Abstract
The immunities of serving senior State officials charged with the most serious crimes of international
concern: genocide, crimes against humanity, war crimes and aggression remain a hotly debated concept of international criminal law.
Existing judicial authorities have not helped to calm the tides of this debate.
In some cases, Courts
have considered that crimes under international law are not part of the
functions of the State and, consequently, they have not recognized immunity. In
other cases, however, Courts have considered that these are acts clearly
exercised in an official capacity, even if they are illegal, and have therefore
granted immunity. While Courts and
scholars alike are yet to reach a consensus on this, it appears that on the
basis of the weight of recent decisions such as the 27 July 2017 International
Criminal Court (“ICC”) Decision
under article 87(7) of the Rome Statute on the non-compliance by South Africa
with the request by the ICC for the arrest and surrender of President Omar
Al-Bashir of Sudan, the arguments now appear
to swing towards waiving immunities for crimes committed in violation of
international crimes and holding serving State officials responsible for their
crimes while they are still in office.
·
Maurice Canice Chukwu, LLM (With Distinction), (With Best Performance Award), (With
Best Dissertation Award) in International Human rights Law - Brunel University
London; LLB (Hons.) UNIZIK; BL (Hons.) Nigerian Law School, Chevening Scholar
INTRODUCTION
This
article considers the concept of immunities in international law and how it has
been applied or interpreted in the prosecution of serving senior State
officials charged with the
most serious crimes of international concern: genocide, crimes against
humanity, war crimes and aggression.[1] The applicability of this doctrine in international law exposes multifaceted tensions[2]
between goals of internationals stability and legal accountability, and has constantly created a
chasm between jurists, practitioners, scholars, and other stakeholders in the
international criminal justice system.
This article finds that unlike
the fairly well settled law on immunities before national courts, the law of
personal immunity, especially before international courts, is in a state of
flux. In some cases, such as the in the Al‐Adsani v.
United Kingdom [3]
and Jones v Ministry of Interior Al-Mamlaka
Al-Arabiya AS Saudiya,[4] courts
have considered that acts performed by serving senior state officials are acts
clearly exercised in an official capacity, even if they are unlawful, and have
granted immunity. In others, such as Samantar v Yousuf,[5] courts
have considered that crimes under international law are not part of the
functions of State officials and have not recognized immunity. Of particular
significance is the recent interpretation given by the
International Criminal Court (“ICC”) that immunity is ousted upon the referral
of a situation to the ICC prosecutor by the UN Security Council.[6] While it is not likely
that a consensus will be arrived at by judges or scholars, this work contends
that on the basis of the weight of recent decisions, the arguments swing
towards waiving immunities for crimes committed in violation of international
crimes and holding these officials responsible for their crimes while they are
still in office.
This
article is divided into five parts. The first part is introductory and
considers the meaning, purpose and categories of immunities. The second part
examines the applicability of personal immunities before national courts. The third
part discusses personal immunities before international courts. The fourth part
analyses the concept of functional immunities in criminal cases and in the
violation of jus cogen norms, and the
practical operation of immunities before the ICC. The final part summarizes the
work and makes tentative recommendations.
1.0 Meaning and Basis of Immunities
The
general theory of state immunity is that a state is absolutely immune from the
jurisdiction of foreign courts.[7] Immunities in
international law espouses the principle that sovereign states cannot exercise
power, including judicial power, over another.[8] This is because all states
are equal, and it would contradict the sovereign equality of states if one
state could sit in judgment over the acts of another.[9] The doctrine of immunities
is based on two reasons: First, states must not interfere with public acts of independent states.[10] Secondly, the judiciary
should not interfere with the conduct of foreign policy by either national or
foreign governmental authorities. [11] Immunity is generally
recognized as a rule of customary international law. Immunity is of two
categories: personal immunity (immunity
ratione personae) and functional
immunity (immunity rationale materiae).
Personal Immunity (Immunity Ratione
Personae)
Personal immunity attaches to the status
of the individual official. It covers all acts, whether private or official,
that are performed by such persons prior to or during their term of office.[12] It is enjoyed solely by
foreign officials occupying senior or high-level government posts, such as
Heads of State, Heads of Government and Ministers for Foreign Affairs. They
also apply to diplomats and other officials on special missions in foreign
states.[13] The purpose of personal
immunity is to ensure that high ranking officials may act freely on the
inter-State level without interference.[14] It ends when this
category of officials complete their service.[15]
The absolute nature of immunity ratione personae has lately come under
scrutiny[16]
as it has been suggested that there is no immunity of any kind for
international crimes. This line of argument was however, rejected by the ICJ in
the Arrest Warrant case. However,
those vested with personal immunity may still be prosecuted: (1) before the
courts of their States; (2) by foreign countries if immunity is waived by the
sending states; (3) once they leave office in respect of acts committed prior
or subsequent to the period of office, as well as acts committed during the
period of office in a private capacity and; (4) before certain international
criminal courts imbued with jurisdictional competence.[17]
Guilfoyle argues that for an official who
enjoys the support of his State, prosecution before national courts, or a
waiver of immunity may be unlikely.[18] Nevertheless, the
absolute nature of personal immunity has always been confirmed by the courts.[19]
Functional Immunity (Immunity
Rationale Materiae)
Functional immunity means the immunity
from foreign criminal jurisdiction that is enjoyed by State officials on the
basis of the acts which they perform in the discharge of their mandate and
which can be described as official acts. These acts cannot be attributed to state
officials in their personal capacity and the official cannot be called to
account for them personally. State officials are assumed to have acted on behalf of the state whenever they have
acted within the context of the exercise of state authority under international
law.[20] Functional immunity is
predicated on the absence of the rule of individual responsibility and
continues after the official has left office. Some commentators argue that
international crimes do not qualify as acts of the states but are seen as acts
of the individual that performs the act, and hence are not official acts for
the purpose of the rule of functional immunity.[21]
2.0 Personal
Immunities Before National Courts
Prior to the decision in the Arrest Warrant case, the position of the
law relating to personal immunity before national courts has been an uncertain[22] and obscure[23] area of state practice.
