The contributors of the commentaries “Why the ICC Should Respect Immunities of Heads of Third States” (hereafter the “First Piece”) and “Time to Revisit the ICC’s Position on Head-of-State Immunity?”(hereafter the “Second Piece”) are seriously mistaken. Perhaps, the sum of their commentaries boils down to the following argument made towards the end of the First Piece: “In a time when the rule of law is under pressure and grave international crimes dominate the news, one could think that the ICC should step up, not down. But international courts must respect international law, also in dire times. The ICC’s denial of immunity to Heads of third States does not. The ICC’s insistence to pursue such cases puts it on the wrong side of the law in cases where the Court is unlikely to achieve anything but a notable erosion of its authority and legitimacy.” [Emphasis added.] The International Criminal Court (ICC)’s caselaw on immunity is entirely consistent with international law. The contributors’ theses are at odds with it in all the important ways.
The contributors add no fresh insight into the discourse on immunity. They merely rehash in new submissions old arguments that have been amply addressed in earlier pieces—in a rather tedious game of “whack-a-mole.” Their arguments have been addressed by a large body of scholarship, including here and in greater detail here. It is indeed such incomplete analyses that compelled the publication of my new book “End of Immunity: Holding World Leaders Accountable for Aggression, Genocide, War Crimes and Crimes Against Humanity” (2024). The purpose of the book is to show that the norm which rejects immunity for heads of State and government was neither a footnote nor an accidental development in the history of international law. The Allies’ determination to try the Kaiser—as recalled in the book in great detail—effectively launched a profound international law reform that intentionally and specifically rejected immunity for even heads of State and heads of government. That norm is currently reflected not only in the Rome Statute but also in every international legal instrument on the subject from 1945 until today. It is known as Nuremberg Principle III—a principle of international law affirmed by the UN General Assembly pursuant to resolution 95(I) of 1946.
The British Prime Minister David Lloyd George and his French counterpart Georges Clemenceau were the two statesmen who masterminded that law reform. Confronted in 1918 with the question whether there was precedent in international law for prosecuting a head of State before an international tribunal, Lloyd George said: “With regard to the question of international law, well, we are making international law, and all we can claim is that international law should be based on justice.” [See Eboe-Osuji, “End of Immunity” (2024), p. 69, emphasis added.] That was a clear declaration of an intention to make law in the indicated way. For his part, Clemenceau insisted that “people everywhere would be satisfied” if the Kaiser could be prosecuted. “They will feel that justice will in future be done in the case of Kaisers [i.e. emperors] and Kings just as much as in the case of common men.” [See Eboe-Osuji, “End of Immunity” (2024), p. 94.] That was a clear determination to apply international law to heads of State as it is applied to ordinary people.
Lloyd George’s Attorney-General F. E. Smith (the future Lord Chancellor Birkenhead) put the objective of the law reform in the following memorable terms: “[T]he most effective deterrent of all is that for all ages men who are tempted to follow the wicked and the bloody path which the Governors of the Central Empires have trodden during the last four years, shall have present before their eyes, not a picture merely of the brilliant and meretricious glamour of military success, but also the recollection that in this great conflict punishment attended upon crime.” [See Eboe-Osuji, “End of Immunity” (2024), p 84.]
Not even the contributors’ arguments concerning the ICC’s jurisdiction over officials of States that didn’t consent to that jurisdiction reveal fresh insight into the operations of international law. Germany gave no consent in 1919, when article 227 of the Versailles Treaty publicly declared that Kaiser Wilhelm II must stand trial before an international criminal tribunal. To the contrary, Germany vigorously protested those provisions. Count Von Brockdorff-Rantzau, Germany’s Foreign Minister and head of delegation at Versailles, described the treaty as an imposition that amounted to “a peace of violence and not of justice.” “We are required,” he further protested, “to admit that we alone are war guilty; such an admission on my lips would be a lie.”
