The survival of head of state immunity at the International Criminal Court.

• Author: Wardle, Phillip

Abstract

The recent cases that have been advanced by the Prosecutor of the International Criminal Court (ICC) against presidents Omar al-Bashir of Sudan, Muammar Gaddafi of Libya and Laurent Gbagbo of Cote d'Ivoire have attracted significant publicity. The first two have arrived at the Court as a result of Referrals from the United Nations Security Council and all represent novel incursions into the otherwise impenetrable immunity that incumbent heads of state have enjoyed under customary international law. This article will analyse the bases upon which a revocation of a head of state's immunity may be accomplished before the ICC, according to the prevailing rules of customary international law and the Rome Statute of the international Criminal Court. It will be argued that in the cases of al-Bashir and Gaddafi, neither the Court nor the Security Council has appropriately abrogated the absolute immunity from prosecution enjoyed by those defendants under customary international law.

I Introduction

On 4 March 2009, the Pre-Trial Chamber of the International Criminal Court (ICC) issued a decision directing the Registrar of the Court to circulate a warrant for the arrest of Omar al-Bashir, the incumbent President of Sudan, for various war crimes and crimes against humanity. (1) On 27 June 2011, the Pre-Trial Chamber authorised a warrant for the arrest of Muammar Gaddafi, the then incumbent President of Libya, for similar charges. (2) As both Sudan and Libya are non-states parties to the Rome Statute, (3) these prosecutions could only be effected by the operation of United Nations (UN) Security Council Resolutions 15934 and 1970 (5), which respectively referred the situations in Sudan and Libya to the Court. More recently, on 23 November 2011, the Pre Trial Chamber granted a warrant for the arrest of Laurent Gbagbo, die incumbent President of Cote d'Ivoire. (6) The manner in which Gbagbo was brought before the Court may be distinguished from that of the al-Bashir and Gaddafi cases. Although not a party to the Rome Statute, Cote d'Ivoire accepted the jurisdiction of the ICC on 18 April 2003, (7) which it reconfirmed on 14 December 2010. (8) Accordingly, the ICC Prosecutor exercised his proprio motu powers to initiate an investigation into the situation in Cote d'Ivoire under article 15 of the Rome Statute. (9) In both Gaddafi and al-Bashir's cases, the Pre-Trial Chamber of the ICC determined that the provisions of the Rome Statute would be applicable to the defendants, norwithstanding their nationality of non-states parties to the Rome Statute, by virtue of the respective Referrals from the Security Council. (10) One of the provisions of the Rome Statute--article 27--purportedly removed the head of state immunity that al-Bashir and Gaddafi would receive under customary international law. The consequence of this analysis is enticing. It ascribes individual criminal responsibility to leaders such as al-Bashir and Gaddafi and provides a convenient legal vehicle to prosecute their crimes before a theatre or international criminal justice. This article will demonstrate, however, that the foundations of this analysis are unsound.

Part II of this article will offer a brief review of the basis for head of stare immunity in customary international law and the exception that has been developed by the International Court of Justice (ICJ); that this immunity will not apply before international courts, where such courts have jurisdiction. Pan III Will scrutinise the various rationales for the removal of immunity before the ICC as a corollary of its status as an international court. It will be demonstrated that, according to the operation Of this rule, head of state immunity has the potential to prevail in certain circumstances within the framework of the ICC. Part IV will observe the repercussions of Resolutions 1593 and 1970 for head of state immunity before the Court. It will be concluded that these Resolutions do not satisfactorily remove the customary immunity attached 10 al-Bashir and Gaddati in their prosecution at the ICC. Finally, Part V will look at the obligations that are created for other Stares by Resolutions 1593 and 1970, concluding that the existence of a legal obligation incumbent upon such States to arrest relevant stare officials is unlikely. Although this article is not intended to excuse criminal acts of heads of state or champion their impunity before the ICC, it hopes expose the ineffective exercise of the Security Council's referral power under the Rome Statute and offer future guidance for the referral of non-states parties to the Court.

