The International Criminal Court, (ICC) has issued a warrant to arrest The President of Sudan, Omar Al Bashir for war crimes and crimes against humanity. Western diplomats say the charges are certain to go ahead. The US accuses Bashir and other senior officials of responsibility for genocide in Darfur, where the UN says up to 200,000 people has died and 2.7 million have been displaced since fighting erupted in 2004. The US has also designated Bashir’s government as a state sponsor of terrorism.
But the Sudanese government and officials have dismissed the allegations against Bashir as fabricated and part of an attempt by the US and the West to “blackmail” Sudan. Sudan has previously refused to hand over two other officials indicted by the ICC. The African Union and other African Heads of state have chosen to throw their support behind President Al Bashir and Bashir, backed by the AU, Arab League and the Islamic Conference Organisation says he does not recognise the ICC’s jurisdiction. Very soon we will be bombarded with ‘convincing arguments’ against Al Bashir’s indictment from fellow Africans in defence of ‘Pan-Africanism’.
What are the facts?
According to reports, the situation in Darfur remained dire: “genocide continues. Rapes in and around the refugee camps continue. Humanitarian assistance is still hindered. More than 5,000 displaced persons die each month”. Luis Moreno-Ocampo the chief ICC prosecutor requested an arrest warrant for Bashir last year on charges of genocide, war crimes and crimes against humanity against Darfur. Addressing the UN Security Council in November, Moreno-Ocampo said the evidence against Bashir was overwhelming, and the US and other western states must be ready to enforce the arrest warrant. I have argued elsewhere that our inability to do something about the Darfur genocide is a shame to all black Africans.
Several commentators have argued vehemently against the indictment and possible arrest of President Al Bashir and his ministers on the grounds of his Immunity from prosecution as the president of the Sudan based on the International law doctrine of sovereign Immunity. The struggle to provide justice to individuals who have been victims of gross human rights abuses and other crimes against humanity has often been a struggle against nation-state sovereignty. Heads of state could act with impunity against their own citizens because they could use state sovereignty as a shield against criminal charges.
Contemporary international criminal law received a boost when on July 2002 the ICC came into existence, the new court has jurisdiction over genocide, crimes against humanity and war crimes committed on or after 1 July 2002; Earlier Senator Augusto Pinochet, was arrested in London pursuant to a request for his extradition to Spain to face charges for crimes against humanity which had occurred while he was Head of State. This marked the first time a former Head of State had been arrested in England on such charges. After that Slobodan Milosevic of the Federal Republic of Yugoslavia was indicted by the prosecutor of the International Criminal Tribunal for the former Yugoslavia for atrocities committed in Kosovo. This marked the first time that a serving Head of State had ever been indicted by an international tribunal. This essay therefore intends to enlighten my African brothers on the state of contemporary international law, before we start to rail against western neo-imperialism. Does Heads of State, ex-heads of state, foreign affairs ministers, ex-foreign affairs ministers, other ministers and other diplomatically protected persons enjoy immunity from criminal proceedings for the violation of international criminal law from foreign courts and/or international tribunals?
The concept of sovereign immunity under international law
Traditionally, it was recognized that if State-like entities were to effectively interact in commercial, diplomatic and other fields, there was a need for a formula ensuring their official representatives freedom from arrest or suit in the receiving state. In general terms, immunity from jurisdiction simply means that a court cannot entertain a suit. It is a procedural bar to prosecution. In customary law, there are two types of immunity granted to foreign officials’ from municipal courts for alleged perpetration of criminal offences but we are here concerned with the first type that relates to the status of certain persons; individuals who hold certain public office and thus enjoy absolute criminal immunity. Its basis is the official status of the person concerned. This type of immunity is known as ratione personae, and is available to: serving Heads of state, heads of diplomatic missions, their families and servants.
Foreign Heads of State have customarily enjoyed immunity from criminal prosecution. This was true, irrespective of the criminal offence they were alleged to have committed. The rule on non-intervention in the domestic affairs of other States enshrined in Art 2(7) of the UN Charter precluded considerations of criminal liability even where fundamental human rights were seriously abused. However, Courts have refused to accept the sovereign character of criminal acts in certain circumstances. In Doe v Unocal it was held that the act of state doctrine did not preclude US courts form considering claims based on legal principles on which the international community has reached unambiguous agreement, such as slavery. International law does not recognize an act that violates jus cogens as a sovereign act. A states violation of the jus cogens norm prohibiting official torture therefore would not be entitled the immunity afforded by international law.
It seems that with the erosion of an unfettered absolute discretion previously associated with Art 2(7) in the sphere of human rights, even the other type of immunity; immunity ratione materiae has also suffered considerable limitation. The House of Lords in Pinochet No 3 admitted that while the immunity of a former Head of State persists with respect to official acts, the determination of what constitutes an official act is to be made in accordance with customary law. Similarly, an acting Head of State cannot invoke the gross violation of human rights as a public act in order to avoid prosecution. It underscored the point that the commission of an international crime can never be an official function. As Lord Browne-Wilkinson puts it:
Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function.
Immunity and jus cogens norms
There are offences that are contrary to jus cogens – the pre-emptory rules of international law. State practice forswears genocide, torture and extra judicial executions and consequently gives such international crimes the status of jus cogens , which in turn means that each state has an erga omnes obligation to the international community not only refrain from committing such crimes but to co-operate in ensuring their investigation and punishment – a legal obligation owed every member of the international community either to put on trial or to extradite for trial elsewhere any person reasonably accused of violating jus cogens by perpetrating a crime against humanity.
