Head Of State Immunity Research Articles

Head of state immunity, order, justice and the international criminal court: limits of international criminal justice in international society

Head of state immunity, order, justice and the international criminal court: limits of international criminal justice in international society

Immunities of State Officials and the “Fundamentally Different Nature” of International Courts: the Appeals Chamber Decision in the Jordan Referral re Al-Bashir

On 6 May 2019, the Appeals Chamber of the ICC found that Al Bashir could not benefit from head of State immunity because such rule had never emerged in customary law in relation to international courts, which are of a “fundamentally different nature” as opposed to domestic courts. This article investigates the merits of this argument for the determination of the customary rule of immunities applicable to international jurisdictions. To this end, it analyzes the precedents of the international criminal tribunals, the Arrest Warrant case and the rationale behind immunities of state officials. It argues that a distinction must be made between those international courts that exercise jurisdiction on behalf of the international community and those that constitute a mere pooling of national jurisdictions, and that only in relation to the former the immunities enjoyed before domestic courts are not transferable. The intervention of the Security Council in its creation and the subject-matter jurisdiction can be relevant factors in establishing the nature of a court. Regrettably, the Appeals Chamber has not engaged with this distinction and, as such, has failed to demonstrate that the ICC is itself an international court of a fundamentally different nature, a question that remains controversial.

The ICC's Al Bashir jurisprudence over the last decade: enforcer of the will of States Parties or of a global jus puniendi?

Over the course of the past decade, the question of whether States Parties to the International Criminal Court (ICC) could rely on Al Bashir's Head of State immunity when refusing to execute the Court's arrest warrants has occupied the Court through five different cases, finally reaching an Appeals Chamber decision in May 2019. Although Al Bashir has been deposed from power and the controversy around the case has diminished, there are still valuable lessons to be learned from the case law produced. This article poses the question of what kind of court the ICC really is: is it merely enforcing the will of its States Parties or does it develop an independent existence following its own agenda? In the process, the article will shine a light on how the Appeals Chamber is moving the ICC towards a path of judicial independence: it is willing to stretch the limits of the Rome Statute and to possibly disregard the interests of its States Parties. By pronouncing on the absence of a customary rule of Head of State immunity before international courts, the Appeals Chamber aims to broaden the ICC's jurisdiction and to sharpen its profile as an international court acting on behalf of the international community and enforcing a global jus puniendi. Examining the decade of Al Bashir jurisprudence, it becomes clear where these findings originate and why they were by no means unavoidable. Finally, the article will indicate how the distilled features of the Court's character might be put to the test – or how the result of a decade of case law will silently evaporate.

A Cotemporary Challenge: Immunity of Heads of State

The immunity of Heads of State was challenged in the indictment of Omar Al-Bashir, Sudanese President by the International Criminal Court (hereinafter, ICC). While there remains a stunted doubt concerning the understanding that Bashir was guilty of all crimes such as crimes against humanity: murder, extermination, forcible transfer, torture, and rape; two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities, and pillaging; three counts of genocide: by killing, by causing serious bodily or mental harm, and by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction there were questions about his immunity at the ICC. This article sheds light on the issues of immunity of heads of state and the arguments on the indictment of Bashir. The factual matrix and involvement of the United Nations Security Council are relevant because they aid in determining the scope of the ICC jurisdiction. In addition, they also highlight the discourse around the head of state immunity and the need to determine ICC’s role on state immunity when it conflicts with the public international law. As a response to this, the article will highlight the work of the International Law Commission (herein after ILC) around the discourse of immunity as a solution to this contemporary challenge to the jurisprudence of international criminal law.