Thereafter, personal immunity has been upheld before national courts.[24]
The
Arrest Warrant case
The concept of personal immunity both at the
individual and state levels came under consideration in the Arrest Warrant case of 11 April 2000 (Congo v. Belgium).[25] In that case, Belgium
issued an international warrant of arrest against Abdullaye Yerodia, the
serving Congo Minister of Foreign Affairs for crimes against humanity.[26] The arrest warrant was
issued under a Belgium Law concerning the punishment of serious violations of
international humanitarian law. The majority of the judges of the ICJ found the
arrest warrant unlawful, holding that serving state officials are immune from
criminal trial abroad regardless of the severity of the charges.[27] The court explained that
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. The court then added
a caveat that immunity is not a
license to impunity as it can only
bar prosecution for a certain period
or for certain offices but does not
exonerate the person to whom it applies from all criminal responsibility. [28]
The judgment has been commended for
elucidating a previous uncertain[29] and obscure area of state
practice and for giving priority to the need for foreign relations to be
conducted unimpaired. However, it has been criticized for favouring the
unhindered conduct of international relations above the interest the
international community has in the prosecution of international crimes.[30] Yet, based on the Arrest Warrant case, national courts
have recognized the availability of personal immunity in respect of serving
senior officials.[31] Accordingly, in 2013, the
ILC adopted a draft article which declares that serving heads of state, heads
of government and ministers of foreign affairs enjoy personal immunity.[32]
2.2
Personal Immunity Before International Courts
The position of the law as to whether
international law prohibits a plea of personal immunity before international courts is not so clear
cut.[33] It would be recalled that
in the Arrest Warrant Case, the ICJ
opined that:
“[A]n
incumbent … minister of foreign affairs may be subject of the criminal
proceedings before certain
international courts having jurisdiction … examples include the ICC created by
the 1998 Rome Convention… the statute provides in article 27 Paragraph 2 provides
that immunities … which may attach to the official capacity of a person,
whether under national or international law, shall not bar the court from
excising its jurisdiction over such person.”[34]
This rather vague obiter dictum of the ICJ has been the grounds of assertions as
to the non-applicability of personal immunity before all international courts.[35] Commentators[36] have argued that it is
only when the enabling statute establishing an international court, by an
express provision in such statute ousts the plea of personal immunity would it
be said that international law prohibits personal immunity before the court.
Guilfoyle contends that the mere fact of an interventional court having subject matter jurisdiction does not
otherwise make applicable immunities inapplicable.
On the other hand, some scholars espoused
the ICJ dictum as meaning that customary international rule of immunities does
not apply to international criminal courts[37]. That the ICJ did not
make the lifting of personal immunities before international criminal courts
contingent upon the express or implicit contemplation of such lifting in the
relevant court’s statute. That insofar as the international tribunal or court
has subject matter jurisdiction over the international crime with which
the state official was charged, that personal immunity is ousted. The
unavailability of personal immunity before international criminal courts
however, finds some support in international practice.[38] It has been adopted in
some judicial decisions, notable, the Charles Taylor case.
The
Charles Taylor Case
In the Charles
Taylor case,[39]
the Special Court for the Sierra Leone (“SCSL”) issued a warrant of arrest
against Charles Taylor, then a sitting President of Liberia for crimes against
humanity. The warrant of arrest was challenged on grounds of immunity. The SCSL
relied on the pronouncement in the Arrest
Warrant case to hold that it was an international
court and as such not barred from prosecuting serving heads of State,[40] and that personal
immunities are simply inapplicable before any tribunal that can be
characterized as an international[41]
court.
The judgment in the Charles Taylor case
has been criticized in that the SCSL is a court established under a treaty
between Sierra Leone and the UN and operates within the national judicial
system of Sierra Leone. It was not directly created by compulsory Chapter VII
powers of the UN Security Council
in the manner of the ICTY and ICTR, and hence, it is not an international court. Secondly, it is
unlikely that the International Court of Justice’s reference to immunity as not
being available before certain
international courts in the Arrest
Warrant Case was intended to lay down a general rule. The reference was to
international courts having jurisdiction.[42] Suffice it to state that
Charles Taylor was no longer head of state at the time of the decision, and
hence no longer enjoys personal immunity.
