiver of immunity for senior state officers, where the OTP chooses to proceed with investigations or prosecutions against such individuals. Thus, the role of the UNSC in relation to immunity for international crimes is well understood when analysed through its referral of situations in non-member states to the Rome Statute to the ICC, and the extent to which member states not expressly mentioned in the resolution are required to co-operate with the prosecuting mechanism, especially in light of the immunity enjoyed by non-member states.

Tladi agrees that ‘the duty to co-operate under the ICC Statute cannot deprive non-state parties of their rights in respect of immunities under customary international law’.81 It follows that member states to the Rome Statute will be acting inconsistently with their obligations under international law if they were to arrest and surrender individuals from non-member states without the consent of such a state. However, it is my opinion that while high-ranking state officials of non-member states to the Rome Statute - but who are UN member states - enjoy immunity, the UNSC arguably has powers to waive this immunity by exercising its mandate under Chapter VII of the UN Charter.82 The Charter permits the UNSC to take all necessary measures to restore international peace and security where it determines a threat.83 This malleable discretion includes referring officials from member states to the UN Charter to the ICC even if their respective states are not parties to the Rome Statute.84 Essentially, the UNSC, in the spirit of preserving peace and security, can waive personal immunities applicable to state officials in both international and national courts.

Some scholars have argued that the wording of a resolution by the UNSC affects the extent to which states are bound, in the sense that the obligation to co-operate in such a case will be limited only to those states expressly mentioned, or directed to do so by the UNSC’s resolution, thus relieving other member states of this obligation.85 Resolution 1593, for example, reads as follows:86

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 and, 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.

Resolution 1593 seems to obligate only ‘Sudan and all other parties to the conflict in Darfur’ to co-operate with the Court, while it merely urges all other states and organisations to co-operate fully. Gaeta faults the requirement of this provision calling upon member states to the Rome Statutes to co-operate in the arrest and surrender of Al Bashir. Gaeta distinguishes the question of ‘whether the rules of customary international law bar the exercise of criminal jurisdiction by an international criminal court’ from the question of ‘whether states can lawfully disregard those rules in order to comply with a request for arrest and surrender’.87 Gaeta argues that even though personal immunities are not applicable in international criminal courts, this does not also imply their inapplicability in the arrest and surrender by national authorities of other states.88 Asking other states to arrest and surrender Al Bashir is tantamount to asking states to disregard the personal immunities he enjoys under customary international law.89 As head of state, Al Bashir is protected by personal immunities, and calling upon member states to the Rome Statute to arrest and surrender him is a violation of customary international law principles.90 Since the contracting parties consented to derogate from the rules of immunities, Gaeta contends that this derogation should only apply among the contracting parties.91

According to Gaeta, the ICC required a waiver by the government of Sudan of the immunities enjoyed by President Al Bashir before requesting his arrest and surrender.92 Indeed, article 98(1) of the Rome Statute provides:

The Court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the cooperation of that third state for the waiver of the immunity.

A literal interpretation of this clause leads to Gaeta’s conclusion. However, he fails to appreciate the role of the UNSC in the ICC processes. It is not true that a referral by the UNSC should have the effect of turning the ICC into a subsidiary of the UNSC for it to vest a request of the ICC with the binding force of a Security Council decision under Chapter VII of the UN Charter. Since a referral by the UNSC in anchored in Chapter VII of the UN Charter, it has the twin effect stated earlier, namely, waiving personal immunities and also subjecting the referred non-member states to the Rome Statute to its provisions as though they were contracting states. As such, the exception under article 98(1) does not apply.93 Tladi, however, dismisses this reasoning and argues that the UNSC can only change the rules of international law expressly and not impliedly.94 I find this reasoning flawed for two reasons. First, it was not possible for the UNSC to address the issue of immunity in Resolution 1593. This resolution merely referred the situation in Darfur to the Court and the OTP later made the decision to attack Al Bashir. Second, if the UNSC had not impliedly waived Al Bashir’s immunity, then it would have heeded the AU’s call to defer Al Bashir’s prosecution on the basis of his immunities. The failure by the ICC Pre-trial Chamber to clarify the authority of the UNSC in the Court processes, particularly regarding the waiver of immunities, fortifies initial fears that the UNSC is the ICC’s gatekeeper. For example, while denying Al Bashir immunities, the ICC has on different occasions contradicted its own legal reasoning. In its decision to seek the co-operation of Malawi and Chad, Pre-trial Chamber I applied the doctrine of implicit waiver of immunities by the UNSC.95 Subsequently, Pre-Trial Chamber II rejected this approach while seeking the co-operation of the DRC. The Court upheld the applicability of article 98(1) of the Rome Statute and insisted on the removal of immunity as a prerequisite.96 Yet, when seeking South Africa’s co-operation, the Court revisited the waiver of immunities theory.97 The forthcoming decision of Pre-Trial Chamber II on South Africa’s non-compliance in the arrest and surrender of Al Bashir and the validity of its referral to the UNGA or UNSC is likely to provide much-needed guidance in this regard.

