Some Legal Issues Concerning the ICC-AU ‘Crisis’: A Reply to Abreha Z Mesele

Abreha Z. Mesele has written (ICC and African Union: Selective Justice?) an informative piece on the recently inflamed ICC-African Union altercation, or rather African Union’s ringing condemnations of the practice of ICC, calling it big powers instrument of ‘pummelling the weak ones’.  In this piece I would like to offer some of my views on the issue by responding to Abreha’s paper. Abreha has accomplished laying out the essential introductory ground-work, so I will refrain from any redundancy and delve straight into discussing the issues that I think are overlooked or misrepresented in the general discussion on the topic and in Abreha’s piece specifically.

I would like to discuss three important (loosely interrelated) points. First, I dispel the suggestion that the ICC is primarily funded by powerful states (read: the US) and to that extent serves as an instrument of their desires. Second, I will argue that powerful states would still be able to shield themselves from the ICC by using the powers of the Security Council, even if the Statute of the ICC had not bestowed upon the Security Council powers to defer cases from consideration by the ICC. Thirdly, I present two possible interpretations to resolve the apparent contradiction between article 27 (waiver of immunity) and article 98 (requirement of consent in waiving immunity) of the ICC Statute that Abreha pointed at. I will end my discussion with a rather pessimistic but practicable note (as opposed to the idealist but paralyzing suggestions we often hear) on the way forward regarding the ICC-AU ‘crisis’.

ICC Financing and Big-Power Instrumentality

Misperceptions about the financing of the ICC are one of the more important factors influencing attitudes toward the practice of the court. Contrary to widely held assumption (also subscribed to by Abreha), the ICC is not funded by ‘big/super powers’ (which is mainly a code word for ‘the US’), and to that extent the ICC is not an instrument at the disposal of the will of the US. The ICC is funded mainly by the regular contributions of all of its 122 member states, although one could say the bigger powers contribute more as their contribution follows what is called the ‘assessed contributions’ formula of the UN. The US in particular is not a party to the ICC Statute and therefore does not contribute to the court’s budget. There is a possibility for non-members to contribute to the funding of the ICC voluntarily, but the United States has never volunteered. In fact, a law in the United States expressly prohibits the government from making contributions to the ICC. The other circumstance the US would be said to cover the costs of the court is when the Security Council makes a referral to the ICC. In such cases, the UN itself covers the costs of the cases and therefore the US would indirectly bear a portion of the costs as a member of the UN. But such costs are incurred from the regular budget of the United Nations to which the United States and all other nations contribute in lump sum, and therefore no state wields particular dominance over the specific programmes that such general contributions accomplish. All member states of the ICC, including the big Western and other states, contribute to its meagre budget of around 100 million Euros a year. The biggest financial contributor to the ICC is in fact Japan, contributing not more than 20 per cent of the court’s annual budget; I guess that says it all about the relative insignificance of a financing-based critique of ‘big-power instrumentality’ against the ICC.

Big-Powers and the ICC: the Powers of the Security Council

The fact that big powers do not have financial leverage over the functioning of the ICC, however, does not mean that they do not have other strings to pull against the ICC. In particular, five powerful states – the US, UK, France, China, and Russia – have a convenient instrument in the Security Council to shield their citizens from the exercise of jurisdiction by the ICC. It is mostly pointed that article 16 of the ICC Statute, which gives the Security Council the power to defer cases from consideration by the court, is to blame for this eventuality of impunity before the ICC for the powerful few. But in fact, I argue, these states would have still been able to legally cripple the ICC in protection of their citizens even if the ICC Statute had not provided the deferral powers to the Security Council, or even if there was not any legal relationship between the two international bodies. It has to be remembered that as a derivative of article 103 of the UN Charter (which states the Charter is supreme than any other treaty), the Security Council has the authority to impose obligations on states, even if such obligation would contradict any other treaty obligation a state may have already assumed. For example, the Security Council could order all member states of the UN to refrain from arresting or surrendering citizens of the big powers to the ICC (of course more diplomatic wording would be used that obscures the beneficiaries of such protection, phrasings such as persons working under this or that ‘state building activity’ and what not; and of course the usual connection will be made with the need ‘to maintain international peace and security). When making such orders, the Security Council is interfering with the procedural aspects of the obligations states assume by ratifying the ICC Statute. In other words, such order has no effect on the substantive obligations contained in the ICC Statute, such as the prohibition of genocide or war crimes, which may have jus cogens characters and be binding above and beyond any other international rule. The only limitations to the broad powers of the Security Council is that it cannot lawfully make decisions that contradict states’ obligations of a jus cogens character or the principles and objectives of the United Nations. States procedural obligations in relation with the functioning of the ICC derive from the ICC Statute, and neither constitute obligations of jus cogens character nor embody the principles and objectives of the United Nations. This distinction between the procedural and substantive obligations deriving from the ICC Statute puts the Security Council in a convenient position to lawfully cripple the work of the ICC when it pleases: and so, states that wield influence on the functioning of the Security Council could as well use it for the purposes of shielding their citizens from the ICC, whether or not the right to make deferrals were given to the Security Council under article 16 of the ICC Statute.  

