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Good morning, everybody. Sorry, we starting a little bit late, but Nick Father,

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who was going to do an introduction as most unfortunately had to attend a funeral this morning, so he's not here.

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So my name again is Katie Regan and the director of the Planetary Institute.

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And we're really fortunate this morning to have three speakers who are deeply

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embedded in the work of the International Criminal Court to talk about it.

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Before we turn to that, I wanted to reflect for a minute or two on the topic of the conference.

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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,

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one from the Kenyan Supreme Court and one to the U.K. Supreme Court to talk about.

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All of them raise all of them concern, quite contested political issues.

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In retrospect,

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perhaps if we were planning this conference now today we might have selected Linda Cherry from the UK Supreme Court rather than the international.

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But I have little doubt that Mother Cherry will emerge as part of our conversation when we are talking about it.

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But why should we think that this is an important topic for lawyers to talk about?

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And I think our thinking was that we wanted to raise the question to be discussed across the three systems of how

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we should think about what courts should be doing when they're faced with highly politically contested issues.

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We know from the research that's been done that courts are increasingly being presented with these questions in jurisdictions across the world.

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There are many academics who believe that many of them here at this university,

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but all over the world who think courts shouldn't be deciding these questions, and there are many politicians who feel the same.

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Leaving aside that debate for a moment, it seems to me that we're presented with the fact of this happening,

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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

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should be doing and what they are doing when they're facing these questions.

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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,

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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,

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which is emphatically engaged with these kind of questions all the time.

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And there's very little room for any debate that the court should be engaged with and given the exclusive language of the Constitution.

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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,

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courts don't always do that. And political scientists certainly don't think that.

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In fact, the legal for many political scientists don't think the legal form has any kind of rigidity or rigour.

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That means sticking to the law means anything at all.

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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.

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Cases that get put on appeal very often get on appeal because there is some room for debate about outcome.

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And but to the extent that courts, I think in these areas are dealing with very contended questions,

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it seems to me that the the only claim they have to being a court are not a political

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decision maker is that they pay serious respect to what the content of the law is.

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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,

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I think is a great panel to be thinking about these questions because we there is a serious legal debate about

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some of the questions that arose around the ambiguity to arrest sitting heads of state under the Rome Statute.

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And there is an interesting question about the circumstances in which the ICC can

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and should refer a state that is in breach of its obligations under the ICC,

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under the Rome Statute, to the to the UK Supreme Court.

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But I think the same questions arise in the other two cases, too.

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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

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questions to jump over the legal form in the legal reasoning that is there and straight into a political contestation about with a whether

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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

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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,

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or whether there were other considerations that were informing the conduct.

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So to start then by introducing our first panel starting from over on the far left, which is and that is the speak.

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In that order, we have Professor David Clardy from the University of Pretoria,

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who is one of the world's most greatest experts on this because he's argued a series of these cases,

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as well as being a international law scholar, if I might add.

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You argue both on behalf of South Africa and on behalf of Jordan in relation to the

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cases in the African Union on behalf of the African Union and the African Union.

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Thank you. And then next to him, we have Evelyn Asilo from the University of Stress in Nairobi, the University of Nairobi.

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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

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particularly about thinking about the Rome Statute from the perspective of Africa and African politics.

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And then we have Professor Kennedy,

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who is from the Blavatnik School of Government here in Oxford and who has also written forthrightly, I think, in this area.

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We going to start with Deira, and I think it will be fine if you just speak from there,

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I think the microphones will be working and we'll have each of them.

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But if you prefer to Samuels to welcome each of them will speak.

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We might give the panel an opportunity to respond to one another because I know that there's some disagreements on the pipeline.

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They probably would like to do that before we open it to the floor. Thank you.

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So thank you very much. One of the interesting things about this debate and these judgements that we're

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going to talk about is that I think that and I agree on about 90 percent.

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But we disagree on 10 percent, but that 10 percent is probably the most critical point.

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That tells you something about statistics, I guess.

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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.

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But I think I found a way that I can do it in 15 minutes.

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I'm going to start off by just describing what I think the legal question in all of these cases is.

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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.

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And then I would move on to look at the jurisprudence of the ICC and very quickly

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see how this jurisprudence or these different cases have answered this question,

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or at least have justified the question. Maybe I can say at the beginning in all cases that.

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Have been decided so far before the ICC. The ICC has found that there is indeed a duty to arrest.

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The reasons have been different, so the legal question, as Kate mentioned,

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is whether or not there is a duty under international law on a party to the Rome Statute to arrest

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and surrender a sitting head of a non-party state who is under an arrest warrant from the ICC.

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That's basically how I would summarise the legal question.

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The legal rules that are implicated by this, and I think there's about four legal rules that are implicated by this.

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The first legal rule that's implicated by this is the customary international law rule that a sitting head of state enjoys.

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What term immunity does the owner personae?

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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.

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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,

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which means foreign states may not exercise jurisdiction over such an individual, and it's important to emphasise it is foreign states.

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The second legal rule that is implicated by this is Article 27 of the Rome Statute and in particular, Article 27 paragraph two.

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There is some role for the first paragraph, but I think the real issue is is really paragraph two,

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which provides that immunity does not apply before the ICC.

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The precise language in Article 27,

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paragraph two is that immunity or any procedural rules shall not bar the court from exercising its jurisdiction over a person.

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My interpretation of that, and this is my first disagreement with Dapple, is that this applies to any individual.

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And so ordinarily the ICC would be entitled to exercise its jurisdiction over Omar al-Bashir.

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Of course, we're talking about the time when he was head of state. Right?

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Because it's it's the the relationship that's that's implicated in Article 27.

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Paragraph two is a vertical relationship, one between the court itself, the ICC itself and the individual,

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and it doesn't affect the horizontal relationship between states into see.

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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,

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which provide that state parties are under a duty to cooperate with the ICC, including a duty to arrest and surrender.

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I pause here to note the obvious that obviously this particular rule,

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the duty to arrest and surrender has the potential to be in conflict with the first rule

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the customary international law rule that provides that an official or or I'm sorry,

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a sitting head of state has immunity from foreign criminal jurisdiction.

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I will also just say that as between state parties through a strange interpretative tool, that international lawyers accept a subsequent practise.

