The Function of Amicus Curiae Participation by Legal Scholars. The Al-Bashir Appeal Case at The ICP As An Illustration

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The Function of Amicus Curiae

Participation by Legal Scholars:
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The Al-Bashir Appeal Case at
the International Criminal
Court as an Illustration
Xiao Mao *
Abstract
In the recent case on non-cooperation of Jordan in the Al-Bashir

case, the Appeals Chamber of the International Criminal Court for
the first time invited on its initiative amicus curiae submissions by
legal scholars. This comment focuses on the role of legal scholars as
amici curiae. It argues that based on Martti Koskenniemi’s method
on the structure of legal argumentation and analysis of the argu-
mentation structure of several submissions by legal scholars in the
Al-Bashir case, the role of legal scholars as amici curiae would better
be viewed as grammarians capable of shaping the formulation of
arguments of the Court. This view stands contrary to the traditional
understanding that the amicus curiae participation can improve the
court’s legitimacy by providing a neutral and definite answer to the
legal dispute.
I. Introduction
1. The applicability of immunity to those charged with international
crimes has sparked great controversy since almost 20 years ago, with
* MPhil Candidate (Oxon); Rhodes Scholar (Brasenose & China 2018). The author
may be contacted at: xiao.mao@law.ox.ac.uk. The author would like to thank
Professor Joris van Wijk, Ms. Chenchen Han, Ms. Rebecca Hebeis as well as the
anonymous reviewers for their advice. This comment was completed on 30 June
2019 and the websites cited were current as of this date unless otherwise noted.
.................................................................................................................................................................
18 Chinese Journal of International Law (2019), 393–424
394 Chinese JIL (2019)
controversial and politically charged cases brought before domestic courts,1

ad hoc tribunals,2 and the International Criminal Court (ICC).3 All of
these cases involve prosecuting current or former State officials for interna-

tional crimes, while the alleged immunity enjoyed by the accused may well
bar the criminal proceedings. In the Al-Bashir case, for example, the legal
issue whether President Al-Bashir of Sudan enjoys immunity from being
arrested by the ICC States parties and surrendered to the ICC has aroused
huge controversy. The Pre-Trial Chamber of the ICC issued several deci-
sions finding States that refused to arrest and surrender Al-Bashir violated
international obligations, but the reasoning supporting these decisions is
arguably unsatisfactory.4
2. The recent decision on non-cooperation of the Hashemite Kingdom of
Jordan (Jordan) was appealed, and it is hoped that the Appeals Chamber can
put an end to this long-lasting debate which started with the referral of the sit-
uation to the ICC by UNSC Resolution 1593 (2005).5 Interestingly, faced
with the politically charged situation as well as controversies in legal interpre-
tation, the ICC Appeals Chamber, possibly inspired by the experience of the
ad hoc tribunals,6 invited legal scholars to submit amicus curiae briefs to assist
the court in solving this legal dispute.7 The case deserves special attention, be-
cause this was the first time the ICC invited on its initiative so many amicus
1 R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet

Ugarte, 1 AC 147 (2000), 2 All ER 97 (1999), 2 WLR 827 (1999).
2 Prosecutor v. Milosevic, Decision, IT-99-37-PT (8 November 2001), paras.26-33;
Prosecutor v. Taylor, Decision, SCSL-2003-01-1 (31 May 2004).
3 Prosecutor v. Al-Bashir, ICC-02/05-01/09 (www.icc-cpi.int/darfur/albashir).
4 See below Part IV.A.
5 SC Res 1593 (2005).
6 The Special Court for Sierra Leone, for example, invited Professor Philippe Sands
and Professor Diane Orentlicher to submit amicus curiae briefs in the Taylor case.
Both of them argued that Taylor enjoyed no immunity before an international crim-
inal tribunal, and the SCSL is a court of such a nature. See Prosecutor v. Taylor,
Decision, SCSL-2003-01-1 (31 May 2004); Cf., Prosecutor v Omar Al Bashir,
Decision, ICC-02/05-01/09 (13 December 2014), paras.12–14; Prosecutor v. Al-
Bashir, Written observations of Professor Claus Kreß as amicus curiae, ICC-02/05-
01/09 OA2 (18 June 2018), paras.8-13.
7 See Prosecutor v. Al-Bashir, Order, ICC-02/05-01/09 OA2 (29 March 2018). In
the history of international courts and tribunals, only the ICTY in the Blaskic case
once witnessed amicus curiae participation by scholars of a comparable number. See
Prosecutor v. Blaskic, Judgment, IT-95-1 (18 July 1999).
Mao, The Function of Amicus Curiae Participation by Legal Scholars 395
curiae submissions by legal scholars,8 and it represents a new attempt by the

court to resolve politically charged cases like the Al-Bashir case.
3. Following the rule9 on the matter and the Order inviting amicus curiae

participation, the Appeals Chamber was initially seized with 16 requests (rep-
resenting 27 scholars) for leave to submit observations as amici curiae, while
the court only granted 16 scholars the opportunity to make written submis-
sions.10 All of these amicus briefs answer the legal question based on similar le-
gal sources, but they make different interpretations, resulting in different
answers as to whether Bashir enjoys personal immunity from being arrested
and surrendered to the ICC, and whether the ICC can find Jordan and some
other States violated the obligation of cooperation with the court.
4. Against this background, this comment does not intend to make a de-
tailed legal argument on whether their interpretation is correct or not; it rather
focuses on the role played by legal scholars as amici curiae in international
criminal courts. The comment challenges a traditional understanding that the
amicus curiae participation by the “invisible college of international lawyers”
can improve the court’s legitimacy by providing a neutral and final answer to
the legal dispute.11 This comment, however, argues that based on the insights
from the literature on the role of academic lawyers (in Part II), Martti
Koskenniemi’s work on the structure of legal argumentation (in Part III), as
well as analysis of the argumentation structure of several amicus submissions
of legal scholars in the Al-Bashir case (in Part IV), the role of legal scholars
8 Most of the time, scholars or non-governmental organizations can only request for
leave to file observations, and the ICC is very reluctant to grant permission to them
to participate. See analysis of practice of submitting amicus curiae briefs to the inter-
national criminal tribunals in Sarah Williams and Hannah Woolaver, The Role of
Amicus Curiae before International Criminal Tribunal, 5 International Criminal
LR (2006), 151, at 154-82; Avidan Kent and Jamie Trinidad, The Management of
Third-Party Amicus Participation before International Criminal Tribunals: Juggling
Efficiency and Legitimacy, 17 International Criminal LR (2017), 728, 740-5.
9 See Rules of Procedure and Evidence of the International Criminal Court, ICC-
ASP/1/3 and Corr.1 (3-10 September 2002), Rule 103(1).
10 The order inviting amicus curiae participation allows the participation by professors
of international law while excluding non-governmental organizations. The scope of
“professors of international law”, however, is narrowly interpreted as only including
full professors while excluding assistant professors or associate professors. See
Prosecutor v. Al-Bashir, Decision, ICC-02/05-01/09 OA2 (21 May 2018).
11 See, e.g., Christine Chinkin and Ruth Mackenzie, Intergovernmental Organizations
as “Friends of the Court”, in: Laurence Boisson de Chazournes, Cesare Romano
and Ruth Mackenzie (eds.), International Organizations and International Dispute
Settlement: Trends and Prospects (2002), 148-9.
would better be viewed as grammarians capable of shaping the formulation of

arguments of the Court rather than providing a neutral and final answer to
the legal dispute.

II. The role of legal scholars and the function of amicus curiae
submission
II.A. The orthodox view: pure objectivity and integrity of legal scholars
5. It might be believed by the Court that its credibility and legitimacy can be
improved by drawing upon the “invisible college of international lawyers” for
assistance, which is also the rationale for its invitation of scholars as amici cu-
riae.12 As imagined by Oscar Schachter, international legal experts are consid-
ered as:
a distinctive and privileged class of a unified international legal profession
with access to a purer kind of knowledge and authority, and with the
“noblest function” to give “la conscience juridique [. . .] specific meaning
and effect”, notwithstanding governmental ambivalence.13
6. This view corresponds to the traditional understanding of the role of amicus
curiae participation in domestic law as well as in international law. In the do-
mestic law of the United States, for example, the original role of amicus curiae
was considered as “a neutral bystander, someone without a stake in the out-
come of a case, who offered information to the court gratuitously, just to help
the court avoid error”.14 In the ICC, the core rationale underlying an amicus
curiae submission is that the Chamber will “be assisted in the determination
of the case by an independent intervener having no other standing in the
proceedings”.15 The role of amicus curiae submission in helping courts has
also been confirmed in the jurisprudence of other international and hybrid
criminal courts and tribunals, such as the International Criminal Tribunal for
12 Ibid.
13 Oscar Schachter, The Invisible College of International Lawyers, 72 Northwestern
U LR (1977), 217, 225-6; See reflection of the view in Matthew Windsor,
Consigliere or Conscience? The Role of the Government Legal Advisor, in: Jean
d’Aspremont et al (eds.), International Law as a Profession (2017), 388.
14 Stuart Banner, The Myth of the Neutral Amicus: American Courts and Their
Friends, 1780-1890, 20 Constitutional Commentary (2003), 111.
15 See Situation in the Republic of Kenya, Decision on Application for Leave to
Submit Amicus Curiae Observations, ICC-01/09-35 (18 January 2011), para.6.
the former Yugoslavia (ICTY)16 and for Rwanda (ICTR),17 and the
Extraordinary Chambers in the Courts of Cambodia.18
7. Such a function of amicus curiae submissions by scholars is based on the