Reconciling Articles 27 and 98 of the ICC Statute

Another point that Abreha had pointed at briefly is the apparent contradiction between article 27 and article 98 of the ICC Statute. It appears that article 27 dismisses all  immunity and privileges when it states that ‘official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute’. Article 98, on the other hand, requires the ICC to first obtain the cooperation of a state before forwarding to such state a request of surrendering a suspect or offering general assistance, which ‘would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State.’ One way of going about these articles is to interpret that the two are dealing with two correlated but completely separate phenomenon; namely, article 27 deals with privileges that may exists in a vertical relationship between a state official and an international court, while article 98 deals with the privileges that may exist in a horizontal relationship between a state official and the courts (or other organs) of another state. Therefore the two articles could be seen as attempts to deal with these two categories of privileges separately.

Article 27 establishes that a state official does not enjoy immunity from the exercise of jurisdiction by an international court. [Indeed, one can even go to the extent that the whole notion of immunity is inapplicable with respect to the interaction of states and state officials with international courts. The very rationale of immunity arose from the concept of the sovereign equality of states: that states are equally sovereign and the institutions of one cannot exercise their function on the officials of the other. With respect of an international court, however, there is no question of equality: states parties would be subject to the court through their consent (by ratifying the ICC Statute in this case, or if referral is made through the Security Council, by having ratified the UN Charter which authorizes such exercise of power by the Security Council, states are assumed to have also consented to whatever choice of means the Security Council resorts to – subject, of course, to the caveats of jus cogens and principles and objectives of the UN as mentioned above) In this sense, they are to be considered as having waived their privilege.] And so, if there were to be some mechanism whereby an international court could effectively seize wanted state officials without making use of the domestic machinery of states, the issue of immunity would be a moot issue. However, in the real world, international courts operate through the instrumentality of the domestic judiciary (and other) machinery of cooperating states, and the ICC is no exception. Consequently, the issue of horizontal state-to-state immunity contemplated under article 98 of the ICC Statute kicks in in as long as the exercise of the jurisdiction by the ICC requires some exercise of jurisdiction by the judicial or law enforcement organs of a state, such as to apprehend and surrender a suspect. In this light, articles 27 and 98 could be seen as addressing two correlated but separate legal issues pertaining to the effective exercise of jurisdiction by the ICC. One can argue that the Statute could have dealt with the later problem differently, i.e. by clearly waiving the horizontal state-to-state immunity for the purpose of the exercise of the jurisdiction of the court. It didn't, and this is a matter of legal/political choice. The main point is that the two articles address two separate issues, albeit in a less straightforward manner.

The other interpretation, also offered by some scholars, is to assume that article 27 does indeed waive all immunity, both vertical and horizontal, with respect to the exercise of jurisdiction by the ICC. Accordingly, states are free to surrender suspects or assist the court in any way in proceedings relating to top leaders of other states who would have normally enjoyed immunity. In this interpretation, the purpose of article 98 would be to regulate the scenario where states that are not parties to the ICC Statute would be somehow be involved in the process of an ICC proceeding. This could be for example when a suspected state official is found within the jurisdiction of a state that is not a party to the ICC Statute and the surrender of such person is sought. In such case, article 27 of the ICC Statute that waives of state officials does not bind the UN member state is not a member to the ICC. And therefore the immunity of its officials derived from customary international law remains intact, and for this reason the ICC would have to negotiate its way out with such a state in order to secure the cooperation of the later.

Final Remarks

Even under the above discussed scenario, a state that is not a party to the ICC Statute could nonetheless be subjected to the jurisdiction of the court or be forced to assist the court by a decision of the Security Council. In such case, I argue, the binding decision of the Security Council overrides the customary obligation such state has to not violate the immunity of an official of another state; and therefore such state could lawfully surrender a head of another state or cooperate with the ICC in any other manner. This could be a controversial position, owing to the fact that the very question as to which international legal rules constrain the powers of the Security Council is not settled yet. Whichever way the verdict falls, one point that is clear for now is the extensive power the Security Council enjoys and the attendant possibility for it to significantly affect the workings of the ICC.

This leads me to my last, rather pessimistic remark: international governance, particularly concerning peace and security, is a brute reflection and an instrument of the realities of global power-relations. And any fundamental reform of the system is all but a wishful thinking for the foreseeable future. For those who decry the unfairness of the UN Security Council system or the different legal, political and economic leverages the big powers such as the US employ to exempt themselves from international accountability, I say welcome to earth, and get used to it. No one enjoys unfairness, but not all ‘unfairness’s’ are created equal: some are too costly to revolt against altogether. The way forward is to engage whatever imperfect system that is available to us (the ICC, Security Council etc.), and not to shun it or cry foul from Utopian high grounds.