“It can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes.”
—Sir Arthur Watts QC, KCMG (1994).
Introduction
On 16 and 17 May 2023, the Council of Europe will hold the fourth summit of their heads of state and government in Iceland. The invasion of Ukraine will be an item on the summit’s agenda. Naturally, the invasion of Ukraine comes with questions of President Vladimir Putin’s accountability for the international crime of aggression that the invasion entails. And, in turn, that question also drags in the related one of immunity for senior state officials—notably heads of state—for international crimes, especially in the proceedings of international tribunals.
It is to be expected that many of the heads of state and government attending the Iceland summit would have received legal advice or conducted research on these questions. That, we are sure, is the case with the Dutch government.
Not long ago, the Advisory Committee on Public International Law (CAVV), a group of legal scholars that advises the Dutch government on matters of international law, published an advisory opinion that they volunteered to the government on 12 September 2022, regarding the accountability of President Putin. It was sensible of the CAVV to share their report and recommendations with the whole world, because that opinion is a matter of global public interest. This is, in part, because the Netherlands has in recent years “traditionally played a leading role in the field of international justice, the pursuit of accountability and, more specifically, the prosecution of international crimes.” (See page 4 of the CAVV opinion.) That leading role includes playing host to the International Criminal Court.
The CAVV opinion unavoidably dealt with the question of head of state immunity in relation international crimes, especially when prosecuted before an international criminal tribunal.
Their opinion sensibly reveals an arc of moral sympathy that ultimately bends away from immunity. That is evident in this observation: “The CAVV takes the view that not recognising functional immunity for international crimes is currently justifiable as either being consistent with international law or contributing to a legal development that already has strong momentum. The CAVV does not see the logic of distinguishing between the crime of aggression and other international crimes.” (See page 16, paragraph 8 of the CAVV opinion.)
However, that moral sympathy was more substantively sandwiched by at least three observations that seem to counteract that moral tenor. The first is the assertion that “international legal practice” reveals “no clear-cut” position on the matter. They considered that there is, at best, a trend in the direction of a norm which rejects immunity for heads of state and government. As they put it: “In international legal practice, there is no clear-cut answer to the question of whether there is an exception to functional immunity for international crimes, including the crime of aggression.” (See page 16, paragraph 8 of the CAVV opinion.) If there is no exception for functional immunity, then, a fortiori, no exception for immunity for incumbent heads of state would exist either. The two are intertwined.
The second is this caveat: “If the Netherlands nonetheless wishes to back a legal development under which personal immunities do not apply before (a larger group of) international tribunals, in keeping with the view of the Special Court for Sierra Leone and the International Criminal Court, it will in any event be important to advocate a distinctive and restrictive definition of the term ‘international tribunal.’” (See page 16, paragraph 10 of the CAVV opinion.) I shall deal with this caveat later, in the section of this essay under the subtitle “Immunity versus Jurisdiction—an Avoidable Confusion.”
And the third is a specific, incidental caution that the CAVV deemed it “important to note.” It is the caution that should the Dutch government choose to support the rejection of immunity before an international criminal tribunal, even when distinctively and restrictively defined, “officials in the Netherlands, in particular our prime minister and minister of foreign affairs, would also not be granted personal immunity before an international tribunal.” (See page 16, paragraph 10 of the CAVV opinion.)
That cautionary note is understandable, because part of providing legal advice is to point out foreseeable risks. In the overall context of the opinion, however, the caution is regrettable. That is because it was not equally pointed out that the support of any international legal order that is conducive to immunity for international crimes means not only that those who invade and occupy another country (as was the fate of the Netherlands during World War II) would enjoy impunity, so too would those who commit genocide (as Hitler and Pol Pot did) and other atrocities. It is sufficient to recall here Justice Robert H. Jackson’s wise words to his fellow Americans in 1945:
It is futile to think, as extreme nationalists do, that we can have an international law that is always working on our side. And it is futile to think that we can have international courts that will always render the decisions we want to promote our interests. We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage. (See Robert H Jackson, “The Rule of Law among Nations” (1945) 39 Am. Soc’y Int’l L. Proc. 10 at 17—18.)
Those words equally apply to statesmen and stateswomen of all nations.
Legal Practice Versus Legal Scholarship
More than that, it is simply mistaken to assert that “international legal practice” reveals “no clear-cut” rejection of immunity in relation to international crimes especially when prosecuted before an international criminal tribunal.
A comprehensive review of authoritative literature—not argumentative literature—leaves no room for doubt that customary international law recognizes no immunity for heads of state in these contexts.
“International legal practice” takes its meaning from what judges and States do in practice, not from what academics write in their scholarship.
From the perspective of the opinions of international courts, the question of immunity in relation to international crimes has arisen in one form or another in at least eight different decisions and judgments of international courts—engaging the judicial opinions of no less than 40 judges, as will be seen presently. There has been no material inconsistency in their resulting pronouncements. I shall recall the case law.
Some of these decisions concerned matters related but not directly involving head of state immunity. They, however, also served as judicial pronouncements that built upon an international legal system that rejects head of state immunity for international crimes before international criminal tribunals.
An early pronouncement of the International Criminal Tribunal for the former Yugoslavia (ICTY) on immunity was delivered in 1995 in the Karadzić case. It is, according to the Trial Chamber, a “general” principle of “international humanitarian law” that “official capacity of an individual even de facto in a position of authority whether as military commander, leader, or as one in government does not exempt him from criminal responsibility and would tend to aggravate it.” (See Prosecutor v Karadzić (Decision) 16 May 1995 (ICTY Trial Chamber) paras 23-24.)