However, it would be logically fallacious to argue that a general norm of international law imposing individual responsibility on government officials for human rights violations has emerged solely on the basis of many instances of specific norms imposing such liability for human rights violation. The issue therefore is whether there exists in international law a sufficient basis to infer the emergence of a general rule ascribing individual responsibility for serious human rights violations to heads of state and other government officials. One is bound to ask;
what is the positive international law on sovereign immunity?
For the purposes of this essay, we would look to the following sources of international criminal law;
1. The Pinochet Case
2. The Nuremberg precedent
3. International Courts and Tribunals
4. International treaties and other Instruments
1. The Pinochet Case
On 24 March 1999, the House of Lords held that an international law prohibition which had achieved jus cogens status, such as the rule against crime against humanity dissolved the sovereign immunity which customary law granted to former officials and heads of state. The Pinochet judgement was a landmark that affirmed that: (1) There are certain crimes that are so serious that they are treated by the international community as being international crimes over which any State may, in principle, claim jurisdiction; (2) That in respect of these crimes it can no longer be assumed that immunities will be accorded to former sovereigns or high official.
The ruling of the House of Lords was a landmark that has recognised that the grant of immunity to a former Head of state would be incompatible with the objectives of the Torture Convention, and that a proper interpretation of the convention required a rejection of immunity.
Per Lord Phillips:
I reach that conclusion on the simple basis that no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime.
2. The Nuremberg Precedent
Those who argue in favour of the absence of immunity under international law for crimes against humanity argue that since Nuremberg there have evolved rules of international law assigning individual accountability to heads of state and officials of government. Nuremberg Tribunal Charter: Article VII affirmed that the “The official position of defendants, whether as heads of state or responsible officials of government departments, shall not be considered as freeing them from responsibility or mitigating punishment”. Article VIII recognises that one who has committed criminal acts may not take refuge in the doctrine that his acts were acts of state. The fact that the defendant acted pursuant to the orders of his government, or of a superior shall not free him from responsibility but may be considered in mitigation punishment.
The International Military Tribunal at Nuremberg declared: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.
The writings of some eminent jurists indicate that the principles expressed in the Charter and judgements have gained wide acceptance: “Although there may be legitimate doubts as to the legality of the Nuremberg Charter…in my judgement those doubts were stilled by the affirmation of the principles of international law recognised by the Charter of the Nuremberg Tribunal adopted by the UN General Assembly on December 11, 1946”.
The said UN General Assembly Resolution confirmed that the Nuremberg Charter and the Reasoning of the tribunal reflected the principles of international law. Principle 111; The fact that a person who committed an act which constitutes a crime under international law acted as a Head of State or responsible government official does not relieve him from responsibility under international law; Principle IV; The fact that a person acted pursuant to the order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him.
3. International Courts and Tribunals
Article 7 (2) of the ICTY Statute and article 6 (2) of the Statute of the ICTR Statute expressly excludes immunity. “Those who engage in torture are personally accountable at the criminal level for such acts. . . . Individuals are personally responsible, whatever their official position, even if they are heads of State or government ministers: Article 7 (2) of the Statute and article 6 (2) of the Statute of the International Criminal Tribunal for Rwanda . . . are indisputably declaratory of customary international law.”
Thus, Slobodan Milosevic and Radovan Karadzic, president of the Bosnian Serbs admin were indicted by the International Criminal Tribunal for Yugoslavia.
The international Criminal Court
Article 27 of the ICC abolishes all immunities for heads of state and members of governments and parliaments:
Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such person
The Rome Statute of the International Criminal Court is predicated on the principle of complementarity under which states have the primary duty to bring to justice those responsible for international crimes, but the International Criminal Court may assert its concurrent jurisdiction in any case where a state is unable or unwilling genuinely to investigate or prosecute.
Article IV of the Convention for the Prevention and Punishment of the Crime of Genocide 1948 stipulates that official position in government or other organization affords no defence against individual responsibility.
The 1993 Vienna Declaration and Programme of Action, called for states to ‘abrogate impunity legislation for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law’.
Heads of State are not entitled to Immunity from Jurisdiction against Charges for Crimes under International Customary Law?
Supporters of state sovereignty under international criminal law love to elide the two words ‘immunity’ and ‘impunity’ as if they were the same thing. They are not. The difference was made clear by the ICJ:
“The Court emphasizes however that the immunity from jurisdiction enjoyed by incumbent ministers for foreign affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility”.
Legal immunity, in order words, is simply the expression of the existence of a jurisdiction, which has its own procedures for bringing criminal prosecutions. Immunity should not be abused to ensure impunity.
This proposition has received support in the ICJ case. Incumbent heads of state and foreign ministers may therefore be prosecuted before the International Criminal Court because its statute abolishes this immunity.
Recent development of international criminal law has happened at the expense of sovereignty and weakened the theory. The offence of ‘crime against humanity’ has been revived and developed since Nuremberg to signify a crime that is so serious that it entitles any state to claim jurisdiction. This professed right of international jurisdiction can trump any right of immunity held by state officials.
Some would argue that the ICC will, like its ad hoc predecessors, ‘be little more than the backdrop for show trials against countries like Rwanda, Sudan and the former Yugoslavia’. The combatants who are likely to appear in the International Criminal Court will be those without superpower support.
It is unfortunate, though not entirely surprising, that the African Union and other African Heads of state have chosen to throw their support behind president Al Bashir. This is not a time to for us as Africans to ignorantly rail against western conspiracy and neo-imperialism. We should be bold enough to call a spade a spade.
by Daniel Elombah