By Revaz Tkemaladze, LLM, Ph.D. Candidate at the Law Faculty of the University of Geneva and Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.
The question of immunities before the International Criminal Court (‘the ICC’) has revived with the issuance of the arrest warrant against the acting Head of State of the Russian Federation. Whether or not immunities preclude the ICC to prosecute the incumbent Head of State that has not ratified the Statute depends on whether Heads of State may rely on immunity under customary international law vis-à-vis an international court. If the answer to the question were negative, it would mean that there is no obstacle to prosecution not just of nationals of member States of the Statute by virtue of Article 27(2) but also of nationals of non-member States (even when there has not been a UN Security Council referral). A second related question is whether the absence of immunities vis-à-vis the ICC also has a horizontal effect i.e. between the State arresting an accused to hand them over to the ICC and a State of nationality of the accused. In academic commentary, the views on these questions are quite contested. This post does not attempt to engage with all these criticisms, but draws implications from the current international judicial practice on the obligation to arrest the President of the Russian Federation with a view to prosecute him at the ICC.
A state of customary international law on immunities vis-à-vis international courts
It is useful to revisit what customary international law has to say on immunities. International law recognises two types ofimmunities from jurisdiction before the courts of other States for Heads of States. First, under the notion of ratione personae immunity, while Heads of State remain in power, they are inviolable before foreign courts. According to the International Court of Justice (‘the ICJ’), this would be the case irrespective of whether the acts that they committed were done in an official or private capacity, or whether the acts were committed while they were in the office or before they entered the office (DRC v. Belgium, paras. 51 and 58). Whether such complete inviolability applies also to international crimes is not uncontroversial (Miguel Lemos). Second, under the notion of ratione materiae immunity, when Heads of State cease to hold the office, they are not liable to prosecution before the courts of other States for acts that they committed in the fulfilment of their functions while they were in the office (DRC v. Belgium, para. 61). Arguably, any alleged ‘official function’ exception cannot provide a shield for international crimes, because many such crimes have an inherent State policy element and their purpose would be nullified if immunity would apply to them because they are of a governmental or public nature. At the same time, according to the ICJ immunities do not present a bar to prosecution when an incumbent or former official is subject to the jurisdiction of an international criminal court (Ibid., para. 61). Indeed, this rule is explicitly laid down in statutes of variety of international criminal tribunals, including the Statute of the International Criminal Court (Article 27, Rome Statute). The ICJ, therefore, accepts that neither personal nor material immunity may hamper prosecution before an international criminal tribunal, where such tribunal has jurisdiction. This would appear to be the conclusion at least for those States that have ratified the relevant treaty.
The ICC had to tackle the question of immunities on several occasions in relation to Al-Bashir, then incumbent Head of State, and the Court’s approach varied throughout the years. For example, in 2011, it found that the Republic of Malawi failed to cooperate with the Court when it refused to surrender Al-Bashir (Malawi Decision). The Court in that decision held that ‘the principle of international law is that immunity of either former or sitting Heads of State cannot be invoked to oppose a prosecution by an international court’ (Ibid., para. 36) and ‘the international community’s commitment to rejecting immunity in circumstances where international courts seek arrest for international crimes has reached a critical mass. If it ever was appropriate to say so, it is certainly no longer appropriate to say that customary international law immunity applies in the present context’ (Ibid., para. 42, emphasis added). In 2017, the Pre-Trial Chamber II conversely appears to have attached a decisive weight to the obligation under the UN Security Council Resolution 1593 and not to customary international law (South Africa Decision, paras. 84-97 and 107). It found that by virtue of the UN Security Council’s referral, Sudan had rights and duties analogous to those of State Parties to the Statute and this had the effect of lifting the immunities (Ibid.,paras. 88 and 91).
In 2017 and 2019, both the Pre-Trial Chamber and the Appeals Chamber found that Jordan similarly violated its obligation to cooperate with the Court by failing to arrest and hand over Al-Bashir but the underlying reasoning between the two Chambers diverged. As the Q&A issued by the Court explains, while the effect of the UN Security Council Resolution was crucial for the Pre-Trial Chamber’s decision as Sudan is not a member State of the Statute, the Appeals Chamber clarified that Al-Bashir anyway did not enjoy immunity vis-à-vis the ICC under customary international law. The Appeals Chamber skilfully reversed the onus on Jordan to prove the existence of the rule on immunities instead of trying to establish an exception to the Head of State immunity which is only applicable in the relationship between States (Jordan Appeals Judgment, para. 117). Importantly, the Appeals Chamber also explained that the lack of customary international law rule affording immunities vis-à-vis international courts is not confined to a vertical relationship between the Court and the State of the accused:
‘‘The absence of a rule of customary international law recognising Head of State immunity vis-à-vis international courts is relevant not only to the question of whether an international court may issue a warrant for the arrest of a Head of State and conduct proceedings against him or her, but also for the horizontal relationship between States when a State is requested by an international court to arrest and surrender the Head of State of another State.’’ (Jordan Appeals Judgment, para. 114)
The Appeals Chamber also found that Article 27(2) as a matter of both treaty and customary law excludes reliance on any immunities before the ICC, which also covers the matters of cooperation (Ibid., paras. 3, 120, 125-126). Following this latest approach of the ICC Appeals Chamber, it would appear that all 123 State parties to the Rome Statute would be under an obligation to cooperate with the ICC and arrest and hand over Russian President Vladimir Putin if he happens to be on their territory. Non-State parties to the Statute do not, however, have an obligation under the Statute to cooperate with the Court. Under Article 87(5) of the Statute, the ICC may invite non-State parties to provide assistance on an ad hoc basis but this is not a legal obligation. We may nevertheless wonder: Could there also be an obligation under international law for non-member States of the Rome statute to arrest a suspect sought by the ICC, which is not derived from the Rome Statute itself but another source, and would such obligation be constrained by immunities, if any, applicable in horizontal relations?