presumption of the integrity of scholars; namely, they purport (explicitly or
implicitly) to possess unique qualities by their scholarly provenance.
According to Fallon,
[Scholars’ briefs] represent oneself as having a distinctive expertise that
depends on notions of integrity that are internal to the scholarly enter-
prise. Someone claiming scholarly expertise thus sets herself apart from
those seeking to participate in a case based on ideological interests.
Professors who join scholars’ briefs aim to engender distinctive, role-
based expectations concerning the character of their participation.19
8. The theoretical foundation of such an understanding of the objective role
of legal scholars can be found in Hans Kelsen’s “pure theory” and his term
“reflexive distance”.20 Hans Kelsen articulated the role of scholars as follows:
In a society convulsed by world war and world revolution, it is more im-
portant than ever to the contending groups and classes to produce usable
ideologies that allow those still in power to effectively defend their inter-
ests. That which accords with their subjective interest seeks to be
16 See, e.g., Rules of Procedure and Evidence of the ICTY, IT/32/Rev.50 (adopted on
11 February 1994, amended in 10 July 2015), Rule 74; Prosecutor v Karadzic,
Decision on Application for Leave to Submit an Amicus Curiae Brief, IT-95-5/18-
AR98bis.l (21 September 2012); Prosecutor v Prlic et al., Order Appointing an
Amicus Curiae, IT-04-74-T (3 July 2009).
17 See, e.g., Rules of Procedure and Evidence of the ICTR (Adopted on 29 June 1995,
as amended on 13 May 2015), Rule 74; Prosecutor v Jean-Paul Akayesu , Order
Granting Leave for Amicus Curiae to Appear, ICTR-96-4-T (12 February 1998);
Prosecutor v Bagosora, Decision on the Amicus Curiae Application by the
Government of the Kingdom of Belgium, ICTR-96-7-T (6 June 1998).
18 Internal Rules of the ECCC, Rev. 9 (as revised on 16 January 2015), Rule 33;
Prosecutor v Nuon Chea and Khieu Samphan, Decision on Request for Leave to
Submit Amicus Curiae Brief on Forced Marriage, 002/19-09-2007-ECCC/TC (13
September 2016).
19 Richard Fallon, Scholars’ Briefs and the Vocation of Law Professors, 4 Journal of
Legal Analysis 223 (2012), 237.
20 Hans Kelsen, Juristischer Formalismus und Reine Rechtslehre, 58 Juristische
Wochenschrift 1723 (1929), translated by Jochen von Bernstorff in: International
Legal Scholarship as a Cooling Medium in International Law and Politics, 25(4)
EJIL (2014), 977.
presented as what is objectively right. And so public law scholarship

must serve that purpose. It provides the ‘objectivity’ that no politics is
able to generate on its own.21

9. In light of this view, when deciding whether the African States should co-
operate with the ICC by arresting and surrendering Al-Bashir, resorting to le-
gal scholars for assistance can provide “objectivity” to the decision. Kelsen
argues that there exists an “objective” and ‘‘neutral” standpoint for a legal
scholar. He believes in the possibility of a strict separation between law and
politics, which implies that the legal scholars’ participation can exclude politi-
cal influence and thereby produce an objective answer to a legal dispute.22
10. In commenting on his own role in writing the commentary of the
Charter of the United Nations, Kelsen said, “juristic” in contradistinction to
“political” has the connotation of “technical”. A scholar is “a technician whose
most important task is to assist the law-maker in the adequate formulation of
legal norm”.23 This role corresponds to the understanding of the function of
academic amici in providing a technical analysis of the norm.
11. According to this view, the task of legal interpretation is to find all pos-
sibilities for the meaning of a legal rule, and leave it to the decision-maker to
make a choice based on legal policy.24 Kelsen describes a legal norm to be ap-
plied as “a frame within which several possibilities for interpretation are giv-
en”, and every act that accords with one of the possibilities is consistent with
the norm.25 Interpretation is a process of “discovery of the frame that the
norm to be interpreted represents, and within this frame, the cognition
of several possibilities for implementation”.26 The decision that a particular
act is based on a statute does not mean that this decision is the only right in-
terpretation of the statute, but only means that the decision constitutes one of
the many possibilities within the frame for the applicable norm.27
21 Ibid.
22 See a comprehensive analysis of Kelsen’s theory in: Jochen von Bernstorff, The
Public International Law Theory of Hans Kelsen: Believing in Universal Law
(2010).
23 Hans Kelsen, The Law of the United Nations: A Critical Analysis of its
Fundamental Problems (1951), XIII., quoted in Bernstorff, ibid., 225.
24 Hans Kelsen, On the Theory of Interpretation, 10 Legal Studies 127 (1990), 129.
25 Ibid.
26 Ibid.
27 Ibid.
12. Based on the above understanding of the nature of legal interpretation,

Kelsen perceives the role of scholars as a technician in the sense that their tasks
are to discover all possibilities of meaning within a legal rule (i.e., “a frame”),

rather than to find the only right answer to a legal question. The so-called
“right” answer to a legal issue, according to Kelsen’s view, is an inherently inde-
terminate choice made by the decision maker based on his or her own legal pol-
icy. Against this view, the legal scholars play a neutral role in filling the “frames”,
but their participation does not necessarily lead the court to make the “right” de-
cision, as the decision-making process is a matter of legal policy.28
13. However, as demonstrated below, Kelsen’s view might not properly ex-
plain the role of amicus curiae participation in contemporary cases of interna-
tional criminal law. Kelsen’s pure theory is limited to legal positivism
prevalent in his time, while as a matter of fact, many contemporary legal
scholars attempt to go beyond positivism and serve as academic activists.29 In
this sense, Kelsen’s view on the absolute objectivity of legal scholars might not
correctly catch the actual role of academic lawyers in participating in the Al-
Bashir case as amici curiae.
II.B. Relative objectivity: legal scholars as members of “interpretive

communities”
14. Although legal scholars may not be absolutely neutral, their membership
in “interpretive communities” may make their collective views relatively
28 Kelsen’s view can be juxtaposed to the theory of law of Dworkin, who also claims
that there can be only one right answer to a legal problem. But it can be argued that
his theory only fits in domestic law where there is not much gap and not many iso-
latable contradictions to be filled by political or psychological preferences of judges,
while in international law, there are so many examples of contradiction, such as sov-
ereignty vs. human rights, apology vs. utopia, state survival vs. humanitarian inter-
vention, and duty to prosecute international crimes vs. immunity. See critiques to
his view in Andrew Altman, Legal Realism: Critical Legal Studies, and Dworkin, 15
Philosophy and Public Affairs (1986); Jeremy Waldron, Did Dworkin Ever Answer
the Crits, in: S. Hershovits (ed.), Exploring Law’s Empire: The Jurisprudence of
Ronald Dworkin (2006), 155; for arguments supporting application of Dworkin’s
theories in international law, see Andreas Paulus, International Adjudication, in:
Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law
(2010), 213-18; George Letsas, Strasbourg’s Interpretive Ethic: lessons for the inter-
national lawyer, 21 EJIL (2010), 509-541.
29 See, e.g., “critical positivism” in: Antonio Cassese (ed.), Realizing Utopia: The
Future of International Law (2012), xvii; and “committed argument” in: Owen M.
Fiss, The Varieties of Positivism, 90 Yale LJ 1007 (1981), 1009.
objective or intersubjective.30 The concept “interpretive community” was de-

veloped by Stanley Fish, a literary theorist, who argued that the notion also
has explanatory power in law.31 It was initially raised to explain what deter-

mines the validity of interpretation. Fish argues that interpretation is neither
purely objective (i.e. meaning is determined by text) nor purely subjective
(i.e. meaning is determined by readers). He states:
[A]n interpretive community, not so much a group of individuals who
shared a point of view, but a point of view or way of organizing experi-
ence that shared individuals in the sense that its assumed distinctions,
categories of understandings and stipulations of relevance and irrelevance
were the content of the consciousness of the community members who
were therefore no longer individuals, but, in so far as they were embed-
ded in the community’s enterprise, community property. It followed
that such community-constituted interpreters would, in their turn, con-
stitute more or less in agreement, the same text, although the sameness
would not be attributable to the self-identity of the text, but to the com-
munal nature of the interpretive act.32
15. The interpretive community presupposes a common understanding by
members thereof about what constitutes valid interpretation.33 Based on this
30 Another similar term is “epistemic community” which is used by some scholars to