Similarly, Germany and Japan gave no consent, as a matter of law, when their surviving senior State officials (who composed the wartime governments of their respective States) were tried and punished by the Nuremberg and the Tokyo tribunals. Such a consent could not reasonably be read into Germany’s instrument of surrender at the end of World War II; and Germany was not a party to the London Agreement and the Charter of the Nuremberg tribunal.
It is true that Japanese representatives surrendered to the Allies, pursuant to the Potsdam Declaration, and subordinated their Emperor and government to the authority of the Supreme Allied Commander. But that surrender came only after the United States dropped atomic bombs on Hiroshima and Nagasaki—a fortnight after the threat of “prompt and utter destruction” of Japan that the Allies issued in the Potsdam Declaration.
The coercive circumstances of these documents are apparent enough. Their legal effect in conveying proper consent can only be appraised in light of the norms of international law now codified in the Vienna Convention on the Law of Treaties, saying as follows:
“The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.” (Article 51, emphasis added.)
“A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” (Article 52, emphasis added.)
Yet, the nugatory effect of coercion on Germany’s and Japan’s consent in relation to the Versailles Treaty and the charters of the Nuremberg and the Tokyo tribunals doesn’t mean that those instruments lacked validity in international law for what they aimed to do. That is to say, their validity is to be found elsewhere in international law than in a meaningful theory of consent from Germany or Japan. That validity is to be found rather in the customary international law doctrine that always accepted the right of States or of the international community to exact punishment for transgressions of preservative norms of international law. Some modern scholars have acceptably suggested ius puniendi as a serviceable terminology for the idea. The discussion summarizing that doctrine of international law, as a matter of the ICC’s jurisdiction over officials of States not party to the Rome Statute may be found here. Since the ICC is the permanent progeny of the Nuremberg and the Tokyo tribunals, the ICC’s jurisdiction over officials of States not party to the Rome Statute is as valid in international law as were the respective jurisdictions of the Nuremberg and the Tokyo tribunals over German and Japanese officials.
“Criticism” of the Al-Bashir Appeals Judgment
In the book “The Sleepwalkers” (2012), Christopher Clark noted how certain assertions about the pugnacious tendency of imperial Germany were “[r]epeated mantra-like at every possible opportunity” so that they “merged to form a new virtual reality—a way of making sense of the world.” That is the seeming stratagem adopted by commentators like the contributors of the First Piece and the Second Piece: they appear to consider that all that is needed to undermine the authority of the ICC’s Al-Bashir appeal judgment (which rejected immunity for heads of State and government) is to advertise repeatedly—in vague language—at every opportunity—that the judgment had been “criticized.” Seldom is any effort made to engage at all or accurately with any specific point of such criticism, let alone demonstrate superior reasoning that reveal the supposed flaw.
Nor is there any effort made to acknowledge that just as the judgment was “criticized” by some scholars, so also was it welcomed and applauded by many scholars. (I was honored to serve as the presiding judge in the appeal.) It is not necessary here to worry the fact that the commentator who fired the very first shot of “criticism” against the Al-Bashir Appeal judgment had not actually read the judgment before he wrote a less than two-page blogpost that mischaracterized the judgment and attacked it in what many including the commentators of the First and Second pieces have continued to cite as a valid commentary on the judgment. As he wrote in that short blogpost of May 6, 2019, “I will wait for the full judgment before offering a proper analysis.” [Emphasis added.]
It is enough to recall the observations of Robert H. Jackson in the course of the negotiation of the terms of the London Agreement and the Nuremberg Charter during the summer of 1945: “I have no expectation that any rule we could formulate would avoid the criticism of some scholars of international law …” Jackson was then a justice of the U.S. Supreme Court and understood that judges could not hope to do justice according to their conscience and understanding of the facts and the law if they labored under constant worry of potential scholarly criticism.
