Heads of State and Other Government Officials Before the International Criminal Court: The Uneasy Revolution Continues

Abstract

This essay takes up the current debate about the relationship between Article 27 of the Rome Statute of the International Criminal Court and Article 98 of the Statute concerning the immunity of sitting Heads of State from investigation or prosecution before the Court and the duty of States to cooperate with the Court as regards their arrest and surrender. The essay traces the history of Article 27 and its incorporation into the Statute and observes that it represents a rule of customary international law resting upon the adoption of the Nuremberg Principles after World War II, and reiterated in the Statutes of the ad hoc international criminal tribunals, that was included in the Rome Statute during its negotiation without comment or controversy. Now that the Court has become operational, current efforts to limit Article 27’s application using Article 98 of the Statute – first advanced by the United States and subsequently by member states of the African Union – represent an effort to change that custom by once more cloaking Heads of State with immunity, the same rule that protected Kaiser Wilhelm one hundred years ago. While States could arguably change customary international law by again proposing that high-ranking individuals are immune from prosecution before international courts and tribunals, and presumably amending the Rome Statute to so provide, the essay argues that the Court’s judges do not have this power. It also suggests that the jus cogens status of the norms embedded in the ICC Statute, including the individual criminal responsibility of high-ranking individuals, indicates that an effort to change this norm, even by States, could violate other peremptory norms of international criminal law. Moreover, given the long tenure of many of the leaders arguing in favor of this new rule, and the current tendencies of today’s heads of state to insist upon life tenure, such a change, even if lawful, would be tantamount to a grant of permanent immunity for the individuals thus protected. The essay thus proposes a return to “first principles” of international criminal law, which permit the investigation, arrest, surrender and trial of high-ranking government leaders to international courts, even during their tenure in office, assuming those courts and tribunals are exercising jurisdiction properly.