Good morning, everybody. Sorry, we starting a little bit late, but Nick Father,
who was going to do an introduction as most unfortunately had to attend a funeral this morning, so he's not here.
So my name again is Katie Regan and the director of the Planetary Institute.
And we're really fortunate this morning to have three speakers who are deeply
embedded in the work of the International Criminal Court to talk about it.
Before we turn to that, I wanted to reflect for a minute or two on the topic of the conference.
So we're going to talk about law and politics in three courts, and we've selected three cases one from the International Criminal Court,
one from the Kenyan Supreme Court and one to the U.K. Supreme Court to talk about.
All of them raise all of them concern, quite contested political issues.
In retrospect,
perhaps if we were planning this conference now today we might have selected Linda Cherry from the UK Supreme Court rather than the international.
But I have little doubt that Mother Cherry will emerge as part of our conversation when we are talking about it.
But why should we think that this is an important topic for lawyers to talk about?
And I think our thinking was that we wanted to raise the question to be discussed across the three systems of how
we should think about what courts should be doing when they're faced with highly politically contested issues.
We know from the research that's been done that courts are increasingly being presented with these questions in jurisdictions across the world.
There are many academics who believe that many of them here at this university,
but all over the world who think courts shouldn't be deciding these questions, and there are many politicians who feel the same.
Leaving aside that debate for a moment, it seems to me that we're presented with the fact of this happening,
and it's very important for scholars and legal practitioners, as well as social scientists to think about how we should think about what courts
should be doing and what they are doing when they're facing these questions.
So I think one of the things we're wanting to do by looking at these three cases is to look closely at what the courts did and what the court said,
as well as what we think they should have done. Now, as a former judge of a senior court myself, the South African Constitutional Court,
which is emphatically engaged with these kind of questions all the time.
And there's very little room for any debate that the court should be engaged with and given the exclusive language of the Constitution.
I suppose I have a simple response to what courts should do when they deal with these kind of cases and then stick to the law,
courts don't always do that. And political scientists certainly don't think that.
In fact, the legal for many political scientists don't think the legal form has any kind of rigidity or rigour.
That means sticking to the law means anything at all.
But actually, I think as lawyers, we know that sticking to the law does have some real meaning, even if it doesn't always determine outcomes.
Cases that get put on appeal very often get on appeal because there is some room for debate about outcome.
And but to the extent that courts, I think in these areas are dealing with very contended questions,
it seems to me that the the only claim they have to being a court are not a political
decision maker is that they pay serious respect to what the content of the law is.
Now that's my view, and other people will disagree. And I hope that in the course of thinking about this first panel in particular,
I think is a great panel to be thinking about these questions because we there is a serious legal debate about
some of the questions that arose around the ambiguity to arrest sitting heads of state under the Rome Statute.
And there is an interesting question about the circumstances in which the ICC can
and should refer a state that is in breach of its obligations under the ICC,
under the Rome Statute, to the to the UK Supreme Court.
But I think the same questions arise in the other two cases, too.
And so I hope that one of the things that we do here is that we move out of that terrain of when courts have are engaged with highly political
questions to jump over the legal form in the legal reasoning that is there and straight into a political contestation about with a whether
courts should be there or be whether we agree with the outcome and actually pay some close attention in the course of our conversations today
to actually whether we think or we don't think that the law the courts could be claiming to be sticking to the law in these circumstances,
or whether there were other considerations that were informing the conduct.
So to start then by introducing our first panel starting from over on the far left, which is and that is the speak.
In that order, we have Professor David Clardy from the University of Pretoria,
who is one of the world's most greatest experts on this because he's argued a series of these cases,
as well as being a international law scholar, if I might add.
You argue both on behalf of South Africa and on behalf of Jordan in relation to the
cases in the African Union on behalf of the African Union and the African Union.
Thank you. And then next to him, we have Evelyn Asilo from the University of Stress in Nairobi, the University of Nairobi.
I beg your pardon, University of Nairobi. And he has written on this topic and who did her doctorate on this topic and is going to talk to us
particularly about thinking about the Rome Statute from the perspective of Africa and African politics.
And then we have Professor Kennedy,
who is from the Blavatnik School of Government here in Oxford and who has also written forthrightly, I think, in this area.
We going to start with Deira, and I think it will be fine if you just speak from there,
I think the microphones will be working and we'll have each of them.
But if you prefer to Samuels to welcome each of them will speak.
We might give the panel an opportunity to respond to one another because I know that there's some disagreements on the pipeline.
They probably would like to do that before we open it to the floor. Thank you.
So thank you very much. One of the interesting things about this debate and these judgements that we're
going to talk about is that I think that and I agree on about 90 percent.
But we disagree on 10 percent, but that 10 percent is probably the most critical point.
That tells you something about statistics, I guess.
So so I've been asked to give a background to the discussion and then very briefly lay out my view, and it's very difficult to do that in 15 minutes.
But I think I found a way that I can do it in 15 minutes.
I'm going to start off by just describing what I think the legal question in all of these cases is.
And then having done that, I'm going to describe what, in my view, are the legal rules that are implicated by this legal question.
And then I would move on to look at the jurisprudence of the ICC and very quickly
see how this jurisprudence or these different cases have answered this question,
or at least have justified the question. Maybe I can say at the beginning in all cases that.
Have been decided so far before the ICC. The ICC has found that there is indeed a duty to arrest.
The reasons have been different, so the legal question, as Kate mentioned,
is whether or not there is a duty under international law on a party to the Rome Statute to arrest
and surrender a sitting head of a non-party state who is under an arrest warrant from the ICC.
