Chamber even departed from some earlier
Posted: Thu Mar 27, 2025 9:52 am
The reasoning of the Appeals decisions of the Pre-Trial Chamber of ICC. In the cases concerning Congo, Djibouti, and Uganda, the Pre-Trial Chamber II held that Article 27(2) of the Statute is only applicable to states party (See Congo case, para. 26), which, in other words, does not constitute customary international law. Similarly, in the cases concerning South Africa and Jordan, the Pre-Trial Chamber II further pointed out that it ‘is unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court, including, specifically, this Court’ (See South Africa case, para. 68). In these cases, the Pre-Trial Chamber solely resorted telegram data to the Security Council Avenue as the basis for not giving effect to the immunity of Sudanese President Bashir.
Horizontal Immunity
After removing vertical immunity, the Court continued to address horizontal immunity, i.e. the immunity of the head of a state of non-party from arrest by states party. In this regard, both approaches have similarly argued that, when requested by the Court, states party are merely the jurisdictional instruments of the international criminal jurisdiction, rather than exercising domestic criminal jurisdiction, and therefore no horizontal immunity is applicable here. For example, the Appeals Chamber notes that ‘the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of proper jurisdiction’ (Jordan Appeal case, para. 127). The four judges in this case have further pointed out in their Joint Concurring Opinion that ‘when State Parties cooperate with the Court, they should not be seen as exercising their own criminal jurisdiction, since they merely acting as jurisdictional surrogates of the ICC’ (Joint Concurring Opinion, para. 445; See also Malawi case, para. 46).
Horizontal Immunity
After removing vertical immunity, the Court continued to address horizontal immunity, i.e. the immunity of the head of a state of non-party from arrest by states party. In this regard, both approaches have similarly argued that, when requested by the Court, states party are merely the jurisdictional instruments of the international criminal jurisdiction, rather than exercising domestic criminal jurisdiction, and therefore no horizontal immunity is applicable here. For example, the Appeals Chamber notes that ‘the requested State Party is not proceeding to arrest the Head of State in order to prosecute him or her before the courts of the requested State Party: it is only lending assistance to the Court in its exercise of proper jurisdiction’ (Jordan Appeal case, para. 127). The four judges in this case have further pointed out in their Joint Concurring Opinion that ‘when State Parties cooperate with the Court, they should not be seen as exercising their own criminal jurisdiction, since they merely acting as jurisdictional surrogates of the ICC’ (Joint Concurring Opinion, para. 445; See also Malawi case, para. 46).