The International Criminal Court versus President Bashir

It seems that with the erosion of an unfettered absolute discretion previously associated with Art 2(7) in the sphere of human rights, 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.

The Vienna convention gives ambassadors total immunity, even in time of war, from arrest (Art 29) and from civil and criminal jurisdiction (Art 31). This lasts from the moment they take up their posts to the moment they leave the country. Immunity ratione materiae, covers only their actions done in the course of their official duties. This rule for ex-ambassadors has consequences for ex-heads of state (In Britain for example, the State Immunity Act applies the incorporated Vienna Convention to ‘a Sovereign or other Head of Stat, as it applies to a diplomatic mission’) It follows that a head or acting head of State could be totally immune but an ex-head, whether of state or mission is immune only on the restrictive basis, ratione materiae, for acts characterized as official functions.

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.

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What is the Positive law on Sovereign Immunity?

From the dual character of law, legal norms are not mere generalisations derived from adduction of observed instances, so, rules relating to specific instances of individual responsibility may remain as rules of a specific and limited nature; they are not ipso facto parts of a general rule of international law. There must be sufficient recognition of the general rule on its own (which may be indicated by any of the formal criteria concerning sources of international law).

It would therefore be logically fallacious to argue that a general norm of international law imposing individual responsibility on government officials for human rights violations is emerging; solely on the basis of many instances of specific norms imposing such liability for human rights violation. (Law is not about wishful thinking, but about prescriptive norms accepted or recognized as having legal status)

Furthermore, it is to be noted that, because the present International system is decentralized there being no single Leviathan capable of unilaterally bringing law into being, a norm of international law cannot emerge without widespread consensus. International law is based on the collective will of the international community. Logically, the recognition of legal rules could not be an ad hoc matter, allowing every legal person the freedom to be bound or not according to whim, for this would contradict the meaning of being bound by a rule.

A general rule of individual responsibility dissolving sovereign immunity for serious human rights violations could emerge in international law if the requirements of legal validity, such as those relating to treaty or customary sources of law were fulfilled. A consequence of the decentralized character of the international system is that emergence of legal norms is less definite in international law than of those in municipal legal systems. The probability of the emergence of a general rule of individual accountability for serious human rights violations can be inferred inductively from specific norms on individual responsibility in positive international law and be inferred from the structure and general principles of international law.

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. Two schools of thought have emerged each highlighting the tension between international law and international justice;

1. On the one hand are those who argue that the principle of individual criminal responsibility of heads of state for crimes against humanity is part of customary international law.

2. while on the other hand are those who argue that those who elevate ‘justice’ and ‘human rights’ above sovereignty, destroy the equality upon which international law has been built and that International justice based upon a diminution of sovereignty authorises international relations based on power and what is then claimed to be an exercise of international law is in reality an exercise of power masquerading as law.

Two eminent judgements illustrate this conflict, one is the ruling in the Pinochet case 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; and the Belgian Arrest Warrant Case that, ‘on the basis of a careful examination of state practice, it was unable ‘to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent ministers of foreign affairs, even when they are suspected of having committed war crimes or crimes against humanity’.

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.

The Belgian Arrest Warrant Case

On April 2000, a Belgian investigating Judge issued an international warrant against the serving Minister of Foreign affairs of the Democratic Republic of Congo, Mr. Abdulaye Yerodia Ndombasi. He was charged under Belgian law concerning the punishment of grave breaches of the Geneva Convention of 1949. The relevant Belgian law provided that its courts would have jurisdiction in respect of offences committed anywhere in the world and it provided that no person would be able to claim immunity from the jurisdiction of the Belgian courts. In October, 2000, the Congo brought proceedings before the ICJ in The Hague, calling on the Court to require Belgium to annul the arrest warrant. Congo asserted that the purported claim to be able to exercise universal jurisdiction violated the sovereignty of the Congo, and that the non-recognition of the immunity of a serving foreign minister violated international law concerning diplomatic immunities. On the question of immunities The Court found that as a matter of principle, ‘the functions of a minister of Foreign Affairs are such that throughout the duration of his office, he when abroad enjoys full immunity from criminal jurisdiction and inviolability’. Furthermore, that – on the basis of a careful examination of state practice, it was unable ‘to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent ministers of foreign affairs, even when they are suspected of having committed war crimes or crimes against humanity. For the ICJ, therefore, there is a presumption of immunity

Issues

Having considered these two eminent judgments, one by a national court exercising universal jurisdiction, the other by an international court but with opposing views as to sovereign immunity; one is bound to ask;

what is the positive international law on sovereign immunity?