explain legal expertise. See, e.g., Andy Olson, An Empire of Scholars: Transnational
Lawyers and the Rule of Opinio Juris, 29 Perspectives on Political Science 23
(2000), 23–32; Wouter Werner, The Politics of Expertise: Applying Paradoxes of
Scientific Expertise to International Law, in: Monika Ambrus (ed.), The Role of
‘Experts’ in International and European Decision-making Processes: Advisors,
Decision Makers or Irrelevant Actors? (2014), 44-62. Epistemic communities are
defined as groups of professionals sharing: “(1) a set of normative and principled
beliefs, which provides a value-based rationale for social action [. . .] (2) causal beliefs
derived from their analysis of practices [. . .] (3) notions of validity—that is intersub-
jective, internally defined criteria for weighing and assessing knowledge [. . .] (4) a
common policy enterprise”. However, the inventor of this term, Haas, himself de-
nied the applicability of “epistemic community” to lawyers, so this thesis will not
specifically address this term. See Peter M. Haas and Ernst B. Haas, Learning to
Learn: Improving International Governance, 1 Global Governance (1995), 255.
31 Stanley Fish, Is There a Text in This Class? The Authority of Interpretive
Communities (1980).
32 Stanley Fish, Doing what Comes Naturally (1989), 141-2.
33 Jean d’Aspremont, The Professionalisation of International Law, in: Jean d’
Aspremont et al. (eds.), International Law as a Profession (2017), 28. The common
understanding can be translated into rules, such as rules on interpretation and
notion, an interpretive community of international lawyers is formed as long

as they share “a language that allows them to speak to one another” and “a sys-
tem of principles that each of them has internalized and which come to con-

strain the type of legal argumentation they recognize as valid”.34 According to
Ian Johnstone, interpretive communities “emerge from discursive interaction
in the international legal system, and they help to define the rules and norms
that become embedded in institutions”.35 They establish “the parameters of
acceptable argumentation”, i.e., “the terms in which positions are explained,
defended and justified to others in what is fundamentally an inter-subjective
enterprise”.36 Simply put, interpretive communities set the criteria and direct
the interpretation of international law. The meaning of a text, rather than be-
ing determined by the text itself via some intrinsic characteristics that it pos-
sesses, or by the reader, is determined by the cultural assumption of an
interpretive community wherein the international lawyers find themselves.37
16. Based on the interpretive community theory, the result of a legal inter-
pretation can be relatively objective and determinate through building a
united interpretive community. As argued by Ian Johnstone:
The idea of interpretive communities runs counter to the view that
meaning is radically indeterminate. Rational discourse about competing
interpretations within an enterprise is possible as long as there is an un-
derstanding, largely tacit, of the enterprise’s general purpose. Disputes
over meaning are resolvable through the “conventions of description, ar-
gument, judgment and persuasion as they operate in this or that profes-
sion or discipline or community”.38
sources. Cf., Jean d’Aspremont, The Idea of Rules in the Sources of International
Law, 84 British Yearbook International Law (2014), 103–30.
34 d’Aspremont, above n.33, 29; Fish, above n.31, 5.
35 Ian Johnstone, The Power of Interpretive Communities, in: Michael Barnett and
Raymond Duvall (eds.), Power in Global Governance (2005), 186.
36 Ibid.
37 Insights on the effects of being a member of an interpretive community can be
drawn from sociology. From a sociological perspective, the perceptions and behav-
iors of individuals can be explained by looking at the community in which one
belongs to and which establishes one’s identity. Such an “identity theory” can also
shed light on international law. See Moshe Hirsh, Social Identity, International
Groups, and International Law, in: Moshe Hirsh, Invitation to the Sociology of
International Law (2015).
38 Ian Johnstone, Security Council Deliberations: The Power of the Better Argument,
14(3) EJIL (2003), 445.
17. Because of this feature of creating relative determinacy, many scholars

successfully use the term “interpretive communities” in building theories
on the interpretation of international law.39 More specifically, it is sug-

gested that when it comes to the interpretation of the UN Security Council
(UNSC) resolutions, one of the core legal issues in the Al-Bashir case, a co-
herent argument can be achieved by referring to the “interpretive
communities”.40 Johnstone, drawing on the inspirations from the notion,
argues that:
Interpretation of international law is the search for an inter-subjective
understanding of the norm at issue: the interpretive task is to ascertain
what the law means to the parties to a treaty or subjects of the law col-
lectively rather than to any one of them individually. It is an interac-
tive process, the parameters of which are set by an interpretive
community.41
18. Based on this view, the role of legal scholars as amici curiae is relatively
neutral or “inter-subjective”. The theory views the legal scholars collectively
rather than individually, and argues that their collective view can provide rela-
tive objectivity and determinacy with respect to a legal argument.
19. However, it is questionable whether there indeed exists a coherent in-
terpretive community surrounding the ICC. Even if we accept that the exis-
tence of a coherent interpretive community can create relative objectivity in
legal argumentation, the real problem might be the “fragmentation into differ-
ent interpretive communities”, making it impossible to reach a united inter-
pretation.42 The analysis of the actual interpretation made by academic amici
in Al-Bashir case in Part IV of this comment will demonstrate that the view of
“fragmentation” indeed makes sense.
39 See, e.g., Johnstone above n.35 and 38; Efthymios Papastavridis, Interpretation of
Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi
Crisis, 56 International and Comparative Law Quarterly (2007), 83.
40 Papastavridis, ibid., 95.
41 Johnstone, n.34, 449–50.
42 Michael Waibel, Interpretive Communities in International Law, in: Andrea
Bianchi, Daniel Peat and Matthew Windsor (eds.), Interpretation in International
Law (2015), 147; Andrea Bianchi, The International Regulation of the Use of
Force: The Politics of Interpretive Method, 22 Leiden JIL (2009), 665.
II.C. Indeterminacy of legal argumentation: legal scholars as

grammarians
20. The role of legal scholars, according to the third view, is not improving

objectivity and determinacy to international law by virtue of their expertise,
but serving as “grammarians”, “shap(ing) the formulation of arguments by
other actors”, “prescribing the categories of acts, utterances and practices that
will be deemed relevant” and “contributing to the elaboration of the lan-
guage-in this case, of law”.43 By doing so, they are equipped with the indirect
power of law-making, “through the indirect law-creative potential that is exer-
cised through cognizing, structuring and apprehending legal materials”.44
21. The grammarian role of scholars is summarized by Hernandez to in-
clude two aspects: distinction and assimilation. The function of distinction
means that scholars play a role in establishing the criteria that can distinguish
law from non-law.45 According to Boyle, “the law itself is created by the cate-
gories and distinctions imposed by human intervention, rather than described
by them”.46 As for the function of assimilation, scholars carry out the function
of “ensuring the coherence and the permanence of a systematic set of princi-
ples and rules” through the “work of rationalization and formalization”.47
Such a role of grammarian has constitutive power. As d’Aspremont puts it,
there is power in the function of “grammarians in formal law ascertainment
who systematize the standards of the distinction between law and non-law”.48
In doing so, the grammarians do not necessarily bring objectivity and determi-
nacy to a legal question as law-applying authorities in a strict sense, but
through their systemization of the criteria for the distinction between law and
non-law, they can influence other actors in the application of international
law.
22. The above views represent three different understandings of the roles of
academic lawyers and the potential influence of amicus curiae participation by
43 Gleider Hernandez, The Responsibility of the International Legal Academic:

Situating the Grammarian within the “Invisible College”, in: Jean d’Aspremont
et al. (eds.), International Law as a Profession (2017), 162.
44 Ibid.
45 Ibid., 167.
46 James Boyle, Ideals and Things: International Legal Scholarship and the Prison-
House of Language, 26 Harvard ILJ (1985), 331–2.
47 Hernandez, above n.43, 177.
48 Jean d’Aspremont, Formalism and the Sources of International Law: a Theory of
the Ascertainment of Legal Rules (2011), 209-10.
them on international courts and tribunals. They range from objective

bystanders (as suggested by Kelsen), to interpretive communities capable of
producing a relative determinate legal interpretation, to presenting almost no

determinacy (as suggested by the “grammarian” theory). This comment
argues the first two views cannot properly capture the reality. As for the view
of Kelsen, it is based on his pure theory of positivism, while many contempo-
rary legal scholars, especially lawyers of international criminal law, have gone
beyond this approach.49 As for the second view, even if one unified interpre-
tive community can produce a relative determinate legal argument, the prob-
lem, however, is that the “invisible college of international lawyers” have
fragmented into different interpretive communities, thus incapable of render-
ing unified views. In light of the problems of the first two views, the third
view sounds more convincing. This comment will further support the third
view by resorting to Koskenniemi’s approach on the structure of international
legal argumentation, and applies his approach to analyse the legal arguments
by several legal scholars’ amicus curiae submissions in the Al-Bashir case.
III. Martti Koskenniemi’s approach on the structure of

international legal argumentation
23. Koskenniemi’s From Apology to Utopia (FATU) uses a method of
“deconstruction” or “regressive analysis” (or in the words of Koskenniemi,
“disentanglement”50). It investigates the structure and hidden codes lying be-
hind the surface of explicit legal norms and arguments.51 He exposes that ten-
sion exists between ascending arguments starting from “consent” and
descending arguments starting from “justice” in international legal argumen-
tation, and as a result, the source doctrine is unable to reach a determinate re-
sult without giving rising to criticism of either utopia or apology.52 He also
proposes the “principle of tacit consent” as a master principle in source doc-
trine by reference to examples of treaty interpretation, unilateral declarations,
and acquiescence-estoppel. He shows that this seemingly workable approach
of reconciliation can only temporarily let the decision-maker escape the
49 Antonio Cassese, above n.29.