Tladi further argues that the exception under article 98(1) applies to a state and diplomat, but Al Bashir is neither a state nor a diplomat.98 This interpretation is grossly defective. The notion of state immunity refers to functional immunity as this type of immunity accrues to the state and not the individual. 99 A state is barred from exercising its jurisdiction ‘over foreign officials for acts carried out in the conduct of their official duties. Such acts are attributable to the state rather than the individual.’ 100 Individual liability, therefore, does not arise.101 The individual is a mere agent of his or her state.102 Al Bashir falls perfectly under this category of immunities. Tladi, however, agrees that if the UNSC places an obligation on all states, which is the case with Resolution 1593, to arrest and surrender, then article 103 of the UN Charter ‘trumps over other obligations’. 103

The UN Charter binds all its members ‘to accept and carry out the decisions of the Security Council in accordance with the present Charter’.104 All member states to the UN, therefore, are bound by UNSC decisions. More so, a resolution adopted by the UNSC is subsidiary in rank to the UN Charter. Thus:105

In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Agreed that if there is a conflict between the Rome Statute requirement of a waiver under article 98(1) and the UNSC decision emanating under Chapter VII of the UN Charter, the latter obligation prevails in accordance with article 103 of the UN Charter. Although Gaeta dismisses this kind of reasoning, his proposal is less convincing. It cannot be true that article 103 ‘involves the absence of any responsibility for the breach of bilateral or multilateral obligations existing outside the Charter’.106 Thus, not only will state officials of non-parties to the Rome Statute be bound by the Rome Statute provisions on immunity as though they were parties, but all member states to the UN Charter will also be obliged to co-operate with the Court in their arrest and surrender. The requirement to co-operate is nonetheless also binding on all member states to the UN by virtue of articles 25 and 103 of the UN Charter. This explains the ICC’s finding that both the DRC and South Africa were bound by this resolution107 despite the fact that the resolution is not expressly directed at them.

UNSC decisions on referral and deferral are political in nature. The silence of the UN Charter and the Rome Statute on whether or not the UNSC can rely on immunity as the basis of a deferral does not imply that it cannot be a ground for consideration by the UNSC. Besides, although article 27 of the Rome Statute is explicit that immunity shall not be a ground for non-prosecution, it can be argued that a deferral does not bar future prosecution. It can be adopted merely as a temporary reprieve for as long as an individual occupies the relevant office. Thus, the UNSC’s adoption of a deferral is neither equivalent to authorising the commission of international crimes nor a measure that results in the furtherance of these crimes.108 If anything, the UNSC does not adopt a deferral without adequate measures to ensure the non-recurrence of these crimes. This thinking is not at all hypothetical. When seeking a deferral of the Kenyan cases before the ICC, the letter signed by AU member states broadly relied on the argument that such prosecution undermined ‘the ongoing efforts in the promotion of peace, national healing and reconciliation’.109 Although the UNSC failed to adopt this resolution, the members who abstained neither explained their reasons as being the absolute bar of immunity under article 27, nor did those who voted in favour explain their reasons as a recognition of immunity.110 Until the UNSC makes such clarification, it may be argued that there is a likelihood that the UNSC can adopt the deferral of a case from the ICC on the basis that an accused person enjoys immunity until the end of their rule.

Ultimately, through the exercise of its referral and deferral powers, the UNSC can alter the order of immunity as a custom applicable to non-member states to the Rome Statute. Thus, although Sudan and Libya are members to the UN Charter, neither is party to the Rome Statute. However, Sudan and Libya are still bound by the Rome Statute as though they were members by virtue of UNSC Resolutions 1593 and 1970 adopted under Chapter VII of the UN Charter referring the case to the Court. Similarly, all member states to the UN not expressly mentioned in such resolution are required to co-operate with the prosecuting mechanism.

Notably, however, in the same way in which the Security Council has selectively bestowed immunity on the basis of article 16, it has also been criticised for its selectivity in waiving this immunity under Chapter VII of the UN Charter.

4 A critique of the African position