Indeed, academic criticisms of judicial decisions is an ageless phenomenon, which Sir Robert Megarry famously satirized in his Miscellany-At-Law (1955):
In the cloistered calm of Cambridge
I write books about the law,
Criticising Oxford colleagues,
Making points they never saw.
In a peaceful Cambridge college,
Far remote from active law,
I dissect the courts’ decisions —
I of course detect the flaw … .
All of which is to say, there is rarely a judicial decision of average import that does not attract academic criticism. Such criticisms or “controversy” do not diminish the authority of the resulting case law. Quite the contrary, they only underscore the importance of the judgment.
Consistency of the Al-Bashir Appeal Judgment with International Law
Article 38(1)(d) of the Statute of the International Court of Justice (ICJ) codifies the norm that decisions of courts of law and concurring scholarship of the most eminent jurists of the various nations are a subsidiary source of international law.
And, indeed, the Al-Bashir appeal is fully consistent with the scholarship of the modern era’s most eminent international scholars of the various nations—on the subject of immunity of heads of State and government. Those eminent scholars whose scholarship validated the judgment include Sir Robert Jennings (a former Whewell Professor of International Law at Cambridge and former President of the International Court of Justice), Sir Arthur Watts (one of Britain’s foremost international law jurists who with Jennings co-edited Oppenheim’s International Law, a classic treatise of international law), Antonio Cassese (a former professor of international law at the University of Florence and former President of the International Criminal Tribunal for the former Yugoslavia and former President of the Special Tribunal for Lebanon), Professor Otto Triffterer, Professor (emeritus) Alain Pellet, Professor (emeritus) Roger S Clark, and Professor (emeritus) John Dugard, Professor Gerhard Werle, Professor Florian Jeßberger, Professor Leila Sadat, Professor Paola Gaeta, Professor Herman van der Wilt, Professor Claus Kreß, Professor Charles Jalloh, Professor Jia Bingbing, and Professor David Scheffer. See here and here.
In the nature of things, an ICC Appeals Chamber judgment in Al-Bashir that might have pleased the contributors of the First and the Second pieces (and other critics of the judgment) might inversely have brooked the disapproval of the scholars listed in the paragraph above.
As regards judicial decisions as sources of international law, the “critics” of the Al-Bashir appeals judgment never mention that at the time of its delivery, the judgment was the last in a series of judgments and decisions of international courts and tribunals in which a minimum of 40 judges in one form or another came to the same conclusion as did the judges of the ICC Appeals Chamber. See here and here.
Commentators such as the contributors of the First and Second pieces whose outlooks are unsettled by the judgment of the ICC Appeals Chamber in Al-Bashir are in the habit of alleging—mostly opaquely—that “State practice” may not support the norm accentuated by the judgment, especially regarding the ICC jurisdiction over leaders of States not parties to the Rome Statute. Often enough these commentators almost never specify what they mean by “State practice”; and when they do, they never fully account for all the relevant State practice. What is then left to be seen in their reference to “State practice” are occurrences such as South Africa’s failure to arrest President Omar Al-Bashir of Sudan; Jordan’s similar failure to arrest the same man; Brazil’s suggestion that the ICC should not exercise jurisdiction over President Vladimir Putin; the suggestions of a former government of France, the administration of President Joe Biden and Friedrich Merz (the incoming Chancellor of Germany) that ICC should not exercise jurisdiction over Israel’s Prime Minister Netanyahu because he is their ally.
But, a claim of “State practice” shouldn’t be a flotsam in the sea of free-wheeling discourse in international law—detached from the doctrinal purpose. Properly understood, State practice has a purpose—it is an element of formation of customary international law. For State practice to serve that purpose, it must be seen not only as “consistent” but also motivated by observance of law rather than the mere extension of political succour to friends and allies. As students are taught in introductory course in public international law, the fuller expression of the idea is “consistent practice of states accepted as law” (emphasis added)—or “a general practice accepted as law” in the words of article 38(1)(b) of the ICJ Statute (emphasis added). The caselaw of the ICJ insists that “[n]ot only must the acts concerned amount to a settled practice but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” [Emphasis added. See, for instance, North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 44, para. 77; see also Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, para. 149.]
