Cooperation à la Carte?

In a recent contribution to this platform, Kai Ambos, Stefanie Bock, and a number of other distinguished German scholars have presented a compelling and highly topical plea for a consistent and effective application of the Rome Statute “without fear or favour” by Germany, one of its 124 States Parties.

Against the background of Germany’s role as a strong advocate for international criminal justice and the preservation of the Nuremberg legacy, the blog post critically examined the potential for political double standards in the wake of the Prosecutor’s recent applications for arrest warrants against, inter alia, Israeli officials, when viewed in comparison to other pending cases. Responding to the two principal arguments advanced in recent political and academic debates that challenge Germany’s obligation to cooperate with the International Criminal Court (ICC), the authors refuted the claims that the ICC lacks jurisdiction over the situation in Palestine and that head of State immunity for incumbent third-State officials may serve as a procedural barrier in these circumstances.

As will be demonstrated below, a similar risk of selectivity concerning the question of cooperation with the ICC can be observed in the present public and political discourse in Austria. The objective of this contribution is therefore to provide a concise analytical overview of the current Austrian legal and political state of affairs with a particular emphasis on immunity-related challenges. I argue that an ‘à la carte’ approach to cooperation with the Court in matters of arrest and surrender, as partially indicated in the current debate, is untenable when adopting the ICC’s recent jurisprudence on the horizontal inapplicability of head of State immunity, irrespective of the prevailing political circumstances.

One sauce for the goose, another for the gander? Double standards in the Austrian debate

The Austrian government’s response to the issuance of arrest warrants or requests for arrest warrants differed significantly between the situations in Ukraine and Palestine. Similar to Germany, Austrian officials, including the Federal Minister for the European Union and the Constitution and the Federal Minister for European and International Affairs, have explicitly signaled the State’s willingness to comply with arrest warrants for Russian officials, including the incumbent head of State, Vladimir Putin. However, a more reserved and critical stance has been adopted with regard to the Prosecutor’s recent application for arrest warrants for Israeli Prime Minister Netanyahu and Defence Minister Gallant. For instance, both of the aforementioned Austrian ministers have expressed criticism of the prosecutorial approach, describing it as ‘odd’ or ‘alienating and incomprehensible’.

Moreover, recent media reports suggested that the question of whether to follow the example of the UK’s (initial) request to file amicus curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence – allegedly aimed at challenging the Court’s jurisdiction concerning Israeli officials – has caused friction within the Austrian governing coalition.¹⁾ Due to this ambiguity surrounding Austria’s current political stance on the execution of ICC arrest warrants, the following analysis seeks to contextualise the ongoing discussions concerning immunity-related matters within a broader legal framework.

Mapping out the Austrian Legal Framework

Similar to Germany, Austria was an early supporter of the Rome Statute, having signed it in 1998 and incorporated its offences into domestic law since 2015, specifically with division 25 of the Strafgesetzbuch (StGB). In addition to its international obligations under the Rome Statute, the Austrian judiciary is explicitly obliged by domestic legislation to cooperate comprehensively with the ICC pursuant to section 2 (1) of the Bundesgesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof (IStGH-ZG). The ISTGH-ZG provides the general procedural framework for cooperation with the ICC, which is complemented by the Auslieferungs- und Rechtshilfegesetz (ARHG) and the Strafprozessordnung 1975 (StPO). Furthermore, rules of customary international law (including those pertaining to immunities) are dynamically incorporated into federal law through adoption under Art 9 (1) of the Bundes-Verfassungsgesetz (B-VG).

In response to the developments in Ukraine, a decree (Erlass) issued on 5 July 2022 by the Austrian Federal Ministry of Justice in consultation with the Office of the Legal Adviser (Völkerrechtsbüro) of the Federal Ministry for European and International Affairs specifically addressed questions of customary immunities in domestic proceedings and before international courts. Similar to the 2024 amendments by the German Bundestag, the decree endorsed the legal position that, concerning the prosecution of international core crimes, functional immunity ratione materiae is excluded before Austrian criminal courts by virtue of customary international law. The decree’s reasoning specifically references evolving judicial practice in Europe, including the case law of Germany’s Federal Court of Justice. It is noteworthy that, at the time, the ministries were unable to incorporate the latest developments in German legislation and jurisprudence regarding customary exceptions to functional immunity, which have been the subject of recent blog discussions here and here. Concurrently, the decree specifies that customary absolute immunity ratione personae shall continue to apply in proceedings before Austrian criminal courts for as long as the individual in question remains in office.