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There isn't a conflict from my perspective,

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because state parties have interpreted their obligations as essentially waiving as far as their relationships are concerned with each other.

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This type of immunity, so if there had been in the Kenyatta case, for example, an arrest warrant,

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then there would have been a duty to arrest because of this understanding within the club.

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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.

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And essentially, it is what we accept what all of us, I think,

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who have been engaged in this discussion except as the exception to the rule to cooperate.

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It basically provides because obviously the ICC or at least a draughters of the Rome Statute,

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were aware of this potential conflict between this duty to cooperate and these rules on immunity.

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And so it provides that the ICC shall not proceed with a request to cooperate.

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If that cooperation would lead a state party to violate its obligations under international law relating to immunity.

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So this is generally the framework and these are the rules that are.

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Now, if we stop here and go no further,

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it means that we can answer our legal question by saying there is no duty to arrest a sitting head of state because of.

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These particular rules, the custom international law rule, coupled with Article 98, now, of course, we know that the ICC, as I said,

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have had several cases and in all of these cases have decided, notwithstanding Article 98, that there is in fact a duty to arrest.

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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,

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there remains a duty to arrest the critical cases, which have quote unquote produced the theory to explain this.

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The first one is Malawi and Chad. Malawi and Chad was in 2013 or 2011.

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It's one of the two years DRC was in 2014, and the South Africa decision was in 2015 2016.

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And of course, the Jordan decision is sort of the overarching one.

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And I'll say a little bit about each one of them. I won't go into too much detail.

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I'm sure we can have a discussion about the merits of the decisions and also the merits of my one liners,

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response to the decisions in the question and answer session.

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So I'll start with Malawi in Chad, which was the first one, and I've been very critical of it.

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But in hindsight, I'm very forgiving because it was the first decision.

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It was the first time that the ICC had to apply its mind to this legal question.

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And then the court said, Hang on.

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We have Article 27 in Article 27, it's clear that there is no immunity before international courts and that disposes of the matter.

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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.

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And the question of immunity from the jurisdiction of third states or of another

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state seeking to exercise jurisdiction in order to bring you to the ICC,

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which for me are two different questions. So the one is this vertical relationship between the individual and the ICC,

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and the other one is implicated as a horizontal relationship between the states.

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Needless to say, Malawi in Chad was widely criticised.

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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.

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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

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Bashir situation or the Bashir case emanates from a situation that is referred to the court by by the UN Security Council.

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And the idea, of course, is that the UN Security Council or rather any obligations that flow from a UN Security Council resolution,

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trump other obligations. And so immunity essentially falls away.

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The argument the particular theory I shouldn't say argument because courts don't argue correct.

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It is, it is everybody else, it argues. But the proposition from the court.

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The theory that the court expounded is that if you look at the UN Security Council Resolution 593 and in particular its second paragraph,

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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.

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This was also, it seems very convincing, but it was not very convincing.

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And I appeared as counsel for South Africa in the following case.

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And essentially, the strategy that we adopted was we were going to show the very same court

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that made the decision in the DRC that its reasoning simply doesn't suffice.

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And so in arguments, essentially, we went through the rules of interpretation and showed that if you applied the rules of interpretation, in fact,

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every rule of interpretation that you apply to UN Security Council Resolution 50

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93 leads exactly to the opposite conclusion that was arrived at in the DRC case.

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The court's response was essentially to say, Well, we will shift then from the DRC theory and move to a new theory.

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And of course, this is a theory made famous by Dapo Akande in believe in 2009 that both was propounded.

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This theory, which is also based on the UN Security Council resolution.

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But I guess it's slightly more sophisticated.

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It is not at the UN Security Council resolution waives immunity, but rather that the fact that there is a referral to the ICC,

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regardless of the content of the resolution, has the effect of placing that state so in this case, Sudan in the position.

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Vision of a state party so that that implicit waiver that I spoke about earlier begins to apply also to that state party,

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I'm sorry to the situation country, which is now like a state party,

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another way of putting it which, by the way, I mean, I think both ways are not right, but I prefer is to say,

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well, the statute as a whole applies, so a referral means that the statute as a whole will apply.

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I remain unconvinced of this argument, and I'm sure we will have a back and forth to save time.

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I'll explain why I'm unconvinced in one line.

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And it's simply that it is based on a fiction.

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There is nothing in either the Security Council resolutions in question or or the the the the ICC statute that leads to this conclusion.

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Let me just say that with respect to the South Africa decision,

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that was one more theory because what we saw in the South Africa decision was we saw for the first time a minority opinion.

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So one of the three judges went and provided a rather comprehensive separate opinion in which they criticised the Malawi and Chad view.

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They criticise the DRC view, and then they criticised again, very strong language.

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The majority view in the South Africa decision and they came up with a new theory or a different theory.

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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,

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namely that because both South Africa and Sudan are party to the Genocide

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Convention and genocide is one of the crimes that Mr Bashir had been charged with,

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and the Genocide Convention waives immunity as between its parties.

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There is no immunity in this horizontal relationship between South Africa and Sudan.

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Of course, that is not true because the Genocide Convention does not waive immunity at all.

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Let me just say a couple of things in closing,

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because I think I have spoken on too long just a couple of things in closing about all of these decisions.

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The first thing is that I think as it well, this is already clear.

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I think as a legal matter,

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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.

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That's the first point. The second point, my second closing point is that I think it's highly problematic.

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The situation that we see, at least if you're an, I think,

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an objective observer watching this seems like the court wants to find that there is a duty

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to arrest and it's going to find that and subsequently find the legal reasons for why.

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And it's for that reason every time it is shown why this particular theory doesn't work,

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it simply moves on to a new theory and then a new theory and then a new theory.

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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,

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we're reverting back to the Malawi and Chad case,

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but we're making it a little more sophisticated by explaining exactly why Article 27 takes away immunity even on a horizontal level.

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And then we're seeing for added measure that all the other theories are also fine.

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But the main theory is this first one.

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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,

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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.

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And maybe this is relevant for the particular theme of this conference.

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Why? Because under the UN Security Council resolution, all other heads of state are free game for the ICC.

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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.

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If the idea is that everyone else is free game except the heads of state of of U.N. Security Council,

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permanent members and the allies, because obviously they will block any referrals.

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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.