That's basically how I would summarise the legal question.
The legal rules that are implicated by this, and I think there's about four legal rules that are implicated by this.
The first legal rule that's implicated by this is the customary international law rule that a sitting head of state enjoys.
What term immunity does the owner personae?
And this type of immunity applies to all acts whether the acts were done in a personal or private capacity or in an official capacity.
But for as long as an individual is a head of state and under general international law, such an individual has this type of immunity,
which means foreign states may not exercise jurisdiction over such an individual, and it's important to emphasise it is foreign states.
The second legal rule that is implicated by this is Article 27 of the Rome Statute and in particular, Article 27 paragraph two.
There is some role for the first paragraph, but I think the real issue is is really paragraph two,
which provides that immunity does not apply before the ICC.
The precise language in Article 27,
paragraph two is that immunity or any procedural rules shall not bar the court from exercising its jurisdiction over a person.
My interpretation of that, and this is my first disagreement with Dapple, is that this applies to any individual.
And so ordinarily the ICC would be entitled to exercise its jurisdiction over Omar al-Bashir.
Of course, we're talking about the time when he was head of state. Right?
Because it's it's the the relationship that's that's implicated in Article 27.
Paragraph two is a vertical relationship, one between the court itself, the ICC itself and the individual,
and it doesn't affect the horizontal relationship between states into see.
So that's the second rule. The third set of rules that are implicated by this legal question can be found in part nine of the Rome Statute,
which provide that state parties are under a duty to cooperate with the ICC, including a duty to arrest and surrender.
I pause here to note the obvious that obviously this particular rule,
the duty to arrest and surrender has the potential to be in conflict with the first rule
the customary international law rule that provides that an official or or I'm sorry,
a sitting head of state has immunity from foreign criminal jurisdiction.
I will also just say that as between state parties through a strange interpretative tool, that international lawyers accept a subsequent practise.
There isn't a conflict from my perspective,
because state parties have interpreted their obligations as essentially waiving as far as their relationships are concerned with each other.
This type of immunity, so if there had been in the Kenyatta case, for example, an arrest warrant,
then there would have been a duty to arrest because of this understanding within the club.
The fourth rule that is important and really the central rule is Article 98, which, by the way, also finds itself in part nine of the Rome Statute.
And essentially, it is what we accept what all of us, I think,
who have been engaged in this discussion except as the exception to the rule to cooperate.
It basically provides because obviously the ICC or at least a draughters of the Rome Statute,
were aware of this potential conflict between this duty to cooperate and these rules on immunity.
And so it provides that the ICC shall not proceed with a request to cooperate.
If that cooperation would lead a state party to violate its obligations under international law relating to immunity.
So this is generally the framework and these are the rules that are.
Now, if we stop here and go no further,
it means that we can answer our legal question by saying there is no duty to arrest a sitting head of state because of.
These particular rules, the custom international law rule, coupled with Article 98, now, of course, we know that the ICC, as I said,
have had several cases and in all of these cases have decided, notwithstanding Article 98, that there is in fact a duty to arrest.
And so the critical question is then what theory has been used to sort of shift this article 98 and to argue that notwithstanding Article 98,
there remains a duty to arrest the critical cases, which have quote unquote produced the theory to explain this.
The first one is Malawi and Chad. Malawi and Chad was in 2013 or 2011.
It's one of the two years DRC was in 2014, and the South Africa decision was in 2015 2016.
And of course, the Jordan decision is sort of the overarching one.
And I'll say a little bit about each one of them. I won't go into too much detail.
I'm sure we can have a discussion about the merits of the decisions and also the merits of my one liners,
response to the decisions in the question and answer session.
So I'll start with Malawi in Chad, which was the first one, and I've been very critical of it.
But in hindsight, I'm very forgiving because it was the first decision.
It was the first time that the ICC had to apply its mind to this legal question.
And then the court said, Hang on.
We have Article 27 in Article 27, it's clear that there is no immunity before international courts and that disposes of the matter.
So Mr al-Bashir does not have immunity. The problem, of course, with that type of reasoning is that it conflates immunity before international courts.
And the question of immunity from the jurisdiction of third states or of another
state seeking to exercise jurisdiction in order to bring you to the ICC,
which for me are two different questions. So the one is this vertical relationship between the individual and the ICC,
and the other one is implicated as a horizontal relationship between the states.
Needless to say, Malawi in Chad was widely criticised.
And in the next decision in the DRC case, the court had to find a new theory and enter what we all hear about the UN Security Council resolution 593.
So it was in the context of the DRC decision that the ICC first proposed a theory which is based on the fact that the
Bashir situation or the Bashir case emanates from a situation that is referred to the court by by the UN Security Council.
And the idea, of course, is that the UN Security Council or rather any obligations that flow from a UN Security Council resolution,
trump other obligations. And so immunity essentially falls away.
The argument the particular theory I shouldn't say argument because courts don't argue correct.
It is, it is everybody else, it argues. But the proposition from the court.
The theory that the court expounded is that if you look at the UN Security Council Resolution 593 and in particular its second paragraph,
which imposes an obligation on Sudan to cooperate, the effect of that is essentially to waive immunity so that Mr Bashir does not have immunity.
This was also, it seems very convincing, but it was not very convincing.
And I appeared as counsel for South Africa in the following case.
And essentially, the strategy that we adopted was we were going to show the very same court
that made the decision in the DRC that its reasoning simply doesn't suffice.
And so in arguments, essentially, we went through the rules of interpretation and showed that if you applied the rules of interpretation, in fact,
every rule of interpretation that you apply to UN Security Council Resolution 50
93 leads exactly to the opposite conclusion that was arrived at in the DRC case.