The obligation to extradite or prosecute under the 1949 Geneva Conventions
To answer the first question, many crimes over which the ICC has jurisdiction are subject to universal jurisdiction and the principle of aut dedere aut judicare. All States in the world are under an obligation to search for persons alleged to have committed grave breaches of the Fourth Geneva Convention (GCIV) under Article 146 of GCIV. The text of the provision makes it clear that States may relieve their obligation to prosecute domestically by extraditing the accused. Under one view, the obligation of national prosecution would not kick in until the personal immunities pose a procedural obstacle for prosecution. However, this is not to say that the obligation to punish the grave breaches disappears altogether. Any procedural hurdle to prosecution certainly does not vitiate one’s individual criminal responsibility: ‘While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility’ (DRC v. Belgium, para. 60). Therefore, when a State can relieve its duty to punish the grave breaches by sending an accused to the ICC pursuant to the Court’s request, there is no logical reason why it should not be required to do so. Similarly, a State would definitely be under a duty to hand over an accused if its national State (to which immunity does not apply) wants to initiate a prosecution or if it waived immunities. The same approach should apply for prosecutions before the ICC. This would surely be the case where a ‘prima facie case’ has been made out and the issuance of an arrest warrant by the Pre-Trial Chamber of the ICC would constitute such a case. It is worth highlighting that the ICRC Commentary provides:
‘‘[…] the preparatory work for the Conventions does not exclude the possibility of a State Party handing over an accused person to an international criminal court or tribunal. It was a deliberate choice of the 1949 Diplomatic Conference not to preclude this possibility. In the case of competing requests from a State and the ICC, Article 90 of the ICC Statute provides detailed rules.’’ (ICRC Commentary, para. 5153, footnotes omitted)
Exercise of national criminal jurisdiction?
Regarding the second question, immunities would not apply where non-State parties to the Statute opt to cooperate with the ICC instead of initiating their own prosecutions. If Malawi, South Africa, and Jordan would not be in breach of their international obligation concerning immunities (which is non-existent vis-à-vis the ICC), the same reasoning would hold true for any other State in the world that may arrest a suspect in order to transfer them to the ICC, when they are acting pursuant to the request of the latter. The maxim par in parem non habet imperium would not be breached in such a case, because the States in question would not be exercising their own criminal jurisdiction and would not be trying the suspect before their own national courts. Indeed, national authorities in the custodial State do not have a leeway to ascertain whether or not the issuance of an arrest warrant by the ICC complied with the requirements of the Statute (Article 59(4), Rome Statute). In addition, the ICC can only exercise its powers based on the principle of complementarity, which means that the national authorities were unable or unwilling to exercise their criminal jurisdiction to prosecute the accused. Therefore, in a situation where a State is executing the ICC arrest warrant, it is only acting as a ‘surrogate of the ICC’ (Joint Concurring Opinion, para. 444 and Alexandre Skander Galand) and fulfilling jus puniendi on behalf of the international community (Adil Ahmad Haque). The fact that a State has not ratified the Statute would not be an impediment because if a State is precluded from relying on immunities before international courts under customary international law, States cooperating with the ICC would only be fulfilling their international legal obligations.
Important post these days indeed. Just some few right now:
The respectable author of the post, wonders about other legal sources, creating obligation on non member state for cooperating with the ICC and other states, in respect of such arrest warrant:
One may think of some:
First, many states have national or penal provisions concerning “Universal Jurisdiction” (whether members of Rome statute or not). One could wonder, if they have national obligation to arrest and try a person, committed an offence on one third party territory, and with Zero nexus to national law or jurisdiction, how come they wouldn’t comply with simple arrest warrant of such. The absurd is, that the same person that should be arrested and extradited to the ICC, in other circumstances ( notwithstanding immunity) could have been tried there (on territory of non state member. And by that by the way, they would have or bear, greater power or jurisdiction, over the ICC itself. This is an absurd !).
Also, the UN charter. The UN charter, clearly so, and as constitutional principle, calls over and over for international cooperation between states, and with international bodies. I quote for example:
PURPOSES AND PRINCIPLES
3. To achieve international cooperation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion; and
All Members pledge themselves to take joint and separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55.
Yet, must be established as stronger rule or practice. But, relevant basic source somehow.
And by the way, UN referral, can’t by itself remove the immunity of head of state. It does refer request for initiation of investigation. But, per se, can’t remove immunity. For the SC is not a judicial body. Doesn’t conclude any authoritative findings (like reasonable ground for charging or indicting). And indeed, the pre trial chamber, in the case of Bashir, suggested that: only implicitly the immunity has been removed through the very referral. This can be done only by judicial body.