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Thanks to you. Well, you certainly wish to advertise for the for the controversy that will follow, and that's been really helpful.

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So Ethan, you're going to talk about this from a slightly different perspective, from the perspective of the continent of Africa.

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Thank you very much.

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I must start by saying that our most privileged talking alongside the great scholars on African jurisprudence and international criminal law,

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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.

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From the African perspective, you find that the principal in Jordan is very problematic.

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His professor has already observed. But why is it?

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Why would we say that this principle is problematic from the African region's perspective?

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There are three basic reasons or three key arguments that the EU has fronted towards

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or against the principle that was established in the Jordan case and the first one.

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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

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in the various agreements and the resolutions adopted by African Assembly members of the Assembly,

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where they argue that the ICC is biased towards African based situations.

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And the other argument that we find from the EU is based on the issue of peace, the debate between peace versus justice.

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Now I'll go through when each of these arguments and to see whether Africa have valid concerns against the Jordan principle,

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of course, which may have started way back concerning the issue of immunity.

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Why would the EU justify the argument that immunity as a customer of international criminal

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law should apply to heads of state who have allegedly committed international crimes?

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And when you look through the arguments being fronted by leaders from Africa,

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you find that there are certain arguments or points they put forward that in many cases we tend to dismiss and,

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you know, belittle them as embracing impunity. Yet in real sense, when you give it a critical consideration use,

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you see the reasons as to why some of these statements are being made or some of these arguments are being made.

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So to begin with, we have had the argument that an immunity is important for Africa.

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We must have it within our legal framework. And one of the reasons is that, you know, the practicality of it.

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How is it possible to enforce an arrest warrant for a sitting head of state who has been indicted by an international tribunal?

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Looking at the Sudan situation, it becomes pretty obvious that it's almost impossible to effect an arrest of a sitting head of state.

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And sometimes in that context, the court might find itself making an order that is in vain because it's almost

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impossible for the court to effect these arrests since it has got no police state.

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It relies on the goodwill of states in cooperating, and if it's from Africa, the states agree amongst themselves.

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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.

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In Mosul, you find that this kind of leadership that is alleged to be perpetrating international

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crimes is one that can compromise the democratic processes of these countries.

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And therefore, in the end, you find yourself in a situation where there is no democratic space in a given

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country because the head of state wants to hold on power to make sure that

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they enjoy the privileges that come with enjoying this kind of power and it shoulder them eventually from prosecution by the international tribunals.

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And therefore, when that, from a practical perspective, the immunity clause and from my perspective where I'm seated,

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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.

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I'm just having an example in my head of the Kenyan situation,

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where we had both the presidents and the deputy being indicted by an international tribunal.

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And you want to think of yourself, you know, suppose both your president and deputy have arrested and taken to The Hague.

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What will happen back at home? Does it mean that now we are left with the vacuum?

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What about the realities of succession?

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Is the ICC a real or aware of the kind of volatility that exists on the ground and the possibility that these are the

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crimes that actually they want to fight might be perpetuated even at a more higher level in this kind of context?

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So I think as much as the principal in Jordan was exposed by the International Tribunal, some of these principal.

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And in a political context that is not realistic to the situation on the ground.

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And when you look at African politics, for example,

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it's reality that the political succession in African countries is very uncertain and many times prone to conflict.

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And that may lead to perpetration of international crimes.

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And therefore, you want to ask yourself if we are to enforce the principle in the Jordan on the African region and

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insist on arresting and surrendering heads of state to the International Criminal Tribunal like the ICC?

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Does it mean that the succession plans in these kinds of contexts will be safe for the citizens that we are seeking to protect?

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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?

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Will it be a cycle of perpetration of international crimes? Or is the ICC aware that this kind of reality?

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You can take victims to a more dangerous situation and therefore on the first issue of immunity,

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I think for these few reasons would justify the need for immunity for heads of state,

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not forgetting the reality that, of course, the victims need their right.

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But you, you find the truth in the truth of that.

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It is it does not make a bigger good to hit or hold or rather to arrest and surrender a head of state,

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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,

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then waiting until the end when their power comes to an end, then we we hold them responsible.

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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,

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which is also a challenge and a reality.

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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.

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I think we just need to be creative,

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come up with a mechanism of removing heads of state who are implicated in international crimes from power and holding them accountable,

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including accountability measures as well as prosecution.

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Now, the second issue concerns the bias that the EU has argued against the International Criminal Court,

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and this is mainly perpetuated through the UN Security Council.

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I have argued elsewhere that actually for me, the UN Security Council is acumen of the African argument against the International Criminal Court.

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When you look at the powers of the U.N. Security Council under the Rome Statute, you realise that of the EU,

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the U.N. Security Council is actually the fulcrum when it comes to the role of the International Criminal Court.

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The central role the UN Security Council plays has actually influenced to a greater extent, not just the principle in the Jordan case,

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but again the reaction by the African Union towards its sentiments or its reluctance to cooperate with the International Criminal Court.

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And this is mainly demonstrated through the UN Security Council's powers of referral and deferral.

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When you look at the the referral powers of the UN Security Council in the way it's been practised,

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you realise that the UN Security Council has been very reluctant to refer,

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you know, either situations involving the Big Five who are the permanent members or the cronies to the Big five,

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why it's become so easy to make referrals from the African states.

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What are some of the examples when you look at the situations in the American forces atrocities in Iraq, for example?

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Yeah. Think of the situation there and think about killings in Syria.

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Yeah. Think about even the incidents in Guantanamo Bay, which the U.N. itself has acknowledged that international crimes have been committed.

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Think of the Palestine and Israel attacks and counter attacks, even though there may be some jurisdictional challenges which they acknowledge.

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But again, the reality is it took too long for the U.N. Security Council to act.

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Of course, Palestine acceded, and we have seen the prosecutor doing something investigations.

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But the U.N. Security Council has been totally reluctant to act in these situations that involve big powers while in the African region,

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the U.N. Security Council has been prompt. Yeah, very prompt to act.

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Even in situations where members are involving states that are not members of the Rome Statute, like the Sudan that we are discussing today.

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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?

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The U.N. Security Council will refer situations of similar occurrences from other regions.

