Heads of State at the ICC Complementarity and Democracy Steven Kay QC Kirsty Sutherland 9 Bedford Row International International Criminal Law Bureau

“It is clear that serving heads of state and other very high- ranking officials entitled to personal immunity may not be prosecuted for international crimes without the consent of their home state.” “The sovereignty of the State is subordinated to the supremacy of international law.”

Heads of State and International Law

Sovereign Immunity

Diplomatic Immunity An ancient principle…

… that has not always been respected

International Court of Justice Case Concerning United States Diplomatic and Consular Staff in Tehran (USA v Iran), Order of 15 December 1979, p. 19, and Judgment, 1980, para. 91 Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, 2002, para. 75 [T]here is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose; and whereas the obligations thus assumed, notably those for assuring the personal safety of diplomats and their freedom from prosecution, are essential, unqualified, and inherent in their representative character and their diplomatic function.

Personal Immunity Ratione Personae Tenet of customary international law Attracted by heads of state / government and arguably a limited group of other very senior state officials Absolute immunity – for both official and private acts – while in office

Equality of Nations

Charter of the United Nations Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles: 1.The Organization is based on the principle of the sovereign equality of all its Members.

International Law Commission of the United Nations 1950 Approved by the UN General Assembly [T]he fact that an author of an act which constitutes a crime under international criminal law has acted in his capacity as a head of state or of government does not release him of his responsibility under international law.

International Court of Justice Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) Judgment, The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that 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.

International Court of Justice Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) Judgment, The Court emphasises, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. 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 applied from all criminal responsibility.

The ICJ went on to identify four circumstances under which it could envisage that personal immunity would not operate as a bar to prosecution: 1.Home state domestic courts 2.Home state waives his/her immunity 3.End of tenure 4.International criminal courts with requisite jurisdiction International Court of Justice Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium) Judgment, 2002

Functional Immunity Ratione Materiae Immunity for acts of state Attracted by state officials Immunity persists – acts legally attributed to the state

Court of Appeal of England and Wales Zoernsch v Waldock [1964] 1 WLR 675 A foreign sovereign government, apart from personal sovereigns, can only act through agents, and the immunity to which it is entitled in respect of its acts would be illusory unless it extended also to its agents in respect of acts done by them on its behalf. To sue an envoy in respect of acts done in his official capacity would be, in effect, to sue his government irrespective of whether the envoy had ceased to be ‘en poste’ at the date of his suit.

Head of State Immunity

United Kingdom House of Lords Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147, pp , The Appellants Differing views of their Lordships. Underlying rationale that international crimes in the highest sense ( jus cogens ) cannot be considered ‘official acts’. As articulated by Christopher Greenwood in court: A former head of state no longer represents the grandeur of his nation. He does not enjoy immunity for personal acts performed while he was head of state. Any requirement to accord immunity applies only in respect of acts of an official character performed in the exercise of the functions of head of state, immunity rationae materiae does not extend to conduct criminal under international law.

Heads of State on Trial in the 20 th Century

Treaty of Versailles 1919 Article 227 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.

Charter of the Nuremberg International Military Tribunal Article 7 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.

Nuremberg International Military Tribunal In re Goering and others (1946) 13 ILR 203, at 221 The principle of international law which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.

Statute of the Tokyo International Military Tribunal Article 6 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.

Statute of the International Criminal Tribunal for the former Yugoslavia Article 7(2) The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

Rome Statute of the International Criminal Court Article 27 1.This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2.Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Source of the courts’ jurisdictions?

ICTY: UN Security Council Resolution under Chapter VII

Source of the courts’ jurisdictions? ICTY: UN Security Council Resolution under Chapter VII ICTR: UN Security Council Resolution under Chapter VII

Source of the courts’ jurisdictions? ICTY: UN Security Council Resolution under Chapter VII ICTR: UN Security Council Resolution under Chapter VII SCSL: Agreement between UN and Government of Sierra Leone – pursuant to UN Security Council Resolution

Source of the courts’ jurisdictions? ICTY: UN Security Council Resolution under Chapter VII ICTR: UN Security Council Resolution under Chapter VII SCSL: Agreement between UN and Government of Sierra Leone – pursuant to UN Security Council Resolution ECCC:Agreement between UN and Royal Government of Cambodia – endorsed by the UN General Assembly

Source of the courts’ jurisdictions? ICTY: UN Security Council Resolution under Chapter VII ICTR: UN Security Council Resolution under Chapter VII SCSL: Agreement between UN and Government of Sierra Leone – pursuant to UN Security Council Resolution ECCC:Agreement between UN and Royal Government of Cambodia – endorsed by the UN General Assembly STL: Agreement between UN and Government of Lebanon – pursuant to UN Security Council Resolution

Charter of the United Nations Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Vertical Jurisdiction

Source of the courts’ jurisdictions? ICTY: UN Security Council Resolution under Chapter VII ICTR: UN Security Council Resolution under Chapter VII SCSL: Agreement between UN and Government of Sierra Leone – pursuant to UN Security Council Resolution ECCC:Agreement between UN and Royal Government of Cambodia – endorsed by the UN General Assembly STL: Agreement between UN and Government of Lebanon – pursuant to UN Security Council Resolution ICC:Treaty of Rome

Horizontal Jurisdiction?

States Parties to the Rome Statute

Horizontal Jurisdiction? ??

Rome Statute Article 98 1.The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of that immunity. 2.The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

UN ICC Relationship Agreement

Case Study: Sudan

31 March 2005: UN Security Council Resolution 1593 – Referred the situation in Darfur to the ICC, acting under its Chapter VII powers – Stated: “[T]he Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.”

DISCUSSION

Complementarity

Rome Statute Preamble Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation… Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner in consistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State

Rome Statute Article 1 An International Criminal Court is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions …

Rome Statute Article 17 1.Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where: a.The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution ; b.The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; c.The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; d.The case is not of sufficient gravity to justify further action by the Court.

Rome Statute Article 17 2.In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognised by international law, whether one or more of the following exist, as applicable: a.The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court… b.There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; c.The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Rome Statute Article 17 3.In order to determine liability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

Charter of the United Nations Article 1 – The Purposes of the United Nations are: 1.To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2.To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 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 discrimination as to race, sex, language, or religion; and 4.To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Charter of the United Nations Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles: 1.The Organization is based on the principle of the sovereign equality of all its Members. 4.All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 4.All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

Case Study: Kenya

ICC Rules of Procedure and Evidence Rule 134 quater Excusal from presence at trial due to extraordinary public duties 1.An accused subject to a summons to appear who is mandated to fulfil extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial. 2.The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

Trial Chamber V of the ICC The Prosecutor v Kenyatta, ICC-01/09-02/11-908, para. 94 [I]t is a distinct aspect of this case that the accused is currently the Head of State and Government of the Republic of Kenya, and therefore in a position of particular influence, including over Kenyan society as a whole. In that regard, the Chamber notes certain conduct on the part of the accused, in his capacity as President, which has the potential to contribute to an atmosphere adverse to the Prosecution’s investigation on the ground, as well as to foster hostility towards victims and witnesses who are cooperating with the Court.

DISCUSSION -Does Article 98 preclude the ICC from asking States Parties to arrest Omar al Bashir? -Is the AU justified in its position on Head of State Immunity? -What arguments might be advanced at the ICJ regarding Head of State Immunity ( ratione personae ) at the ICC?