Optional reading:

• Dapo Akande, “International Law Immunities and the International Criminal Court” (2004) 98:3 AJIL 407.

Questions:

• Do serving heads of states always have immunity? Yeniva Massaquoi

Piercing the Veil of State Immunity: Exceptions to the rule

 Incumbent head of state immunity at international law is a multi-layered issue. Whether an incumbent head of state always has immunity therefore depends on certain variables. In this short paper, I will discuss the current state of the law on state immunity.

Revisiting old tensions: Horizontality

Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties.  At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]

Peeling back the layers: Ratione materiae and Ratione personae

Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest Warrant judgement missed an opportunity to limit the polemic nature of its overarching judgment. Ratione personae (immunity attaching to the office) is much broader than ratione materiae (immunity attaching to official acts). Ratione materiae is narrower by definition but travels with the official after s/he leaves office. So while in office, the official is blanketed by both ratione materiae and ratione personae. Once the individual leaves office, his ratione materiae ‘protection’ may be peeled off by showing for example that certain acts are not official in nature (see generally Pinochet and the torture as an official act argument). The Arrest Warrant decision bases its finding of absolute immunity primarily on ratione personae. I find this significant because it moves the justification beyond ‘effective performance’[6] (which tends more toward ratione materiae) to the basic integrity of the state and its offices.  Though not explicit in Arrest Warrant, it must be this integrity that requires absolute immunity. No state should be able to jeopardize the integrity of another state by interfering with ratione personae.

(On a side note, I would be curious to see how the Arrest Warrant horizontal ratione personae argument would apply to a human rights violating president for life; it seems easy to make an immunity argument when the official’s period of office is finite but the reality is that most human right official violators are also abusers of power who will stay indefinitely. At this horizontal level, do immunity and impunity not then collide?)

Revisiting old tensions: Verticality

While a State cannot claim jurisdiction over another State’s incumbent head of state, an international tribunal can (see generally Prosecutor v. Charles Ghankay Taylor). In this way, heads of state and other high ranking officials do not enjoy impunity.[7] On this vertical level, international criminal justice is recognized as being more appealing than the competing 'horizontal' values it may trample (here at 34). However, this vertical claim of jurisdiction is subject to two conditions:[8]

(1) that the instruments creating the tribunals expressly or implicitly remove the relevant immunity of the official, and

 (2) that the state of the official concerned is bound by the instrument removing the immunity.

Arguably, condition (1) forces ad-hoc tribunals to continually re-justify their verticality thus weakening international criminal law’s mandate.  In Prosecutor v. Charles Ghankay Taylor for example, the SCSL had to first justify that Charles Taylor was not subject to ratione materiae by proving that it was behaving vertically through customary international law. However, from a purely practical stance, this process allows accused officials to fully explore all avenues of defence.  

The ICC fulfills condition (1) expressly through article 27 (of the Rome Statute).  With regard to condition (2), the Court has jurisdiction over parties to the Rome Statute and those the Security Council refers to the court (e.g. incumbent President al Bashir).

Referral of the situation to the ICC by the Security Council implicitly makes the Statute and Article 27 applicable to Sudan.[9]

How far can this go?

Is the removal of immunity merely factual? Arguably no state will hand over their Head of State if s/he is found guilty by an international tribunal. Can the ICC merely try the President in absentia or can an incumbent head of State be arrested?

Though the Court does not have independent powers to arrest, through Article 98, States are conferred the power to arrest a visiting head of state. Questions concerning the tensions in Article 98 and possible conflict of treaty obligations are outside the scope of this paper.

Conclusion

Incumbent head of state immunity presents an interesting snapshot of the horizontal/vertical dichotomy that exists in international criminal law. While absolute immunity reigns on the horizontal plain, international tribunals have managed to carve out a place of superiority using their enabling Statutes and customary international law. In this way, they reiterate the fact they are not peers of States and are therefore endowed with the capacity to fully render international criminal justice by stripping heads of state of their immunity.

 

 

 

• When do former heads of states not have immunity? Alexandre Carrier
• What is the relevance of the distinction between personal and functional immunities?
• Do immunity rules apply differently before international criminal tribunals?
  