Article 38,Charter of the ICJ identified the four sources of positive international law as:

• International conventions

• International custom, as evidence of a general practice accepted as law;

• The general principles of law recognized by civilized nations;

• Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

For the purposes of this essay, we would look to the following sources of international criminal law;

1. The Nuremberg precedent

2. Actions under Chapter VII, UN Charter

3. International Courts and Tribunals

4. International treaties and other Instruments

1. 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

However, it can be argued that the Nuremberg tribunal was not an international tribunal. In outlining the legal basis under which the Allied Forces had established the Tribunal, the judgment of the IMT held that:

The making of the Charter was the exercise of the sovereign legislative power by countries to which the German Reich unconditionally surrendered

This suggests that the nature of the IMT was more akin to that of a municipal court established by the Allied Governments exercising sovereign power in Germany after the war.

The Nuremberg judges actually argue in favour of national sovereignty when it held:

“Within the territorial boundaries of a state having a recognized functioning government presently in the exercise of sovereign power throughout the territory, a violator of the rules of international law could be punished only by the authority of the officials of that state. Thus notwithstanding the paramount authority of substantive rules of common international law, the doctrines of national sovereignty have been preserved through the control of the enforcement machinery. … In Germany, an international body (the control council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated rules of common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in exercise of sovereign power”.

This judgement is clearly incompatible with the modern day theory of international judicial intervention, which insists precisely that states with functioning governments should be constrained.

Aside from the substantive defects in the composition and procedure of the Nuremberg Trial, A true precedent has binding force, which means that a general rule established by the precedent binds the tribunal in adjudicating later similar cases. Yet the Nuremberg Tribunal was not a permanent a permanent court and no other international court with permanent jurisdiction was established to succeed it. The Nuremberg Charter did not establish any permanent international court of criminal jurisdiction, nor did it intend to so. Many legal scholars therefore argue that the Nuremberg trials had no actual basis in international law and that they did not establish a long-term human rights precedent.

Despite these, 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.

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2. Action under Chapter VII, UN Charter

The Nuremberg model based on the victorious powers assuming jurisdiction over the losers, have given way to multilateral action in the name of the whole international community acting through the Security Council. The Security Council is authorised under Chapter VII, of the UN Charter, to take action to maintain international peace and security. The power has been interpreted to include the power to set up international 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.

Both the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda envisage concurrent jurisdiction with national courts, but permit the two tribunals to assert their primary jurisdiction to retry persons tried in national courts in any case where “the national court proceedings . . . were designed to shield the accused from international criminal responsibility”.

However, critics have argued that a review of the United Nations charter reveal that it grants no power to the Security Council to create a Criminal Court. A study of international law reveals the only way to create an international criminal court is by a multilateral treaty. This is how the International Criminal Court came into being on 1 July 2002(a treaty was drawn up and presented for voluntary signature and ratification by states). Thus The ICTY violated the first principle of the UN Charter, the ‘sovereign equality’ of all nations.

3. International Courts, Treaties and Instruments

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’.

Are Heads of State Entitled to Immunity from Jurisdiction against Charges for Crimes under International Customary Law?

Firstly, a correct view of sovereignty shows that State sovereignty simply means constitutional independence: it means that the body of rules that governs the exercise of particular states does not depend on the rules of any other state. A sovereign state can sign treaties with other states and thereby give itself duties and rights; the government of a sovereign state can be bound by various forms of internal or external constraint. But it is only when the lines of responsibility which the doctrine of state sovereignty describes, are clear that such arrangements can be made.

The fact about sovereignty can be seen by examining the criminal justice system. All criminal justice systems have unimpeachability at their apex. If you are convicted of a crime, you can usually appeal to a higher court, but there is a point at which the appeal process stops. This means that the decision of the officials who administer this ultimate stage of the criminal justice system, typically judges, cannot be subject to further scrutiny. This is what is what known as legal immunity.

Legal immunity exists in all criminal justice systems. It is an elementary and inevitable fact about all systems of criminal justice and political authority which can be seen from the fact that even the judges of the ICTY enjoy legal immunity from appeal or prosecution for decisions taken in their capacity as ICTY judges. (The ICTY also confers immunity from prosecution for certain witnesses who may be afraid of travelling to The Hague to give evidence and then being arrested as suspects)

Supporters of 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. It is unfortunate that immunity is often abused to ensure impunity.

This proposition has received support in the ICJ case. Incumbent heads of state and foreign ministers may of course still be prosecuted in their national courts, or in the courts of other countries if their home state waives their immunity, or before the International Criminal Court because its statute abolishes this immunity. But Belgium could not issue an arrest warrant, even for crimes against humanity, against the incumbent foreign minister of Congo: detaining him in the course of is travels would prevent him from fulfilling his functions on behalf of his State.