3.0
Functional Immunity in Criminal Cases
The Pinochet Cases
The Pinochet Cases[43] provide the classical example of the role of functional immunity
in criminal cases. Pinochet was a former head of state of Chile. While in the
UK in 1998 for medical treatment, a Spanish Court issued a warrant of arrest
against him for crimes, including torture, which he was alleged to have
committed while in office. The Spanish Court requested his extradition from the
UK. As he was no longer head of state, Pinochet pleaded that his conduct while
in office was covered by functional immunity as he was alleged not to have
committed the crimes personally, but as part of the duties of his office as a
head of State.
The
High Court quashed the issued warrant of arrest on the ground that a former
head of state was entitled to functional immunity from prosecution. The case
proceeded directly to the House of Lords by the leapfrog appeal method.[44] Pinochet No 3 is complex as it involved difficult questions of both
extradition law and universal jurisdiction under the Convention Against
Torture. However, what is relevant for the purpose of this paper is that if
Pinochet enjoyed functional immunity for the official acts alleged to
constitute torture, he would not be extradited to Spain. It suffices to state
that under the Torture Convention, torture is prescribed as an official act[45] and the Convention is
silent on the question of state immunity.
A
summary of the decisions of the judges of the House of Lords would be that
functional immunity was not available under the Convention Against Torture
either because: (i) immunity is implicitly or necessarily waived as part of the
obligation under the Convention[46] or (ii) the Convention
has the consequence that torture cannot be regarded as an official function of
a head of state. The learned law Lords decided that functional immunity
persists only with respect to acts performed in the exercise of the functions
of the Head of State, and that torture can never be deemed official acts of
state.
The
basis of this decision and the extent of its applicability remains shrouded in
uncertainty, and differing interpretation among scholars and jurists. The
decision is supported in much of the opinio
juris and literature[47] which suggest that it
would amount to an absurdity for international law to outlaw a conduct and then
provide immunity for it.[48] On the other hand, O’
Keefe argued that Pinochet (No. 3)
did not assert the unavailability of state immunity in respect of international
crimes generally. He contends that
the pronouncement of the House of Lords relates only to the crime of torture
within the meaning of the Torture Convention.[49]
Notwithstanding
the vagueness and uncertainty of principle that has plagued Pinochet (No. 3), it has propounded the
view that international crimes no longer qualify as official acts. The decision
has contributed enormously to international law jurisprudence: It is the first
time a former head of state has been refused immunity on the ground that
immunity is not possible regarding international crimes. The decision is a
significant step towards ending impunity for serious human rights violations
and international crimes and making international treaties truly enforceable.
It also signaled the start of national courts’ willingness to examine
international law and its sources.
The
Pinochet (No. 3) ratio was adopted by the extraordinary African Chamber in Senegal
in the prosecution of Hissene Habre, the former head of state of Chad[50] wherein it was held that President
Habre could not be shielded by immunities attaching to a former Head of State
in a trial for torture.[51]
3.2 Immunity
and the Violation of Jus Cogens
In
international law, jus cogen norms
are “accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted”.[52] Does the existence of jus cogens preclude the application of
the general rules of state immunity from jurisdiction, and subsequently allow a
state court to pronounce on acts performed by a foreign state in its public and
official capacity? The ICJ affirmed the principles of state immunity in Germany v. Italy,[53] holding that recognizing
the immunity of a foreign state does not amount to reorganizing as lawful a
situation created by the breach of a jus
cogens rule. In the Al Adsani [54] and Jones[55] cases, where the issues involved torture, the UK court upheld
state immunity from foreign court’s jurisdiction notwithstanding the preemptory
nature of the prohibition of torture.
However,
in relation to individual foreign officials, the US Supreme Court in Samantar v Yousuf,[56] held that the Foreign Sovereign Immunity Act does not cover the
immunity claims of individual foreign officials. This decision, though not explicitly eliminating the defense
of foreign sovereign immunity in the event of violation of jus cogen norms,[57]
removes one hurdle for many human rights advocates who view the granting
of immunity to a state or its representatives from proceedings arising out of
serious human rights violations as “artificial, unjust, and archaic”.[58] The most important point
of all, however, may be that the law in this area is in a state of flux.[59]
4.0 Immunities under the International
Criminal Court regime
The ICC established under the Rome
Statute,[60]
has jurisdiction over the most serious crimes of international concern:
genocide, crimes against humanity, war crimes and aggression.[61] Under the ICC regime, the basis for immunities or
lack thereof are prescribed under Article 27 and Article 98(1) of the Rome
Statute.
Article 27(2) of the Rome Statute provides thus:
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.
Conversely,
Article 98(2) of the Rome Statute provides
as follows:
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 the immunity.
It would appear that under article 27 (2)
of the Statute, the ICC has jurisdiction to prosecute anybody accused of
committing an international crime, irrespective of any official status. But
under article 98 (2), the ICC seems to lack the competence to mandate member
state parties to arrest the officials of a non-party state in view of the
customary law immunity obligation between states which subsists under
international law. A practical example of the interplay of articles 27 and 98
is in the ICC issuance of arrest warrant against the sitting President of
Sudan, Omar Al Bashir.
The
President Omar Al Bashir Case
In the Al
Bashir case,[62]
an ICC Pre-Trial Chamber in 2009 issued and circulated an international warrant
of arrest against president Omar Al Bashir of Sudan for crimes against
humanity, war crimes and genocide. Sudan is a non-party to the ICC statute, but
the ICC decided that President Al Bashir did not enjoy immunity from being
surrendered to the court by a state party. The court relied on the Arrest Warrant case[63]as at the time of issuing
the arrest warrant.