 

When do former heads of states not have immunity?  - Alexandre Carrier

 As in many dilemmas regarding international criminal law, there is a plurality of factors in the analysis of former heads of state immunity which all create a certain amount of problems.  It is true that, following the logic of the Rome Statute, there is an irrelevance of official capacity, which in no case exempt a person from criminal responsibility.  The problem here is that only 110 countries signed and ratified the treaty[1], leaving all the others – including some major players that either are part of the Security Council or have a tremendous power in negotiations of international treaties  – outside the realm of the Rome Statute’s authority.  For those 110 countries that signed and ratified the statute, article 27 renders invalid the idea of immunity for leaders in cases of criminal liability.   As long as the accused is a citizen of a country that is part of the Rome Statute or that recognizes the authority of the International Criminal Court[2], as long as the crime is committed on the territory of a country recognizing the ICC[3] and as long as the presumed crime is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations[4], article 27 of the Rome statute renders immunity invalid[5]. 

  

Immunity and its origins

Although usually legislated by many countries, the idea of immunity comes from custom.  This creates one major problem in the case of immunity against criminal liability because it puts custom above both conventions and liability of criminal action.  If a country is not a part of a convention, whether the Rome Statute, the Torture Convention or any other convention giving authority to courts to prosecute heads of states or former heads of states, then immunity shall prevail notwithstanding the actions done nor their consequences, their morality or their status in the international community.  There is an argument set out by Lord Goff of Chieveley in R. v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (Pinochet), that actually defends this idea.  It is based on the fact that custom is what exists in international law when no treaty is there to determine what are the laws.  Lord Goff says that the custom of immunity must be maintained to protect heads of states from either enemy countries or political enemies and that it is primordial to prevent judicial incarceration and accusation based on simple hearsay.  This is also based on the idea that heads of state will act as an officer of the state.  Since the state has sovereignty and immunity, those representing it have that extended immunity.  The main problem with this is that it complicates matters when a former or actual head of state does things that are considered criminal by some countries but not others.  It puts sovereignty of states above possible reprimands, thus leaving heads of state clear of all charges even if what they did is contrary to international views. 

  

The nature of the action

There is an important distinction of an act of an official nature or an act of a personal nature in the analysis of actions of criminal nature that could or could not be subject to immunity.  Personal criminal acts are not meant to be protected by customary immunity[6].  Acts that are part of an official function of head of states are supposed to be protected by official immunity.  Can one then argue that some acts are impossible to reconcile with an official function, acts such as criminal acts defined either by conventions or national law and which cannot be protected by customary immunity?  The Lords in Pinochet seem to say that this argument would come down to eliminating all forms of immunity, thus destabilizing customary international law and creating many policy problems.  That argument, however, does not take into account that courts in international law are not meant to create instability, but rather to establish stability by promoting peace and by rendering people liable to criminal acts.[7]  To simply put custom above everything else only reinforces the idea that sovereignty of state has a more powerful and important place in international law than human rights. 

 

The time and location of the action and judgment

Another element that is of importance in this analysis is the location where the crime was committed.  In the Pinochet case, the extradition decision was based on the facts that Chile had ratified the Torture convention, Spain had as well, but the United Kingdom could not condemn someone for actions they did not consider criminal prior to their ratification of the convention.  The decision was thus based on the fact that torture committed after December 8^th, 1988 was contrary to both international convention and national law.  Since the country of origin, the country that requested extradition and the country where the extradition was decided all were part of the Torture convention, Pinochet lost his immunity for acts committed after the ratification by all the parties.

 

In the end, when do former heads of state not have immunity?

Immunity to former head of state will be directly intertwined with the treaties and conventions that were in effect during the former head of state’s mandate.  That clearly is shown in the Pinochet case, where the Lords decided to ignore the claims that he had no immunity prior to the enactment of the Torture Convention, since it was not a crime then.  The basic element that will remove immunity will be the personal nature of a criminal act (although there is no agreement on whether or not torture can be done for the greater good of the state), the fact that it is an act of a criminal nature in both the territory of judgment and the territory where the act was committed and, finally,  the different recognitions of courts and conventions by all the parties involved.  This seems to indicate that the rationale for immunity is greater than criminal matters and that customary law still has a more prominent role in international law to the detriment of conventions and human rights.  Considering that international law is based on agreement, countries will one day have to agree to give more power to the prosecutions of international criminals.     

 

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[1] www.iccnow.org , accessed on march 27th 2010.

[2] Rome Statute, ar. 12

[3] Rome Statute, ar. 12

[4] Rome Statute, ar. 13

[5] Rome statute, ar. 27

[6] R. v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet

[7] Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace?:Reconciling Judicial Romanticism with Political Realism ,Project Muse, Human RIghts Quarterly