The court's response was essentially to say, Well, we will shift then from the DRC theory and move to a new theory.
And of course, this is a theory made famous by Dapo Akande in believe in 2009 that both was propounded.
This theory, which is also based on the UN Security Council resolution.
But I guess it's slightly more sophisticated.
It is not at the UN Security Council resolution waives immunity, but rather that the fact that there is a referral to the ICC,
regardless of the content of the resolution, has the effect of placing that state so in this case, Sudan in the position.
Vision of a state party so that that implicit waiver that I spoke about earlier begins to apply also to that state party,
I'm sorry to the situation country, which is now like a state party,
another way of putting it which, by the way, I mean, I think both ways are not right, but I prefer is to say,
well, the statute as a whole applies, so a referral means that the statute as a whole will apply.
I remain unconvinced of this argument, and I'm sure we will have a back and forth to save time.
I'll explain why I'm unconvinced in one line.
And it's simply that it is based on a fiction.
There is nothing in either the Security Council resolutions in question or or the the the the ICC statute that leads to this conclusion.
Let me just say that with respect to the South Africa decision,
that was one more theory because what we saw in the South Africa decision was we saw for the first time a minority opinion.
So one of the three judges went and provided a rather comprehensive separate opinion in which they criticised the Malawi and Chad view.
They criticise the DRC view, and then they criticised again, very strong language.
The majority view in the South Africa decision and they came up with a new theory or a different theory.
I shouldn't say these are new theories because they had been out there in the literature before, but they came with a different theory,
namely that because both South Africa and Sudan are party to the Genocide
Convention and genocide is one of the crimes that Mr Bashir had been charged with,
and the Genocide Convention waives immunity as between its parties.
There is no immunity in this horizontal relationship between South Africa and Sudan.
Of course, that is not true because the Genocide Convention does not waive immunity at all.
Let me just say a couple of things in closing,
because I think I have spoken on too long just a couple of things in closing about all of these decisions.
The first thing is that I think as it well, this is already clear.
I think as a legal matter,
all four theories are wrong and that the reality is that the correct answer to the legal question is that there is no duty to arrest.
That's the first point. The second point, my second closing point is that I think it's highly problematic.
The situation that we see, at least if you're an, I think,
an objective observer watching this seems like the court wants to find that there is a duty
to arrest and it's going to find that and subsequently find the legal reasons for why.
And it's for that reason every time it is shown why this particular theory doesn't work,
it simply moves on to a new theory and then a new theory and then a new theory.
In fact, I should say because I haven't said anything about the Jordan case, all that the Jordan case does is it basically says, Well,
we're reverting back to the Malawi and Chad case,
but we're making it a little more sophisticated by explaining exactly why Article 27 takes away immunity even on a horizontal level.
And then we're seeing for added measure that all the other theories are also fine.
But the main theory is this first one.
So my final final final point is that as much as I think that Jordan is wrong in its legal reasoning and so is Malawi and Chad,
I should say that I think the two UN Security Council based theories are not only wrong as a matter of law, but they're also politically dangerous.
And maybe this is relevant for the particular theme of this conference.
Why? Because under the UN Security Council resolution, all other heads of state are free game for the ICC.
But. Not those from either permanent members of the Security Council or or those that are allied to them, and I think that's deeply problematic.
If the idea is that everyone else is free game except the heads of state of of U.N. Security Council,
permanent members and the allies, because obviously they will block any referrals.
So I think that's deeply problematic. I'll stop there and then I'm sure we'll have a good discussion at the end.
Thanks to you. Well, you certainly wish to advertise for the for the controversy that will follow, and that's been really helpful.
So Ethan, you're going to talk about this from a slightly different perspective, from the perspective of the continent of Africa.
Thank you very much.
I must start by saying that our most privileged talking alongside the great scholars on African jurisprudence and international criminal law,
I'll be responding with the perspective of the African Union as a general observation on the principle that was established in the Jordan case.
From the African perspective, you find that the principal in Jordan is very problematic.
His professor has already observed. But why is it?
Why would we say that this principle is problematic from the African region's perspective?
There are three basic reasons or three key arguments that the EU has fronted towards
or against the principle that was established in the Jordan case and the first one.
We find it in the Malabo protocol, the reaction by the EU to adopt immunity close and that the Malabo protocol and the second one we find
in the various agreements and the resolutions adopted by African Assembly members of the Assembly,
where they argue that the ICC is biased towards African based situations.
And the other argument that we find from the EU is based on the issue of peace, the debate between peace versus justice.
Now I'll go through when each of these arguments and to see whether Africa have valid concerns against the Jordan principle,
of course, which may have started way back concerning the issue of immunity.
Why would the EU justify the argument that immunity as a customer of international criminal
law should apply to heads of state who have allegedly committed international crimes?
And when you look through the arguments being fronted by leaders from Africa,
you find that there are certain arguments or points they put forward that in many cases we tend to dismiss and,
you know, belittle them as embracing impunity. Yet in real sense, when you give it a critical consideration use,
you see the reasons as to why some of these statements are being made or some of these arguments are being made.
So to begin with, we have had the argument that an immunity is important for Africa.
We must have it within our legal framework. And one of the reasons is that, you know, the practicality of it.
How is it possible to enforce an arrest warrant for a sitting head of state who has been indicted by an international tribunal?
Looking at the Sudan situation, it becomes pretty obvious that it's almost impossible to effect an arrest of a sitting head of state.
And sometimes in that context, the court might find itself making an order that is in vain because it's almost
impossible for the court to effect these arrests since it has got no police state.