Secondly, a critical perusal of The Statute of the ICC shows a bowing to state sovereignty. The preamble to the Rome statute emphasizes that the ICC jurisdiction shall be ‘complementary’ to that of nation states, although the provisions of the Statute itself suggest that ‘subordinate’ would be a more accurate description of the legal relationship . Art 20 states that no proceeding could be brought against a suspect in the ICC for conduct in respect of which he has been acquitted or convicted in a national court. Under Article 17 the ICC will not be permitted to put anyone on trial who has been ‘under investigation’ by a national prosecutor and has had charges dropped or the investigation stopped, except where the national authorities have been ‘unwilling or unable ‘to carry out a genuine investigation – a difficult allegation to establish if the burden of proof is placed on the prosecution. States will be tempted to deny the ICC jurisdiction over there nationals by pretending to put them on trial.

Thirdly – Creating and Reasserting State Sovereignty – the year 2000 brought about the creation of new tribunals for Sierra Leone, Cambodia, East Timor and Indonesia. each of them constitute a movement away from the model established by the ICTY and the ICTR – a movement away from purely international tribunal to a “hybrid” or “mixed” tribunal involving both international and domestic components, with the Indonesian Human Rights Court representing a purely domestic response to human rights violations; a return and re-asserting of state sovereignty.

Fourthly, on State practice; In the US, cases on head of state immunity are confused, the US state department issues a ‘suggestion’ which courts accept as binding, whenever attempts are made to sue the former head of a friendly State. This has been used to suggest’ that ex-president Aristide had absolute immunity during his exile in the US, from an action alleging his responsibility for an unlawful killing in Haiti.

Interestingly, the ECHR took the view that even jus cogens norms, such as the prohibition against torture, must be construed as existing in harmony with other recognized principles of international law, namely State immunity.

Conclusion

International criminal law has developed as the sovereignty of nations has weakened. Even if it were accepted that the Nuremberg and Tokyo tribunals were international Tribunals that properly convicted their defendants for international crimes, it is a fact that any such precedent was not then followed for nearly fifty years. The situation only changed in 1993 when the United Nations Security Council opted to set up the International Criminal Tribunal for Former Yugoslavia in The Hague and, the following year, agreed to set up a similar tribunal in Arusha in respect of crimes committed in Rwanda.

Recent development of international criminal law has happened at the expense of sovereignty, 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.

Since the 19th Century courts around the world had upheld immunities on the basis that they were ‘essential to preserve the peace and harmony of nations’. It was with these words that, for example, the State Supreme Court of New York dismissed a claim from Mr Hatch against the former President of the Dominican Republic who had journeyed to New York in 1876.

What the Pinochet case highlighted was the tension between international justice and international law. International Justice may have required Pinochet to be tried but international law traditionally limited itself to a framework that sought to preserve the peace and harmony of nations. If international law sanctioned a right to states to prosecute state officials of a foreign state then friction between states could result. A respect for the sovereign equality of nations was the legal means by which this peace and harmony of nations was to be facilitated.

A year after Pinochet, the ICJ declined to rule on the right of Belgium to be able to exercise universal jurisdiction but it did uphold Mr Yerodia’s right to immunity

The ICC will, like its ad hoc predecessors, ‘be little more than the backdrop for show trials against countries like Rwanda and the former Yugoslavia’. The combatants who are likely to appear in the International Criminal Court will be those without superpower support. Sudan (with China’s backing) has refused to yield its indicted citizens to the jurisdiction of the ICC.

The emergence of the International Criminal Court, the Pinochet and Milosevic cases would have to be viewed critically. The International Criminal Court has been vehemently opposed by America which has engaged in exercises of brute diplomacy to seek bilateral deals with numerous states to secure war crimes immunity deals for Americans. The assumption of universal jurisdiction in respect of war crimes and crimes against humanity by Belgium’s legal system resulted in complaints being filed against US President George W Bush, UK Prime Minister Tony Blair and Israeli Prime Minister Ariel Sharon and the Americans threatened to block further funding for Nato’s new headquarters in Belgium for the law to be restricted. The prosecutions in The Hague and Arusha continue but with unhelpful political consequences. Few Serbs see the prosecution of Milosevic as legitimate and the Serbian government co-operates with the tribunal in order to receive millions of dollars of economic aid.

