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Criminal Immunity of State Officials for Core International Crimes Now and in the Future by ZHONG Yuxiang FICHL Policy Brief Series No

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Criminal Immunity of State Officials for Core International Crimes Now and in the Future by ZHONG Yuxiang FICHL Policy Brief Series No POLICY BRIEF SERIES Criminal Immunity of State Officials for Core International Crimes Now and in the Future By ZHONG Yuxiang FICHL Policy Brief Series No. 20 (2014) 1. State Sovereignty and a broader perspective of the evolution of the internation- International Criminal Justice al legal order. Our times show that man’s capacity for evil knows no 2. International Law Immunities Before Interna- limits. This realisation has become a force to be reck- tional Courts and Tribunals oned with in the international community. With some acts being condemned as crimes under international law 2.1. Inconsistency in ICC Jurisprudence and the establishment of several international criminal As can be observed in the Bashir case, the ICC takes an jurisdictions, international criminal justice has nearly ambiguous stand on the immunity issue. ICC Pre-Trial from its start epitomised a ‘post-sovereign era’. Chamber (‘PTC’) I specified that “[i]mmunity of either Almost by definition, international criminal law, as former or sitting Heads of State cannot be invoked to op- one single facet of a broader theme, poses a fundamental pose a prosecution by an international court”.3 This, challenge to traditional international law immunities. In- however, does not please PTC II, which in a recent deci- dividuals who bear the greatest responsibility for what is sion held that as for a non-State Party, “[t]he question of typically considered macro-criminality, are often pre- personal immunities might validly arise”.4 cisely the ones for whom traditional immunity protec- Despite the sharp disagreement expressed by the Af- tion is strongest. rican Union Commission5 and PTC II, PTC I is not alone The international law of immunities has recently at- in holding that immunities cannot be successfully raised tracted attention of the International Court of Justice in international criminal proceedings. This view was (‘ICJ’),1 the Institut de Droit International (‘IDI’),2 and also taken by the Special Court for Sierra Leone (‘SCSL’) the International Law Commission (‘ILC’). In this poli- in the case of Charles Taylor,6 and arguably by the ICJ in cy brief, I confine my discussion to the impact of two a well-known obiter dictum in the Arrest Warrant case.7 factors on the availability of criminal immunities of state officials, namely the nature of the courts in which im- 3 Malawi Decision, ICC-02/05-01/09-139, para. 36 (http://www. munities are invoked (section 2), and the type of immu- legal-tools.org/doc/476812/) (emphasis added). 4 Congo Decision, ICC-02/05-01/09, paras. 26-27 (http://www. nities (section 3). I also try to place the problématique in legal-tools.org/doc/89d30d/). 5 Claus Kreß, “The International Criminal Court and Immuni- 1 Jurisdictional Immunities of the State (Germany v. Italy: Greece ties under International Law for States Not Party to the Court’s Intervening), Judgment, 3 February 2012 (http://www.legal- Statute”, in Morten Bergsmo and LING Yan (eds.), State Sov- tools.org/doc/674187/); and Case Concerning the Arrest War- ereignty and International Criminal Law, Torkel Opsahl Aca- rant of 11 April 2000 (Democratic Republic of the Congo v. demic EPublisher, 2012, Beijing, p. 226 (http://www.legal-tools. Belgium), Judgment, 14 February 2002 (‘Arrest Warrant case’) org/doc/a634d0/). (http://www.legal-tools.org/doc/c6bb20/). 6 Prosecutor v. Charles Ghankay Taylor, Appeals Chamber, Case 2 Resolution on the Immunity from Jurisdiction of the State and of Number SCSL-2003-l-AR72(E), Decision on Immunity from Persons Who Act on Behalf of the State in case of International Jurisdiction, 31 May 2004, para. 51 (http://www.legal-tools.org/ Crimes, Napoli Session 2009, Third Commission (http://www. doc/3128b2/). legal-tools.org//20fd92/); and Les immunités de jurisdiction et 7 Supra note 1, Congo v. Belgium, Judgment, para. 61. See con- d’exécution du chef d’Etat et de gouvernement en droit interna- trary interpretations: LIU Daqun, “Has Non-Immunity for Heads tional, Vancouver Session 2001, Thirteenth Commission (http:// of States Become a Rule of Customary International Law?”, in www.legal-tools.org//48a982/). Morten Bergsmo and LING Yan (eds.), State Sovereignty and In- www.toaep.org 2.2. International Courts: counterparts. As a matter of principle, the answer is af- Delegation by States Parties firmative. The argument relied upon by the SCSL and referred to by The delegation model is not the only way to concep- the ICC PTC I is that tualise international criminal courts. In fact, international [t]he principle of state immunity derives from criminal law is born out of the idea of jus cogens and the equality of sovereign states and therefore obligatio erga omnes, the normative force of which ren- has no relevance to international criminal tribu- ders it possible that an international criminal court, which nals which are not organs of a state.8 acts as a direct embodiment of the international commu- Yet, with due respect, this is