It relies on the goodwill of states in cooperating, and if it's from Africa, the states agree amongst themselves.
No, this is not for us. It becomes very difficult. Therefore, the practical reality is such that it's not easy to effect these kinds of arrests.
In Mosul, you find that this kind of leadership that is alleged to be perpetrating international
crimes is one that can compromise the democratic processes of these countries.
And therefore, in the end, you find yourself in a situation where there is no democratic space in a given
country because the head of state wants to hold on power to make sure that
they enjoy the privileges that come with enjoying this kind of power and it shoulder them eventually from prosecution by the international tribunals.
And therefore, when that, from a practical perspective, the immunity clause and from my perspective where I'm seated,
I think the immunity clause can be justified from these grounds and more so when you look at the issue of the need for leadership.
I'm just having an example in my head of the Kenyan situation,
where we had both the presidents and the deputy being indicted by an international tribunal.
And you want to think of yourself, you know, suppose both your president and deputy have arrested and taken to The Hague.
What will happen back at home? Does it mean that now we are left with the vacuum?
What about the realities of succession?
Is the ICC a real or aware of the kind of volatility that exists on the ground and the possibility that these are the
crimes that actually they want to fight might be perpetuated even at a more higher level in this kind of context?
So I think as much as the principal in Jordan was exposed by the International Tribunal, some of these principal.
And in a political context that is not realistic to the situation on the ground.
And when you look at African politics, for example,
it's reality that the political succession in African countries is very uncertain and many times prone to conflict.
And that may lead to perpetration of international crimes.
And therefore, you want to ask yourself if we are to enforce the principle in the Jordan on the African region and
insist on arresting and surrendering heads of state to the International Criminal Tribunal like the ICC?
Does it mean that the succession plans in these kinds of contexts will be safe for the citizens that we are seeking to protect?
Or will it be a continuous cycle of victimhood that we have dealt with this victimhood and now we want to create another and another and another?
Will it be a cycle of perpetration of international crimes? Or is the ICC aware that this kind of reality?
You can take victims to a more dangerous situation and therefore on the first issue of immunity,
I think for these few reasons would justify the need for immunity for heads of state,
not forgetting the reality that, of course, the victims need their right.
But you, you find the truth in the truth of that.
It is it does not make a bigger good to hit or hold or rather to arrest and surrender a head of state,
but it makes a bigger good to come up with mechanisms. Of perhaps getting them out of power and holding them responsible, or if this is not possible,
then waiting until the end when their power comes to an end, then we we hold them responsible.
But again, this has got its own challenges was you'll find heads of state holding on power for perpetuity until death do them part,
which is also a challenge and a reality.
Therefore, I think the principle of immunity is full of uncertainties and its own challenges, and we need to come up in my face, in my position.
I think we just need to be creative,
come up with a mechanism of removing heads of state who are implicated in international crimes from power and holding them accountable,
including accountability measures as well as prosecution.
Now, the second issue concerns the bias that the EU has argued against the International Criminal Court,
and this is mainly perpetuated through the UN Security Council.
I have argued elsewhere that actually for me, the UN Security Council is acumen of the African argument against the International Criminal Court.
When you look at the powers of the U.N. Security Council under the Rome Statute, you realise that of the EU,
the U.N. Security Council is actually the fulcrum when it comes to the role of the International Criminal Court.
The central role the UN Security Council plays has actually influenced to a greater extent, not just the principle in the Jordan case,
but again the reaction by the African Union towards its sentiments or its reluctance to cooperate with the International Criminal Court.
And this is mainly demonstrated through the UN Security Council's powers of referral and deferral.
When you look at the the referral powers of the UN Security Council in the way it's been practised,
you realise that the UN Security Council has been very reluctant to refer,
you know, either situations involving the Big Five who are the permanent members or the cronies to the Big five,
why it's become so easy to make referrals from the African states.
What are some of the examples when you look at the situations in the American forces atrocities in Iraq, for example?
Yeah. Think of the situation there and think about killings in Syria.
Yeah. Think about even the incidents in Guantanamo Bay, which the U.N. itself has acknowledged that international crimes have been committed.
Think of the Palestine and Israel attacks and counter attacks, even though there may be some jurisdictional challenges which they acknowledge.
But again, the reality is it took too long for the U.N. Security Council to act.
Of course, Palestine acceded, and we have seen the prosecutor doing something investigations.
But the U.N. Security Council has been totally reluctant to act in these situations that involve big powers while in the African region,
the U.N. Security Council has been prompt. Yeah, very prompt to act.
Even in situations where members are involving states that are not members of the Rome Statute, like the Sudan that we are discussing today.
Think of Libya. How long did it take for the U.N. Security Council to refer these situations and how long has it taken, if at all?
The U.N. Security Council will refer situations of similar occurrences from other regions.
So from the African standpoint, you you want to understand the arguments being made by the EU that there is some level of bias,
even though politically this may not come out clearly. But when you look beyond the political utterances,
you see that there is actually some truth in the arguments that are being made by
the EU and of the arguments on the referral powers of the U.N. Security Council,
as well as the deferral. We tried many times as a Kenyan nation through the EU to have our cases defined, yet no one seemed to listen to us.
But the US, you know, has got a pre-emptory deferral.
Yes, deferral, you know, before the U.N. Security Council, when you look at the resolutions adopted by the U.S. Security Council.
With regard to the U.S., the U.S. forces.
Yeah. You see, you know, they adopt the foreign powers even before these are probable, you know, possible kind of referral of such a nature.
But when we talk about Kenya, it becomes impossible. And we are not even put on the agenda of the U.N. Security Council.