Transparency International France v. Mr X

219State immunity — Jurisdictional immunity — Immunity of individual officials — Head of State immunity — Immunity ratione personae and immunity ratione materiae — Immunity ratione personae confined to Head of State and certain high-ranking officials — Immunity ratione materiae applicable only in respect of official acts — Vienna Convention on Diplomatic Relations, 1961 — Vice-President of State accused of misappropriation of funds and money laundering by authorities of another State — Whether entitled to immunity — Immunity of diplomatic agents — State sovereignty — Customary international law — The law of France

International Criminal Accountability and the Domestic Politics of Resistance: Case Studies from Kenya and Lebanon

Contemporary international criminal law suggests that head of state immunity does not extend to atrocity crimes, but the executive's office continues to be the safest place for suspected perpetrators. Moreover, indicted suspects can use the threat of international accountability to win democratically contested elections. This article asks how suspects and their surrogates translate an indictment from an international criminal tribunal into an electoral victory and suggests that the path between an indictment and electoral victory unfolds in one of two ways: (1) the consolidation of existing coalitions around the indicted suspects and their allies; or (2) the creation of new coalitions that span existing cleavages. The article evaluates these assumptions through two cases: Lebanon and the Special Tribunal for Lebanon and Kenya and the International Criminal Court. These two decidedly different cases exemplify the ways in which coalitional politics shield suspects international accountability and reward them with high office.

Accountability for Syria

Abstract To date, apart from a few prosecutions in European states, there has been widespread impunity for international crimes committed in Syria since March 2011. The International Criminal Court (ICC) is arguably the most suitable forum for prosecuting alleged perpetrators. However, thus far no accused has appeared before the Court. Indeed, the Prosecutor has yet to even open an investigation due primarily to the inability to establish a precondition for the exercise of jurisdiction. This article examines if this situation is now likely to change in light of a number of recent and controversial decisions of the Court, most notably, Pre-Trial Chamber I’s ruling that the Court may exercise jurisdiction on a territorial basis over the alleged deportation of members of the Rohingya people from Myanmar, a non-state party to the ICC Statute, to Bangladesh, a state party, because an element or part of the alleged crime took place on the territory of a state party. The article considers whether this decision could potentially be relied upon as a precedent to enable the Court to exercise jurisdiction over crimes committed in the context of the Syrian unrest where a part or element of those crimes was committed on Jordanian territory, as Jordan is also a state party to the ICC Statute. Even if territorial jurisdiction is shown to exist based on the ‘Myanmar precedent’, the article examines whether an investigation might nonetheless be frustrated having regard to Pre-Trial Chamber II’s refusal to authorize an investigation proprio motu into the situation in Afghanistan since May 2003 on the grounds that it would not serve the interests of justice. Finally, the article considers the potential impact of the Jordan Referral Judgment on the likelihood of high-ranking Syrian officials appearing before the Court. In that judgment, the Appeals Chamber controversially affirmed that head of state immunity is inapplicable before international courts. The decisions discussed in the article generated rigorous and at times divisive debate amongst academic commentators. Accordingly, the article also incorporates a cross-cutting theoretical analysis of the extent to which the differing responses to these decisions reflects the historic fault-line between realists and liberals.

A CRITIQUE OF THE DEMISE OF HEADS OF STATE IMMUNITY IN THE AGE OF HUMAN RIGHTS

This paper presents an unspoken aspect of Head of State immunity, namely that such immunity is at odds with the expectation that international law should be applied to challenge resistance to and promote respect for human rights. It considers the question of whether Head of State immunity gives rise to de facto impunity in the case of violations of human rights recognised as peremptory norms (jus cogens) committed by such Heads of State. While this paper emphasises the critical role of Head of State immunity in the context of international relations, it argues that Heads of State should not exempt from punishment when violations of those human rights are at stake.