50 Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal
Argument (FATU) (2006), 4.
51 Mario Prost, Born again Lawyer: FATU as an Antidote to the Positivist Blues, 7
German LJ 1037 (2006), 1040.
52 FATU, 306.
difficult positions, but cannot ultimately solve the problems of indetermi-

nacy.53 This comment seeks to examine whether his theory on the indetermi-
nacy of legal argument is also applicable to explain the controversial Al-Bashir

case in the ICC and to shed light on the role of legal scholars as amici curiae.
24. One of the major difficulties in deciding the Al-Bashir case lies in ascer-
taining the legal effect of the UNSC resolution 1593 (2005).54 One proposal
regarding its effect is that the resolution implicitly waives the immunity of
Al-Bashir by referring the case to the ICC.55 Another more complicated un-
derstanding was later proposed in the case regarding non-cooperation of
South Africa, i.e., the UNSC resolution renders Sudan in a position analogous
to States Parties to the Rome Statute, thus making immunity enjoyed by
Al-Bashir irrelevant based on Article 27(2) of the Rome Statute.56 However,
neither of these two proposals convinced the African countries concerned,
and the African Union even decided to initiate an advisory proceeding at the
International Court of Justice to counter the decisions of the ICC.57 Against
this background, this section demonstrates that Koskenniemi’s theory on the
structure of source argumentation, though it does not specially discuss the in-
terpretation of UNSC resolutions, can still shed light on the indeterminacy of
the effects of UNSC resolutions as well as the interpretation of the Rome
Statute. This challenges the traditional understanding that the amicus curiae
participation by the “invisible college of international lawyers” can improve
the court’s legitimacy by providing an objective and final answer to the legal
dispute. The following analysis starts with treaty interpretation before making
an analogy with the interpretation of UNSC resolutions.
53 FATU, 344.
54 The relevant paragraphs of the UNSC resolution 1593 read: “(the UNSC) 1.
Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the
International Criminal Court; 2. 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 un-
der the Statute, urges all States and concerned regional and other international
organizations to cooperate fully.”
55 Prosecutor v. Omar Al Bashir, Decision, ICC-02/05-01/09 P (11 July 2016).
56 Prosecutor v. Omar Al Bashir, Decision on the non-compliance by South Africa
(South Africa Decision), ICC-02/05-01/09-302 (6 July 2017).
57 Coalition for the International Criminal Court., Global Justice Weekly: AU seeks
ICJ opinion on head of state immunities (2018, February 1) (http://coalitionfor
theicc.org/news/20180201/globaljustice-weekly-au-seeks-icj-opinion-head-state-im
munities-witnesses-take-stand).
III.A. Basic rules and principles of treaty interpretation

25. Before introducing Koskenniemi’s structural analysis and adopting his ap-
proach to the present case, this section will briefly introduce as a background

the basic rules and principles of treaty interpretation and some of the contro-
versies thereof.
26. The following discussion of Koskenniemi’s structural analysis focuses
to a large extent on the “treaty interpretation doctrines”. In international law,
the primary principles on treaty interpretation are represented in Article 31
and 32 of the Vienna Convention on the Law of Treaties (VCLT) which are
considered to reflect customary international law.58 Article 31 sets out the
general rule for treaty interpretation. It starts with, “a treaty shall be inter-
preted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and
purpose”.59 This article shows that interpretation of a treaty must take into ac-
count elements like “ordinary meaning”, “context”, and “object and purpose”.
However, it is unclear which one of these elements should be given more
weight than others.60
27. According to Article 31(2), “context” includes not only the treaty’s pro-
visions (including its preamble and annex) but also other agreements and
instruments made by parties in connection to the conclusion of the treaty.61
Article 31(3) allows for consideration of subsequent agreement and practice as
well as “any relevant rules of international law applicable in the relations be-
tween the parties”.62 Article 32 concerns the status of preparatory work and
circumstances of the conclusion of the treaty, while these two elements are
only considered as supplementary means, applicable only in order to confirm
the meaning resulting from the application of Article 31, or to determine the
meaning when the interpretation according to Article 31 either leaves the
meaning “ambiguous”, or leads to “a result which is manifestly absurd or
unreasonable”.63
58 See, e.g., Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, ICJ Rep
1994, 6, para.41.
59 Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS 331, art. 31 (1).
60 See Richard Gardiner, Treaty Interpretation (2015), chap. 5.
61 VCLT, art. 31(2).
62 VCLT, art. 31(3).
63 VCLT, art. 32.
28. The actual application of these rules is very complex, with practice
sometimes differing from the principles laid down in the text of the
VCLT. One of the controversies, for example, is what kind of role the

preparatory work of a treaty should be given in treaty interpretation.
Although the wording of Article 32 of the VCLT indicates that the prepa-
ratory work is only supplementary, this view is subject to criticism by
some States and the actual practice of treaty interpretation deviates from
the text of the VCLT.64 This is only one example indicating the uncer-
tainty in treaty interpretation, and the following analysis of
Koskenniemi’s work demonstrates further indeterminacies in the inherent
structure of treaty interpretation.
III.B. Koskenniemi’s structural analysis on international legal

argumentation
29. Koskenniemi’s analysis starts from the question why international law has
binding force. With regard to this question, the consensual theory (or
“subjective understanding”) contends that an international legal obligation is
binding on a State if the State has voluntarily consented to it; while the non-
consensual theory (or “objective understanding”) claims that the binding force
comes from something that overrides consent (e.g., justice, fairness, reciproc-
ity).65 Either of these two theories, when read alone, is insufficient to sustain
the “normativity” and “concreteness” of international law,66 leading to the
criticism of either “apology” or “utopia”. To solve the problem, the “formal”
source doctrine, especially the master principle of “tacit consent”, seeks to rec-
oncile the consentualism and non-consentualism to make a norm both con-
crete and normative.67 However, through examination of the structure of
source doctrine, Koskenniemi demonstrates that such a reconciliation is only
superficial.68 This can be demonstrated through the following analysis on
treaty interpretation.
64 See Gardiner, above n.60, chap. 19.

65 FATU, 309.
66 FATU, 23. The characters of normativity and concreteness distinguish international
law from international politics and morality.
67 FATU, 305.
68 FATU, 324.
30. As discussed above, treaty interpretation doctrines usually start with dis-
covering the “ordinary meaning” of a treaty provision,69 but “ordinary mean-
ing” itself does not create binding force. The normativity of a rule comes from

either consent or something beyond it (e.g., a principle of justice).70 Thus, the
ordinary meaning is only relevant when it can be used to get access to consent
or to something beyond it, so the question goes to which understanding—the
subjective or the objective—prevails over the other.
31. However, the subjective views and objective elements are always
intertwined with each other. It is usually argued that the goal of interpreta-
tion is to find the (subjective) intent of the parties, but this intent cannot
be proved through subjective views themselves, but must be shown
through non-subjective points, such as text, subsequent practice, teleology,
good faith etc.71 Nonetheless, the existence of various routes and channels
of interpretation does not solve the problem, as there is no “constraining
hierarchy among them”,72 and they do not have any independence from
the subjective and objective constructions.73 In this way, treaty interpreta-
tion becomes a “perpetuum mobile” and the argument becomes “hopelessly
circular”.74
32. The decision makers can use a strategy of “tacit consent” to temporarily
evade the controversy. According to the tacit consent principle, State consent
is inferred from past behaviour.75 There are two understandings of past be-
haviour, a subjective one (i.e., the past behaviour reflects consent) and an ob-
jective one (i.e., the past behaviour reflects a non-consensual principle of
justice). If the past behaviour expressed both consent and justice, a legal dis-
pute would not arise. By contrary, where there is a legal dispute, there always
exists a dilemma between “consent” and “justice”. One problem, however, is
that we lack means to know the content of “consent” or “justice” indepen-
dently from each other, without either being criticized as “apologist” or
69 See, e.g., Competence of the General Assembly for the Admission of a State to the
United Nations, Advisory Opinion, ICJ Reports 1950, 8; South West Africa
(Liberia v. South Africa), Judgment, ICJ Reports 1962, 336; VCTL. art. 31.
70 FATU, 335.
71 FATU, 336.
72 VCLT arts 31 and 32 seem to establish a hierarchy, rendering the preparatory work
seemingly a subsidiary position, but practice indicates otherwise.
73 FATU, 339.
74 FATU, 337.
75 FATU, 327.
“utopian”.76 As said by Koskenniemi, “intent can be known only in its

manifestations—which manifestations (e.g., text, behavior, teleology) count
depends on whether they express intent.”77 The arguments are hopelessly cir-

cular. Another problem is that the “tacit consent” cannot be invoked against a
State denying it without “assuming either (1) that the law-applier ‘can know
better’ what the State has agreed to, or (2) that there is some non-acceptance-
related criterion whereby we can judge whether acceptance is present or
not”.78
33. In a word, whenever a party proposes a subjective or an objective argu-
ment, the disagreeing party can always criticize it from an opposing position,
and vice versa. As Koskenniemi summarizes it,
The structure of treaty interpretation is governed by the constant shift
from a subjective into an objective position and vice-versa. Argument ei-
ther stops at a position where it will look apologist or utopian or contin-
ues interminably. This is hidden by doctrine’s use of strategies of evasion
which make it seem as if the subjective and objective were not conflicting
and as if a resolution gave effect to what everybody had already con-
sented to.79
III.C. Applying the structural analysis to the interpretation of the