And therefore, these are some of the grievances that make the EU think that Africa is being sidelined or marginalised from
the justice process within the International Criminal Court and that the arguments on peace versus justice.
Of course, I know there have been a lot of discourses around the issue of peace and justice.
But a you want to contextualise it within the issue of immunity and the relations of Africa and the International Criminal Court, you find that.
There's a lot of truth in what, for example.
Kenyan situation. You know, we were seeking a deferral. It might have looked like a political kind of public relation.
But the reality is that down on the ground there is a lot of tension.
You know, they've just been talking to my colleagues and asking them, How do you explain a situation where,
for example, someone is indicted before they become president, but a few months down the line, they become president?
It means that, of course, there are all those stories of rigging, you know?
But we also have some level of truth. I don't rule them out.
But you cannot rig from zero here. You have to rig from somewhere.
And this means that these are people who have a following, a huge national following and that is influential in the way in which,
you know, a decision by a political body like the International Criminal Court makes a decision that involves them.
So you find that in a situation like this, the danger of, you know, their sympathisers and, you know,
the members of the public who love this kind of person just blowing the situation out
of proportion and even escalating the violations that are being alleged is even worse.
And therefore, it's very important that the International Criminal Court is realistic to some
of these contextual situations that may not be seen from an outside eye.
And I think the situation is not very different from perhaps the experience in Libya and the experience in Sudan, for example, if at all, you know,
the you to arrest and surrender a head of state oblivious of the contextual tensions that
may not be a reality to someone who is just maybe discussing the issue from outside.
Normally in these fragile communities today, the Kenyan community and I think most of the African communities,
politics, anything small can trigger violence. And you know, you want to try as much as possible, not as much as we want to have accountability.
We are all for accountability, but we also must be realistic to the populations that are on the ground.
And we do not want to create additional victims to the already existing victims.
So some of these principles, I think it's important that they are realistic to our contexts in the various regions.
I think those are my few remarks on this in my overall response to the general principle
would be that we either retain the principle as enunciated customary international law.
But if we know it, we are not happy with it, then we can retain it with the limited modification, like what I mentioned,
just having mechanisms of removing heads of state from power before we prosecute,
but it's not possible to prosecute heads of state when they are still in power.
Thank you. Thanks very much, Evelyn, and definitely.
Thank you very much. Thank you to the point of our institute for inviting me, and it's it's a pleasure to speak on on the topic.
So maybe I should start by. I proposed to start by talking about specifically about the issue of immunities of heads of states with regard to the ICC.
And I'll respond to some of the things that the U.S. has said,
and then I will move on to talking about the relationship between Africa and the ICC more generally.
And then hopefully I'll pick up on some of the things that Evelyn has talked about.
Dear is right that on the immunity issue, he and I disagree on almost everything apart from the most important thing.
But actually, we do sorry. We agree. I meant to say I'm sorry, we agree on almost everything.
Apart from probably the most important thing,
which is what is the right theory on which to think about the immunities of heads of states vis a vis the ICC?
So first of all, I agree with theory as to what the question is. What's the question?
And I think the ICC has not always actually appreciated what the question is.
So the critical question is what talk about the immunities of heads of states that
are not parties to the Rome Statute from the exercise of jurisdiction by the ICC?
That's the sort of overall question. And it's important to emphasise here that it's the main controversies about states,
not parties, to the Rome Statute, because there's a tension here that.
This between the fact that the ICC is a treaty based court, so based on the Rome Statute,
on the one hand and on the other hand, the fact that the ICC can exercise jurisdiction over nationals of non parties,
either because the Security Council refers those nationals of non parties to the court,
or a situation which involves nationals of non parties to the court,
or because those nationals of non parties commits a crime on the territory of a party.
So there's that sort of tension that exists. Secondly, A. mentioned this as well.
This overall question that I've talked about really is two questions.
So there is the question of how the immunity issue plays out in the relationship between the court and the head of state,
or, to be more precise, the relationship between the court and the state of the head of state.
So that's one question, because the immunity is not the personal rights of the head of state,
it is the right of the state of which the person is his head.
So that's the vertical question that debate has talked about.
And then there's the horizontal question, which is how does this immunity issue play out in the relations between states?
So this is the question of whether or not a state, typically a state that's a party to the Rome Statute, can arrest the head of another state.
Typically, the state that is not a party to the Rome Statute when that state party has been asked to do so by by the ICC.
And again, the ICC appears not to have always appreciated the distinction between these two levels, the horizontal level and the vertical level.
Now do I talked about the four theories on which the ICC has held that President
Bashir could be arrested by a state that was requested by the ICC to to arrest him?
Typically a state party. I think I would actually add add a fifth.
So therefore that theory talks about, first of all, the theory that's based on just using Article 27 of the Rome Statute.
So that's the provision that he referred to, which has immunity shall not by the court from the exercise of its jurisdiction.
The second and the third were two variations of the theory that the Security Council resolution removes immunity,
and then the fourth was based on on the Genocide Convention, the fifth that I would add.
It's sort of related to the first, but really it's separate and was central actually in the Jordan Appeal and also in Malawi, Chad.
The fifth is the argument that under customary international law,
heads of states do not have immunity from the jurisdiction of international tribunals.
So I say it's allied to the first one, which is based on Article 27, because in a sense,
what it's saying is we have Article 27 to an Article 27 two is really no different from what customary international law says,
and this is particularly the customary international law argument is particularly important because,
as I mentioned, we are dealing with heads of states of non parties to the Rome Statute.