It is important to note, however, that within the Austrian legal system, the decree in question qualifies as a mere internal administrative regulation issued by a higher authority that is binding upon subordinate bodies. While the decree may thus not possess the same legal weight as the recent amendments introduced by the German Bundestag, it nonetheless serves as a crucial point of reference for identifying opinio iuris. For example, Austria has already invoked said decree as a subjective expression of legal opinion in its 2023 Written Comments welcoming Draft Art 7 on the ILC Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction.

Regarding the central issue of (third State) head of State immunities as potential procedural bars to the ICC’s exercise of jurisdiction, the decree notably references the 2019 Judgment in the Jordan Referral re Al-Bashir Appeal. It thereby aligns itself with the legal perspective endorsed by the Appeals Chamber (AC) and Pre-Trial Chamber I (PTC I) in the prior 2011 Decision on the Failure by Malawi to Comply with Cooperation Requests, that there is neither State practice nor opinio iuris according to which the immunity of heads of State also exists before an international court. As indicated by the German author collective in their initial publication, this approach to the vertical inapplicability of immunities is consistent with both Art 27 (2) of the Rome Statute and the International Court of Justice’s (ICJ) findings in its 2002 Arrest Warrant Judgment. Of particular note is the fact that the decree takes this further by additionally adopting the more divisive horizontal dimension of the AC’s finding. It holds that the absence of a customary rule recognising immunity before international courts precludes States Parties from invoking the immunity of a head of State when the ICC issues a request for the arrest and surrender of such an individual.

Lessons from the Al Bashir Case?

Following this ‘customary exception’ approach has important implications for Austria’s statutory cooperative obligations towards the Court. Compared to other arguments favouring the horizontal inapplicability of immunities between a State party and a third State, as discussed in the various Al Bashir decisions, this perspective effectively excludes the general application of Art 98 (1) of the Rome Statute in the aforementioned contexts. Thus, the ‘customary exception’ approach entails a commitment to cooperate with the Court in a significantly broader range of situations. As I have previously argued elsewhere, I do, however, concur with the critical perspective put forth by numerous scholars (see, for instance, here and here) that this approach presents certain difficulties, insofar as it gives rise to a continuous tension between Arts 27 (2) and 98 (1) of the Rome Statute. Moreover, the approach invites speculation about the extent of the remaining scope of application of the latter provision. Instead, I find the alternative arguments in favour of the horizontal inapplicability of immunities and a respective duty to cooperate based on UNSC Res 1593 (as extensively discussed in the 2017 South Africa Non-Compliance Decision) or Art IV of the 1951 Genocide Convention (as introduced in the 2017 Minority Opinion of Judge Marc Perrin de Brichambaut to the same decision) to be more convincing from a doctrinal point of view.

Nonetheless, it cannot be overlooked that the Austrian ministries concerned have arguably intended to adopt, as opinio iuris, the approach endorsed by the 2019 Judgement as the Court’s most recent finding on that matter decided by its highest instance. Should the Austrian authorities subsequently deviate from the decree and nonetheless refuse to cooperate with the ICC on the basis of Art 98 (1) of the Rome Statute, section 9 (1) (3) of the IStGH-ZG stipulates that they must in any case engage in consultations with the Court prior to any potential recusal from the Court’s requests. Moreover, from a pragmatic standpoint, the reliance of State Parties on the ‘customary exception’ approach may prove to be more beneficial to the overall effectiveness of the ICC, given that cases against Putin or Netanyahu differ from the Al Bashir Case in the way that they are not based on a referral pursuant to Art 13 (b) of the Rome Statute and do not encompass charges of genocide at the current stage.

In any case, it will be interesting to observe how States Parties will apply the 2019 Judgment in practice and how potential follow-up decisions will address the differences between the case against Al Bashir and other heads of third States.

Conclusion

The authors of the original blog post concluded that, in accordance with both international law and German legislation, German authorities would be required and capable of arresting any head of State against whom the ICC has issued an arrest warrant, regardless of their political ties to that (third) State. The preceding analysis demonstrates that the same can be argued in the Austrian case, particularly when considering that the 2022 decree adopting the ‘customary exception’ approach may qualify as a relevant expression of opinio iuris. I fully agree with the German author collective that it is of utmost importance for States Parties to remain steadfast in their adherence to their legal principles and to provide consistent and unselective support to the Court to enable it to fulfil its mandate. The Al Bashir Case, like no other case, exemplifies the necessity for a coherent and unbiased approach to cooperation with the ICC, a lesson that also applies to ‘Western’ States such as Austria and Germany. In light of the above, it seems appropriate to conclude this discussion with the view recently articulated by the Prosecutor, that ‘if we do not demonstrate our willingness to apply the law equally, if it is seen as being applied selectively, we will be creating the conditions for its collapse.’