UNSC resolutions
34. Although Martti Koskenniemi’s structural analysis does not specifically
address the interpretation of UNSC Resolutions, this section shows that his
work can still shed some lights on this issue. As confirmed by the case law of
the International Court of Justice (ICJ),80 the UNSC resolutions can be effec-
tively law-making to the extent that the UN Charter confers power to it to
make binding decisions upon members of the UN.81 The basis of such a law-
76 FATU, 333.
77 FATU, 337.
78 FATU, 64.
79 FATU, 342.
80 Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276
(Namibia case), ICJ Rep 1971, 16, at 50, para.114.
81 Marko Divac Öberg, Legal Effects of Resolutions of the UN Security Council and
General Assembly in the Jurisprudence of the ICJ, 16(5) EJIL (2005), 884; Hugh
Thirlway, The Sources of International Law (2014), 22.
making power is essentially a treaty, thus the resolution cannot be regarded as

an independent technique of law-making. Despite the view of some scholars
that UNSC resolutions cannot be treated as a source of international law,82

we can still draw an analogy to the source doctrine to interpret them.83 As the
following analysis shows, Koskenniemi’s structural analysis on legal argumen-
tation is also applicable to interpreting UNSC resolutions.
35. Like analysing treaties as discussed above, the structural analysis of the
UNSC Resolutions can also start from the question: whether a UNSC
Resolution is binding.84 It should be noted that although the rules on treaty
interpretation are frequently applied to the interpretation of the UNSC reso-
lutions, case law confirms that their drafting process is very different from that
used for drafting a treaty, and the resolution demonstrates the collective will
of a single political organ of the UN which differs from the will of the parties
to a treaty.85 Thus the tension between “consent” and “justice” that applied
for treaty interpretation may not be automatically applicable to the interpreta-
tion of UNSC resolutions. It requires consideration of the political back-
ground related to the operation of UNSC actions as well as understanding the
role of UNSC within the Charter of United Nations.86 Despite the difference,
the section argues that the tension between subjective argument and objective
argument also pervades in the interpretation of UNSC resolutions, making
their meaning and legal effects inherently indeterminate.
35. Like treaty interpretation, the interpretation of UNSC resolutions is
intertwined with subjective views and objective elements. The interpretation
usually starts with giving effect to “the intention of the Council”.87 In this
82 Thirlway, ibid.
83 See, e.g., Michael C. Wood, The Interpretation of Security Council Resolutions, 2
Max Planck YUNL (1998), 86.
84 Namibia case, 16 ff; Rosalyn Higgins, The Advisory Opinion on Namibia: Which
UN Resolutions are Binding under Article 25 of the Charter?, 21 International and
Comparative Law Quarterly (1972), 879; Ronald A. Brand, Security Council
Resolutions: When Do They Give Rise to Enforcible Legal Rights?, 9 Cornell ILJ
(1976), 298; S. A. Tiewal, Binding Decisions of the Security Council within the
Meaning of Article 25 of the UN Charter, 15 Indian JIL (1975), 195; Wood, above
n.83, 95.
85 Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo, Advisory Opinion, ICJ Rep 2010, 403, 442, para.94.
86 Wood, above n.83, 74.
87 Advisory Opinion of 15 May 1931 Access to German Minority Schools in Upper
Silesia, PCIJ Series A/B, No 40, 18; Prosecutor v. Tadic, Decision on Interlocutory
sense, finding the subjective will of the members of the Security Council
seems to be the goal of interpretation. However, in order to know the inten-
tion, the interpreters have to resort to objective evidence, like “the words used

by the Council” and “the surrounding circumstances”.88 Again, the objective
evidence can only be interpreted subjectively, as objective evidence may con-
flict with each other, while there exists no objective standard based on which
we can give different weight to the evidence. For example, it is questionable
whether “the minutiae of language” should be given more weight than the
“circumstances of the adoption of the resolution” and “preparatory work”.89
In addition, different from treaty interpretation which is based on well-
codified rules in the VCLT, there exists no such official codification of rules
for interpretation of the VCLT. What makes the interpretation more indeter-
minate is the issue to what extent the law on treaty interpretation can be appli-
cable to UNSC resolutions, as the differences between them are
tremendous.90
37. Based on the above analysis on argumentation structure of interpreta-
tion of treaties and the UNSC resolutions, this comment can tentatively con-
clude that the international legal argumentation is characterized by the
oscillation between objective points and subjective points, making the answers
to a legal issue inherently indeterminate. This view will be supported by the
following analysis on the argumentation practice in the Al-Bashir case.
IV. Analysis of the legal argumentation by legal scholars in the

Al-Bashir Case
IV.A. The ambiguous legal debate in the Al-Bashir case
38. Before analysing the legal argumentation by the legal scholars, this section
will make a brief introduction of the controversial legal issues in this case.
This section identifies three approaches previously adopted by the Pre-Trial
Chamber to address the Court’s power to request member States to surrender
nationals of non-member States. It shows that the three approaches by which
the Pre-Trial Chamber justified its request for surrender of Al-Bashir are in
Appeal, ICTY-94-1-AP72 (2 October 1995), paras.32-74; Prosecutor v. Tadic,

Judgment, ICTY-94-1 (15 July 1999), paras.282-6 and 287-302.
88 Namibia case, 53; Higgins, above n.84.
89 Wood, above n.83, 95.
90 Ibid.
conflict with each other, and some reasonable criticism can be raised against
all of them.

IV.A.i. Approach I: a customary exception to immunity in the international
courts
39. In early decisions in which the Court requested member States to cooper-
ate, the Pre-Trial Chamber only relied on the UNSC resolution 1593 (2005)
which “urge[d]” all States concerned to cooperate (rather than “decided” that
States shall cooperate), and on Article 87 and Article 89 of the Rome Statute
which require member States to cooperate with the Court.91 It was only until
the case relating to the non-cooperation of Malawi that the Pre-Trial
Chamber referred to Article 98(1) of the Rome Statute, which appears to cre-
ate an exception to cooperation, but it decided this provision to be inapplica-
ble.92 The court reasoned that the pre-condition for applying Article 98(1) is
that the cooperation with the ICC is inconsistent with the requested State’s
obligations of immunity toward a third State, but this court found this condi-
tion had not been met because there was no such immunity applicable in this
case. By analysing the development of international law in relation to immu-
nity before international criminal tribunals (from the Nuremberg and Tokyo
International Military Tribunals to the ICTY and ICTR),93 the Pre-Trial
Chamber concluded that customary international law has developed an excep-
tion to immunity. That is, immunity cannot be invoked in relation to interna-
tional crimes tried before international criminal trials.94 The same reasoning
was adopted by the Pre-Trial Chamber in the decision regarding Chad.95
91 Prosecutor v. Omar Al Bashir, Decision informing the United Nations Security

Council and the Assembly of the States Parties to the Rome Statute about Omar Al-
Bashir’s presence in the territory of the Republic of Kenya, ICC-02/05- 01/09-107
(27 August 2010), preamble (third recital); see also Prosecutor v. Omar Al Bashir,
Decision requesting Observations about Omar Al Bashir’s Recent Visit to the
Republic of Chad, ICC-02/05-01/09 (18 August 2011), preamble (eighth recital).
92 Prosecutor v. Omar Al Bashir, Corrigendum to the Decision Pursuant to Article
87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply
with the Cooperation Requests Issued by the Court with Respect to the Arrest and
Surrender of Omar Hassan Ahmad Al-Bashir (Malawi Decision), ICC-02/05-01/
09, P T Ch (13 December 2011, original decision 12 December 2011), paras.14–
18 and 22–43.
93 Malawi Decision, paras.22-36.
94 Malawi Decision, para.43.
95 Prosecutor v. Omar Al Bashir, Decision Pursuant to article 87(7) of the Rome
Statute on the Refusal of the Republic of Chad to Comply with the Cooperation
40. However, this reasoning is subject to much criticism by African