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So from the African standpoint, you you want to understand the arguments being made by the EU that there is some level of bias,

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even though politically this may not come out clearly. But when you look beyond the political utterances,

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you see that there is actually some truth in the arguments that are being made by

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the EU and of the arguments on the referral powers of the U.N. Security Council,

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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.

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But the US, you know, has got a pre-emptory deferral.

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Yes, deferral, you know, before the U.N. Security Council, when you look at the resolutions adopted by the U.S. Security Council.

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With regard to the U.S., the U.S. forces.

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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.

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But when we talk about Kenya, it becomes impossible. And we are not even put on the agenda of the U.N. Security Council.

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And therefore, these are some of the grievances that make the EU think that Africa is being sidelined or marginalised from

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the justice process within the International Criminal Court and that the arguments on peace versus justice.

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Of course, I know there have been a lot of discourses around the issue of peace and justice.

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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.

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There's a lot of truth in what, for example.

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Kenyan situation. You know, we were seeking a deferral. It might have looked like a political kind of public relation.

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But the reality is that down on the ground there is a lot of tension.

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You know, they've just been talking to my colleagues and asking them, How do you explain a situation where,

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for example, someone is indicted before they become president, but a few months down the line, they become president?

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It means that, of course, there are all those stories of rigging, you know?

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But we also have some level of truth. I don't rule them out.

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But you cannot rig from zero here. You have to rig from somewhere.

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And this means that these are people who have a following, a huge national following and that is influential in the way in which,

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you know, a decision by a political body like the International Criminal Court makes a decision that involves them.

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So you find that in a situation like this, the danger of, you know, their sympathisers and, you know,

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the members of the public who love this kind of person just blowing the situation out

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of proportion and even escalating the violations that are being alleged is even worse.

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And therefore, it's very important that the International Criminal Court is realistic to some

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of these contextual situations that may not be seen from an outside eye.

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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,

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the you to arrest and surrender a head of state oblivious of the contextual tensions that

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may not be a reality to someone who is just maybe discussing the issue from outside.

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Normally in these fragile communities today, the Kenyan community and I think most of the African communities,

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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.

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We are all for accountability, but we also must be realistic to the populations that are on the ground.

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And we do not want to create additional victims to the already existing victims.

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So some of these principles, I think it's important that they are realistic to our contexts in the various regions.

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I think those are my few remarks on this in my overall response to the general principle

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would be that we either retain the principle as enunciated customary international law.

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But if we know it, we are not happy with it, then we can retain it with the limited modification, like what I mentioned,

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just having mechanisms of removing heads of state from power before we prosecute,

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but it's not possible to prosecute heads of state when they are still in power.

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Thank you. Thanks very much, Evelyn, and definitely.

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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.

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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.

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And I'll respond to some of the things that the U.S. has said,

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and then I will move on to talking about the relationship between Africa and the ICC more generally.

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And then hopefully I'll pick up on some of the things that Evelyn has talked about.

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Dear is right that on the immunity issue, he and I disagree on almost everything apart from the most important thing.

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But actually, we do sorry. We agree. I meant to say I'm sorry, we agree on almost everything.

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Apart from probably the most important thing,

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which is what is the right theory on which to think about the immunities of heads of states vis a vis the ICC?

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So first of all, I agree with theory as to what the question is. What's the question?

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And I think the ICC has not always actually appreciated what the question is.

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So the critical question is what talk about the immunities of heads of states that

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are not parties to the Rome Statute from the exercise of jurisdiction by the ICC?

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That's the sort of overall question. And it's important to emphasise here that it's the main controversies about states,

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not parties, to the Rome Statute, because there's a tension here that.

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This between the fact that the ICC is a treaty based court, so based on the Rome Statute,

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on the one hand and on the other hand, the fact that the ICC can exercise jurisdiction over nationals of non parties,

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either because the Security Council refers those nationals of non parties to the court,

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or a situation which involves nationals of non parties to the court,

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or because those nationals of non parties commits a crime on the territory of a party.

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So there's that sort of tension that exists. Secondly, A. mentioned this as well.

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This overall question that I've talked about really is two questions.

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So there is the question of how the immunity issue plays out in the relationship between the court and the head of state,

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or, to be more precise, the relationship between the court and the state of the head of state.

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So that's one question, because the immunity is not the personal rights of the head of state,

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it is the right of the state of which the person is his head.

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So that's the vertical question that debate has talked about.

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And then there's the horizontal question, which is how does this immunity issue play out in the relations between states?

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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.

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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.

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And again, the ICC appears not to have always appreciated the distinction between these two levels, the horizontal level and the vertical level.

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Now do I talked about the four theories on which the ICC has held that President

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Bashir could be arrested by a state that was requested by the ICC to to arrest him?

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Typically a state party. I think I would actually add add a fifth.

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So therefore that theory talks about, first of all, the theory that's based on just using Article 27 of the Rome Statute.

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So that's the provision that he referred to, which has immunity shall not by the court from the exercise of its jurisdiction.

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The second and the third were two variations of the theory that the Security Council resolution removes immunity,

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and then the fourth was based on on the Genocide Convention, the fifth that I would add.

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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.

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The fifth is the argument that under customary international law,

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heads of states do not have immunity from the jurisdiction of international tribunals.

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So I say it's allied to the first one, which is based on Article 27, because in a sense,

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what it's saying is we have Article 27 to an Article 27 two is really no different from what customary international law says,

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and this is particularly the customary international law argument is particularly important because,

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as I mentioned, we are dealing with heads of states of non parties to the Rome Statute.

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So advancing this theory is a way in which the court can say, Look,

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we're actually not violating the rights of non parties to the Rome Statute because non parties to the Rome Statute do not

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have this right to this right for the heads of states to be immune from the jurisdiction of international tribunals at all.

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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,

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the relationship between the tribunal and the head of state or between the tribunal and the state of which the person is ahead.

386
00:45:35,890 --> 00:45:39,610
Others are actually related to the horizontal relationship.

387
00:45:39,610 --> 00:45:45,400
So the article twenty seven two theory and the customary international law theory actually only really

388
00:45:45,400 --> 00:45:52,870
tells you something about the relationship between the court and the and and the head of state.

389
00:45:52,870 --> 00:45:57,250
They don't directly speak to the relationship between states.

390
00:45:57,250 --> 00:46:03,550
They don't directly speak to the question of whether or not a state is entitled to arrest

391
00:46:03,550 --> 00:46:09,790
the head of another state when that is done at the request of of an international tribunal.