Also in 1995, the Appeals Chamber of the ICTY, in Tadić reproached “stratagems [that] might be used to defeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the very people whom it has been designed to prosecute.” The Chamber observed that it “would be a travesty of law and a betrayal of the universal need for justice, should the concept of state sovereignty be allowed to be raised successfully against human rights.” (See Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) 2 October 1995 (ICTY Appeals Chamber) para 58.)
In the Blaškić case in 1997, the ICTY Appeals Chamber was confronted with the question whether the Republic of Croatia and its defence minister should be served a subpoena for the production of documentary evidence for use in the prosecution of the case. The Appeals Chamber first observed that international law recognized a general rule of immunity of one state from the judicial proceedings of one another. (See Prosecutor v Blaškić (Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997) 27 October 1997 (ICTY Appeals Chamber), para 38.) That general rule, as the Appeals Chamber stated it, is based on “sovereign equality of States (par in parem non habet imperium).” (Ibid, para 41.) Nevertheless, the Appeals Chamber made sure to recognize the exception to the general rule, according to which immunity is unavailable in relation to international crimes—prosecuted before national and international courts. (Ibid, para 41.)
In their 1998 judgment in Furundžija, an ICTY Trial Chamber engaged immunity directly, saying as follows: “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, hereafter ‘ICTR’ are indisputably declaratory of customary international law.” (Prosecutor v Furundžija (Judgment) 10 December 1998 (ICTY Trial Chamber) para 140 (emphasis added).)
In 2000, in the well-known Arrest Warrant case, the International Court of Justice (ICJ) was seized of the issue whether Belgian national courts may exercise criminal jurisdiction over an incumbent foreign minister of the Democratic Republic of the Congo, for international crimes. Although the ICJ majority held that the foreign minister of the DRC was immune from the national criminal jurisdiction of Belgium pursuant to a rule of immunity that protected foreign ministers and their heads of state, the majority observes that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.” (See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment [2002] ICJ Reports p 3, paras 58 and 61, emphasis added.)
That line of jurisprudence continued in Prosecutor v Milosević in 2001, where an ICTY Trial Chamber, again, directly dealt with the same issue, and found that the provision of the ICTY Statute that rejects immunity including for heads of state “reflects a rule of customary international law” and that the “customary character of the rule is further supported by its incorporation in a wide number of other instruments, as well as case law.” (Prosecutor v Milosević (Decision on Preliminary Motions) 8 November 2001 (ICTY Trial Chamber) paras 28 and 29, emphasis added.)
Once more, in 2003, the Appeals Chamber of the ICTY returned to the issue of immunity, in Prosecutor v Krstić. The Appeals Chamber was dealing with a defense application for subpoena of witnesses. The Chamber took the opportunity to remove any doubt about its pronouncements in Blaškić in 1997. The Chamber underscored the absence of immunity before international courts trying cases of international crimes. The Chamber essentially observed that while it was not called upon to decide whether or not immunity exists before national courts, the Court nevertheless observed that “it would be incorrect to suggest that such an immunity exists in international criminal courts.” (Prosecutor v Krstić (Decision on Application for Subpoenas) 1 July 2003 (ICTY Appeals Chamber) para 26.)
Eventually in its own turn in 2004, the Appeals Chamber of the Special Court for Sierra Leone dealt with head of state immunity directly in Prosecutor v Charles Taylor. Unsurprisingly, the SCSL Appeals Chamber found that the principle was then established that the sovereign equality of states does not prevent a head of state from being prosecuted before an international criminal tribunal. (See Prosecutor v Charles Taylor (Decision on Immunity from Jurisdiction) 31 May 2004 [SCSL Appeals Chamber] para 52.) There is no doubt at all that the finding was fully consistent with the long line of jurisprudence reviewed above.
The last in the series of judgments of international courts that pronounced on immunity was Prosecutor v Omar Al-Bashir (Jordan Referral re Al-Bashir) in 2019, when the five judges of the Appeals Chamber of the ICC unanimously pronounced themselves on the question. (Prosecutor v Al-Bashir (Jordan Referral re Al-Bashir Appeal Judgment) 6 May 2019 (ICC Appeals Chamber).) Again, it must be observed that the pronouncements of the ICC Appeals Chamber were fully consistent with the jurisprudence reviewed above.
The resulting case law is therefore crystal clear on the absence of immunity before an international criminal tribunal in the prosecution of an international crime. On each occasion the question arose, the judges of those international tribunals (comprising no less than 40 judges) have—without exception—held or observed that there is no such immunity. That is “international legal practice”—not merely the postulations of duelling legal scholars.
Therefore, contrary to the opinion of the CAVV, the “international legal practice” is “clear-cut” in saying that there is no such immunity in the context of adjudication of international crimes in the proceedings of international courts.
