Updated: Jun 28, 2020
Personal immunity given to officeholders bars the jurisdiction of foreign domestic proceedings irrespective of the crime in question under customary international law (‘CIL’).[i] Yet, some suggest this customary principle does not extend to form a procedural bar to prosecution before international courts.[ii] This article argues that personal immunity must extend as a protection from prosecution before international courts under CIL.
The Special Court of Sierra Leone (‘SCSL’) denied such an extension, determining that the allegedly international nature of the Special Court rendered Charles Taylor unable to invoke immunities to bar its jurisdiction.[iii] The SCSL held the exercise of jurisdiction on behalf of the international community is was less of an impediment on sovereignty than an exercise of municipal jurisdiction.[iv]
This construction of personal immunity is improper, as it suggests that the crux of the issue stems from the international nature of a criminal forum. As Phillipe Sands noted in his amicus curiae brief to the SCSL, ‘two States may not establish an international criminal court for the purpose, or with the effect, of circumventing the jurisdictional limitations incumbent on national courts’.[v]
The removal of immunities within the International Criminal Tribunal for Rwanda (‘ICTR’) and International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) stemmed from the irrelevance of official capacity in determining individual criminal liability.[vi] This interpretation is supported by various decisions but cannot extend to a removal of personal immunity before those forums. Even if the articles in question were meant to remove the availability of personal immunity, this removal is only permitted by virtue of their United Nations Security Council (‘SC’) resolution status, entailing all UN Members must comply with their statute,[vii] rather than their status an international tribunal.
By contrast, the International Criminal Court (‘ICC’) does not have a universally accepted statute, nor does it rely on a SC resolution to enliven its powers. It is merely a construct of delegated jurisdiction by its members to allow the Court to act with an international mandate which is, in essence, an extension of the analogy outlined by Mr Sands. To conclude otherwise would be an endorsement against the principle of non-intervention by a group of States. Yet, the ICC has reiterated that its international status allows it to shift the onus of identifying a rule under CIL onto the defendant.[viii] Such a position is conveniently oblivious to the lack of evidence to suggest that a customary exception to personal immunity exists.
Further, the vertical relationship between States and the ICC is unfounded as the ICC is meant to work beside municipal courts under its complementarity restrictions and cannot be considered to have superior jurisdiction.[ix] Without a vertical relationship, the parallel operation of the ICC entails a similar encroachment of sovereignty should they attempt to automatically disregard the applicability of personal immunity. Therefore, a distinction between the application of personal immunity between a municipal court and international court is unfounded and unpersuasive in removing the application of personal immunity before the ICC.
Displacement Requiring Exception under CIL
To displace personal immunity, there must be a customary exception at international law when an individual is subject to accusations of international crimes. The identification of CIL requires a degree of State practice and opinio juris.[x] Sufficient State practice need be ‘constant and uniform usage’.[xi] Opinio juris is regarded as ‘evidence of a belief that [the] practice is rendered obligatory by the existence of a rule of law requiring it’.[xii] In this respect, judicial guidance suggests that no such exception exists and provides support to the contrary.
Augusto Pinochet was the Chilean Head of State between 1973 and 1990 after undertaking a coup d’etat to overthrow the previous government. During his term, he was accused with numerous crimes, notably the commission of genocide and various crimes against humanity. After leaving his government post, Pinochet was arrested in the United Kingdom in 1998 after a Spanish magistrate issued a warrant for his arrest.
The House of Lords correctly identified that the matter concerned a former-Head of State who may only benefit from immunity ratione matriae for the period where they are conducting diplomatic activities.[xiii] They maintained that the nature of personal immunity afforded to an incumbent Head of State is absolute.[xiv]
The Pinochet case undoubtedly supports the argument in favour of the non-applicability of functional immunity and the exercise of universal jurisdiction for these crimes, however, it cannot be suggested that it provides an endorsement for a similar non-applicability of personal immunity for international crimes.
b. Arrest Warrant (11 April 2000)
The Arrest Warrant case concerned an arrest warrant issued by a Belgian magistrate against the then Congolese Minister for Foreign Affairs, Mr Yerodia. This case, heard before the International Court of Justice, examined the responsibilities of States regarding their respect of personal immunity despite the alleged commission of atrocity crimes.
While this case creates an artificial distinction between an municipal and international court, it was held that Belgium had committed an internationally wrongful act through the warrant, which was ruled to have breached the personal immunity afforded to Mr Yerodia.[xv] Notably, it outlined that there existed no such exception to the CIL principle of the inviolability of personal immunity where they have committed international crimes.[xvi]
Omar Al-Bashir was the former president of Sudan who has been accused of a multitude of atrocities including the commission of genocide, crimes against humanity and war crimes. As a result of the situation in Darfur, the SC issued Resolution 1593 compelling the Government of Sudan to ‘fully cooperate with the [ICC]’,[xvii] despite their non-signatory status to the Rome Statute. Resultantly, the ICC issued two requests for the arrest and surrender of Al-Bashir to the Court.[xviii] Al-Bashir was the first incumbent Head of State to be indicted before the ICC.
A series of decisions were made by the ICC following non-compliance of various State parties with respect to the requests. A major criticism of these decisions was the incongruency between the reasoning set out for the removal of his personal immunity before the Court. In its Congo decision, [xix] the ICC identified the potential availability of immunities, which further illustrates the artificial and unfounded distinction made on the applicability of CIL with regard to personal immunity within different forums.