Where there has been settled State practice—such as the settled practice expressed in Nuremberg Principle III which is repeated in all instruments of international law since 1945—there can be no contrary “State practice” if such contrary “practice” is inconsistent (in relation to itself) or not generally accepted or is motivated by politics.
Can we then truly speak of “State practice” that undermines ICC’s anti-immunity norm when Putin ultimately did not attend BRICS meetings in South Africa and Brazil specifically because of the ICC arrest warrant? See here and here and here.
In light of the proper understanding of State practice as meaning consistent, general or settled practice of States, what contrary “State practice” is these commentators speaking of when 93 States (including Brazil, Jordan, and South Africa) issued a joint statement of support of the ICC in June 2024, as a direct reaction to threats made against the Court following Prosecutor Karim Khan’s request for the Court’s arrest warrants against Netanyahu and his former colleague Yoav Gallant; when many States, including South Africa, Jordan, and Brazil, insist that the leaders of Israel must be subjected to investigation and prosecution at the ICC; when Josep Borrell the Foreign Policy Chief of the European Union insisted that the ICC’s arrest warrant against Netanyahu and Gallant must be respected; and, when Biden, the governments of France (see here and here) and of Germany announced that it is correct to prosecute Putin and his colleagues at the ICC?
Conclusion
The analyses two of which I am addressing here are almost entirely silent on the legitimacy of conduct that apparently violates known norms of international law—even as they criticize the jurisprudence of an international institution precisely created to conduct judicial inquiry into such criminal conduct. Some may see a level of gaslighting in that aptitude. It is not enough to equivocate in terms that “[i]n a time when the rule of law is under pressure and grave international crimes dominate the news, one could think that the ICC should step up, not down. But international courts must respect international law, also in dire times.” The burden of illegitimacy surely rests on the apparent individual criminal conduct as well as on those who would deploy what others may reasonably see as facile smokescreen presented as scholarship the outcome of which is only to derail the imperatives of accountability that must be brought to bear upon atrocity.
In a resonant pronouncement in the Eichmann case in 1962, the Supreme Court of Israel correctly held that there is no basis for a doctrine of immunity, “when the matter pertains to acts prohibited by the law of nations, especially when they are international crimes of the class of ‘crimes against humanity.’ Of such odious acts it must be said that in point of international law they are completely outside the ‘sovereign’ jurisdiction of the State that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot shelter behind the official character of their task or mission, or behind the ‘Laws’ of the State by virtue of which they purported to act.”
In that pronouncement, the Israeli Supreme Court was reiterating a principle of international law that the Nuremberg Tribunal had explained 16 years earlier in the trial of Göring et al. As the tribunal put it: “The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. … He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state, in authorizing action, moves outside its competence under international law.”
Beyond repeated vague claims of error, the contributors of the First and the Second pieces have not identified much that is substantively wrong with the ICC’s processes and jurisprudence. In particular, the judgment of the ICC Appeals Chamber in Al-Bashir is fully consistent not only with the pronouncements of the Israeli Supreme Court and the Nuremberg tribunal respectively in the Eichmann case and the Göring case, but also with earlier judgments and decisions of international courts and tribunals in which a minimum of 40 judges said very much the same thing in one form or another; it is fully consistent with the scholarship of the most eminent jurists of our own era; and, it is fully consistent with State practice that started in 1919, which took a concrete form since 1945 resulting in what is known in international law as Nuremberg Principle III.
Perhaps, the starting point of the First and the Second pieces might have been to present a credible alternative for the judicial inquiry into what the ICJ has correctly identified as the human orchestrated “catastrophe” that has been taking place in Gaza since Oct. 7, 2023.