Philippe Sands QC Immunities before international courts. Guest Lecture Series of the Office of the Prosecutor Professor Philippe Sands QC1* “Immunities before international courts” 18 November 2003 The Hague * Professor of international law (University College London) and barrister (Matrix Chamber, London). Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2003. Summary of lecture The issue of the entitlement of a serving or former head of state (or other high ranking government official) to claim immunity before national and international courts has arisen with increasing frequency, and may one day come to the International Criminal Court. Within the past five years cases have reached the Judicial Committee of the House of Lords (Pinochet), the International Criminal Tribunal for the former Yugoslavia (Blaskic, Milosevic) and the International Court of Justice (Yerodia). It is not immediately apparent that the approach taken by the various courts is based upon the same premised and foundations. The case currently pending before the Special Court for Sierra Leone (Taylor) may present an opportunity for that Court to seek to reconcile differing approaches. By way of background I have attached to this outline the Submission I prepared as Amicus Curiae appointed by the Appellate Chamber. The Taylor case raises a number of important issues, including: • Is a claim to immunity to be treated differently before an international court as opposed to a national court? • Is there ever a right to claim head of state immunity before an international court, or can such a right only be lost where the relevant state has waived immunity (e.g. by treaty) or where the Security Council has acted to remove any entitlement to claim immunity? • Before an international court does the former head of state have a right to claim immunity in respect of no acts, or only acts which may be treated as official (or governmental acts)? • Is there a distinction to be drawn between (1) an international court’s exercise of jurisdiction (e.g. by issuing an indictment or arrest warrant) only lose a right entitled to claim immunity in respect of public acts and (2) its entitlement to require the cooperation of third states or other parties (e.g. by requiring an indicted person to be transferred)? • Is the mere issuance of an indictment or an arrest warrant (by an international court) in respect of a serving head of state of a country which is not a party to a treaty establishing the court an affront to the dignity of a state such as to give rise to a violation of its entitlement to immunity? These and other questions may well arise – at some time in the future – where the ICC is faced with the issuance of an indictment or arrest warrant in respect of a serving (or former) head of state (or other high ranking official) of a country which is not a party to the 1998 Rome Statute. In such circumstances the provisions of Articles 27 and 98 of the ICC Statute may have to be interpreted and applied in the context of the rules of general international law. This in turn gives rise to issues concerning the relationship between the various international courts (including issues of hierarchy, if any) and the nature of the international legal order. 2 THE SPECIAL COURT FOR SIERRA LEONE THE APPEAL CHAMBER THE PROSECUTOR v CHARLES GHANKAY TAYLOR CASE SCSL-2003-01-I ___________________________________________ SUBMISSIONS OF THE AMICUS CURIAE ON HEAD OF STATE IMMUNITY ___________________________________________ INTRODUCTION 1. These Submissions are addressed in four Parts: Part I addresses the rules of international law under which a serving head of state may be the subject of an indictment and/or arrest warrant issued in respect of one or more international crimes issued by (a) an international criminal court or tribunal and (b) a national court of another State (paras. 2-57); Part II considers whether, for the purposes of the rules of international law on head of state immunity, the Special Court for Sierra Leone is to be treated as a national court or as an international court or as a hybrid (paras. 58-77); Part III addresses, in the light of Parts I and II, whether it was lawful under international law for the Special Court for Sierra Leone to issue an indictment and circulate an international arrest warrant in respect of Charles Taylor 3 while he was serving as head of state of Liberia, for the offences listed in the indictment (paras. 78-102); and Part IV considers the consequences for the position under international law arising from the fact that Charles Taylor is no longer the head of state of Liberia (paras. 103-117). A summary of our submissions is set out paragraph 118. PART I (A) Head of State Immunity before International Criminal Courts and Tribunals 2. In respect of the jurisdictional immunities2 of serving heads of state international law and practice has generally distinguished between proceedings before national and international courts. As regards the international courts and tribunals which have been established – all in the 20th century – practice has been consistent, 2 The term immunity covers two distinct types of immunity, explained by one leading commentator in the following terms: ‘There are two categories of immunities. The first embraces the so-called immunities ratione materiae, also referred to as functional immunities. They cover activities performed by every State official in the exercise of his functions, regardless of where they are discharged. They do not come to an end when the relevant State organ relinquishes his official position […] the rationale behind this rule is that those activities are not performed by the State official in his private capacity but on behalf of the State; hence they are attributable to the State to which he belongs so that – as a matter of principle – the individual cannot be held accountable for them. The other category of immunities, which are only granted to some specific classes of individuals performing State functions abroad, is that of immunities ratione personae, also referred to as personal immunities. […] These immunities cover all acts performed by the State official, whether or not performed during or prior to assumption of his official function, within or outside the territory of the relevant foreign State. […] [T]hese immunities are forfeited when the person enjoying them terminates such functions abroad, with the exception of immunities relating to official acts (i.e. immunities ratione materiae) that continue even after the State official relinquishes his post.’ Paolo Gaeta, ‘Official Capacity and Immunities’, in Cassese, Gaeta and Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford, 2002), pages 975-7, emphasis in original. 4 in that no serving head of state has been recognised as being entitled to rely on jurisdictional immunities. 3. The Treaty of Versailles (1919) was the first occasion on which a former head of state was indicted to be prosecuted before an international tribunal. Article 227 provides that: “The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex- Emperor in order that he may be put on trial.” 4. Nearly thirty years later, the Statutes of the Nuremburg and Tokyo International Military Tribunals confirmed that no person was entitled to claim immunity before the jurisdiction of those Tribunals. Article 7 of the Charter of the Nuremburg Tribunal provided that: “The official position of defendants, whether heads of state or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”3 In similar terms Article 6 of the Statute of the Tokyo Tribunal provided that: 3 82 U.N.T.S. 279. 5 “Neither the position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged …”4 5. These emerging principles of international criminal law relating to the jurisdiction of international tribunals were restated in the Principles of International Law Recognised in the Charter of the Nuremburg Tribunal and in the Judgment of the Tribunal, adopted in 1950 by the International Law Commission of the United Nations5 and approved by the UN General Assembly.6 Principle III states that: “The fact that an author of an act which constitutes a crime under international criminal law has acted in his capacity as head of state or of government does not release him of his responsibility under international law.” The International Law Commission reaffirmed the principle in