* * *
In addition to the international jurisprudence, united actions of states on the international stage also makes clear that there is no immunity for heads of state for international crimes before international tribunals. That has been the case starting in 1919 when the international community helped launch that proposition in article 227 of the Versailles Treaty, and arising acutely in 1945, when the Allies established a tribunal to prosecute the surviving leadership of the Third Reich. Among those actually prosecuted was Grand Admiral Karl Dönitz who succeeded Hitler as Germany’s Head of State. (See generally, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg (14 November 1945 to 1 October 1946), especially at p 78.) They were prosecuted pursuant to the Charter of the International Military Tribunal in Nuremberg, which provided in article 7 that the “official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”
The period after World War II saw the crystallization of the norm that rejects head of state immunity from accountability for international crimes. This was achieved on behalf of the United Nations through the leading work of the International Law Commission, notably beginning with their formulation of the Nuremberg Principles, the third of which provides as follows: “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.” (See Yearbook of the International Law Commission (1950) vol II, para 97.) That principle was amply reflected in draft codes that the ILC produced, pursuant to mandates from the UN General Assembly and in the course of consultation with the Assembly’s Sixth Committee (Legal), regarding crimes against the peace and security of mankind, all of which rejected head of state immunity. (See the ILC Draft Code of Offences against the Peace and Security of Mankind (1954), article 3; and the Draft Code of Crimes against the Peace and Security of Mankind (1996), article 7.)
Later in the 1990s, the UN Security Council, on behalf of the UN, created international criminal tribunals for the former Yugoslavia and for Rwanda, and authorized (outside of Chapter VII) the creation of a special war crimes court for Sierra Leone. Without exception, all the founding instruments of these tribunals contained provisions that rejected immunity for heads of state. (See the Statute of the International Criminal Tribunal for the former Yugoslavia (1993), article 7(2); the Statute of the International Criminal Tribunal for Rwanda (1994), article 6(2); and the Statute of the Special Court for Sierra Leone (200), article 6(2).)
The same rejection of immunity was eventually repeated in article 27 of the Rome Statute of the International Criminal Court.
It is important to stress the customary international law status of this anti-immunity norm. The repetition of that norm in successive relevant international instruments confirms the status of the norm as customary international law, as correctly observed in all the decisions and judgments of international courts and tribunals reviewed above. The prevalence of those provisions in international legal instruments across the decades satisfies the technical definition of customary international law, usually expressed as a general and consistent practice of states accepted as law. In that connection, there is much significance to the observations of the International Law Commission in 1996 saying that the “official position of an individual has been consistently excluded as a possible defense to crimes under international law in the relevant instruments adopted since the Charter of the Nürnberg Tribunal.” (See International Law Commission, “Draft Code of Crimes against the Peace and Security of Mankind with commentaries (1996)” in the Yearbook of the International Law Commission (1996) vol II, Part 2, at p 27, commentary (4) to draft article 7, emphasis added.)
What the ILC correctly observed in 1996 as a consistent exclusion of immunity is the very definition of customary international law.
It is unfortunate that some scholars have not accounted for the legal significance of the developments summarized above, when they insist that customary international law recognizes immunity for heads of state even in the proceedings of an international criminal court.
International Law As It Has Actually Changed
Every international law scholar acknowledges how significantly international law has changed since the end of World War II, especially in light of the promotion that human rights have received in international law since then.
Yet, it is surprising to see how some scholars seem prepared to overlook the consequences of that post-World War II reorientation of international law that started with Nuremberg. That is a primary weakness in the scholarship of those who insist on perpetuating an understanding of immunity of heads of state that took hold in relations between nations before Nuremberg, an era in which international law allowed little or no place for individual rights and responsibilities. International law was concerned almost exclusively with relations between states. Any question of right or responsibility of the individual was regarded as the internal affair of his or her state of nationality. Other states must not interfere. It is obvious to see how rules of immunity erected during this period in which sovereignty of the state was paramount would continue to loom large in scholarship that does not appreciate the real significance of Nuremberg, such that the correlative qualification of immunity to accommodate the ideals of human rights and responsibilities may seem merely aspirational. It is a mistaken point of view.
The normative proposition that state officials including heads of state enjoy no immunity from accountability for international crimes is not mere aspiration. It reflects customary international law that actually changed the general topology of international law since the end of World War II, in order to accommodate that profound change in international law, which thenceforth stressed the profound importance of human rights, with correlative obligations upon those who violate human rights.
Such a fundamental change in international law was intended by the UN General Assembly when it adopted resolution 95(I) on 11 December 1946, “affirming the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal.” And in resolution 177(II) of 21 November 1946, the General Assembly invited the International Law Commission to both formulate those principles and to reflect them in the codification of crimes against the peace and security of humankind, an invitation originally made in resolution 95(I).
The General Assembly did not “affirm” a mere aspiration in resolution 95(I). What it affirmed were “principles of international law.” The phrase has applied meaning. In the Lotus case, the Permanent Court of International Justice said that “the words ‘principles of international law,’ as ordinarily used, can only mean international law as it is applied between all nations belonging to the community of States.” (See the Case of the SS Lotus, 7 September 1927, Series A No 10, at p 16, emphasis added.)
Directly responding to that mandate, the ILC formulated seven “principles of international law” recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal. The Third Nuremberg Principle rejects immunity for state officials including heads of state accused of international crimes. That principle was primarily derived from article 7 of the Charter of the Nuremberg Tribunal and the pronouncements of the Tribunal giving value to that provision and the legal norm it conveyed. (See United States et al v Göring et al (Judgment) (1946) 1 Trial of the Major War Criminals before the International Military Tribunal (1947) p 223.)
An in complying with their mandate to reflect the Nuremberg principles in the codification of the draft code of crimes, the ILC consistently reflected the principle in the draft criminal codes they produced for the international community over the years. They did so in article 3 of the 1951 draft Code of Offences against the Peace and Security of Mankind, article 3 of the 1954 draft Code of Offences against the Peace and Security of Mankind, article 13 of the 1991 draft, and in article 7 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind.