392
00:46:09,790 --> 00:46:17,060
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.

393
00:46:17,060 --> 00:46:25,130
Such a rule exists, so Dewey has expressed his view that none of these theories is is correct,

394
00:46:25,130 --> 00:46:35,900
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.

395
00:46:35,900 --> 00:46:44,090
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.

396
00:46:44,090 --> 00:46:49,280
So it was the one that was used in the Malawi Chad case, the first one that he refers to,

397
00:46:49,280 --> 00:46:53,870
and it's the one that has now been resurrected in the Jordan appeal.

398
00:46:53,870 --> 00:46:57,530
Now that argument or that theory,

399
00:46:57,530 --> 00:47:02,990
so courts don't argue so that theory that under customary international law there is no

400
00:47:02,990 --> 00:47:10,730
immunity before international tribunals is said to be based on a number of principles,

401
00:47:10,730 --> 00:47:13,850
all of which I think are wrong.

402
00:47:13,850 --> 00:47:21,980
So the first principle that it said to be based on is the fact that immunity derives from the idea of sovereign equality.

403
00:47:21,980 --> 00:47:26,870
And so immunity is just about the relationship between states.

404
00:47:26,870 --> 00:47:31,520
And so the appeals chamber essentially says that, well,

405
00:47:31,520 --> 00:47:41,000
this is not a case which falls within this realm of sovereign equality because it's not about it's not about,

406
00:47:41,000 --> 00:47:44,690
you know, being arrested, even though in the end it is about being arrested by another state.

407
00:47:44,690 --> 00:47:53,150
But they start by actually saying international tribunals are different from the domestic courts of other states, and they're not.

408
00:47:53,150 --> 00:47:56,660
It's not a case of of sovereign equality.

409
00:47:56,660 --> 00:48:08,270
This is, in my view, obviously flawed because international tribunals are created by states they don't exist in and of themselves.

410
00:48:08,270 --> 00:48:14,900
Right. Ultimately, the basis for the creation of international tribunals will come from from states.

411
00:48:14,900 --> 00:48:25,070
Ultimately, even when that is done via the Security Council, it will still come from from an instrument that states have created.

412
00:48:25,070 --> 00:48:35,720
So if states cannot individually exercise jurisdiction over the heads of states of other states,

413
00:48:35,720 --> 00:48:40,880
it seems very strange to say that states can then collectively do this,

414
00:48:40,880 --> 00:48:51,380
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.

415
00:48:51,380 --> 00:48:57,080
The suggestion being that two states could simply have created this tribunal and then

416
00:48:57,080 --> 00:49:03,320
given that tribunal competence to exercise jurisdiction over the head of a third state,

417
00:49:03,320 --> 00:49:08,830
a competence that neither of those states would have individually.

418
00:49:08,830 --> 00:49:15,400
So that seems to me to be to be a flawed, a flawed argument.

419
00:49:15,400 --> 00:49:19,120
The second argument that is made is sort of more technical legal,

420
00:49:19,120 --> 00:49:24,100
one that's made to argue that there's no immunity under customary international law

421
00:49:24,100 --> 00:49:28,510
before international tribunals is one that is said to be based on state practise.

422
00:49:28,510 --> 00:49:35,470
So it says look at the statutes of the series of international courts and tribunals

423
00:49:35,470 --> 00:49:39,490
and look at practise in relation to these international courts and tribunals.

424
00:49:39,490 --> 00:49:48,190
The instruments of these international courts and tribunals will typically provide that there is no immunity.

425
00:49:48,190 --> 00:49:55,450
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

426
00:49:55,450 --> 00:50:01,180
that they point to are provisions that don't actually technically deal with immunity.

427
00:50:01,180 --> 00:50:05,830
They are provisions that technically deal with the official capacity defence.

428
00:50:05,830 --> 00:50:10,870
So a provision that says that the fact that a person is acting in an official capacity,

429
00:50:10,870 --> 00:50:16,540
including as head of state, shall not mean that the person is not responsible.

430
00:50:16,540 --> 00:50:20,320
So the equivalent of Article twenty seven one of the Rome Statute.

431
00:50:20,320 --> 00:50:29,530
So technically, they're actually not exactly about immunity, because that's about a substantive defence, not so much about a procedural immunity.

432
00:50:29,530 --> 00:50:31,630
The second problem, in my view,

433
00:50:31,630 --> 00:50:41,200
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,

434
00:50:41,200 --> 00:50:52,120
those instruments are binding on the relevant heads of state or rather binding on the state of the relevant heads of state.

435
00:50:52,120 --> 00:50:58,570
So they are either parties to it or they are otherwise binding. For example, through Security Council resolutions,

436
00:50:58,570 --> 00:51:07,930
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.

437
00:51:07,930 --> 00:51:12,490
And that is precisely the question that arose before the ICC.

438
00:51:12,490 --> 00:51:17,470
The question is not whether or not parties to the Rome Statute have had their immunity removed.

439
00:51:17,470 --> 00:51:25,570
The question is whether a non-party to the Rome Statute, whether the immunity of the head of that party has been removed.

440
00:51:25,570 --> 00:51:36,440
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.

441
00:51:36,440 --> 00:51:46,040
The other difficulty that arises with this argument about customary international law and international tribunals is that even if it were correct,

442
00:51:46,040 --> 00:51:50,840
all it would establish is that at the vertical level, in other words,

443
00:51:50,840 --> 00:51:58,160
in the relationship between the court and the state concerned there is no immunity.

444
00:51:58,160 --> 00:52:02,120
It doesn't tell us anything about the next question,

445
00:52:02,120 --> 00:52:12,410
which is whether or not a state can arrest the head of another state at the request of the International Court or Tribunal.

446
00:52:12,410 --> 00:52:19,250
So what's the starting point in relation to that question? The starting point is one which is unanimously agreed.

447
00:52:19,250 --> 00:52:30,110
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.

448
00:52:30,110 --> 00:52:38,210
In other words, they cannot be arrested when they are in a foreign state, even when they are accused of international crimes.

449
00:52:38,210 --> 00:52:40,370
And I speak of serving heads of state.

450
00:52:40,370 --> 00:52:46,410
So this is the immunity Russia and was certainly really spoke about when he was talking about the four rules that play.