This decision, amplified in the Malawi[64] and Chad[65]
decisions, has elicited divergent opinions. Some hold the view that immunity is
ousted by the interpretation given by the ICC that once a referral is made by
the Security Council that Sudan must cooperate, it immediately removes Al
Bashir’s immunity, and member state parties are obliged to equally cooperate.
No impediment exists at the horizontal level regarding the arrest and surrender
to the Court of Al Bashir.[66] That
the immunities protected by article 98 is applicable before national courts,
not international courts. That whereas the states cannot take Al Bashir before
national courts, all states are mandated to arrest and turn him over to the
ICC. Under the Rome Statute as whole, state parties have a duty to cooperate
with the court.[67]
That this appears to be the reason why the argument that article 98 protects President
Al Bashir was also rejected in the Congo,[68] and Djibouti[69]
decisions.
However, Douglas Guilfoyle writes that it
is only Sudan that could waive Al Bashir’s immunity, that it would be
internationally wrongful for another state to seize Al Bashir in violation of
customary law immunities.[70] Paula Gaeta argues that
the absence of immunities before an international court does not mean that
national authorities may ignore the rules prohibiting a person who benefits
from personal immunities.[71] On the other hand, Dapo Akande
maintains that UN Security Council resolution 1593[72] made pursuant to its
compulsory Chapter VII powers referring the situation in Darfur to the ICC
binds Sudan to the provisions of the statute as if it were a party to the
statute, that article 27 becomes applicable to Sudan, mandating it to cooperate
with the court by waiving its immunity.[73]
4.1 The ICC
jurisprudence on President Omar Al-Bashir’s immunity
The ICC has taken three differing positions with
immunity on the Al Bashir case. In
the Malawi,[74]
and Chad[75]
decisions, the Court decided that customary international law creates an exception
to head of state immunity before international courts where such a head of
state commits an international crime. That “there is no conflict between
Malawi’s obligations towards the Court and its obligations under customary
international law, and that article 98(1) of the Statute does not apply.”[76] Then, in the Democratic Republic of Congo[77]
decision, the Court resorted to the UNSC resolution 1593 argument, holding that
UNSC resolution 1593, which referred the situation in Darfur to the Court,
“implicitly waived the immunities granted Omar Al-Bashir under international
law attached to his position as a Head of State”.[78] The Court has since
followed this line of argument in the Djibouti[79]
and South Africa[80]
decisions, without explicitly overruling the earlier decisions.
On the relationship between articles 27(2) and 98(1)
of the Statute, the latest position
of the Court is “that by the imposition of the UNSC acting under Chapter VII of
the UN Charter, the rights and obligations as provided for in the Rome Statute,
including article 27(2), are applicable to Sudan”.[81] That “the immunities of
Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute
from executing the Court’s request of his arrest and surrender for crimes under
the jurisdiction of the Court allegedly committed in Darfur within the
parameters of the UNSC referral”.[82] That “the UNSC referral
puts Sudan in the position of a State Party and renders article 98(1) of the
Statute inapplicable to the situation of Omar Al-Bashir, and States Parties to
the Rome Statute are under the duty to execute the warrants of arrest issued by
the Court, and to implement the Court’s request for the arrest of Al-Bashir and
his surrender to the Court”.[83]
Secondly,
in the Malawi and Chad decisions, the ICC asserted that
immunity is removed under customary international law. The Court’s analyses on
the trend to remove immunity is correct but the conclusion reached is wrong
because the trend to remove immunity by treaty is not the same as to remove
immunity under customary international law.
Lastly,
On the 6th of July 2017, the International Criminal
Court (“ICC” or “Court”) delivered a decision[84]
under Article 87(7) of the Statute of the International Criminal Court[85]
(“Rome Statute” or “Statute”) on the non-compliance by South Africa
with the request by the Court for the arrest and surrender of Sudanese
President, Omar Al-Bashir when he visited South Africa between 13 and 15 June
2015 to attend the 25th Summit of the African Union (“AU”) held in
Johannesburg. The Court found that South Africa failed to comply with its
obligation under the Statute by not executing the Court’s request for the
arrest of Al-Bashir and his surrender to the Court.[86]
The Court however, decided that, given the circumstances of the case, a
referral to the Assembly of States Parties (“ASP”) to
the Rome Statute and/or the United Nations Security Council (“UNSC”) of the
matter of South Africa’s non-compliance with the Court’s request is not
warranted and would not foster cooperation with South Africa.[87]
The
Court’s argument has been that it is the trend of international criminal law to
remove immunity either under an agreement by treaty or by UNSC referral. The AU
insists that states cannot contract outside customary international law; that
states cannot impose a treaty obligation to a state not party to a treaty.
Since 1948, immunity has been waived either by treaty or UNSC referral. But,
the treaties which removed immunities form an exception to the rule that only
states can remove immunities. For instance, Article 7 of the Nuremberg International Military Tribunal Charter,[88]
Article 6 of the Tokyo International Military Tribunal Charter,[89]
Article 7(2) of the International Criminal Tribunal for the former Yugoslavia
(ICTY) Statute 1993,[90]
and Article 6(2) of the International Criminal Tribunal for Rwanda (ICTR)
Statute 1994[91] which explicitly removed immunities
were for a limited jurisdiction and did not apply to persons outside the
jurisdiction of these tribunals. In the case of South Africa, if it had
arrested President Al-Bashir, it would have committed an internationally
wrongful act against the state of Sudan (a non-party to the Rome Statute), and
not against President Al-Bashir.