In the meantime, that principle has also been consistently reflected, in one formulation or another in all the founding instruments of international criminal courts and tribunals. There is a minimum of eighteen such instruments that have so reflected the principle. The list of those instruments appears in Appendix I to this commentary. That consistency confirms the proposition as a norm of customary international law, within any reasonable understanding of “international custom, as evidence of general practice of states accepted as law,” in the words of article 38(1)(b) of the ICJ Statute.
What is more, the Third Nuremberg Principle, rejecting head of state immunity for international crimes, is further crystallized as a principle of customary international law in “the teachings of the most highly qualified publicists of the various nations”—also within the meaning of article 38(1)(d) of the ICJ Statute. This is evident in the relevant opinion of the ILC, as published in 1996 (as mentioned earlier), but also in the reports of expert inquiries commissioned by the United Nations to consider questions of accountability following episodes of international crimes committed in the former Yugoslavia and in Rwanda.
So, too, in individual academic opinions of the most venerable legal scholars seen as “the most highly qualified publicists.” They include the late Sir Robert Jennings (a former Whewell Professor of International Law at Cambridge and former President of the International Court of Justice), the late 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), the late Sir Arthur Watts QC (an eminent jurist who with Jennings co-edited Oppenheim’s International Law, a classic treatise), the late Professor Otto Triffterer, Professor (emeritus) Alain Pellet, Professor (emeritus) Roger S Clark, and Professor (emeritus) John Dugard. The next generation of senior scholars who shared that view include, but are not limited to, Professor Guénaël Mettraux, Professor Max du Plessis, 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.
A bibliography of academic authorities who have observed that international law rejects immunity for heads of state appears in Appendix II to this commentary.
Immunity Versus Jurisdiction—An Avoidable Confusion
I now return to the CAVV caveat advising the Dutch government to “advocate a distinctive and restrictive definition of the term ‘international tribunal,’” should it feel inclined to support the rejection of head of state immunity for international crimes prosecuted before international tribunals. The caveat reprises a fundamental confusion often encountered in the debate on the subject. It has to do with the obvious concern about what may qualify as an “international tribunal” before which immunity would not apply. The concern is in the nature of the question whether a limited number of states could establish a court which could bind a state that is a stranger to the court’s founding treaty, by removing “immunity” which (some claim) international law has preserved for every state in every tribunal (national or international). (See, for instance, Dapo Akande, “International Law Immunities and the International Criminal Court” (2004) 98 AJIL 407 at p 417.) One sees that concern and confusion in the following nodal argument once invoked by Professor Akande:
I … take the view that under customary international law, there is immunity for heads of states before international tribunals, if that state is not a party to that treaty. And I think that that’s important because otherwise what we would be saying is that two states, three states, four states can set up an “international” tribunal to prosecute the head of state of another country.
I don’t believe in regime change by force. And I don’t believe in regime change by international tribunals either. Because that’s in effect what we are talking about. To the extent that we take the view that there’s no immunity before international tribunals which are created by states, then all we are saying is that two states, three states, fifteen states can set up an “international tribunal” to remove in effect the head of state of another state. I don’t think that’s conducive to good international relations. (See Dapo Akande, oral remarks, Wayamo Foundation Conference, 24-26 March 2016, Panel VII: Immunity of Heads of State under International Law. Available at: <https://youtu.be/A_O1Yzvhcp0> at timestamp 1:15:34 to 1:16.28.)
As it were, that argument has captured the imagination of some commentators whose scholarship reveals sympathy for the pre-Nuremberg era acceptance of immunity, including the CAVV. (See page 14 of the CAVV opinion.)
The trouble with that concern is its supposition that the classification of any criminal court as “international” has the automatic effect of enabling that tribunal with jurisdiction that it may exercise if immunity is found to be absent as a matter of international law. It is a faulty supposition.
The concern results from the conflation of jurisdiction with immunity. These are different juridical concepts that require disambiguation in their separate domains: in the sense of understanding what each of them means and does separately, in order to see how they interact when they come together. In the outcome, the fact that immunity is not applicable before a particular court does not mean that the court in question has jurisdiction in a given case.
That is to say, the legal effect of characterizing a criminal tribunal as “international” is not that it is automatically enabled “to prosecute the head of state of another country.” The value of classifying a tribunal as “international” quite simply boils down to what Robert Jennings adequately explained as follows:
[I]t must be remembered that the immunity applies only in circumstances which involve the principle that one sovereign state will not exercise its jurisdiction over another sovereign state; par in parem non habet imperium. That aphorism is the foundation and the sum of the rule of immunity. For that reason, even heads of state do not by international law have any immunity from the jurisdiction of an international tribunal; nor indeed from the domestic courts of their home state. (Robert Jennings, “The Pinochet Extradition Case in the English Courts” in L Boisson de Chazoumes and V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality I L’ordre juridique international, un systeme en quete d’equite et d’universalite, Liber Amicorum Georges Abi-Saab (2001) 677 at p 692, emphasis added.)