451
00:52:46,410 --> 00:52:54,200
The very first one is one which is universally acknowledged that even when they are accused of international crimes,

452
00:52:54,200 --> 00:53:02,270
serving heads of state are immune from the jurisdiction of other states, including from arrest by other states.

453
00:53:02,270 --> 00:53:09,830
So then the question is how do we get to a situation whereby we depart from that, from that rule?

454
00:53:09,830 --> 00:53:15,860
Now, saying that the foreign head of state is not immune from the jurisdiction of

455
00:53:15,860 --> 00:53:20,450
an international tribunal doesn't necessarily get us there because you would

456
00:53:20,450 --> 00:53:30,680
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,

457
00:53:30,680 --> 00:53:40,790
the ordinary rule of immunity. Actually, persona does not apply, and the court cites not a single instance of practise,

458
00:53:40,790 --> 00:53:47,050
not a single statement, nothing that supports that second rule.

459
00:53:47,050 --> 00:53:56,050
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.

460
00:53:56,050 --> 00:54:07,540
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.

461
00:54:07,540 --> 00:54:17,110
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.

462
00:54:17,110 --> 00:54:22,120
I mean, I looked at that. It was very difficult for me to understand what that means.

463
00:54:22,120 --> 00:54:30,220
But I suppose what it means is that if the law is trying to achieve a particular type of result,

464
00:54:30,220 --> 00:54:36,100
it doesn't easily allow you to sort of get away from from that result.

465
00:54:36,100 --> 00:54:42,880
It's a very curious statement to make in the context of of what we're talking about, because remember,

466
00:54:42,880 --> 00:54:50,980
the starting point is that states cannot exercise criminal jurisdiction over the heads of state of another state.

467
00:54:50,980 --> 00:54:59,620
The court has then said, Well, they can't do it, but if they create an international tribunal, that international tribunal can do it.

468
00:54:59,620 --> 00:55:10,170
And if that international tribunal then requests the states themselves to arrest, now it's OK for the states to arrest.

469
00:55:10,170 --> 00:55:16,170
And if we're thinking about doing something by the back door which are not allowed to do by the front door,

470
00:55:16,170 --> 00:55:20,940
I can't actually think of a better example than than that.

471
00:55:20,940 --> 00:55:30,090
But this is somehow used to justify it the other way around to say that because the international tribunal can exercise jurisdiction, therefore,

472
00:55:30,090 --> 00:55:38,430
states can also now exercise jurisdiction and you're not immune from the jurisdiction of of those states,

473
00:55:38,430 --> 00:55:45,950
but not a single instance of practise is cited. And when we think about how immunity works.

474
00:55:45,950 --> 00:55:50,330
Again, I think that practise shows that this is not the right way to think about it.

475
00:55:50,330 --> 00:55:57,920
Immunity is immunity from a given jurisdiction, and it does not affect the exercise of other jurisdictions.

476
00:55:57,920 --> 00:56:07,400
So let's think about diplomatic immunity. The ambassador of France to the UK is immune from the criminal jurisdiction of the UK.

477
00:56:07,400 --> 00:56:13,160
Yeah, well, the ambassador of France to the UK is not immune from the criminal jurisdiction of Germany,

478
00:56:13,160 --> 00:56:19,370
not immune from the criminal jurisdiction of Italy unless they are passing through.

479
00:56:19,370 --> 00:56:24,650
Now imagine that the UK wishes to exercise.

480
00:56:24,650 --> 00:56:32,720
So imagine that Germany wishes to exercise jurisdiction over the Ambassador of France to the UK.

481
00:56:32,720 --> 00:56:38,240
He or she has no immunity in Germany, and then they request the UK to arrest.

482
00:56:38,240 --> 00:56:45,260
And then the UK courts were to say, Well, because you have no immunity in Germany or no immunity in Italy.

483
00:56:45,260 --> 00:56:49,190
Therefore, it's OK for us to arrest you here.

484
00:56:49,190 --> 00:56:55,970
Those two things are independent. The fact that the ambassador has no immunity from the criminal jurisdiction of Germany or

485
00:56:55,970 --> 00:57:03,920
Italy says nothing about whether or not the UK can arrest that ambassador in this country.

486
00:57:03,920 --> 00:57:14,240
And that's effectively what the ICC Appeals Chamber has done to say because you have no immunity before the International Tribunal.

487
00:57:14,240 --> 00:57:23,000
If the International Tribunal requests an arrest, then the immunity you have in the domestic sphere is also is also gone.

488
00:57:23,000 --> 00:57:31,610
So logically, I actually don't think that that that argument works OK, so I don't think that that theory works.

489
00:57:31,610 --> 00:57:35,510
I also don't think that relying on Article Twenty Seven agree with Derek.

490
00:57:35,510 --> 00:57:40,130
Also think that that works in and of itself for the simple reason that,

491
00:57:40,130 --> 00:57:44,960
in my view, you construe the statute in the light of customary international law.

492
00:57:44,960 --> 00:57:56,720
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.

493
00:57:56,720 --> 00:58:00,860
So the statute cannot itself do do that.

494
00:58:00,860 --> 00:58:04,820
Do that work? So what's the theory that I think is is correct?

495
00:58:04,820 --> 00:58:16,850
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.

496
00:58:16,850 --> 00:58:23,570
When the Security Council refers a situation to the ICC,

497
00:58:23,570 --> 00:58:31,880
what that referral effectively does is that it places the state in respect of

498
00:58:31,880 --> 00:58:37,850
which the referral has been made is in the same position as a state party.

499
00:58:37,850 --> 00:58:46,280
How does that occur? Well, it occurs because under the statute and we see this in article one of the statute under the statute,

500
00:58:46,280 --> 00:58:53,270
the jurisdiction of the court shall be exercised in accordance with the statute.

501
00:58:53,270 --> 00:58:56,810
So the argument is very simple. Direct calls it a fiction.

502
00:58:56,810 --> 00:59:02,960
I call it an implication. And I think that's where the that's where the divide begins.

503
00:59:02,960 --> 00:59:09,380
I think that it is necessarily implied that when the Security Council refers the situation,

504
00:59:09,380 --> 00:59:19,910
the statute as a whole becomes binding because the court can only exercise its jurisdiction in accordance with the statute.

