Criminal Responsibility of Heads of State for Human
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CRIMINAL RESPONSIBILITY OF HEADS OF STATE FOR HUMAN RIGHTS VIOLATIONS: WILL THE KING EVER SUBMIT HIMSELF TO THE LAW? By Walter Acii Ojok Submitted to Central European University Department of Legal Studies In partial fulfilment of the requirements for the degree of Master of Law in Human Rights Supervisor: Professor Ana Filipa Vrdoljak CEU eTD Collection Budapest, Hungary 2009 ACKNOWLEDGEMENTS I would like to express my gratitude to Professor Ana Vrdoljak for supervising and guiding me in this thesis. I also particularly thank her for encouraging me to explore, to a further depth, a realm of public international law that I would not have appreciated as much if I had not done this work. Many more thanks go to my family, especially to my siblings back in Uganda, who I hope will be inspired by my life journey. CEU eTD Collection i TABLE OF CONTENTS ACKNOWLEDGEMENTS.................................................................................. i EXECUTIVE SUMMARY................................................................................. iv CHAPTER 1: INTRODUCTION ....................................................................... 1 1.1 Summary Layout of Thesis .............................................................................................5 CHAPTER 2: A CRIMINAL REPRESSION OF HUMAN RIGHTS VIOLATIONS: TOWARDS ENFORCEMENT................................................ 6 2.1 Redress of Human Rights Violations in the Post 1945 Era ...........................................6 2.2 The Emerging International Criminal Law: Roles and Potentials ............................13 2.3 Increasing Focus on Individual Criminal Responsibility ............................................17 2.4 Culpability of Heads of State for Human Rights Violations .......................................20 2.4.1 The Paradox of Diminishing Criminal Legal Responsibility....................................21 2.4.2 The Obstacles of Personal and Functional immunities............................................23 CHAPTER 3: IMMUNITIES OF HEADS OF STATE: CHANGING PERCEPTION....................................................................................................26 3.1 A Typological Overview of the Doctrine; a Post-Modernist Enquiry..........................26 3.2 Doctrinal History and Theories of Officials Immunities .............................................32 3.3 The Evolving International Jurisprudential Trends ...................................................39 3.3.1 From the Arrest Warrant (Yerodia), to Charles Taylor, to Al Bashir.......................40 3.3.2 Does Immunity not Equal Impunity? Evaluating ICJ’s Arrest Warrant 4 Prong Exceptions.........................................................................................................................44 CEU eTD Collection CHAPTER 4: THE POTENTIAL WITHIN THE ROME STATUTE SYSTEM..............................................................................................................53 4.1 Understanding the Rome Statute’s Two Pillar System ...............................................53 ii 4.1.1 Historical Reasons and Purpose of the Rome Statute...............................................56 4.1.2 ICC Crimes, Jurisdiction and Rationale: An Overview............................................57 4.1.3 Laws Applicable to the Court and Other actors........................................................58 4.1.4 Supposed Conflict Between the Two Immunity Clauses (Article 27 and Article 98) 61 4.1.5 The Arrest Warrant for President Omar Al Bashir: The Debate on State Party Obligation to Give Effect to the Arrest Warrant................................................................72 CHAPTER 5: GENERAL RECOMMENDATIONS AND CONCLUSION...91 5.1 A Way Forward and Conclusion ..................................................................................91 BIBLIOGRAPHY...............................................................................................93 CEU eTD Collection iii EXECUTIVE SUMMARY This thesis reassesses the doctrine of head-of-state immunities and, of official immunities in general, with the view of examining whether the prosecution of international crimes and other gross human rights violations should be subject to these rules. The main premise of the thesis is that establishing the criminal responsibility of heads of state and of other high-ranking state officials otherwise immune from prosecution is the final battleground in the fight against impunity. If this struggle is lost, the massive human rights normative frameworks—and particularly those that expressly purport to derogate immunities—will also risk the loss of public confidence. The research, which has comprised a broad review and analysis of legal literature, jurisprudence and scholarship on the subject, notes inter alia, the following:- First, is that the theories that for centuries have anchored the notion of official immunities have increasingly become less supportive of blanket immunities. In sharp contrast, however, the insistence of state leaders on retaining immunity has only grown stronger, and the reason currently advanced by the International Law Commission’s 2008 report on Immunities of State Official from Foreign Criminal Jurisdiction is the sake of stable relations among States. A narrative hardly questioned, yet presented without any sound scholarly basis or proof. Second, much has been written on the doctrinal history of and rationales for official immunities. But very little of the scholarly works reviewed subject the underlying theoretical assumptions of immunity to the rigor of modern legal investigation. For example, as noted above, there is no research linking ‘stability of interstate relations’ to official immunities. Yet CEU eTD Collection rhetorically the claim is accepted as a nearly mystical truth and the basis considered as trite law reflective of established international customary law. iv Third, some major judicial decisions handed down within the last decade with regard to suits against serving senior state officials, most notably, the Case Concerning the Arrest Warrant of April 11 2000 (DRC v. Belgium), the Qaddafi case, and Al-Adsani v. United Kingdom, and in fact the Pinochet case argue that, under customary law, international immunity ratione personae extends even to cases of crimes of peremptory norms of jus cogens status. The argument is that this extension should occur regardless of the existing binding prosecutorial obligation imposed on states by various international treaties to prosecute such crimes. In a similar tone, are perhaps rooted in the above decisions, is an emerging scholarly view that interprets the current state of the law on immunity as preventing states from executing the arrest warrants of international courts/tribunals issued for heads of state and high-ranking officials of other states. This view is buttressed by the claim that immunity for state officials is only procedural and does not alter an individual’s criminal culpability. Yet, the claim draws no attention to the impact of delayed prosecution (due to the need to respect immunity) on the due process rights of victim’s, their right to access to court and overall the fight against impunity. Lastly, states have in other spheres, for example, in the sphere of commercial transactions, accepted restrictions on official immunities and have not advanced the argument that the restrictions have resulted in a tit for tat pattern of retributive action to threaten interstate relations. It is quite ironical why the idea of retributive action continues to inform the arguments in the human rights arena. Yet without the removal of immunity obstacles, hardly can the goal of suppressing state sponsored terror and violations of human rights be met. CEU eTD Collection In light of the findings, this thesis urges a redirection of the debate to the question of whether evidence exists to support the claim that further restriction of official immunities in cases of international crimes would do irreparable damage to interstate relations. The research v also urges a movement towards a balance between the preservation of interstate relations and the effective redress of human rights violations. In essence, therefore, while filling a gap in current legal debates, it promotes not mere rhetoric, but research-based scholarship on immunity- impunity discourse. Chapter 1 is a general introduction of the subject, that is, the research, the history, and the purposes and challenges posed in contemporary legal literature. Chapter 2 reviews the evolution of human rights protection since 1945 and notes the repression of criminality as the trend at the edge of this evolution. Chapter 3 examines the notion of immunity from a post-modern perspective, defines key concepts, sets out the epistemological challenges, weighs the arguments for and against the removal of immunities, and at the same time solutions that can respect functional necessities of state officials. Chapter IV, the final chapter, evaluates the possible role of the International Criminal Court (ICC) in the immunity-impunity debate. As regards the scope of the study, this study is limited to consideration of the criminal responsibility of incumbent heads of state since they enjoy the most blanket form of immunities. The situations of other high- ranking officials who enjoy international immunity have also been covered by analogy. In order to provide research that is action oriented, this thesis considers as a case in point the 4 March 2009