The point of it is this. The rule that recognizes immunity for sovereign states from the jurisdiction of one another was driven only by the basic mischief which the rule was devised to overcome. That mischief is the concern that one state (the forum state), by exercising jurisdiction over the sovereign head of another state is seen to be exercising hegemony over the second state, hence negating the principle of equality between the two states, described in 1812, in the Schooner Exchange, as that “perfect equality and absolute independence of sovereigns.” (See The Schooner Exchange v McFaddon, 11 US 116 (1812) at p 137 US Supreme Court).) That mischief was expressed in the terms that “[o]ne sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation by placing himself or its sovereign rights within the jurisdiction of another [sovereign] ….”
Perhaps, that mischief of indignity will be seen in greater relief in the light of two further considerations at play in 1812 when the rule of immunity was articulated: (1) the forum state whose court would have been exercising jurisdiction over the sovereign head of another state was only doing so to satisfy the requirements of its own domestic laws that would be applied in the judicial proceedings in question; and, (2) the sovereign head of the forum state was invariably immune from the jurisdiction of his or her own courts, thus radically engaging the asymmetry of subjecting the foreign sovereign to the jurisdiction of the forum court.
Beginning with the basic mischief, none of these considerations is engaged in the circumstances of an international criminal tribunal. That is the entire essence of the principle which precludes immunity before international criminal tribunals. The essence does not lie in the intrinsic property of such a court to exercise criminal jurisdiction by mere virtue of its classification as “international.”
Here, it is important to understand that the jurisdiction of an international court is not conferred by customary international law. At the international level, there is no equivalent principle that gives an international tribunal inherent jurisdiction to do justice where there is no other court available to do so, as is the case with superior courts in common law jurisdictions. Rather, an international tribunal acquires its jurisdiction through a specific instrument. This could be a treaty (like the Rome Statute that established the ICC in 1998) or a resolution of an international organization [such as the UN Security Council resolution 827 (1993) and resolution 955 (1994) that respectively established international criminal tribunals for the former Yugoslavia and for Rwanda]. Where a particular international court has no jurisdiction to begin with, the rule of non-recognition of immunity cannot subject the sovereign of any state to the processes of that court. (See Prosecutor v Al-Bashir (Jordan Referral re Al-Bashir) (Judgment), 6 May 2019, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmanski and Bossa, paras 446 et seq.)
Immunity, on the other hand, serves a different function. It operates only against any jurisdiction that is independently available and from a different source. Immunity or its absence can come through either customary international law or through an instrument that binds those that are party to it—or both. Even a resolution of the UN Security Council derives its binding effect from the UN Charter that binds the UN member states.
Indeed, the foregoing explanation of the difference and relationship between immunity and jurisdiction is wholly consistent with the observations of the majority of the ICJ majority in the Arrest Warrant case, a legal dispute concerning the immunity of foreign ministers from the criminal jurisdiction of peer nations. As noted earlier, the Court observed, in passing, that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.” (See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment [2002] ICJ Reports p 3, para 61, emphasis added.) The Court cited the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the ICC, as examples of international courts that may exercise such jurisdiction without immunity.
International Jus Puniendi
All that said, it must also be observed that there is a real significance in customary international law’s consistent recognition of certain conduct as criminal, although that recognition does not entail automatic jurisdiction upon every tribunal characterized as “international.”
The significance of customary international law’s consistent recognition of certain conduct as criminal entails an international jus puniendi relative to that conduct. Jus puniendi means society’s right to punish those who commit crimes. This entails, in turn, one of two strategies, if not both, in relation to international crimes. The first is that individual states can specifically prosecute an international crime at the national level, in the exercise of universal jurisdiction. This is what states have traditionally done with piracy and slave trade. It is also what they now do with the war crimes characterized as “grave breaches” to the Geneva Conventions. (See Geneva Convention No I, articles 49 – 51; Geneva Convention No II, articles 50 – 52; Geneva Convention No III, articles 129 – 131; Geneva Convention No IV, articles 146 – 148.)
It must be stressed that states in their respective national domains have ample support in international law to lend their national jurisdictions to the cause of the international jus puniendi to repress or punish international crimes. The Lotus case affords eminent authority in that regard. There, the Permanent Court of International Justice was confronted with an objection from France against Turkey’s exercise of criminal jurisdiction over a French naval officer for a fatal collision that occurred outside Turkey’s territorial waters. In its objection, France argued that for Turkish Courts to exercise jurisdiction, Turkey “should be able to point to some title to jurisdiction recognized by international law in favour of Turkey.” (See the Case of the SS Lotus Series A, No 10, of 7 September 1927, at p 18.) The PCIJ was not persuaded by that argument. It preferred the opposing argument to the effect that Turkey was free to exercise “jurisdiction whenever such jurisdiction does not come into conflict with a principle of international law.” Observing that such an approach is “dictated by the very nature and existing conditions of international law,” the Court further reasoned as follows:
Now the first and foremost restriction imposed by international law upon a State is that-failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.
It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. (Lotus Case, supra, pp 18 – 19.)
An arguable difficulty confronting the use of universal jurisdiction to actualize the international jus puniendi against international crimes arises from the confusion introduced into the ICJ jurisprudence in the Arrest Warrant case, where the Court’s majority held that the head of state or foreign minister enjoys immunity from the criminal jurisdiction of a foreign state, even in relation to international crimes. The negative value of that finding is this. Although a national court may claim jurisdiction as allowed in the Lotus case and exercise it for other purposes, there remains a limited category of foreign state officials who must be accorded immunity in such proceedings. As indicated earlier, there is a credible basis (including the writings of Cassese and more already alluded to above) to question the correctness of that observation.