States96 and the way the Pre-Trial Chamber proved the rule of customary in-
ternational law was not quite convincing. First of all, in order to prove the cus-

tomary norm, the Pre-Trial Chamber relied on the Rome Statute itself which
was ratified by more than 120 States and which eliminates immunity of
Heads of States of member States through Article 27.97 However, the ap-
proach to prove a customary law by relying on a treaty is sometimes problem-
atic because treaties can also support the opposite inference that without the
treaty norm no customary law exists.98 Also, the Court confounds the issue of
“defence of official capacity” and “immunity from arrest and surrender”: the
majority of the examples given by the court are principally related to the for-
mer rather than the latter.99 For example, Article 27(1) concerns defence of
official capacity and Article 27(2) only absolves the accused of their immunity
from “exercising of jurisdiction” by the Court, while they have nothing to do
with “arrest and surrender”,100 thus it would be wrong to state, as did the Pre-
Trial Chamber,101 that Article 27 is necessarily contradictory to Article 98 of
the Rome Statute.
41. Secondly, although the decision referred to the practice of many previ-
ous international criminal tribunals (ICTs) as evidence to prove that immuni-
ties are absolved before ICTs as a customary rule, the Pre-Trial Chamber
made no attempts to distinguish the different ways through which the ICTs
were established. The inapplicability of immunity before the various ICTs
can actually be justified either by waiving immunity by the unconditional sur-
render of the States concerned (as in the Nuremberg and Tokyo International
Military Tribunals) or by the UNSC decisions (as in the ICTY and ICTR).
None of these practices could necessarily infer the existence of such a
Requests Issued by the Court with Respect to the Arrest and Surrender of Omar
Hassan Ahmad Al Bashir, ICC-02/05-01/09 (13 December 2014), paras.12–14.
96 e.g., AU Assembly Decision 397 (XVIII) (30 January 2012), para.6.
98 See Case Concerning Ahmadou Sadio Diallo (Guinea v. Congo), Preliminary
Objections, ICJ Rep 2007, para.90.
99 Dov Jacobs, The Frog that wanted to be an Ox: the ICC’s Approach to Immunities
and Cooperation, in: Carsten Stahn (ed.), The Law and Practice of the International
Criminal Court (2015), 287.
100 Ibid.
customary rule that categorically rejects any immunity before any interna-
tional courts or tribunals.102
42. Thirdly, the Court could not provide enough State practice and opinio juris

to establish such an exception to the rule of immunity, especially due to the fact
that such an exception has been explicitly rejected by the majority of African
States. For example, Article 46 of the Draft Statute of the African Court of Justice
and Human and Peoples’ Rights accepts both personal and functional immunity
without exceptions.103 It seems that the Pre-Trial Chamber has realized the prob-
lematic nature of its approach in proving the customary exception to immunity,
thus in its later decisions it dropped this approach and relied on a new one.
IV.A.ii. Approach II: immunity was waived by the UNSC Resolution

43. In the case on the non-cooperation of the Congo, the Pre-Trial Chamber
used a new approach. It equated the UNSC decision requiring States (i.e.,
Sudan) to cooperate fully and provide necessary assistance with an implicit
waiver of “the immunities granted to Omar Al Bashir under international law
and attached to his position as a Head of State”.104
44. The second approach is conflicting with the first one, as it presumes
Article 98(1) to be applicable in principle, implying that the pre-condition, as
raised in Malawi Decision, has been satisfied, while it considers the Al-Bashir
case to fall into the exception of the provision. The conflicting decisions are
not per se problematic, as decisions of Pre-Trial Chambers have no binding
force, but it would be problematic for a court to deviate from its previous
decisions without providing sufficient reasoning.
45. In addition, this approach would still face several difficulties. Doubts
may arise as to whether the UNSC has the power to indirectly remove the im-
munity enjoyed by a Head of State which would otherwise be recognized un-
der the normal application of international law.105 Although it could be
argued that such a power is implicit in Chapter VII of the UN Charter
102 Dapo Akande, The Jurisdiction of the International Criminal Court over Nationals
of Non-Parties: Legal Basis and Limits, 618 Journal of International Criminal
Justice (2003), 625-34.
103 Executive Council of the African Union, The Report, the Draft Legal Instruments
and Recommendations of the Specialized Technical Committee on Justice and
Legal Affairs, EX Cl/846(XXV) (15 and 16 May 2014), 6.
104 Prosecutor v. Omar Al Bashir, Decision on the Cooperation of the Democratic
Republic of the Congo Regarding Omar Al-Bashir’s Arrest and Surrender to the
Court, ICC-02/05-01/09 (9 April 2014), paras.29–32.
105 Jacobs, above n.99, 290.
granting power to the UNSC to maintain peace and security, its expression in
UNSC resolution 1593 (2005) is questionable. It is doubtful why a decision
by the UNSC requesting a State to cooperate should necessarily be taken to

mean that the immunity has ipso facto been waived even when the State con-
cerned has made no expression in relation to such a waiver of immunity.106
Thus, the difficulty lies in the interpretation of UNSC resolution 1593, and
in a more recent case on the non-cooperation of South Africa, the Pre-Trial
Chamber attempted a new interpretation.
IV.A.ii. Approach III: the UNSC Resolution made Sudan in the same status
as parties to the Rome Statute
46. In the decision on the non-cooperation of South Africa, the Court held
that when the Security Council refers a situation to the Court under Article
13(b) of the Statute, “the legal framework of the Statute applies, in its en-
tirety, with respect to the situation referred”, 107 rendering Sudan the same
status as parties to the Rome Statute, so that Article 27(2) applies to Sudan
and excludes the immunity of Head of State from an arrest warrant.108
47. However, if the Pre-Trial Chamber II applied certain principles of in-
terpretation to Resolution 1593, it could have reached the opposite conclu-
sion. One principle is that of the author’s intent. As the ICJ has held in
several cases,109 unilateral acts should be interpreted in accordance with the
intent of the author. This goes against the Pre-Trial Chamber II’s statement
that the Security Council’s intention is “immaterial”.110 In the Al-Bashir case,
it can be argued that the text of Resolution 1593 reveals that the intent of the
Security Council was merely to refer the situation in Darfur to the ICC, but
not to prescribe any waiver of immunity. Another principle is that of exceptio
est strictissimae applicationis which means that exceptions to general obliga-
tions should be interpreted narrowly.111 In the Al-Bashir case, the general
106 Roger O’Keefe, International Criminal Law (2015), 573.

107 South Africa Decision, para.85.
108 Ibid., para.91.
109 Anglo-Iranian Oil Company (United Kingdom v. Iran), ICJ Reports 1952, 93,
105; Aegean Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1978, 3, 29;
Fisheries Jurisdiction (Spain v. Canada), ICJ Reports 1998, 432, para.49.
110 South Africa Decision, para.95.
111 Interpretation of Article 79 of the 1947 Peace Treaty (France/Italy), Award, 31
RIAA 397 (7 December 1955); Asif H. Qureshi, Interpreting WTO Agreements:
Problems and Perspectives (2015), 170.
obligation is to respect the immunity afforded to a Head of State under trea-

ties and customary international law. There may be exceptions to this immu-
nity, but these are only valid when they are clear and unambiguous. Since

Resolution 1593 does not clearly waive this immunity, under this principle of
interpretation, the immunity should apply.
48. Although the criticism mentioned above does not necessarily imply
that it is wrong to request member States to surrender Al-Bashir, it nonethe-
less demonstrates some incongruences among the ICC’s decisions with regard
to the issue of immunity and cooperation. If the inconsistencies are not well
reconciled, the legitimacy of the court may be put into question. Such diffi-
culties in legal interpretation prompt the Appeals Chamber to resort to legal
scholars for help.
IV.B. Analysis of legal argumentation structure of the legal scholars in

the amicus curiae submissions
49. The question to be discussed in this section is what kind of role the aca-
demic lawyers play in submitting amicus curiae briefs. Do they serve as techni-
cians in providing neutral interpretations, or as members of interpretive
communities whose common views can create a relatively objective legal inter-
pretation, or as grammarians equipped with power in shaping the structure of
legal argumentation but who cannot necessarily bring objectivity and determi-
nacy in legal argumentation? This part draws on Martti Koskenniemi’s
method on the structural analysis to study the arguments made by selected le-
gal scholars112 in the Al-Bashir case, and argues that their role as grammarians
is more convincing in the sense that they cannot produce absolutely objective
answers to the legal questions, but that they are able to shape the legal formu-
lations by other actors.
50. As discussed in the previous section, there are two incompatible ar-
gumentation techniques in international legal argumentation, that is, an as-
cending pattern of justification and a descending pattern of justification.
The ascending pattern “takes as given the existence of States and attempts
to construct a normative order on the basis of the ‘factual’ State behavior,
112 This research may be criticized as lacking representativeness, as it only selects the le-
gal argumentation of four legal scholars, but these examples are sufficient to show
that the structure of international legal argumentation cannot provide coherent and
determinate answer to a given legal question, and the same analytical approach can
also be adopted to test all the rest of the submissions.
will and interest”,113 while the descending pattern “traces the rights and
obligations down to justice, common interests, progress, nature of the
world community or other similar ideas to which it is common that they

are anterior, or superior, to State behavior, will or interest”.114 As illus-
trated below, both of these two types of argumentation techniques exist in
the scholars’ submissions to the ICC in the Al-Bashir case. They render the
legal argumentation inherently indeterminate, making it impossible for le-
gal scholars to provide objective and determinate answers to the legal ques-
tion concerned.
IV.B.i. Examples of arguments starting from a principle of justice:

interpretation of the Rome Statute
51. This part uses Professor Konstantinos D. Magliveras’s and Professor Paola
Gaeta’s amicus curiae submissions as examples to illustrate the descending ar-
gumentation. Professor Konstantinos D. Magliveras’s submission can be
viewed as an example of descending argumentation in the sense that he priori-
tizes “the court’s ability to fight the ethos of impunity”115 or “the ever-
evolutionary process toward a globalized international criminal justice”116
over State’s behaviour, will or interest, and he interprets the latter as “a rebel-
lion against the ICC”.117 He degrades the States’ views as politicized, stating
that “the interests of both Jordan and Sudan appear to be aligned”, and
“politics have seemingly over-shadowed legal considerations”,118 implying
that the States’ views should be considered politically motivated—thus less le-
gally relevant—and more attention should be attached to the ICC’s goal to
end impunity.
52. His descending approach starts with constructing the nature of contem-
porary international law as favouring “a globalized international criminal jus-
tice, which the ICC has been entrusted with playing the pivotal role”.119 It
follows from this view that the so-called “rules inconsistent with
113 FATU, 59.