So advancing this theory is a way in which the court can say, Look,
we're actually not violating the rights of non parties to the Rome Statute because non parties to the Rome Statute do not
have this right to this right for the heads of states to be immune from the jurisdiction of international tribunals at all.
So there are five theories. I think now if you look at these five theories, you see that actually some of them are related to the vertical level,
the relationship between the tribunal and the head of state or between the tribunal and the state of which the person is ahead.
Others are actually related to the horizontal relationship.
So the article twenty seven two theory and the customary international law theory actually only really
tells you something about the relationship between the court and the and and the head of state.
They don't directly speak to the relationship between states.
They don't directly speak to the question of whether or not a state is entitled to arrest
the head of another state when that is done at the request of of an international tribunal.
And I will come back to this, that you would need to take a further step actually to be able to show that such a rule.
Such a rule exists, so Dewey has expressed his view that none of these theories is is correct,
and we're largely in agreement because I think that some of these theories are incorrect, but I also think that some of them are actually correct.
Let me start with the customary international law argument, because this is the one that has come to play a central role in the Jordan appeal.
So it was the one that was used in the Malawi Chad case, the first one that he refers to,
and it's the one that has now been resurrected in the Jordan appeal.
Now that argument or that theory,
so courts don't argue so that theory that under customary international law there is no
immunity before international tribunals is said to be based on a number of principles,
all of which I think are wrong.
So the first principle that it said to be based on is the fact that immunity derives from the idea of sovereign equality.
And so immunity is just about the relationship between states.
And so the appeals chamber essentially says that, well,
this is not a case which falls within this realm of sovereign equality because it's not about it's not about,
you know, being arrested, even though in the end it is about being arrested by another state.
But they start by actually saying international tribunals are different from the domestic courts of other states, and they're not.
It's not a case of of sovereign equality.
This is, in my view, obviously flawed because international tribunals are created by states they don't exist in and of themselves.
Right. Ultimately, the basis for the creation of international tribunals will come from from states.
Ultimately, even when that is done via the Security Council, it will still come from from an instrument that states have created.
So if states cannot individually exercise jurisdiction over the heads of states of other states,
it seems very strange to say that states can then collectively do this,
particularly when the ICC Appeals Chamber in the Jordan Appeal defines an international tribunal as a tribunal that is created by two or more states.
The suggestion being that two states could simply have created this tribunal and then
given that tribunal competence to exercise jurisdiction over the head of a third state,
a competence that neither of those states would have individually.
So that seems to me to be to be a flawed, a flawed argument.
The second argument that is made is sort of more technical legal,
one that's made to argue that there's no immunity under customary international law
before international tribunals is one that is said to be based on state practise.
So it says look at the statutes of the series of international courts and tribunals
and look at practise in relation to these international courts and tribunals.
The instruments of these international courts and tribunals will typically provide that there is no immunity.
Well, there are two problems, I think, with that argument. The first problem that arises with that argument is that actually many of the provisions
that they point to are provisions that don't actually technically deal with immunity.
They are provisions that technically deal with the official capacity defence.
So a provision that says that the fact that a person is acting in an official capacity,
including as head of state, shall not mean that the person is not responsible.
So the equivalent of Article twenty seven one of the Rome Statute.
So technically, they're actually not exactly about immunity, because that's about a substantive defence, not so much about a procedural immunity.
The second problem, in my view,
the bigger problem with that argument based on practise is that all of those instruments that they point to and in all of those cases,
those instruments are binding on the relevant heads of state or rather binding on the state of the relevant heads of state.
So they are either parties to it or they are otherwise binding. For example, through Security Council resolutions,
those instruments do not tell you anything about the position of a state or a head of state that is not bound by the instrument.
And that is precisely the question that arose before the ICC.
The question is not whether or not parties to the Rome Statute have had their immunity removed.
The question is whether a non-party to the Rome Statute, whether the immunity of the head of that party has been removed.
So I, in my view, do not think that this state practise is actually apposite in relation to the precise question that we are dealing with.
The other difficulty that arises with this argument about customary international law and international tribunals is that even if it were correct,
all it would establish is that at the vertical level, in other words,
in the relationship between the court and the state concerned there is no immunity.
It doesn't tell us anything about the next question,
which is whether or not a state can arrest the head of another state at the request of the International Court or Tribunal.
So what's the starting point in relation to that question? The starting point is one which is unanimously agreed.
I don't think there's any authority that contradicts this, that heads of states are immune from the jurisdiction of foreign states and are inviolable.
In other words, they cannot be arrested when they are in a foreign state, even when they are accused of international crimes.
And I speak of serving heads of state.
So this is the immunity Russia and was certainly really spoke about when he was talking about the four rules that play.
The very first one is one which is universally acknowledged that even when they are accused of international crimes,
serving heads of state are immune from the jurisdiction of other states, including from arrest by other states.
So then the question is how do we get to a situation whereby we depart from that, from that rule?
Now, saying that the foreign head of state is not immune from the jurisdiction of
an international tribunal doesn't necessarily get us there because you would
have to establish a different rule of customary international law that says that when a state is acting at the request of an international tribunal,
the ordinary rule of immunity. Actually, persona does not apply, and the court cites not a single instance of practise,
not a single statement, nothing that supports that second rule.
The only way in which they seem to get at that second rule is a very curious statement in, they repeated a few times in the Jordan appeal.
They say that the law does not allow to be done by the back door, something that the law does not condone to be done by it.
Let me get it correct. The law does not easily condone to be done by the back door, something that cannot be done by the front door.
I mean, I looked at that. It was very difficult for me to understand what that means.