Some have criticized the various ICC
decisions on the Al-Bashir case for
their “incorrect, inadequate and/or inconsistent reasoning on immunities.[92] The Court’s contention
that there has never being the “slightest ambiguity” about the legal position
regarding the immunities of Al-Bashir[93] is unconvincing. Its
departure from the Malawi and Chad decisions (without either
clarifying or overruling them) demonstrates the continuing uncertainty about
the complex question of immunities.[94] This situation has left
not only states and commentators but also different Chambers of the ICC with
differing interpretations of the interplay between Article 98(1) and 27(2),
customary international law, and resolution 1593.
The ICC is empowered to interpret the Rome Statute;
hence these decisions remain valid law until over-turned by the Appeals
Chamber. The ICC has taken a position that immunity will not protect anyone charged
before it, especially in relation to a situation affecting international peace
and security referred to it by the UN Security Council. This appears to align
with the spirit of the Rome Statute which is to put a stop to rights violations
and the commission of serious international crimes. Thus, the position of
non-cooperation adopted by the African Union that ICC arrest warrants against
serving Heads of State trump the well-established customary international law
principle of sovereign immunity and would jeopardize local and regional peace
initiatives, or lead to an increase in violence in the effected regions.[95] That states cannot
contract outside customary international law and cannot impose a treaty
obligation to a state not party to that particular treaty. Though this is an
inconvenient outcome, the failure to arrest President Al-Bashir of Sudan, and
the failed trials of President Uhuru Kenyatta of Kenya and his deputy, William Ruto,
demonstrate the manifold practical limitations of going after as a sitting Head
of State.
The lack of a clear defined position
on immunities makes it difficult to conclude that there is no immunity under
customary international law. It suffices to state that respecting the customary
international norm on immunities is not a license to impunity as it can only
bar prosecution for a certain period or for certain offices but does not
exonerate the person to whom it applies from all criminal responsibility.[96] There is, therefore, a
need for the ICC Appeal Chambers to put a definite end to this issue,
particularly in the light of South Africa’s indication that it will appeal the
6 July 2017 decision.
5.0 CONCLUSION
Immunities still remain
a hotly debated concept of international criminal law. Existing judicial
authorities, some of which have been considered in the body of this work, have
not helped to calm the tides of this debate. In some cases,
courts have considered that crimes under international law are not part of the
functions of the State and, consequently, they have not recognized immunity. In
other cases, however, courts have considered that these are acts clearly
exercised in an official capacity, even if they are illegal, and have therefore
granted immunity. Nevertheless, it is submitted that the law is relatively settled
that doctrine of State immunity applies to exonerate serving senior State
officials from prosecution before national courts as the ICJ
held in the Arrest Warrant case. However, on the
authority of Pinochet
(No. 3), ‘official duties’, properly constructed excludes the commission of
crimes, which international law prescribes against by way of customary
international law, convention or jus
cogens. While it is not likely that a consensus will be arrived at by
judges or scholars, this article has demonstrated that on the basis of the
weight of recent decisions, such as that of the US Court of
Appeals in Yousuf v. Samantar, and the recent ICC decision on South Africa’s
failure to cooperate, the arguments swing towards waiving immunities for crimes
committed in violation of core international
crimes and holding these officials responsible for their crimes while they are
still in office.
[1] See arts 5 and 5bis Rome Statute of the International
Criminal Court opened for signature July 17, 1998, 2187 U.N.T.S. 3 (entered
into force July 1, 2002) [hereinafter, Rome Statute].
[2] Anthony Colangelo, ‘Jurisdiction, Immunity, Legality, and Jus
Cogens’ (2013) Chicago Journal of
International Law vol 14 No. 1, 53.
[4] Jones v Ministry of Interior Al-Mamlaka
Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others [2006] UKHL 26.
[5] 130 S. Ct. 2278 (2010).
[6] See Decision under article 87(7)
of the Rome Statute on the non-compliance by South Africa with the request by
the Court for the arrest and surrender of Omar Al-Bashir, 6 July 2017,
ICC-02/05-01/09, coram Cuno Tarfusser J (presiding), Marc Perrin de Brichambaut
J and Chang-ho Chung J (hereinafter, “Decision under article 87(7) of the Rome
Statute on the non-compliance by South Africa”).
[7] Douglas Guilfoyle, International Criminal Law (OUP, 2016)
397.
[8] Ibid, 397.
[9] Sevrine Knuchel, ‘Samantar v Yousuf: Narrowing the Prospects
for Human Rights Litigation Against Foreign Officials?’ (2011) HRLR 11,
152-169, available at: http://hrlr.oxfordjournals.org/content/11/1/152.full.pdf+html accessed 11 January 2018.
[10] Holland v Lampen-Wolfe (2000) UKIIL
[12] Alina Kaczorowska, Public International Law (4th
ed, Routledge Publishers 2010).