The second strategy for actualizing the international jus puniendi against international crimes is to consider that two or more states, each of whom may exercise universal jurisdiction over an international crime, may act to establish an international tribunal and specifically give it jurisdiction to prosecute the crime in question. There is ample precedent in international law in that regard. That was what happened when France, the UK, the US and the USSR created the Nuremberg tribunal in 1945. That tribunal was a manifestation of the international jus puniendi against the conduct over which the tribunal was given jurisdiction. So was the African Union’s establishment of an international tribunal in Senegal to try Hissène Habré the former President of Chad. So was Council of Europe’s agreement with Kosovo to establish the Kosovo Specialist Chamber for the administration of the rule of law in relation to international crimes.
Similar considerations would justify the creation of an international tribunal for the crime of aggression in Ukraine—whether it is created by the UN or by the Council of Europe. As long as such a court is given the jurisdiction specifically contemplated by its establishment, customary international law will prevent the assertion of immunity before such a court, whether or not the court’s founding statute also typically repeats the rule against immunity.
This consideration specifically rejects the theory of “delegation” of jurisdiction, by which some commentators have sought to explain—even constrain—the jurisdiction of international courts. According to this theory, the states that established or subscribe to the founding treaty of an international tribunal must be seen as only exercising their own jurisdictions “through” that tribunal. Consequently, the theory goes, the international criminal tribunal may do no more than what each of the founding states is able do individually. (See Dapo Akande, “International Law Immunities and the International Criminal Court” (2004) 98 AJIL 407 at pp 417 and 421.)
The “delegation” theory thus conceived is an impoverished one, given its many fundamental flaws. Here are a few. To begin with, the theory gives only a negative value to the primary reason for joint action. Indeed, the first reason that people join hands to do things is to overcome the impossibility or impropriety of individual action. Hence ants join their bodies to build mid-air bridges across gaps along their paths. No one ant can build that bridge alone. Lions team up to fell a cape buffalo or an elephant. People join hands to lift a weight too heavy for one person. States unite to create an international organization to tackle global problems that would be too onerous or too presumptuous for any state to tackle alone. They form defence pacts to take on powerful enemies. And they also unite to establish a court, which would exercise jurisdiction applying international law independently of any state’s laws and circumstances, guided by the imperative of judicial independence. This has the advantage of removing or lessening concerns about any particular state being seen as subjecting another to its own dominion, if its own courts were to exercise jurisdiction over the perceived sovereignty of another state.
It is accepted, of course, that it would be illegitimate for people to unite for an illicit purpose of evading the law. But it must not be presumed that a particular obstacle that a joint action seeks to overcome will always entail a joint unlawful enterprise, taking into account all the factors operating in the circumstances. No serious concern of illegitimacy arises in that regard when states unite to create an international criminal tribunal that would apply international law when exercising jurisdiction guided by the imperative of judicial independence. This is because the original mischief that necessitated the rule of immunity for foreign sovereigns entailed concerns about the effective subjection of such a foreign sovereign to the dominion and national law of the forum sovereign, who ordinarily was above the law within his or her own realms. Also forum sovereigns often were the head of the judiciary. In the United Kingdom, for instance, the superior court was known as the King’s (or Queen’s) court, and some British monarchs were known to insist on giving real meaning to that nomenclature. Those concerns do not arise in the circumstances of an international criminal tribunal.
Another flaw in the delegation theory is that it fails to consider international law jurisprudence, notably in the Reparation case, which holds that international organizations are imbued with independence from their constitutive member states. (See Reparation for injuries suffered in the service of the United Nations, Advisory Opinion (1949) ICJ Reports 174, at pp 182—184.) The is the very meaning of international legal personality. In other words, member states do not act “through” the international organizations that they establish. The following query must test the integrity of the theory that individual states must be seen as acting “through” an international organization of which they are a member. When the League of Nations expelled the USSR on 14 December 1939 for invading Finland, was the USSR then acting “through” the League of Nations? The same question is engaged when the UN General Assembly passed resolutions demanding Russia’s withdrawal from Ukraine and to reverse course on the “illegal attempted annexation” of Ukraine.*
A further shortcoming in the “delegation” theory, as based on the proposition that founding states must be seen as acting “through” an international court that they founded, is that the theory fails to account for the imperative of judicial independence that underscores the functions of any court of law.
Conclusion
In his report to President Truman on the progress of the London conference of 1945, Justice Robert H. Jackson categorically asserted a very American position: “We do not accept the paradox that legal responsibility should be the least where power is the greatest.” (See here at p 182.) A basic reason for that rejection of immunity was that Jackson quite correctly saw head of state immunity as a “relic of the doctrine of the divine right of kings.” That idea was at its height in the 16th and 17th centuries, memorialized in Louis XIV famous quip “l’etat c’est moi.” But it is an idea that must be appreciated in its own juristic ecosystem. It originated and took hold in an era when the law specifically imposed or permitted pernicious misogyny, racism, xenophobia, child abuse and much else that was repugnant to, as the expression goes, natural justice, equity and good conscience.
The march of law reform in a more enlightened age has since enshrined not only greater respect for human rights and correlative individual responsibility for their violation, but also the idea of accountability before an international criminal tribunal. These adjustments brought with them the rejection of immunity. That rejection is remarkably clear for its repetition in at least 18 international documents, at least eight decisions and judgments of international tribunals comprising the positions of at least 40 international judges, and the writings of the most eminent jurists such as Professor Antonio Cassese, Professor Roger S. Clark, Professor John Duggard, Sir Robert Jennings, Professor Alain Pellet, Professor Otto Triffterer, Sir Arthur Watts, and many other serious jurists who come after them.