The International Criminal Court, Head of State Immunity and the Referral of the Situation in Darfur

The International Criminal Court, Head of State Immunity and the Referral of the Situation in Darfur

Yousuf and Others v. Samantar

State immunity — Jurisdictional immunity — Head of State immunity — Foreign official immunity — Claims for immunity under common law — United States State Department Statement of Interest — Whether position of United States State Department determinative — Whether entitlement to foreign official immunity for jus cogens violationsRelationship of international law and municipal law — Customary international law — Common law of foreign sovereign immunity — Foreign Sovereign Immunities Act 1976 — Whether entitlement to foreign official immunity for jus cogens violations — Whether immunity under Torture Victim Protection Act 1991 — The law of the United States of America

Interpretation and Application of Article 98 of the Rome Statute

Abstract Many high officials accused for crimes falling under the ICC (International Criminal Court) Statute, like the leader of Sudan Omar al-Bashir, have defended themselves against ICC prosecution using their State, diplomatic or Head of State immunity and there so invoking Art. 98 of the ICC Statute. This paper is to clarify all the incorrect claims, which abusively use Art. 98, to justify the objection of ICC prosecution in cases where the defendant has state, Head of State or diplomatic immunity due to his official capabilities. The paper conclusions will deal with the proper interpretation and application of this article and the reasoning of why Head of States and other high officials cannot be defended from the ICC prosecution using their immunity as an argument.

Striking the Balance between Custom and Justice − Creative Legal Reasoning by International Criminal Courts

Certain customary norms complicate the work of international criminal courts and tribunals (icts). The principle of legality prescribes that no one can be convicted for ‘new’ or ill-defined crimes, and the rules on personal immunity bar icts from prosecuting high-level defendants. In cases involving these issues, icts face the dilemma of weighing fundamental ‘rule of law’ principles against their core objective: to hold leaders accountable for international crimes. Various icts have resorted to what some commentators euphemistically call ‘creative’ application of customary international law but critics label as ‘poor legal reasoning’. By examining examples of such rulings, with particular focus on a recent string of decisions by the International Criminal Court (icc) regarding head of state immunity, this article attempts to identify and assess a modus operandi of icts confronted with the arduous choice between ‘safe-bet’ application of the relevant sources of law and ensuring international criminal justice.

Head of State Immunity and the Rome Statute: A Critique of the ptc’s Malawi and drc Decisions

The scope and effect of the Head of State immunity doctrine before the International Criminal Court has prompted much discussion following the 2011 decision of the first Pre-Trial Chamber concerning the immunity of serving Sudanese President, Omar Al Bashir. The ptcI held that, as a matter of customary international law, there existed an exception to Head of State immunity where such official is sought by an international court with jurisdiction, here the icc. In an apparent retreat, a differently constituted ptc in 2014 based the inapplicability of such immunity on the terms of Security Council Resolution 1593. Using the 2011 and 2014 ptc decisions as a critical lens, and drawing upon recent material, this article assesses the proper application of Head of State immunity under Article 98(1) of the Rome Statute.

Escape from Johannesburg?

The June 2015 visit of Sudanese President Al-Bashir to South Africa captured not only the legal community’s attention, but the attention of the entire world. For a brief moment, it appeared that he might have to face the serious accusations levelled against him by the International Criminal Court (‘ICC’) in The Hague. However, that was not (yet) to be. This paper provides a step-by-step account of the relevant events relating to President Al-Bashir’s visit as well the explanation offered by the South African government of how it was that President Al-Bashir was able to leave the country in violation of an interim court order. In addition, it considers the written judgment of the North Gauteng High Court of South Africa – holding that President Al-Bashir was not protected from arrest by virtue of Head of State immunity. On that matter, whilst the judgment was convincing in its rejection of the weak arguments presented by the State, its consideration of Head of State immunity – a matter not directly argued by the State – suffers from a lack of clarity. Lastly, this paper examines the position articulated by ICC Pre-Trial Chamber II on the issue of President Al-Bashir’s Head of State immunity: that it was implicitly removed via the text of UN Security Council Resolution 1593 (2005) which referred the Darfur situation to the ICC. It does so in light of the European Court of Human Right’s pronouncement in Al-Jedda: that if the UN Security Council, pursuant to its resolutions, intended for States to act in a manner that would otherwise be inconsistent with their international obligations (in that case, international human rights law) then it would have used clear and explicit language to do so.