[13]
Articles 29 of the Vienna Convention; Dapo Akande, ‘International Law Immunities and the International Criminal Court’
(2004) American Journal of international Law 98, 407-433, available at: http://www.jstor.org/stable/3181639 accessed
14 February 2018.
[14] M. Tunks, ‘Diplomats or Defendants? Defining the Future of the Head-of-State
Immunity’ (2002) 52 Duke LJ. 651, 656.
[15] Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), 2002 I.C.J. 3, pp.74-75 (Feb. 14) (Joint Sep. Op. of Judges
Higgins, Kooijmans and Burgenthal) [hereinafter Arrest Warrant Case].
[16] Ibid.
[17] The Arrest Warrant Case (n 15) para. 60.
[18]
Guilfoyle, International Criminal Law
(n 7) 400.
[19]
See Jurisdictional Immunity of State
(Germany V Italy: Greece Intervening) 2012 ICJ Reports 99; Ghaddafi case No. 1414 (Cass. Crim.
2001) (Fr); Regina v. Bow Street Stipendiary Magistrate, ex parte Pinochet (No.
3), [1999] 2 All E.R. 97, 126-27, 149,179, 189 (H.L.) (per Goff, Hope, Millett,
Phillips, L.JJ.).
[20]
Van Alebeek, The Immunities of States and
Their Officials in International Criminal Law and International Human Rights
Law (OUP, 2008) 222.
[21] Regina v. Bartle and the Commissioner of Police for the
Metropolis and Other (Appellants), Ex Parte Pinochet (Respondent) House of Lords, 24 March 1999 [1999]
2 All ER 97, [1999] 2 WLR 827,)
172 (per lord Miller).
[22] C. Wickremasinghe, ‘Arrest Warrant of 11 April 2000 (Democratic
Republic of Congo v Belgium), Preliminary Objections and Merits, Judgment of 14
February 2012’ 52(3) International and Comparative Law Quarterly,781.
[23] A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some
Comments on the Congo v Belgium Case’ (2002) 13(4) EJIL855.
[24] Guilfoyle, International Criminal Law (n 7) 416.
[25] See Arrest Warrant case (n 15).
[26] Shiv Bedi, The Development of Human Rights Law by the Judges of the International
Court of Justice (Hart Publishing 2007) 232.
[27] C. Than and E. Shorts, International Criminal Law and Human Rights
(Sweet & Maxwell 2003) 59.
[28] See Arrest Warrant case (n 15) para. 54.
[29] C. Wickcemasinghe, ‘Arrest Warrant of 11 April 2000 (Democratic
Republic of Congo v. Belgium), Preliminary Objection and Merits, Judgment of 14
February 2012’ (2012) 52(3) International and Comparative Law Quarterly
781.
[30] J. Wouters, ‘The Judgment of the International Court of Justice in the Arrest
Warrant Case: Some Critical Remarks’ (2003) Leiden Journal of International
Law, 267.
[31] Re: General Shaul Mofaz (2004) ILR 709; Re Bo Xilai (2005) 128 ILR,
713.
[32]
See Second Report of ILC Drafting Committee A/Cn.4l.184; J. Folkes, ‘The
Position of Heads of State and Senior Officials in International Law ‘(OUP
2014) P82; Bellal, ‘The
2009 Resolution of the Institute of International Law on Immunity and
International Crimes: A Partial Codification of the Law?’ 9 JICJ (2011) 227.
[33]
Guilfoyle, International Criminal Law
(n 7) 402-403.
[34] Arrest Warrant case (n 15) 25-6 para. 61.
[35] Van Ableek, The Immunities of States and Their Officials in International Criminal
Law and International Human Rights Law (n 20) 275.
[36] Ibid 275; Guilfoyle, International Criminal Law (n 1)
402-403.
[37] Antonio Cassese and P. Gaeta et al, Cassese’s International Criminal Law, (3rd edn, OUP 2013) 321.
[38] See,
for example, the opinion of Robert Cryer et
al, An Introduction to International Criminal
Law and Procedure (3rd edn, OUP 2014) 321.
[39] Prosecution v. Charles Ghankay Taylor,
Special Court for Sierra Leone, Appeals Chamber SCSL 2003-01-I, Decision on
Immunity from Jurisdiction, 21 May 2004, para. 5.
[40] Ibid para. 51-3.
[41] See Robert Cryer et al, An Introduction to International Criminal Law and Procedure (n 38) 562.
[42] See
Douglas Guilfoyle, International Criminal
Law (n 7) 403.
[43] Regina
v. Bartle and the Commissioner of Police for the Metropolis and Other (Appellants), Ex Parte Pinochet (Respondent) House of Lords, 24 March 1999 [1999]
2 All ER 97, [1999] 2 WLR 827, available at: http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm accessed 14 February 2018.
[44] C. Than and E. Shorts, International Criminal Law and Human Rights
(n 27) 56.
[45] See art. 1(1) of the Torture
Convention.
[46] Pinochet Case (n 14) Per Lords Hutton, Saville, Millet, 263-4,
266-7, 277.
[47]
See ‘Immunity of State Officials from
Criminal Jurisdiction, Memorandum by the Secretariat’, UN Doc.A/CN596, 31
March 2008, paras. 180-90, available at: http://www.refworld.org/docid/48abd597d.html accessed 14 March 2018; A. Cassese, ‘The Belgian Court of Cassation v the International Court of Justice:
The Sharon and Others Case’ (2003) 1 Journal of International Criminal
Justice 437, 443-50.
