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

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 way of a response to Abreha’s paper. Abreha has accomplished the task of laying out the essential introductory ground-work, and 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 req