But I suppose what it means is that if the law is trying to achieve a particular type of result,
it doesn't easily allow you to sort of get away from from that result.
It's a very curious statement to make in the context of of what we're talking about, because remember,
the starting point is that states cannot exercise criminal jurisdiction over the heads of state of another state.
The court has then said, Well, they can't do it, but if they create an international tribunal, that international tribunal can do it.
And if that international tribunal then requests the states themselves to arrest, now it's OK for the states to arrest.
And if we're thinking about doing something by the back door which are not allowed to do by the front door,
I can't actually think of a better example than than that.
But this is somehow used to justify it the other way around to say that because the international tribunal can exercise jurisdiction, therefore,
states can also now exercise jurisdiction and you're not immune from the jurisdiction of of those states,
but not a single instance of practise is cited. And when we think about how immunity works.
Again, I think that practise shows that this is not the right way to think about it.
Immunity is immunity from a given jurisdiction, and it does not affect the exercise of other jurisdictions.
So let's think about diplomatic immunity. The ambassador of France to the UK is immune from the criminal jurisdiction of the UK.
Yeah, well, the ambassador of France to the UK is not immune from the criminal jurisdiction of Germany,
not immune from the criminal jurisdiction of Italy unless they are passing through.
Now imagine that the UK wishes to exercise.
So imagine that Germany wishes to exercise jurisdiction over the Ambassador of France to the UK.
He or she has no immunity in Germany, and then they request the UK to arrest.
And then the UK courts were to say, Well, because you have no immunity in Germany or no immunity in Italy.
Therefore, it's OK for us to arrest you here.
Those two things are independent. The fact that the ambassador has no immunity from the criminal jurisdiction of Germany or
Italy says nothing about whether or not the UK can arrest that ambassador in this country.
And that's effectively what the ICC Appeals Chamber has done to say because you have no immunity before the International Tribunal.
If the International Tribunal requests an arrest, then the immunity you have in the domestic sphere is also is also gone.
So logically, I actually don't think that that that argument works OK, so I don't think that that theory works.
I also don't think that relying on Article Twenty Seven agree with Derek.
Also think that that works in and of itself for the simple reason that,
in my view, you construe the statute in the light of customary international law.
And here, because we're talking about the immunities of nonpartisan, nothing in the statute in and of itself remove the immunity of of a non-party.
So the statute cannot itself do do that.
Do that work? So what's the theory that I think is is correct?
So I do think that what Deary referred to as the second Security Council theory is, is the right one, which is to say that.
When the Security Council refers a situation to the ICC,
what that referral effectively does is that it places the state in respect of
which the referral has been made is in the same position as a state party.
How does that occur? Well, it occurs because under the statute and we see this in article one of the statute under the statute,
the jurisdiction of the court shall be exercised in accordance with the statute.
So the argument is very simple. Direct calls it a fiction.
I call it an implication. And I think that's where the that's where the divide begins.
I think that it is necessarily implied that when the Security Council refers the situation,
the statute as a whole becomes binding because the court can only exercise its jurisdiction in accordance with the statute.
And so whatever provisions that you have in the statute, including Article 27, including Article 38, become applicable to that situation as a whole.
If and I think theory and I agree on this, if it is the case that as between parties to the Rome Statute,
there is no immunity at that horizontal level.
And I think we share that view that there is no immunity at that horizontal level as between parties and that derives from the Rome Statute that,
in my view, that is also applicable to a state in respect of which the referral operates.
Now this is something on which I have to say I've changed my mind a bit over over the years because like you,
dear, I also thought that the first DRC, the DRC decision, the first Security Council theory was incorrect.
But now actually that I think about it a bit more. I think there's something to it.
I do think it's largely incorrect, but I think there's something to it.
And it's this how does one identify the state with regard to which the referral operates?
Assuming you accept my view that the states with respect to which a referral is made is bound by the statute Sudan,
in our case, assuming you accept that the question that then arises is how do you identify that state?
How do you know what the relevant state is? And I think that you know what?
That relevant state is clearly in a case where the Security Council says that this state has an obligation to cooperate.
So that's the element that I would take from that DRC decision,
that it is that language in the Security Council resolution that imposes the obligation to cooperate, that helps you to identify the state.
That is bound by the statute of smoking for too long, but let me just wrap up by saying,
I also think that the Genocide Convention theory is is correct,
but we can maybe take that up in in Q&A just to talk about some of the things that, well,
I'm trying to work out what I should leave to Q&A and what I should talk about now.
So let me just talk about some of the things that Evelyn has talked about to wrap up to say simply,
that I share her view that there are three areas where the relationship between Africa and the ICC have been complicated.
One is the immunity question. The second is the question of bias or the allegation of bias that the ICC is biased against Africa.
And the third is this issue of, we can call it peace and justice, but I think it's maybe a little bit broader than that.
The issue of when is it appropriate for the ICC to prosecute given local conditions and when is it not?
And I'll just talk about that and then ended there there.
I think we need to think very carefully about what legal mechanisms exist within the
statute for channelling or constraining the exercise of discretion by the court.
So we need to think about how actually can be the either the prosecutor or the courts
discretion be channelled and then number of of mechanisms that we can look at.
One is the deferral mechanism, which I think you mentioned.
The other one is the notion of interest of justice under Article 53, which is coming up now in the Afghanistan appeal.
You know,
and I think that it may well be that actually some of the answers to the questions that Evelyn raises are to be found in those other mechanisms.
Ethical independence, thank you, dear. Do you want to respond to this stage?
Yes, you can. And I'll try to be quick because I know that we still have to get to the question and answer session.
I mean, I have a lot of things to say in response to that. I won't say all of them.