[48] Guilfoyle, International Criminal Law (n 7) 40.
[49] Roger O’ Keefe, International Criminal Law (OUP 2015), 440 – 441.
[50] See arts. 10(3) and 20 of the
Extraordinary African Chambers Statute; Cryer (n 35), 551.
[51]
Report of the Committee of Eminent African Jurists on the Case of Hissenè Habré,
African Union, 2006, available at: https://www.hrw.org/legacy/backgrounder/africa/habre0107/2.htm accessed 27 January 2018.
[52]
See art. 53 of the Vienna Convention on the Law of Treaties, opened for
signature May 23, 1969, U.N.T.S. Regis. No. 18, 232, U.N. Doc. A/CONF.39/27
(1969).
[53] Jurisdictional
Immunities of the State (Germany v. Italy), Judgment (Feb. 3, 2012), available
at http://www.icj-cij.org/docket/files/143/16883.pdf accessed 11 January
2018.
[54] Al‐Adsani v. United Kingdom [GC],
application No. 35763/97, ECtHR Judgment of 21 November 2001.
[55] Jones v Ministry of Interior Al-Mamlaka
Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others [2006] UKHL 26.
[56] 130 S. Ct. 2278 (2010).
[57]
Sevrine Knuchel, ‘Samantar v Yousuf:
Narrowing the Prospects for Human Rights Litigation Against Foreign Officials?’,
HRLR 11 (2011), 152-169, available at: http://hrlr.oxfordjournals.org/content/11/1/152.full.pdf+html accessed on 11 January 2018.
[58]
Sevrine Knuchel, ‘State Immunity and The Promise
of Jus Cogens’, (2011), 9 Nw. J. Int'l Hum. Rts. 149, available at: http://scholarlycommons.law.northwestern.edu/njihr/vol9/iss2/2 accessed 11
January 2018.
[59]
Anthony Colangelo, ‘Jurisdiction,
Immunity, Legality, and Jus Cogens’ (2013) Chicago Journal of International Law vol 14 No. 1, 90.
[60]
Rome Statute of the International Criminal Court art. 27 (n 1).
[61] See arts. 5 and 5bis. Rome Statute of the International
Criminal Court art. 27 (n 1).
[62]
Situation in Darfur, Sudan in the Case of the
Prosecutor V. Omar Hassan Ahmad Al Bashir ("Omar Al Bashir")
Public Redacted Version Decision on the Prosecution's Application for a Warrant
of Arrest against Omar Hassan Ahmad Al Bashir, (ICC-02/05-01/09), Pre-Trial
Chamber I, 4 Marc 2009.
[63]
Case Concerning the Arrest Warrant of11April 2000 (DRC v. Belgium), judgment of14 February 2002, ICJ Reports (2002) 3
(‘Arrest Warrant’).
[64] Decision Pursuant to the Article
87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation
Requests Issued by the Court with Respect to the Arrest and Surrender of Omar
Hassan Ahmed Al Bashir, Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12
December 2011 <www.icc-cpi.int/pages/record.aspx?uri=1287184> accessed on 10th January 2017.
[65] Decision Pursuant to the Article
87(7) on the Failure of the Republic of Chad to Comply with the Cooperation
Requests Issued by the Court with Respect to the Arrest and Surrender of Omar
Hassan Ahmed Al Bashir, Al Bashir, Pre-Trial Chamber I, (ICC-02/05-01/09),
Pre-Trial Chamber I, 13 December 2011.
[66] Decision on the Cooperation of the
Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and
Surrender to the Court, 9 April 2014, ICC-02/05-01/09-195, paras 28 to
31.
[67] See arts. 86 and 87 of the Rome
Statute.
[68] Decision on the Cooperation of the
Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and
Surrender to the Court, 9 April 2014, ICC-02/05-01/09-195, paras 28 to
31.
[69]
Decision on the Cooperation of the Republic of Djibouti Regarding Omar Al
Bashir’s Arrest and Surrender to the Court, 11 July 2016, ICC-02/05-01/09-195.
[70] Guilfoyle, International Criminal Law (n 7) 411.
[71] See
Paula Gaeta, ‘Does President Al Bashir Enjoy Immunity from Arrest?’, (2009)
7 Journal of International Criminal Justice, 315–332; Chigara
B. and Nwankwo C., ‘To be or not to be?’
African Union and its Member States Parties’ Participation as High Contracting
States Parties to the Rome Statute of the International Criminal Court (1998)’ (2015)
33 Nordic Journal of Human Rights, 243-268, 244; Benedict Chigara, ‘The
Administration of International Law in National Courts and the Legitimacy of
International Law’ (2017)
17 International Criminal Law Review, 909-934, 914.
[72] See
Dapo Akande,
‘International Law Immunities and the
International Criminal Court’ (2004) AJIL 98, 407-433; Antonio
Cassese, ‘When May Senior State Officials
Be Tried for International Crimes? Some Comments on the Congo v Belgium Case’
(2002) 13(4) European Journal of International Law, 855; United Nations
Security Council Resolution 1593, S/RES/1593 (2005), issued on 31 March 2005
(hereinafter "Resolution1593) , available at: www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf accessed
on 10 January 2018.