114 FATU, 59.
115 Prosecutor v. Al-Bashir, Amicus Curiae Observations by Professor Konstaninos D.
Magliveras (Professor Konstaninos D. Magliveras’s observations), ICC-02/05-01/09
(14 June 2018), para.1.
116 Ibid., para.7.
117 Ibid., para.1.
118 Ibid., para.4.
119 Ibid., para.7.
contemporary international law characterized by its deep anthropocentric

nature” should be discarded, which includes the rules of immunity preventing
heads of State from being prosecuted abroad.120 In this way, he establishes a

normative hierarchy of different rules of international law, with the obligation
to cooperate with the ICC being more important than the obligation toward
other States with respect to the immunity of a head of State. Therefore, he
criticizes the failure of Jordan in adducing any compelling reasoning why it
observed the latter obligation and disregarded the former.121 But a purely nor-
mative argument cannot escape the criticism of “utopia”, thus he needs sup-
port from “State consent”, therefore he argued that the States concerned have
voluntarily accepted the ICC’s jurisdiction.122
53. Another example showing his descending argumentation is the ap-
proach by which he deals with the relationship between Article 27(2) and
Article 98(1) of the Rome Statute. He makes a normative argument that “the
principle of effet utile (effectiveness) should be employed”, and the principle
should not “be counterbalanced by the in dubio mitius principle”.123 This
view also derives from his view of “justice”, i.e., “the Rome Statute’s obliga-
tions are meant to ensure that the most heinous international crimes commit-
ted by a person against another person are always prosecuted”.124 However,
according to Koskenniemi, under international law, there exist no objective
rules determining which principles on legal interpretation should be given pri-
ority. Therefore, his view of justice can be considered very subjective as he
fails, at least in the texts he provides to the court, to sustain this view with evi-
dence of State consent.
54. The reason why this comment argues that his view of justice which
gives supremacy to the goal of fighting against impunity is subjective is that
the descending argument can start with a different principle of justice render-
ing totally different conclusions, while which version of justice should be
adopted is very subjective. An example showing a different version of justice is
Professor Paola Gaeta’s descending argumentation.
55. Professor Paola Gaeta’s descending argumentation can be viewed as
starting from an objective point, i.e., the nature of the ICC—“the integrity of
120 Ibid., para.7.

121 Ibid., para.8.
122 Ibid.
123 Ibid., para.9.
124 Ibid.
the court as a court of law”.125 She proposes this view to address the issue re-
garding Sudan’s position vis-à-vis the Rome Statute, considering whether
Sudan’s status as a non-party State was altered by the UNSC referral. By argu-

ing for the “integrity of the ICC”, she means that the ICC should be separated
from the unwanted influence of the UNSC, otherwise it would become “a
court of the UNSC” rather than an independent court established by a
treaty.126 In order to justify the normative view, she moves the argumentation
down to State wills, and argues that the intention of States in establishing the
ICC is to overcome the flaws of ad hoc tribunals which are viewed as “a politi-
cal body by powerful states”.127
56. As she establishes the legal nature of the ICC as “a treaty-based interna-
tional organization governed by the principle of specialty”,128 in her following
descending argumentation, she gives more weight to the explicit wording in
the Rome Statute (i.e., Article 1, Articles 6-8, Article 12), arguing that “the
ICC can only be endowed with the powers and competences delegated to it
by states parties on the basis of the constitutive instrument”.129 In this way,
the power of the UNSC in influencing the status of Sudan and its power to
lift Sudan’s immunity is downgraded.
57. She also adopts the descending argumentation when she interprets indi-
vidual rules of the Rome Statute. For example, when she interprets Article
98(1) of the Rome Statute, she argues that the meaning of this Article should
be read in light of the legal nature of the ICC—it is not a court of the
UNSC.130 The purpose of the rule is to create a requirement for the exercise
of the power of the ICC to request judicial cooperation. The explicit wording
of Article 98(1), according to her view on the nature of the ICC, should be
given more weight than the power of the UNSC.131 Therefore, the UNSC
resolution cannot go beyond the actual wording of Article 98(1), and she fi-
nally reaches the conclusion that Al-Bashir still enjoys immunity from being
arrested and surrendered to the court.
125 Prosecutor v. Al-Bashir, Observations by Professor Paola Gaeta (Professor Paola

Gaeta’s Observations), ICC-02/05-01/09 OA2 (18 June 2018), 5.
126 Ibid., 5.
127 Ibid.
128 Ibid.
129 Ibid., 6.
130 Ibid., 7.
131 Ibid., 10.
58. As there exist no objective rules or standards governing which version

of the principle of justice should be adopted, neither Professor Konstantinos
D. Magliveras’s view (i.e., the ICC plays a pivotal role in fighting against im-

punity) nor Professor Paola Gaeta’s view (i.e., the ICC is not a court of the
UNSC) can be considered the only right understanding of the nature of the
ICC, so as to guide the interpretation of other rules. Therefore, both of them
have to adopt the descending argumentation, trying to find evidence based on
State consent to support their views. As the contradicting conclusions between
the two scholars demonstrate, even though both of them adopt a similar inter-
pretation structure, they could not necessarily come to the same conclusions,
not to mention that many other scholars would adopt a different argumenta-
tion structure, namely, the ascending argumentation.
IV.B.ii. Examples of arguments starting from State consent: interpretation of

the UNSC 1593 (2005)
59. The ascending view of international law presumes that “state behaviour,
will and interest are determining of the law”.132 It “starts from the given exis-
tence of state behaviour, will and interest and attempts to produce a norma-
tive code from them”.133 One example of argumentation starting from the
consent of States is regarding the interpretation of the UNSC resolution
1593. When arguing about the effect of this resolution on the immunity of
Sudan, scholars usually start with the “intent of the UNSC”, which presumes
States’ (collective) will determines the law. Here we use the observations of
Professor O’Keefe and Professors Darryl Robinson et al. to demonstrate that
those adopting an ascending structure can also fail to reach a determinate
conclusion.
60. Professor O’Keefe’s argument considers the effect of Article 98(1) in re-
specting the immunity of non-party States like Sudan, and the effect of
UNSC resolution 1593 as being unable to lift the immunity of Sudan.134 He
argues that the resolution does not alter the ordinary application of Article
98(1), as the intent of the UNSC is not to render the Rome Statute binding
on a non-party State, contrary to a fundamental rule of treaty law.135 The
132 FATU, 59.

133 Ibid.
134 Prosecutor v. Al-Bashir, Observations by Professor Roger O’Keefe (Professor Roger
O’Keefe’s Observations), ICC-02/05-01/09 OA 2 (18 June 2018).
135 VCLT, art 34; Professor Roger O’Keefe’s Observations, para.11.
problem, however, is how to prove States’ collective consent. As Koskenniemi

said, this cannot be proved through subjective views themselves, but only
through non-subjective points, such as text, subsequent practice, teleology,

good faith, etc.136 In light of this view, Professor O’Keefe moves to State prac-
tice, arguing that the UNSC does not have the intent to modify the effect of
Article 98(1), which is proved by consequent persistent inaction to respond to
the decisions of the Pre-Trial Chamber referring the States concerned to the
UNSC.137
61. However, moving to the objective points cannot ultimately solve the
problem, because the objective manifestations may conflict with each other,
and there exist no positive rules in international law governing such con-
flicts.138 In the amicus curiae submission provided by Professor Darryl
Robinson, et al., for example, they interpret the intent of the UNSC with dif-
ferent State practice, resulting in an opposite conclusion.139 They argue that
the intent of the UNSC is to remove the immunity of Sudan, which is evi-
denced by the wording “cooperate fully”, as well as the previous practice of
the UNSC.140 For example, in the previous UNSC resolutions establishing
ad hoc international criminal tribunals, the UNSC used the same wording as
with UNSC resolution 1593, and virtually lifted the immunities of people
concerned, like in the Milosevic case.141
62. As can be seen, both Professor O’Keefe and Professors Darryl Robinson
et al. adopt an argumentation structure starting from the consent of States
(i.e., subjective views), while they still have to resort to objective evidence to
support their interpretation of the States’ views. However, resorting to objec-
tive elements cannot put the question to an end, as they use different objective
evidence to support their interpretation of the intent of UNSC, resulting in
opposing conclusions. The legal dispute can become endless, as the positivist
source doctrine could not provide a theory to evaluate the evidentiary value of
the different possible manifestations. The rules on interpreting UNSC
136 FATU, 336.

