My remarks focus on the two judgments handed down by the ICC Pre-Trial Chamber on December 12-13, 2011, on non-cooperation by Malawi and Chad in the arrest and surrender of Sudan' s President Omar Al Bashir. (1) The Malawi/Chad cases gave the Court the opportunity to consider the argument advanced by the African Union (AU) that Article 98 of the Rome Statute of the International Criminal Court exempts Bashir from arrest and surrender. The judgments, and the reasoning in particular, of the Court were unfortunately very disappointing and highly unsatisfactory.
This is immediately revealed when the Court asserts that the arguments raised by Malawi and Chad were disposed of when the Court confirmed the charges against Bashir. The Court then proceeds to restate the reasoning it advanced in the decision confirming the charges against Bashir. The reasoning of the Court can be summarized as follows:
* The current position of Bashir as a head of state has no effect on the Court's jurisdiction.
* International law does not afford immunity to heads of state for international crimes before international courts and tribunals or, put another way, international law creates an exception to head-of-state immunity when international courts seek to try a head of state.
* To accept the argument advanced by Malawi and the AU "would be to disable the Court and international criminal justice." (2)
The first two points are probably uncontroversial. The Court cites many sources in support of its contentions. The problem, however, is that none of these points or the sources cited in support of them addresses the legal question raised by the AU position. While these points address Article 27 of the Statute, they do not in any way address Article 98, which provides an exemption from cooperation on the basis of immunities. The judgment's main flaw is that it treats Article 27 (precluding immunity as defense) and Article 98(1) (creating an exemption from the obligation to arrest and surrender) as coextensive. The result is that the Court's response to a proposed interpretation of Article 98 is to refer to Article 27 without in any way proposing an alternative reading of Article 27. It is as if Article 98 is not in the Statute.
The third point is problematic for several reasons:
* To the extent that the view may be interpreted as implying that the AU interpretation leads to absurd or reasonable results, the view can only be justified if the Court made some attempt to interpret Article 98.
* The assertion by the Court would suggest that the sole purpose of the Rome Statute is the prosecution of heads of state.
* Even assuming this to be the case, heads of state could still be arrested and surrendered under the AU interpretation if the UN Security Council made cooperation obligatory for all states.
What was needed was a good-faith interpretation in accordance with the ordinary meaning of the words and in light of the objective and purpose of the Statute, and taking into account relevant rules of international law. I can make four brief points:
(1) There are two possible interpretations to the phrase "third state" as found in Article 98. …