II The absolute personal immunity of incumbent heads of state

In international law, the doctrine of head of state immunity proposes that serving heads of state enjoy immunity realm personae (otherwise known as absolute personal immunity) for each and every act undertaken while in office, regardless of whether they are done so in a private capacity. This immunity is not limited to heads of state, but attaches to all high-ranking state officials by virtue of the office they hold. (11) Former heads of state enjoy a reduced form of immunity ratione materiae (otherwise known as 'functional immunity'), which only offers immunity for acts carried out in pursuance of some official function, and not for those which are undertaken in a private capacity. (12)

The rule according absolute immunity to incumbent heads of state is well established. In the jurisprudence of domestic courts, serving heads of state have continued to enjoy an almost unfettered absolute immunity from prosecution through the application of customary international law. State practice of recent years is indeed abundant with examples of incumbent heads of state receiving such protection within domestic jurisdictions according to the doctrine of absolute immunity. (13) This domestic practice came to the attention of the ICJ after, on 11 April 2000, a Belgian investigating judge issued an arrest warrant in absentia for the then incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo (DRC), accusing him of war crimes and crimes against humanity. (14) Upon application from the DRC, the ICJ Was given the opportunity to examine the absolute immunities that serving officials benefit from under customary international law. In terms of the purported immunity that the Minister enjoyed, the Court considered the body of recent jurisprudence of domestic courts, but was:

unable to deduce from this practice dial there exists under customary international Law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. (15) According to this analysis, such incumbent officials will be immune from foreign criminal jurisdiction even when they travel abroad for personal reasons or when they act in a private capacity while holding office, including situations where they are accused of having committed international crimes. Although the Court was only enjoined to consider the immunity of a serving Minister for Foreign Affairs, it has been recognised in subsetquent scholarship and judicial practice that the substance of the ICJ's opinion will apply to other classes of senior state officials, (16) including heads of stare. (17) Moreover, and notwithstanding the extensive commentary that has attended the Court's judgment, the Arresl Warrant case, in many respects, confirmed the pre-existing rule of customary international law that serving officials cannot be prosecuted in foreign jurisdictions. What importantly transpired in the analysis of the Court, and what reflects the novelty of the ruling, was its crystallisation of the various exceptions to this immunity ralione personae under customary international law. The Court observed that such immunity would be inapplicable in certain circumstances, namely when: (a) the accused is brought to trial before the domestic courts of their own State; (b) the official's Stare decides to waive the immunity; (c) once an official has left office and is brought before the courts of a foreign State for acts committed before or alter the period of office or acts committed during office but in a private capacity; (18) and, finally (d) when the official is subject to proceedings before 'certain international criminal courts, where they have jurisdiction'. (19) As evidence of this last principle, the Court mentioned a number of examples of ma) international criminal courts, all of which possess the authority to prosecute heads of state and other state officials. (20)

This final exception is informative of the immunity enjoyed by incumbent heads of state under customary international law, and, more importantly, of its apparent or potential removal in proceedings before the ICC. It also raises the question of when will a judicial forum belong to this category of 'international criminal courts'. The past two decades have witnessed a noticeable proliferation of international penal courts and tribunals, each of which possess a distinct founding architecture and differing degrees of 'international' character in terms of their jurisdictional scope and indicia of supranational status. A marked element of uncertainty has prevailed in the application of the Arrest Warrant precedent to these bodies, which will be examined below.

III The 'international courts' exception

In cases against heads of state before the ICC, it may be, and has been, (21) argued that the ICC possesses the capacity to abrogate such defendants' immunity, because it presides over an international jurisdiction and that head of state immunity cannot apply before international courts, as per the above exception affirmed by the IGJ in the Arrest Warrant case. Curiously, in its determination and ultimate rejection of al-Bashir's immunity, the...