a somewhat odd argu- nity, has wider powers than a national criminal court, 12 ment given that international courts are normally created which acts as a mere fiduciary of the common good. and sustained by States. The basic distinction made be- This brings us to the question of which international tween international and national courts gives the impres- criminal courts may qualify to be organs of the interna- sion that what a State cannot do individually, it can do by tional community. Those courts set up by the United Na- agreement with another State – or perhaps two or ten tions Security Council (that is, the ICTY and the ICTR) other States? Indeed, it would seem to make little differ- certainly count. The case of the ICC is more difficult, ence whether States seek to exercise this judicial juris- especially when the situation is not referred to the ICC diction unilaterally or through a collective body to which by the Security Council. This is a matter that should be the concerned State has not consented.9 researched and argued further. The view that international law immunities may nev- 3. Personal Immunity and Functional Immunity for er be pleaded in proceedings instituted before interna- Core International Crimes tional courts oversimplifies the matter. The availability of immunity before international courts depends on the na- Let us turn to the second question: should a distinction be ture of the international court in question. There are sub- drawn between functional immunity and personal immu- nity with respect to core international crimes? The base- stantial differences between the ICTY, ICTR and ICC in 13 this respect.10 The ICC was created on the basis of the line set by the ICJ provides that personal immunity is ICC Statute, and as such it does not enjoy powers under absolute and inviolable before a foreign national court. Chapter VII of the United Nations Charter. A treaty- In this section I will therefore deal primarily with func- based international court cannot remove immunities that tional immunity, and explore its difference from personal customary international law grants to officials of States immunity, which is the very reason why a distinction not party to the treaty. should be drawn. 2.3. International Courts: 3.1. Attempts to Invalidate Functional Immunity Organs of the International Community Recent decades have seen a number of national prosecu- My arguments above are actually predicated on concep- tions of foreign State officials for core international 14 tualising the ICC as a delegation by its States Parties. If crimes. Notably, the Special Rapporteur of the ILC, in this is so, the ICC may not have wider powers than a his second report, summarized six rationales – some of national court as regards a non-State Party. The question them interrelated – for exceptions to functional immuni- 15 is therefore whether there is any other approach to the ty for international crimes. The typical attempts to re- concept of ‘international courts’ which would make such May 2008, A/CN.4/601, para. 103 (http://www.legal-tools.org/ courts “fundamentally different”11 from their national doc/97bd3b/). 12 See Claus Kreß, op. cit., p. 246. ternational Criminal Law, op. cit., p. 68 (http://www.legal-tools. 13 Arrest Warrant case, Judgment, paras. 51, 54, 56 and 58 (http:// org/doc/a634d0/). www.legal-tools.org/doc/c6bb20/); and Djibouti v. France, 8 Malawi Decision, para. 35. Judgment, paras. 170 and 174 (http://www.legal-tools.org/ 9 Dapo Akande, “International Law Immunities and the Inter- doc/7b6a80/). national Criminal Court”, in American Journal International 14 Mention can be made of the Pinochet case, in which the British Law, vol. 98 (2004) 411, p. 417 (http://www.legal-tools.org/ House of Lords explicitly took the view that functional immu- doc/0252ea/). nity cannot excuse international crimes. See the speech of Lord 10 See LIU Daqun, op. cit., p. 68. Browne-Wilkinson, in Regina v. Bow Street Stipendiary Mag- 11 The Special Rapporteur of the ILC, who has otherwise formu- istrate and others, Ex parte Pinochet (No. 3), Judgment of 24 lated cautious views as to immunities, holds that “[i]mmunity March 1999, paras. 107-115 (http://www.legal-tools.org/doc/ from international criminal jurisdiction appears to be fundamen- b48ec0/). tally different from immunity from national criminal jurisdic- 15 Roman Anatolevich Kolodkin, Second report on immunity of tion”, see Roman Anatolevich Kolodkin, Preliminary report on State officials from foreign criminal jurisdiction, 10 June 2010, immunity of State officials from foreign criminal jurisdiction, 29 A/CN.4/631, p. 32 (http://www.legal-tools.org/doc/b1d862/). 2 • www.toaep.org move functional immunity mainly resort to the non-offi- Moreover, as Judge ad hoc van den Wyngaert stressed cial nature of core international crimes and the jus cogens in the Arrest Warrant case,20 some international crimes nature of such crimes, which, upon close scrutiny, prove “can, for practical purposes, only be committed with the to be insufficiently convincing.16 means and mechanisms of a State and as part of State I concur with the conclusion that functional immuni- policy” and they cannot be anything other than “official ty, unlike personal immunity, cannot apply to core inter- acts”.
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