I will just say this that for me, the first and the fifth theory, I actually the same.
And in fact, if you look at the Malawi and Chad decisions,
the court basically says this custom international rule is reflected in Article twenty seven,
and that's why I don't make the distinction between them.
I also didn't say which I think I should emphasise that I actually think Malawi in Chad and to that effect or to that extent.
Also, the Jordan appeal is correct in that respect to say that heads of state do not enjoy immunity before international courts.
My issue is really with the question of the horizontal application.
And for me, the reason is quite apart from the practise,
and I absolutely take the point that Dapo makes about the flaws with respect to practise is that one hasn't shown a positive customary
international law rule that heads of state or any other official does in fact enjoy immunity before International Criminal Tribunal.
So there is a rule that there is an immunity before foreign jurisdiction.
There is an explicit rule which can be demonstrated by practise in very much the same way that you show the existence of a rule.
You have to show the content of the rule using the very same criteria.
There is simply no practise showing immunity before international courts, and I think for me, that's sort of the critical point there is, by the way.
One example I do think that example is wrong,
but there is one example of a state of state practise in the form of a domestic case in which it was asserted that under customary international law,
there is no immunity for crimes. And so this is even broader than this proposition from Malawi in Chad.
And of course, it's the the Kenya case, the Kenya Court of Appeal case of February 2018.
But the main thing that I want to respond to with respect to the obvious point, of course, is his veil in defence of the Doppler theory of 2009.
You notice the DAPL makes a jump, right? So he tells us with Article one says, and it's absolutely correct.
And then somewhere there, he slips in. So it is binding in the party, but that language does not appear.
The the statute in Article one does see that the court shall apply the statute.
Right. But it applies all of the statute, and the study does not just Article 27.
The statute includes also Article 98, right? So it applies all of the statute and so that that for me, doesn't take the matter very far.
In fact, if you think about why there is a you and I agree,
I think that there is this implicit waiver between states parties is because of a subsequent practise by the states parties.
But the subsequent practise cannot include this new state party that didn't ratify.
So in fact, it wouldn't be subsequent practise within the meaning of Article 31 three of the
Vienna Convention because it doesn't include all the parties to the treaty. So I think there is a deep problem with this theory.
The idea that that that a that the U.N. Security Council Resolution 593 in paragraph two helps you identify who the party is for me.
In fact, paragraph two of U.N. Security Council resolution to actually point in completely the
opposite direction if the Security Council felt it necessary to say that there is a duty
on Sudan and clearly the the members of the Security Council did not believe that Sudan
was a state body because otherwise they wouldn't have to say that it would be obvious.
How do you identify which party everybody knows where Darfur is?
You don't have to say there is a duty to cooperate to identify Sudan.
All you have to say is the situation that is referred is the situation in Darfur.
And clearly that's Sudan. So that that argument is not convincing.
It's in fact quite similar to the argument that the Jordan Peele makes with respect to Article 27.
If you read it, you are very, I think, detailed in the description of the flaws in the Jordan appeal.
And you're right, what the Jordan effect?
An appeal does give some authority for its proposition, the authority that it gives is the separate opinion of the very same judges that are writing.
That's the only authority that you find. And in fact, the argument is that Article 27 and I quote here must be read to me.
It seems to me that the argument on U.N. Security Council resolution and Sudan
becoming like a party is exactly the same article one must be read to mean.
But it doesn't say that,
and it doesn't mean that all it means is that the court has jurisdiction in the same way that the court can have jurisdiction over other persons.
But this idea that Sudan, a state that is not a party,
suddenly becomes a party with with nothing to point to accept that the court can exercise jurisdiction for me is not convincing.
So let me just say a couple of things in response to what Evelyn said.
I'm often seen, at least in my own country, as a defender of immunity.
I'm actually not a defender of immunity, by the way. So I don't think that as a normative point, immunity is justified.
What I am a defender of is I'm a defender of the methodology of international law.
And quite clearly, as far as the methodology of international law is concerned, the fact of the matter is that as international law stands,
wherever you look beat, whether you look at the work of the International Court of Justice,
the work of the International Commission, if you listen to the statements by states in response to the work of the commission,
it is quite clear that there simply are no exceptions if states want to create exceptions.
Then, as a makers of international law, they should follow the methodology and create those exceptions, and I will be the first one to applaud them.
But the fact of the matter is that as things stand right now, there are no exceptions.
So all that I defend is not the position. The normative position.
All that I defend is the is the question of the question of the methodology of international law.
I had a few other things to say, which I think I will just say one more thing concerning the Kenya cases and
the the fact that the Security Council did not consider the request of Kenya.
Again, I would push back a little bit and say that that's a little bit unfair.
I think if the only state that can really complain about the Security Council not considering the request related to it is Sudan,
because there has never will.
I mean, there was one sort of consideration when South Africa and Libya proposed something and, you know, it was discussed quietly somewhere.
But Kenya had two opportunities. I mean, there were there was actually a formal vote, right?
So I think that the Security Council did in fact, consider that particular case.
And what's interesting is that nobody voted against, if I remember correctly. Right.
So you had you just didn't have a number of yes vote, but everybody else abstained.
So there was at least some sympathy for that. And I have a theory about that as well, which has been cleared for another day.
What we've done or would you want it?
It's I think this has been a fascinating conversation and it really has been that deep engagement with kind of legal doctrine around these issues,
which we had hoped it would be. So we're extremely grateful to our panel for and for illuminating these issues.
And as so often happens, disagreement really does illuminate, I think.
And so would you join me in thanking them for a really interesting engagement, you?