The resulting law reform leaves no doubt that customary international law no longer accepts immunity for anyone, including heads of state, suspected or accused of gross human rights violation in the order of international crimes, especially when the defendant is being prosecuted before an international criminal tribunal. The legal scholarship that denies that settled rejection of immunity in customary international law appears to result from lack of familiarity with these developments, failure to appreciate their true significance or else a stubborn rejection of that evolution in the law; it does so while remaining uncompromisingly captive to the knowledge that there once was in international law recognition for sovereign and official immunity through rules laid down in the context of relations between states, at a time when there was no organized multilateral legal order with international tribunals able to exercise criminal jurisdiction, and, at a time when international law lacked a strong ethos (if any at all) of human rights and correlative responsibilities on the part of individuals.
A fuller version of this article with full references is pending publication in an international law journal.
Appendix I
(Instruments of International Law rejecting Immunity)
- Versailles Peace Treaty (1919), article 227
- Charter of the International Military Tribunal at Nuremberg (1945), article 7
- Control Council Law No 10 (1945), article 4
- Charter of the International Military Tribunal for the Far East (1946), article 6
- Convention for the Prevention and Punishment of the Crime of Genocide (1948), article IV
- Principles of International Law Recognized by the Nuremberg Charter and Judgment (1950), Principle III
- Draft Code of Offences against Peace and Security of Mankind (1951), article 3
- Draft Code of Offences against Peace and Security of Mankind (1954), article 3
- Draft Code of Offences against Peace and Security of Mankind (1991), article 13
- Draft Code of Crimes against Peace and Security of Mankind (1996), article 7
- Statute of the International Criminal Tribunal for the former Yugoslavia (1993), article 7(2)
- Statute of the International Criminal Tribunal for Rwanda (1994), article 6(2)
- Rome Statute of the International Criminal Court (1998), article 27
- Statute of the Special Court for Sierra Leone (2000), article 6(2)
- Reg No 2000/15 East-Timor re Special Panels for Serious Criminal Offences (2000), section 15
- Law on Extraordinary Chambers in the Courts of Cambodia (2001), article 29
- Law No.05/L-053 on the establishment of Kosovo Specialist Chambers (2015), article 16(1)(b)
- Organic Law No 15-003 on the Special Criminal Court of the Central African Republic (2015), article 56.
Appendix II
(Bibliography of notable academic authorities who have observed that international law rejects immunity for heads of state)
- Robert Jennings, “The Pinochet Extradition Case in the English Courts” in L Boisson de Chazournes and V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001) 677 at p 692: “[I]t must be remembered that the immunity applies only in circumstances which involve the principle that one sovereign state will not exercise its jurisdiction over another sovereign state; par in parem non habet imperium. That aphorism is the foundation and the sum of the rule of immunity. For that reason, even heads of state do not by international law have any immunity from the jurisdiction of an international tribunal; nor indeed from the domestic courts of their home state.” (Emphasis added.)
- Antonio Cassese, International Criminal Law (2003) at p 267: “The traditional rule whereby senior State officials may not be held accountable for acts performed in the discharge of their official duties was significantly undermined after the Second World War, when international treaties and judicial decisions upheld the principle that this ‘shield’ no longer protects those senior State officials accused of war crimes, crimes against peace, or crimes against humanity. More recently, this principle has been extended to torture and other international crimes. It seems indisputable that by now an international general rule has evolved on the matter. Initially this rule only applied to war crimes and covered any member of the military of belligerent States, whatever their rank and position. When the major provisions of the London Agreement of 8 August 1945 (setting forth the Statute of the IMT) gradually turned into customary law, Article 7 (‘The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment’) also has come to acquire the status of a customary international rule.” (Emphasis added.)
- Arthur Watts, “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign ministers” (1994) Recueil des cours de l’Académie de droit international de La Haye (1994) Vol 247, p 84: “It can no longer be doubted that as a matter of general customary international law a Head of State will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.” (Emphasis added.)
- Otto Triffterer, “Article 27: Irrelevance of Official Capacity” in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (2008) 779 at p 786: “It is self-evident that article 27 is applicable only within the jurisdiction of the Court, as established by the Rome Statute after it came into force on 1st July 2002. However, it nevertheless recognizes a generally accepted principle of international criminal law. The basis, however, is not the Statute itself, but the underlying law merely expressed and defined in the Statute. Article 27 can, therefore, claim validity and applicability before the Court, but for instance also before internationalized Courts like the Special Court for Sierra Leone.” (Emphasis added.)
- Alain Pellet, “Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills” (2015) 109 The American Journal of International Law 557 at pp 563-564: “I do not accept that the principle of state immunity can be an obstacle to holding individuals responsible for an international crime. At the very least, my objection holds when it is a ‘crime against the peace and security of mankind’ or—to use the terminology of Articles 40 and 41 of the 2001 ILC Draft Articles on State Responsibility— ‘a serious breach … of an obligation arising under a peremptory norm of general international law.’ In spite of the most unfortunate ICJ judgment in the Arrest Warrant case, maintain that in such a situation, the state becomes ‘transparent,’ so that the officials who acted in its name cannot take refuge behind their ‘immunities.’ Nonetheless, the question is irrelevant when the ICC is called to exercise its jurisdiction.”
