The issuance of the arrest warrants against Israel’s Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant by the Pre-Trial Chamber (“PTC”) of the International Criminal Court (“ICC”) on 21 November 2024 has again given rise to a situation where the applicability and functionality of Articles 27(2) and 98(1) of the Rome Statute demands renewed scrutiny. As this is not a new phenomenon, it is prudent to begin this piece by briefly explaining the inconsistency between the provisions and how the ICC has dealt with that inconsistency thus far, before turning to the implications on States’ obligations pursuant to the recently issued arrest warrants.
The tension between Articles 27(2) and 98(1) of the Rome Statute
Article 27(2) of the Rome Statute provides that international immunities, such as those enjoyed by sitting senior officials of a State, cannot shield such officials from prosecution by the ICC. This provision addresses the position of state officials vis-à-vis the ICC. Article 98(1), conversely, provides that the ICC is prevented from requesting States Parties to arrest and/or surrender foreign state officials who enjoy immunity in their territory, unless the state in question has waived that immunity. This provision addresses the position of state officials vis-à-vis other States.
Initially, the tension, or perceived inconsistency, between these two provisions was interpreted with reference to the differing obligations that exist for parties to the Rome Statute when dealing with officials of other parties, as compared to non-party states. States who had voluntarily signed up to the Rome Statute had agreed, through Article 27(2), to waive the immunities otherwise enjoyed by their senior officials, in relation to conduct falling within the Court’s jurisdiction. Hence, where an arrest warrant was issued for a senior official of a state party, that state would have an obligation to arrest and surrender that official to the ICC and all other party states would have an obligation to do the same in their territory. Article 98(1), on the other hand, would apply in relation to officials from non-party States. It aimed to ensure that party-states would avoid situations where, by virtue of their membership of the ICC, they would need to violate their obligations under customary international law to respect the immunity of foreign state officials of countries who were not parties and had not waived their immunities.
This was emphasized by Dapo Akande in the ultimate paragraph of his 2004 article on the topic:
“It must equally be emphasized that that it is only parties to the ICC Statute that have waived the international law immunities (ratione personae) of their senior officials. Although the ICC may exercise jurisdiction over nationals and officials of nonparties, nothing in the Statute can affect the immunities that the officials of nonparties would otherwise enjoy. Accordingly, Article 98 of the Statute represents an instruction to the Court and to ICC parties not to interfere with those officials of nonparties who ordinarily possess immunity in international law.”
Akande asserted that even issuing an arrest warrant against an individual entitled to immunities would be a violation of such immunities and thus of customary international law, following from the International Court of Justice’s finding in the Arrest Warrant case (paras. 70-71).
The first arrest warrant for Al-Bashir
Things began to change when in March 2005, the United Nations Security Council (“UNSC”) adopted Resolution 1593, referring the situation of Darfur in Western Sudan to the ICC. Paragraph 2 of that resolution read:
“Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully”.
Consequently, in 2009, the ICC PTC issued an arrest warrant for Omar Al-Bashir, then President of Sudan, a non-party state, for the alleged commission of genocide, crimes against humanity and war crimes. Complications arose when Al-Bashir subsequently travelled abroad to a number of party-states, including Malawi, Chad, South Africa and Jordan. All states had previously been requested to arrest and surrender Al-Bashir in their territories. However, the affected States refrained from doing so. They were consequently subject to non-compliance proceedings before the ICC (see here, here, here and here). In their respective proceedings, each of these States relied on Article 98(1), arguing that their customary international law obligations prevented them from arresting Al-Bashir in their respective territories. Some of them also referred to decisions made by the African Union (“AU”) Assembly of Heads of States, calling on AU members not to arrest Al-Bashir on the basis of Article 98(1). This, after all, was what many scholars and states assumed that the purpose was of including Article 98(1) in the Rome Statute.