[73] Guilfoyle, International Criminal Law (n 7) 413.
[74]
See Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by
the Republic of Malawi to Comply with the Cooperation Requests Issued by the
Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir
ICC-02/05-01/09-139, 12 December 2011, Pre-Trial Chamber I, Decision, Case: The
Prosecutor v. Omar Hassan Ahmad Al Bashir, Situation: Situation in Darfur,
Sudan, available at: https://www.icc-cpi.int/pages/record.aspx?uri=1287184,
accessed 31 March 2018.
[75]
Decision pursuant to article 87(7) of the Rome Statute on the refusal of the
Republic of Chad to comply with the cooperation requests issued by the Court
with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir,
ICC-02/05-01/09-140-tENG, 13 December 2011, Pre-Trial Chamber 1, Decision,
Case: The Prosecutor v. Omar Hassan Ahmad Al Bashir, Situation:
Situation in Darfur, Sudan available at: https://www.icc-cpi.int/pages/record.aspx?uri=1384955,
accessed 31 March 2018.
[76] See Decision Pursuant to Article
87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply
with the Cooperation Requests Issued by the Court with Respect to the Arrest
and Surrender of Omar Hassan Ahmad Al Bashir, Al Bashir (ICC-02/05-01/09-139),
Pre-Trial Chamber I, 12 December 2011.
[77] Decision on the Cooperation of the Democratic Republic of the Congo
Regarding Omar Al Bashir’s Arrest and Surrender to the Court,
ICC-02/05-01/09-195 09 April 2014, Pre-Trial Chamber II Decision, Case: The
Prosecutor v. Omar Hassan Ahmad Al Bashir, Situation: Situation in
Darfur, Sudan.
[78] Ibid.
[79] Pre-Trial Chamber II, “Decision on the non-compliance by the Republic
of Djibouti with the request to arrest and surrender Omar Al-Bashir to the
Court and referring the matter to the United Nations Security Council and the
Assembly of the State Parties to the Rome Statute”, 11 July 2016,
ICC-02/05-01/09-266
[80] See Decision under article 87(7)
of the Rome Statute on the non-compliance by South Africa (n 6) para 107.
[81] Ibid.
[82] See Decision under article 87(7)
of the Rome Statute on the non-compliance by South Africa (n 6) para 107.
[83] Ibid.
[84] See Decision under article 87(7)
of the Rome Statute on the non-compliance by South Africa with the request by
the Court for the arrest and surrender of Omar Al-Bashir (n 6).
[85] Rome Statute of the International
Criminal Court (n 1).
[86] See Decision under article 87(7)
of the Rome Statute on the non-compliance by South Africa (n 1) para 53.
[87] Ibid.
[89] Ibid.
[90] UN Security Council, Security
Council resolution 827 (1993) [International Criminal Tribunal for the former
Yugoslavia (ICTY)], 25 May 1993, S/RES/827 (1993).
[91] UN Security Council, Statute
of the International Criminal Tribunal for Rwanda (as last amended on 13
October 2006), 8 November 1994.
[92] See Decision Pursuant to Article
87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply
with the Cooperation Requests Issued by the Court with Respect to the Arrest
and Surrender of Omar Hassan Ahmad Al Bashir, Al Bashir (ICC-02/05-01/09-139),
Pre-Trial Chamber I, 12 December 2011; Decision pursuant to article 87(7) of
the Rome Statute on the refusal by the Republic of Chad to comply with the
cooperation requests issued by the Court with respect to the arrest and
surrender of Omar Hassan Ahmad Al-Bashir, Al-Bashir (ICC-02/05-01/09-140),
Pre-Trial Chamber I, 13 December 2011; Decision on the Cooperation of the
Democratic Republic of the Congo Regarding Omar Al-Bashir’s Arrest and
Surrender to the Court, Al Bashir (ICC-02/05-01/09-195), Pre-Trial Chamber II,
9 April 2014, s. 26ff; Decision following the Prosecutor’s Request for an order
further clarifying that the Republic of South Africa is under the obligation to
immediately arrest and surrender Omar Al Bashir, Al Bashir
(ICC-02/05-01/09-242), Pre-Trial Chamber II, 13 June 2015. See also Max Du
Plessis and Guenael Mettraux, ‘South
Africa’s Failed Withdrawal from the Rome Statute, (2017) 15(2) Journal of International Criminal
Justice, 361-370, 379, available
at: https://doi.org/10.1093/jicj/mqx015, accessed 22 July 2017.
[93] See Democratic Republic of Congo decision (n 142) para 22.
[94]
See André de Hoogh and Abel Knottnerus, 'ICC
Issues New Decision on Al-Bashir’s Immunities ‒ But Gets the Law Wrong … Again’,
EJIL: Talk! 18 April 2014, available at: https://www.ejiltalk.org/icc-issues-new-decision-on-al-bashirs-immunities-%E2%80%92-but-gets-the-law-wrong-again/,
accessed 31 July 2017.
[95]
See Draft Decision of the 24th AU Summit on the ICC and the African Court of
Justice and Human Rights, Doc Assembly/AU/18 (XX14).
[96] See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), 2002 ICJ Reports, 3.