505
00:59:19,910 --> 00:59:32,150
And so whatever provisions that you have in the statute, including Article 27, including Article 38, become applicable to that situation as a whole.

506
00:59:32,150 --> 00:59:40,790
If and I think theory and I agree on this, if it is the case that as between parties to the Rome Statute,

507
00:59:40,790 --> 00:59:45,050
there is no immunity at that horizontal level.

508
00:59:45,050 --> 00:59:54,230
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,

509
00:59:54,230 --> 01:00:02,210
in my view, that is also applicable to a state in respect of which the referral operates.

510
01:00:02,210 --> 01:00:09,260
Now this is something on which I have to say I've changed my mind a bit over over the years because like you,

511
01:00:09,260 --> 01:00:17,480
dear, I also thought that the first DRC, the DRC decision, the first Security Council theory was incorrect.

512
01:00:17,480 --> 01:00:22,010
But now actually that I think about it a bit more. I think there's something to it.

513
01:00:22,010 --> 01:00:25,940
I do think it's largely incorrect, but I think there's something to it.

514
01:00:25,940 --> 01:00:33,050
And it's this how does one identify the state with regard to which the referral operates?

515
01:00:33,050 --> 01:00:41,870
Assuming you accept my view that the states with respect to which a referral is made is bound by the statute Sudan,

516
01:00:41,870 --> 01:00:49,370
in our case, assuming you accept that the question that then arises is how do you identify that state?

517
01:00:49,370 --> 01:00:54,710
How do you know what the relevant state is? And I think that you know what?

518
01:00:54,710 --> 01:01:03,560
That relevant state is clearly in a case where the Security Council says that this state has an obligation to cooperate.

519
01:01:03,560 --> 01:01:07,010
So that's the element that I would take from that DRC decision,

520
01:01:07,010 --> 01:01:17,680
that it is that language in the Security Council resolution that imposes the obligation to cooperate, that helps you to identify the state.

521
01:01:17,680 --> 01:01:25,390
That is bound by the statute of smoking for too long, but let me just wrap up by saying,

522
01:01:25,390 --> 01:01:28,930
I also think that the Genocide Convention theory is is correct,

523
01:01:28,930 --> 01:01:36,730
but we can maybe take that up in in Q&A just to talk about some of the things that, well,

524
01:01:36,730 --> 01:01:41,650
I'm trying to work out what I should leave to Q&A and what I should talk about now.

525
01:01:41,650 --> 01:01:47,110
So let me just talk about some of the things that Evelyn has talked about to wrap up to say simply,

526
01:01:47,110 --> 01:01:54,520
that I share her view that there are three areas where the relationship between Africa and the ICC have been complicated.

527
01:01:54,520 --> 01:02:04,210
One is the immunity question. The second is the question of bias or the allegation of bias that the ICC is biased against Africa.

528
01:02:04,210 --> 01:02:11,410
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.

529
01:02:11,410 --> 01:02:18,610
The issue of when is it appropriate for the ICC to prosecute given local conditions and when is it not?

530
01:02:18,610 --> 01:02:22,330
And I'll just talk about that and then ended there there.

531
01:02:22,330 --> 01:02:29,320
I think we need to think very carefully about what legal mechanisms exist within the

532
01:02:29,320 --> 01:02:39,100
statute for channelling or constraining the exercise of discretion by the court.

533
01:02:39,100 --> 01:02:47,320
So we need to think about how actually can be the either the prosecutor or the courts

534
01:02:47,320 --> 01:02:51,880
discretion be channelled and then number of of mechanisms that we can look at.

535
01:02:51,880 --> 01:02:55,690
One is the deferral mechanism, which I think you mentioned.

536
01:02:55,690 --> 01:03:05,700
The other one is the notion of interest of justice under Article 53, which is coming up now in the Afghanistan appeal.

537
01:03:05,700 --> 01:03:06,000
You know,

538
01:03:06,000 --> 01:03:18,090
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.

539
01:03:18,090 --> 01:03:23,190
Ethical independence, thank you, dear. Do you want to respond to this stage?

540
01:03:23,190 --> 01:03:32,400
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.

541
01:03:32,400 --> 01:03:37,200
I mean, I have a lot of things to say in response to that. I won't say all of them.

542
01:03:37,200 --> 01:03:44,490
I will just say this that for me, the first and the fifth theory, I actually the same.

543
01:03:44,490 --> 01:03:49,260
And in fact, if you look at the Malawi and Chad decisions,

544
01:03:49,260 --> 01:03:54,630
the court basically says this custom international rule is reflected in Article twenty seven,

545
01:03:54,630 --> 01:03:57,450
and that's why I don't make the distinction between them.

546
01:03:57,450 --> 01:04:07,950
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.

547
01:04:07,950 --> 01:04:18,990
Also, the Jordan appeal is correct in that respect to say that heads of state do not enjoy immunity before international courts.

548
01:04:18,990 --> 01:04:25,410
My issue is really with the question of the horizontal application.

549
01:04:25,410 --> 01:04:29,040
And for me, the reason is quite apart from the practise,

550
01:04:29,040 --> 01:04:41,520
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

551
01:04:41,520 --> 01:04:51,030
international law rule that heads of state or any other official does in fact enjoy immunity before International Criminal Tribunal.

552
01:04:51,030 --> 01:04:58,470
So there is a rule that there is an immunity before foreign jurisdiction.

553
01:04:58,470 --> 01:05:05,580
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.

554
01:05:05,580 --> 01:05:11,430
You have to show the content of the rule using the very same criteria.

555
01:05:11,430 --> 01:05:24,630
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.

556
01:05:24,630 --> 01:05:26,700
One example I do think that example is wrong,

557
01:05:26,700 --> 01:05:40,860
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,

558
01:05:40,860 --> 01:05:46,650
there is no immunity for crimes. And so this is even broader than this proposition from Malawi in Chad.

559
01:05:46,650 --> 01:05:54,420
And of course, it's the the Kenya case, the Kenya Court of Appeal case of February 2018.

560
01:05:54,420 --> 01:06:05,280
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.

561
01:06:05,280 --> 01:06:12,360
You notice the DAPL makes a jump, right? So he tells us with Article one says, and it's absolutely correct.