However, the PTC then issued a series of baffling and inconsistent decisions with respect to each of these States. The decisions have been written about extensively (see e.g. here, here and here) and do not need to be repeated, suffice to say that they ranged from treating international immunities as entirely inapplicable in relation to international court proceedings, to interpreting Sudan as having implicitly waived immunity for Al-Bashir by virtue of paragraph 2 of UNSC Resolution 1593, which required it to “cooperate”, to explaining that Article 98(1) does not apply in the case of a UNSC referral, which takes precedence.
Ultimately, the decisions culminated in an ICC Appeals Chamber judgment, issued in May 2019, addressing Jordan’s appeal against the PTC’s decision of its non-compliance. In its judgment, the Appeals Chamber reverted back to its initial position and held that customary international law does not award immunity to heads of state vis-à-vis international courts and does not bar an international court from exercising its jurisdiction over persons who would otherwise enjoy such immunity. The Appeals Chamber also found that Article 27(2) of the ICC Statute reflected customary international law (paras. 103 and 113).
This judgment, and particularly the assertion that Article 27(2) of the ICC Statute reflected customary international law, was considered “extremely controversial”, and was highly criticised by legal scholars. Nevertheless, it has been contended that the reason the Appeals Chamber took the approach that it did, as opposed to opting for the what may have been the more legally sound approach that UNSC referrals supersede the operation of Article 98(1) in situations involving non-party states, was to be able to expand its jurisdictional reach to non-party states even in situations where there was no referral from the UNSC.
The arrest warrant for Putin
Four years after the Appeals Chamber judgment, the ICC PTC issued an arrest warrant for Russian President Putin for alleged crimes committed in the territory of Ukraine. Sitting head of state. Non-party to the Rome Statute. No UNSC referral. Putin naturally rejected the arrest warrant as “outrageous”, but many States in the global West (including the UK, US and EU) welcomed it.
Others appeared reluctant to accept the Court’s decision. For example, in August 2023, just months after the arrest warrant for Putin was issued, South Africa hosted a BRICS event to which Putin was invited. South Africa, who had just recently been found in breach of its obligations under the Rome Statute with respect to its failure to arrest Al-Bashir, claimed that diplomatic immunity would be granted to all leaders attending the summit. Putin ultimately did not attend, but the position of South Africa is significant, and we will come back to it later.
The complicated issue of jurisdiction
The approach of the ICC – that international immunities cannot bar it from exercising its jurisdiction, regardless of whether the individuals sought are nationals of parties or non-parties to the Rome Statute – assumes that it has jurisdiction to exercise. In this case, however, the arrest warrants for Netanyahu and Gallant come with an added complication. That is the Court’s contested territorial jurisdiction over conduct in Gaza.
The Court’s exercise of jurisdiction over non-parties to the Rome Statute is in based primarily on Article 12(2)(a), which provides that the Court may exercise its jurisdiction if the State on the territory of which the conduct in question occurred is a party to the Statute or has accepted the ad hoc jurisdiction of the Court.
In Al-Bashir, most scholars did not dispute that the Court had jurisdiction to investigate crimes on the territory of Sudan, as a result of the UNSC referral and the operation of Article 13(b). In relation to the arrest warrant for Putin, there was no UNSC referral, but very few disputed that the Court had territorial jurisdiction, pursuant to Article 12(2)(a), over conduct taking place in the territory of Ukraine, who at first had accepted the ad hoc jurisdiction of the Court and later became a party to the Rome Statute.
In this case, Israel, and various other states (see e.g., here and here), strongly contest the Court’s basis for its jurisdiction over crimes committed by Israeli nationals in Gaza. The main argument for this is that Palestine “does not possess the competences required under international law to be able to delegate territorial jurisdiction to the Court.” While the Court decided already in 2021 that Palestine was a state, for the purposes of the exercise of its territorial jurisdiction, many remain unconvinced, both by the Court’s ability to declare the existence of a State for the purposes of its jurisdiction only, and the criteria by which the Court apparently so declared.