In the same decision, the ICC determined that Resolution 1593 implicitly waived the immunities granted to Al-Bashir which removed any impediment for the Congo to fulfil its obligations to the Court.[xx]
This approach was subsequently rejected by the Appeals Chamber in its Jordan decision where it found that no waiver existed by virtue of the resolution, but rather it imposed a similar cooperation regime to one of a State party to the Rome Statute.[xxi] The Court further determined that this regime entailed the application of article 27(2) of the Rome Statute, therefore rendering personal immunity non-applicable in this situation.[xxii]
Security Council Overreach
While the reasoning of the Court in their Jordan decision is logically sound as should Sudan carry cooperation obligations within the Rome Statute, it presents problematic practical consequences by suggesting that the SC may compel a State to effectively be a signatory to the Rome Statute. In effect, the SC conferred rights and obligations upon Sudan with the issuance of its resolution without State consent. This raises a concern about the non-conferral of rights and obligations of a treaty on non-party states. It is well accepted that the SC holds considerable influence over international law by virtue of article 103 of the United Nations Charter, however, this could be considered to be an overreach of its power.
It is also of concern that the ICC held that article 27(2) of its Statute was reflective of CIL.[xxiii] The ICC cites the constitutive documents of the various international criminal forums that preceded it, in establishing an exception at CIL.[xxiv] However, article 27(2) of the Rome Statute is the first of its kind to explicitly remove immunities before an international forum. As illustrated previously, the predecessor statutes merely removed the ability to rely on immunities to abrogate from individual criminal liability, failing to address the procedural bar to jurisdiction that personal immunity affords. The identification of such an exception is therefore unfounded in following the Court’s reasoning.
Despite the considerable influence that such a resolution may have on state cooperation, the ICC undoubtedly struggled with the non-compliance of its members. The parties in question were more heavily influenced by the political situation rather than the consequences of their non-compliance under the Rome Statute.
Even when the ICC referred the parties in question to the General Assembly, there were no consequences for their non-compliance. This poses another practical concern for the ICC with respect to its inability to enforce its Statute.
In any case, a discernible pattern of State practice and opinio juris in favour of an exception under CIL cannot be identified in the Al-Bashir case. The presence of Resolution 1593 inhibits the ability for these cases to form such a pattern. Similar to the statutes of the ICTR and ICTY the ICC’s removal of immunities was derived from the existence of the resolution, rather than a belief that an exception existed under CIL.
Written by Elijah Png
[i] See for example Arrest Warrant, of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3, 25  (‘Arrest Warrant’); Muammar al-Ghaddafi (2004) 125 ILR 456 (French Cour de Cassation). [ii] Prosecutor v Al-Bashir (Judgment re Jordan Referral) (International Criminal Court, Appeals Chamber, Case No ICC-02/05-01/09 OA2, 6 May 2019)  (‘Al-Bashir Jordan’); Arrest Warrant (n 1) 26-27 . [iii] See Prosecutor v Taylor (Decision on Immunity from Jurisdiction) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2003-01-I, 31 May 2004) (‘Taylor’). [iv] Prosecutor v Blaškić (Judgment on the Request of the Republic Of Croatia for Review of the Decision Of Trial Chamber II Of 18 July 1997) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-94-14, 29 October 1997) -, . See also Taylor (n 3) –; Prosecutor v Al-Bashir (Decision on Malawi) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09-139-Corr, 15 December 2011 . [v] Philippe Sands et al, ‘Submission of the Amicus Curiae on Head of State Immunity in the case of the Prosecutor v. Charles Ghankay Taylor’ (SCSL-2003-01-l', 23 October 2003) . [vi] See UN Doc S/RES/827 (25 May 1993) as amended by SC Res 1977, UN Doc S/RES/1877 (7 July 2009); SC Res 955, UN Doc S/RES/955 (8 November 1994). [vii] Charter of the United Nations art 103. [viii] Al-Bashir Jordan (n 2) , , -. [ix] Phillip Wardle, ‘The Survival of Head of State Immunity at the International Criminal Court’ (2011) 19 Australian International Law Journal 181, 186. [x] North Sea Continental Shelf (Judgment)  ICJ Rep 3, 43 . [xi] Asylum (Columbia v Peru) (Judgment)  ICJ Rep 266, 280. [xii] North Sea Continental Shelf (Judgment)  ICJ Rep 3, 43 . [xiii] R. v. Bow Street Stipendiary Magistrate and others, Ex parte Pinochet (No.3)  1 AC 147, 202 (‘Pinochet (no.3)’). [xiv] Pinochet (no. 3) (n 13) 155. [xv] Arrest Warrant (n 1) 30-31 . [xvi] Arrest Warrant (n 1) 25 . [xvii] SC Res 1593, UN Doc S/RES/1593 (31 March 2005) . [xviii] See Prosecutor v Al-Bashir (Decision regarding Warrant of Arrest) (International Criminal Court, Pre Trial Chamber I, Case No ICC-02/05-01/09-1, 4 March 2009); Prosecutor v Al-Bashir (Second Decision regarding Warrant of Arrest) (International Criminal Court, Pre Trial Chamber I, Case No ICC-02/05-01/09-94, 12 July 2010). [xix] Prosecutor v Al-Bashir (Decision on the Cooperation of the DRC) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/05-01/09, 9 April 2014)  (‘Al-Bashir Congo’). [xx] Ibid -. [xxi] Al-Bashir Jordan (n 2) . [xxii] Ibid . [xxiii] Ibid . [xxiv] Ibid -.