- Ellen S Podgor & Roger S Clark, Understanding International Criminal Law, 3rd edn (2013) pp 138-139: “Customary law is now well established that ‘head of state immunity’ is impermissible when the crime is an international crime prosecuted in an international court or tribunal. Article 27 (1) of the International Criminal Court Statute specifically states that the official capacity of the accused is irrelevant. The Statute states that it ‘[s]hall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.’ This provision is in the tradition of the Nuremberg and Tokyo Charters and of the Statutes of the tribunals for Former Yugoslavia and Rwanda, all of which contain provisions to the same effect. The Special Court for Sierra Leone, which was established as an international criminal court by agreement between the United Nations Security Council and the Government of Sierra Leone, issued a very thoughtful opinion on the subject in holding that former Liberian President Charles Taylor was not entitled to immunity even though he was an incumbent head of state at the time when he was indicted.” (Emphasis added.)
- Guénaël Mettreaux, John Dugard & Max du Plessis, “Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa” (2018) 18 International Criminal Law Review 577 at pp 620-621: “The era of absolute immunities for heads of States and other State officials suspected of involvement in the commission of international crimes is long gone. Such immunities have been eroded to a point where there is now a customary law exclusion of those as a defence to charges involving international crimes or as an objection to the jurisdiction of a tribunal that is otherwise competent to hear those charges. This limited customary law exclusion of immunities is triggered, not by the national or international character of the tribunal competent to hear the matter, but by the international character of the crime that underlies the charges. In thus excluding immunities as a defence and bar to jurisdiction, customary international law draws no distinction between official and private acts, nor does it differentiate between sitting and former State officials.”
- Gerhard Werle and Florian Jessberger, Principles of International Criminal Law, 3rd edn (2014): “Today there is no doubt that the Nuremberg Principles are firmly established as customary international law. Nuremberg accomplished what had failed after World War I. The criminality of the worst violations of international law was from now on firm component of the international legal system.” [Page 10] And “The fact that a perpetrator acts in his or her official capacity does not affect his or her responsibilities under international criminal law. Immunity ratione material thus does not affect the commission of crimes under international law. This view of immunity under international law is recognized in customary international law. Indeed, the fact that the crime is committed in the exercise of sovereign functions is often an aggravating circumstance.” [Page 273.] “In the case of crimes under international law, immunity ratione materiae is inapplicable not only to trials before international courts, but also vis-à-vis state judiciaries. Today, this is also anchored in customary international law. This development gained significant momentum as a result of the decisions of the British House of Lords in the Pinochet” [Page 275.]
- Leila Nadya Sadat, “Heads of state and other government officials before the International Criminal Court: the uneasy revolution continues” in Margaret de Guzman and Valerie Oosterveld (eds), The Elgar Companion to the International Criminal Court (2020) at p 96 [first published on 31 January 2019, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3321998]; Leila Nadya Sadat, “Why the ICC’s Judgment in the al-Bashir Case Wasn’t So Surprising” Just Security 12 July 2019.
- Paola Gaeta & Patryk Labuda, “Trying Sitting Heads of State: the African Union versus the ICC in the Al Bashir and Kenyatta Cases,” in A Abass, I Bantekas & C Jalloh (eds), International Criminal Court and Africa (Oxford: Oxford University Press, 2017) 138-162; Paola Gaeta, “Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?” in A Cassese (ed), Realizing Utopia. The Future of International Law (Oxford: Oxford University Press, 2012), pp 28-238; Paola Gaeta, “Does President Al Bashir Enjoy Immunity from Arrest?” in (2009) 7 Journal of International Criminal Justice, pp 315-332; and, Paola Gaeta, “Ratione Materiae Immunities of Former Heads of State and International Crimes: the Hissène Habré Case,” in (2003) 1 Journal of International Criminal Justice pp 186-196.
- Herman van der Wilt, “The continuing story of the International Criminal Court and personal immunities” (2015) Amsterdam Law School Research Paper; No. 2015-48), Amsterdam Center for International Law, University of Amsterdam, http://ssrn.com/abstract=2701205.
- Claus Kreß, “Article 98” in Kai Ambos (ed), Rome Statute of the International Criminal Court: Article-by-Article Commentary, 4th edn (2022), pp 2595 et seq; Claus Kreß, “Preliminary Observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal” Occasional Paper Series [Torkel Opsahl Academic EPublisher 2019].
- Charles Jalloh, “Reflections on the Indictment of Sitting Heads of State and Government and Its Consequences for Peace and Stability and Reconciliation in Africa” (2014) 7 African Journal of Legal Studies 43 at pp 56-59. See also Charles Jalloh, The Legal Legacy of the Special Court for Sierra Leone (Cambridge University Press, 2020) at pp 25, 29, 214, 217, 260, 262, 273 and 275.
- JIA Bingbing, “Immunity for State Officials from Foreign Jurisdiction for International Crimes” in Morten Bergsmo and LING Yan (editors), State Sovereignty and International Criminal Law [Torkel Opsahl Academic EPublisher 2012], 75 at pp 77-78.
- David Scheffer (remarks), American Society of International Law, Annual General Meeting, 25-26 June 2020, Panel discussion on “Head of State Immunity”. Available at <https://youtube/znHErfBwhmY> Timestamp 0:07:26 – 0:15:19.