The point is not whether one agrees or disagrees that the Court has territorial jurisdiction in this case. The point is that because a jurisdictional challenge can only be made pursuant to Article 19(2) after the arrest warrants have been issued – and such a challenge will certainly be made in this case – party-states cannot at this stage assume that the Court’s territorial jurisdiction is a given. If they cannot so assume, then they cannot be sure that their arrest of Israeli officials will not violate their obligations under customary international law on immunities. And yet, pursuant to Article 19(9), an arrest warrant is to be considered valid pending such a jurisdictional challenge, and the Court’s expectations on states to enforce it remain.
This is the confusing conundrum that the Appeals Chamber put states in, and which we are now seeing the effect of. An arrest warrant triggers an immediate obligation to arrest the individual listed if he or she is present in a party-state’s territory. Yet any challenge to jurisdiction can only be raised after the issuance of an arrest warrant. The Appeals Chamber does not appear to have foreseen, or certainly did not pronounce itself on, a scenario where a jurisdictional challenge is successful following an arrest warrant against a national of a non-party state and the Court decides that it does not have jurisdiction over that individual. In such a scenario, the immunities would, in fact, apply, and the original arresting state would find itself liable for breaches of customary international law. This could result in legal action, both domestic and international, or other diplomatic consequences flowing from its retroactively unlawful arrest of a state official enjoying international immunity in its territory.
Politically, the situation is even more complex. Even if the Court were to find that it has jurisdiction, if States are unconvinced by its reasoning, they may still worry about State-to-State repercussions flowing from a potentially unlawful arrest. Indeed:
“since a request governed by article 98 deals with a situation involving an ICC party’s obligations to non-parties, leaving the final decision to the ICC is very far-reaching, as any errors by the Court would render the ICC party concerned legally responsible to the nonparty.”
Politicisation of the Rome Statute
In any event, this author is not convinced that states have actually accepted the Appeals Chamber’s legal reasoning with respect to Articles 27 and 98. While some States have welcomed the arrest warrants for Netanyahu and Gallant, others have been more hesitant, and few have expressly confirmed that they would arrest either or both of the Israeli state officials in their territories. For example, France recently stated that Netanyahu “and other ministers in question” are entitled to immunities given Israel’s non-party status, and that such immunities “must be taken into consideration should the ICC ask us to arrest them and hand them over”. Many of these same states were quick to welcome the arrest warrant for Putin last year and declare their commitment to implementing it.
Similarly, among those who have signalled an intention to implement the warrants for Netanyahu and Gallant, many have held completely opposite views as to the operation of Article 98 in the very recent past when it concerned other state officials. Jordan, whose Foreign Minister Ayman Safadi stated that “the ICC’s decision [with respect to Netanyahu and Gallant] must be implemented”, was the very subject of the Appeals Chamber decision in 2019 where it argued that “Omar Al-Bashir enjoyed immunity ratione personae under international law as a sitting Head of State and [ ] his arrest by Jordan would have violated Jordan’s obligation under customary international law concerning such immunity.”
South Africa, who was one of the states that referred the situation of Palestine to the ICC and who “urge[d] all state parties to act in accordance with their obligations in the Rome Statute” sung a very different tune with respect to its obligations to arrest Putin and Al-Bashir. Additionally, less than two months ago, Mongolia, a party-state, invited and welcomed Putin on an official visit, despite having declared “unwavering support” for the then not-yet issued arrest warrants against Netanyahu and Gallant.
The inconsistent statements which differ greatly depending on the individuals concerned leads to the conclusion that States are probably not convinced by the legal reasoning of the Appeals Chamber, but may be prepared to violate their customary international law obligations on international immunities in certain situations, where they are either unconcerned by the diplomatic or legal repercussions, or where they believe that it otherwise might benefit them, politically, to proceed with an arrest. Unfortunately, in its attempt to expand its jurisdictional reach in order to hold more individuals to account, it seems the ICC has rather created a path for States to choose which laws to adhere to based on what may benefit them more politically in the circumstances. By muddling what was previously a clear distinction between the applicability of Articles 27 and 98, the ICC may have instead politicised the law, whereby those with “many friends” are still as shielded as ever.