In conclusion, although the rejection of the defence of official status is found in Art 27(1) of the ICC Statute, it should not be thought that because international tribunals are capable of exercising broad jurisdictional powers and rejecting immunity pleas, the same can by implication apply before national courts. It is the consent of states that has shaped the relevant mechanisms in national and international judicial institutions. Until there is clear and unambiguous statement that a rule has developed rejecting Head of State immunity before national courts, the presumption is that the preservation of such immunity, albeit in light of recent developments represents the law.

Citations

1. Steven D. Roper and Lillian A. Barria; Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights. (Ashgate, England) 2006. Chapter 1
2. Democratic Republic of the Congo v Belgium, case concerning the arrest warrant of 11 April 2000, General List No 121, judgement of 14 February 2002, www.icj-icj.org/icjwww/idocket/iCOBE/icobe_ijuegement_20020214.pdf
3. R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no 3) [2000] 1 ac 147; cited in Philippe Sands, QC (Ed.) From Nuremberg to the Hague; The Future of International Criminal Justice; (Cambridge University Press) 2003. Page 29
4. supra n.2
5. Ilias Bantekas & Susan Nash; International Criminal Law (Cavendish, 2003) Page 165
6. ibid, 168.
7. SIA 1978, s14 (1)
8. 1812; 7 Cranch, 116, cited in Ilias Bantekas & Susan Nash; International Criminal Law, Cavendish, 2003, page 165
9. Geoffrey Robertson, Crimes against Humanity: The Struggle for Global Justice. London: Pengium, 2002, Page 404
10. ibid P.405
11. Cited in Geoffrey Robertson; Crimes against Humanity: the Struggle for Global Justice. London: Pengium, 2002, Page 404
12. ibid Page 404
13. ibid Page 408
14. Jimenez v Aristeguieta (311 F2D 547 I1962); USA v Noriega (99ILR 143,cited in Ilias Bantekas & Susan Nash; International Criminal Law, Cavendish, 2003 page 170
15. 963 F Supp 880 (1997) cited in Nash page 170
16. [1999] 2 WLR 827, pp880, 906
17. Robertson, Page 411
18. ibid, 408
19. Lyal S. Sunga; Individual responsibility in International law for serious Human Rights Violations, Nijhof, London, 1992
20. David Chandler; From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press, 2002, page 152
21. Supra, n.3
22. Supra, n. 2
23. (Pinochet No 3) ([1999] 2 WLR 827
24. Philippe Sands QC (Ed); From Nuremberg to The Hague: The Future of International Criminal Justice, (Cambridge University Press), 2003, Page 69
25. Per Lord Phillips, Page 289, cited at Sands, page 94
26. Law of 16 June 1993 amended by the law of 19 February 1999, Moniteur Belge, 23 March 1999; cited by Sands; page 96
27. supra, n.2
28. The law and the jurisdiction of the IMT at Nuremberg page 327: cited by Amnesty International; News.amnesty.org/pages/Pinochet_AR2000
29. Nuremberg Judgment, p. 41; Cited by Amnesty n.28
30. Trials of war criminals before the Nuremberg Tribunal under Control Council Law No 10, volume 111, cited by Joseph Laughland Page 60
31. ibid pp. 969-970; cited in John Laughland, Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice; Pluto Press, 2007 Page 63
32. Steven D. Roper and Lillian A. Barria; Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights. Chapter 1, (Ashgate, England) 2006
33. Per Lord Browne-Wilkinson, Pinochet 3, cited in Philippe Sands QC (Ed); From Nuremberg to The Hague: The Future of International Criminal Justice, Cambridge University Press, 2003, Page 29
34. GA Res. 95 (I) of 11 December 1946, cited in Sands Pages 336 & 337
35. Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1-T, Para. 140
36. Statute of the ICTY, Art. 10 (2) (b). Statute of the ICTR, Art. 9 (2) (b)
37. Ramsay Clark, former US AG, in Joseph Laughland, Page x
38. Art. 17, ICC Statute; www.icc-cpi.int/
39. Joseph Laughland, Page 48
40. Ibid, 49
41. Art 30, ICTY statute; www.un.org/icty
42. Joseph Laughland, Page 50
43. Case concerning the Arrest warrant of 11 April 2000; (democratic republic of Congo v Belgium judgment, 14 February 2000. Para 60.
44. Democratic Republic of Congo v. Belgium
45. Robertson Page 373
46. Al Adsani v UK, judgment, 21/11/2001, 34 EHRR 11, 55-66; cited in Nash, Page 171
47. Hatch v Baez, in Philippe Sands p. 90
48. David Chandler, Page 147
49. Robertson Page. 350
50. Susan Nash, Page 177