562
01:06:12,360 --> 01:06:18,180
And then somewhere there, he slips in. So it is binding in the party, but that language does not appear.

563
01:06:18,180 --> 01:06:23,330
The the statute in Article one does see that the court shall apply the statute.

564
01:06:23,330 --> 01:06:29,130
Right. But it applies all of the statute, and the study does not just Article 27.

565
01:06:29,130 --> 01:06:38,130
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.

566
01:06:38,130 --> 01:06:41,970
In fact, if you think about why there is a you and I agree,

567
01:06:41,970 --> 01:06:51,090
I think that there is this implicit waiver between states parties is because of a subsequent practise by the states parties.

568
01:06:51,090 --> 01:06:57,870
But the subsequent practise cannot include this new state party that didn't ratify.

569
01:06:57,870 --> 01:07:03,060
So in fact, it wouldn't be subsequent practise within the meaning of Article 31 three of the

570
01:07:03,060 --> 01:07:12,030
Vienna Convention because it doesn't include all the parties to the treaty. So I think there is a deep problem with this theory.

571
01:07:12,030 --> 01:07:22,140
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.

572
01:07:22,140 --> 01:07:28,500
In fact, paragraph two of U.N. Security Council resolution to actually point in completely the

573
01:07:28,500 --> 01:07:35,220
opposite direction if the Security Council felt it necessary to say that there is a duty

574
01:07:35,220 --> 01:07:39,060
on Sudan and clearly the the members of the Security Council did not believe that Sudan

575
01:07:39,060 --> 01:07:43,290
was a state body because otherwise they wouldn't have to say that it would be obvious.

576
01:07:43,290 --> 01:07:46,590
How do you identify which party everybody knows where Darfur is?

577
01:07:46,590 --> 01:07:51,180
You don't have to say there is a duty to cooperate to identify Sudan.

578
01:07:51,180 --> 01:07:55,230
All you have to say is the situation that is referred is the situation in Darfur.

579
01:07:55,230 --> 01:07:59,430
And clearly that's Sudan. So that that argument is not convincing.

580
01:07:59,430 --> 01:08:05,730
It's in fact quite similar to the argument that the Jordan Peele makes with respect to Article 27.

581
01:08:05,730 --> 01:08:14,130
If you read it, you are very, I think, detailed in the description of the flaws in the Jordan appeal.

582
01:08:14,130 --> 01:08:17,350
And you're right, what the Jordan effect?

583
01:08:17,350 --> 01:08:25,660
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.

584
01:08:25,660 --> 01:08:34,210
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.

585
01:08:34,210 --> 01:08:38,320
It seems to me that the argument on U.N. Security Council resolution and Sudan

586
01:08:38,320 --> 01:08:44,230
becoming like a party is exactly the same article one must be read to mean.

587
01:08:44,230 --> 01:08:45,850
But it doesn't say that,

588
01:08:45,850 --> 01:08:54,310
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.

589
01:08:54,310 --> 01:08:57,370
But this idea that Sudan, a state that is not a party,

590
01:08:57,370 --> 01:09:04,600
suddenly becomes a party with with nothing to point to accept that the court can exercise jurisdiction for me is not convincing.

591
01:09:04,600 --> 01:09:10,360
So let me just say a couple of things in response to what Evelyn said.

592
01:09:10,360 --> 01:09:14,920
I'm often seen, at least in my own country, as a defender of immunity.

593
01:09:14,920 --> 01:09:21,880
I'm actually not a defender of immunity, by the way. So I don't think that as a normative point, immunity is justified.

594
01:09:21,880 --> 01:09:27,490
What I am a defender of is I'm a defender of the methodology of international law.

595
01:09:27,490 --> 01:09:33,820
And quite clearly, as far as the methodology of international law is concerned, the fact of the matter is that as international law stands,

596
01:09:33,820 --> 01:09:40,150
wherever you look beat, whether you look at the work of the International Court of Justice,

597
01:09:40,150 --> 01:09:47,290
the work of the International Commission, if you listen to the statements by states in response to the work of the commission,

598
01:09:47,290 --> 01:09:55,000
it is quite clear that there simply are no exceptions if states want to create exceptions.

599
01:09:55,000 --> 01:10:01,930
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.

600
01:10:01,930 --> 01:10:06,440
But the fact of the matter is that as things stand right now, there are no exceptions.

601
01:10:06,440 --> 01:10:09,700
So all that I defend is not the position. The normative position.

602
01:10:09,700 --> 01:10:17,920
All that I defend is the is the question of the question of the methodology of international law.

603
01:10:17,920 --> 01:10:28,650
I had a few other things to say, which I think I will just say one more thing concerning the Kenya cases and

604
01:10:28,650 --> 01:10:38,410
the the fact that the Security Council did not consider the request of Kenya.

605
01:10:38,410 --> 01:10:41,780
Again, I would push back a little bit and say that that's a little bit unfair.

606
01:10:41,780 --> 01:10:49,180
I think if the only state that can really complain about the Security Council not considering the request related to it is Sudan,

607
01:10:49,180 --> 01:10:50,530
because there has never will.

608
01:10:50,530 --> 01:10:58,090
I mean, there was one sort of consideration when South Africa and Libya proposed something and, you know, it was discussed quietly somewhere.

609
01:10:58,090 --> 01:11:02,780
But Kenya had two opportunities. I mean, there were there was actually a formal vote, right?

610
01:11:02,780 --> 01:11:06,880
So I think that the Security Council did in fact, consider that particular case.

611
01:11:06,880 --> 01:11:10,450
And what's interesting is that nobody voted against, if I remember correctly. Right.

612
01:11:10,450 --> 01:11:14,320
So you had you just didn't have a number of yes vote, but everybody else abstained.

613
01:11:14,320 --> 01:11:21,250
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.

614
01:11:21,250 --> 01:11:22,970
What we've done or would you want it?

615
01:11:22,970 --> 01:11:31,150
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,

616
01:11:31,150 --> 01:11:38,170
which we had hoped it would be. So we're extremely grateful to our panel for and for illuminating these issues.

617
01:11:38,170 --> 01:11:42,220
And as so often happens, disagreement really does illuminate, I think.

618
01:11:42,220 --> 01:11:50,645
And so would you join me in thanking them for a really interesting engagement, you?