137 Professor Roger O’Keefe’s Observations, paras.12-14.
138 FATU, 337. Here we presume that the method of “knowing better” or “natural
justice” is excluded from the arguments. See the text to above n.78.
139 Prosecutor v. Al-Bashir, Amicus Curiae Observations of Professors Robinson,
Cryer, de Guzman, Lafontaine, Oosterveld, and Stahn (Observations of Professors
Robinson et al.), ICC-02/05-01/09 OA2 (17 June 2018).
140 Observations of Professors Robinson et al., paras.7 and 8.
141 Ibid.
resolutions allow the interpreters to rely on text, previous practice, subsequent

practice, etc.; while they fail to provide a standard giving different evidential
value to these objective points. Therefore, it relies on the subjective opinions

of the interpreters to choose which evidence to use, and in this sense, the in-
terpretation cannot avoid the criticism of “apologist”.
63. The above analysis shows that legal scholars as grammarians do not nec-
essarily bring objectivity and determinacy to a legal question. The Judgment
of the Appeal Chamber was issued on 6 May 2019.142 Instead of putting an
end to the debate, the approach of the Appeal Chamber attracted scholars’
criticism again.143 However, as shown from the Appeal Judgment, the legal
scholars’ views might be capable of shaping the formulation of arguments of
the Court in application of international law. Hernandez borrows the concept
of “enframing” from literature studies to explain the function of grammarians:
“through control over the parameters through which the world is appre-
hended and cognised”, the legal scholars can contribute to transforming politi-
cal demands into particular forms, eliminating certain types of debate from
the legal fields, and shaping the structure of communication of other
actors.144 Applied to the Al-Bashir case, the above scholar opinions can frame
certain political interests into legal terms so as to be arguable in the adjudica-
tory forum, and direct the Court’s attention to certain issues while rejecting
some considerations as irrelevant. For example, Professor Konstantinos D.
Magliveras’s argument may direct the Court to consider whether the States’
views can be downgraded as being politicized and therefore be given less
weight in deliberation.145 Professor Paola Gaeta’s views may guide the Court
to compare the different nature of the ICC with other courts, and consider
142 The Appeal Chamber Judgment adopts an approach similar to the one used by the
Pre-Trial Chamber in the Malawi Decision, i.e. there exists no head of state immu-
nity before an international court in customary international law. See Prosecutor v.
Al-Bashir, Judgment, ICC-02/05-01/09 OA 2 (6 May 2019) paras.114-5.
143 See, e.g., Dapo Akande, ICC Appeals Chamber Holds that Heads of State Have No
Immunity Under Customary International Law Before International Tribunals
(2019, May 6) (www.ejiltalk.org/icc-appeals-chamber-holds-that-heads-of-state-
have-no-immunity-under-customary-international-law-before-international-tribu
nals/).
144 Hernandez, above n.43, 178.
145 Cf. Prosecutor v. Al-Bashir, Judgment, ICC-02/05-01/09 OA 2 (6 May 2019)
paras.103-113. In identification of customary international law on head of State im-
munity, the Appeal Chamber does not rely on State practice, but rather relies on in-
ternational judicial practice.
whether it is possible for the ICC to adopt a different approach to the immu-
nity issue.146 The debates between Professor O’Keefe and Professors Darryl
Robinson, et al. may shape the formulations of the Court through their differ-

ent approaches toward the interpretation of the UNSC resolution, directing
the Court to decide which State practice can be considered as valid evidence
of State consent regarding the UNSC resolution.147
V. Conclusion
64. The presumption of the ICC when it invited the legal scholars to submit
their opinions seems to be that the participation by scholars can improve the
social perception of the court by providing a neutral and final answer to the le-
gal dispute. To test this presumption, this comment links the legitimacy of
the ICC to the literature on the roles of legal experts in international law. The
core issue thus turns to whether the participation of academic lawyers can in-
deed provide a neutral and definite answer to the legal dispute.
65. The comment examines three different understandings of the roles of
academic lawyers and the influence of their amicus curiae participation on the
legitimacy of the international courts. The first view is raised by Hans Kelsen,
who viewed legal experts as objective bystanders, capable of providing neutral
interpretation for legal rules. The second view is based on the theory of
“interpretive communities” which are considered capable of producing a rela-
tively determinate legal interpretation. The third view considers legal scholars
as grammarians. Their interpretation for a legal rule is inherently indetermi-
nate, but they have the capacity of shaping the legal discourse of other partici-
pants in legal proceedings. This comment critiques the first two views as
being inapplicable to the present case, and further strengthens the third view
by resorting to Martti Koskenniemi’s approach on analysing the structure of

paras.114-115; Prosecutor v. Al-Bashir, Joint Concurring Opinion of Judges Eboe-
Osuji, Morrison, Hofma nski and Bossa, ICC-02/05-01/09-397-Anx1 (6 May
2019), 24-31. The Appeal Judgment and the Concurring Opinion argue that an in-
ternational court such as the International Criminal Court has a “differentiated qual-
ity” rendering the law of immunity inapplicable.
paras.133-149, esp. para.138. Instead of relying on State practice, the Appeal
Chamber relies on the principle of effectiveness to interpret the intent of the UNSC
resolution.
legal argumentation and uses the arguments made by legal scholars in the Al-
Bashir case to test this view.
66. According to Koskenniemi’s view, owing to the fact that the legal argu-

mentation is characterized by the oscillation between objective points and
subjective points, the answers to a legal issue are inherently indeterminate.
The analysis of the arguments of four legal scholars in the Al-Bashir case in
the last part also concurs this view. Therefore, based on the insights from
Martti Koskenniemi and the literature on the role of academic lawyers, as well
as analysis of the legal argumentation provided by the Pre-Trial Chambers
and legal scholars, it is questionable to presume that scholars’ participation
can provide a neutral and determinate answer to a legal dispute and thereby
improve the legitimacy of the court.
67. Nonetheless, this comment does not deny that amicus curiae participa-
tion may play an important role in improving the legitimacy of the ICC by
giving voice to interests not represented by the parties to the dispute.148
Whether this function is fulfilled depends on whether the communities most
directly affected by the work of the ICC are represented by the amicus curiae.
Failure to get enough African lawyers to participate would probably have neg-
ative impacts on the legitimacy of the ICC. However, due to the limited word
count, this comment does not intend to expand to the issue whether amicus
curiae submission by Western or non-Western scholars may influence the le-
gitimacy of the ICC. As for future research on this issue, it is suggested that
some attention should be attached to the literature on “post-colonialism”149
and “Third World approaches to international law”.150
148 Kent and Trinidad, above n.8.

149 See, e.g., Sundhya Pahuja, The Postcoloniality of International Law, 46 Harvard
ILJ (2005), 459; Antony Anghie, The Evolution of International Law: Colonial and
Postcolonial Realities, 27 Third World Q (2006), 739-53.
150 See, e.g., Asad Kiyani, John Reynolds and Sujith Xavier, Foreword for Third World
Approaches to International Criminal Law Symposium, 14 Journal of International
Criminal Justice (2016), 915; Andrea Bianchi, International Law Theories: An
Inquiry into Different Ways of Thinking (2016), 205-226; Antony Anghie and
B.S. Chimni, Third World Approaches to International Law and Individual
Responsibility in Internal Conflicts, 2 Chinese JIL (2003), 77.
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The Function of Amicus Curiae

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In the recent case on non-cooperation of Jordan in the Al-Bashir

controversial and politically charged cases brought before domestic courts,1

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1 R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet

curiae submissions by legal scholars,8 and it represents a new attempt by the

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would better be viewed as grammarians capable of shaping the formulation of

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presented as what is objectively right. And so public law scholarship

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12. Based on the above understanding of the nature of legal interpretation,

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II.B. Relative objectivity: legal scholars as members of “interpretive

objective or intersubjective.30 The concept “interpretive community” was de-

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30 Another similar term is “epistemic community” which is used by some scholars to

notion, an interpretive community of international lawyers is formed as long

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17. Because of this feature of creating relative determinacy, many scholars

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II.C. Indeterminacy of legal argumentation: legal scholars as

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43 Gleider Hernandez, The Responsibility of the International Legal Academic:

them on international courts and tribunals. They range from objective

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III. Martti Koskenniemi’s approach on the structure of

49 Antonio Cassese, above n.29.

difﬁcult positions, but cannot ultimately solve the problems of indetermi-

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III.A. Basic rules and principles of treaty interpretation

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III.B. Koskenniemi’s structural analysis on international legal

64 See Gardiner, above n.60, chap. 19.

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“utopian”.76 As said by Koskenniemi, “intent can be known only in its

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III.C. Applying the structural analysis to the interpretation of the

making power is essentially a treaty, thus the resolution cannot be regarded as

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IV. Analysis of the legal argumentation by legal scholars in the

Appeal, ICTY-94-1-AP72 (2 October 1995), paras.32-74; Prosecutor v. Tadic,

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91 Prosecutor v. Omar Al Bashir, Decision informing the United Nations Security

40. However, this reasoning is subject to much criticism by African

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IV.A.ii. Approach II: immunity was waived by the UNSC Resolution

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106 Roger O’Keefe, International Criminal Law (2015), 573.

obligation is to respect the immunity afforded to a Head of State under trea-

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IV.B. Analysis of legal argumentation structure of the legal scholars in

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IV.B.i. Examples of arguments starting from a principle of justice:

113 FATU, 59.

contemporary international law characterized by its deep anthropocentric

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