Leave Your Hat on? Head of State Immunity and Pinochet

Pinochet represents a victory for international human rights law. Faced with the traditional doctrine of head of state immunity, jus cogens crimes have triumphed. The House of Lords has recognised that certain crimes cannot be excused, and thus marked the beginning of the end of the age of impunity. The implications of the decision extend far beyond Pinochet's trial. They include the possibility of other perpetrators of serious international crimes being brought to justice. However, the decision also heralds a new uncertainty. A broad head of state immunity has been replaced with the potential for a somewhat indeterminate and uncodifed set of jus cogens crimes being applied selectively and interpreted differently by the national courts of powerful countries. While it is easy to overstate the potential disruptive effect the decision could have on international relations, it is certainly true that it underscores the need for the new ICC, with its defined crimes, independence and jurisdiction based on the consent of states. While states may have originally viewed the ICC as an unwelcome intrusion into state sovereignty, the Pinochet decision could well change that view. States may consider it better to concede some sovereignty to the ICC than to lose even more through the enforcement of international human rights by the national courts of other states. Governments have repeatedly said that crimes such as hostage taking and torture are unacceptable and that those responsible should be called to justice. The House of Lords has given substance to that rhetoric, but national courts are a poor second choice in the prosecution of international crimes. Now it is up to governments to support the ICC and move these matters to a truly international forum.

The Call of Justice: Obligations Under the Genocide Convention to Cooperate with the International Criminal Court

This article explores the legal obligations incumbent on states to execute the International Criminal Court arrest warrants against the Sudanese President, Omar Hassan Ahmad Al Bashir. It focuses on obligations arising under the Genocide Convention of 1948. In assessing these obligations, the analysis takes into account the Rome Statute, United Nations Security Council Resolution 1593, and the Judgement of the International Court of Justice in the Bosnian Genocide case. The analysis concludes that there is an inherent obligation in the Genocide Convention to cooperate with international proceedings on genocide charges and that this obligation has been activated by Resolution 1593. Accordingly, United Nations Member States that are parties to the Genocide Convention are under a duty to arrest Bashir and surrender him to the ICC, irrespective of whether they are States Parties to the Rome Statute. The analysis further shows that, because of the terms of Resolution 1593, Sudan is estopped from asserting Head of State immunity, leaving no legal impediment to the surrender of Bashir to the Court.

Are Emirate Rulers Immune from Civil Suits in English Courts?

Abstract This article considers whether the rulers of the seven United Arab Emirates are immune from civil suits before English courts. It commences by summarising the constitutional structure of the UAE and political roles which the Emirate rulers play within its federal government, before setting out the relevant English and international law of State and head of State immunity. Having explained this background, this article assesses the position of each ruler and concludes that the rulers of Abu Dhabi and Dubai are immune from civil suits before English courts but that the rulers of Sharjah, Ra’s al-Khaimah, Fujairah, Umm al-Qaiwain and Ajman are less likely to attract immunity.

The Call of Justice: Obligations Under the Genocide Convention to Cooperate with the International Criminal Court

This article explores the legal obligations incumbent on states to execute the International Criminal Court arrest warrants against the Sudanese President, Omar Hassan Ahmad Al Bashir. It focuses on obligations arising under the Genocide Convention of 1948. In assessing these obligations, the analysis takes into account the Rome Statute, United Nations Security Council Resolution 1593, and the Judgement of the International Court of Justice in the Bosnian Genocide case. The analysis concludes that there is an inherent obligation in the Genocide Convention to cooperate with international proceedings on genocide charges and that this obligation has been activated by Resolution 1593. Accordingly, United Nations Member States that are parties to the Genocide Convention are under a duty to arrest Bashir and surrender him to the ICC, irrespective of whether they are States Parties to the Rome Statute. The analysis further shows that, because of the terms of Resolution 1593, Sudan is estopped from asserting Head of State immunity, leaving no legal impediment to the surrender of Bashir to the Court.

The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court

In March 2009, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) authorized the issue of an arrest warrant in respect of President al-Bashir of Sudan in relation to the alleged atrocities committed in Darfur. The request for the arrest warrant raised the issue of whether a serving head of state may rely upon immunity under international law to shield themselves from proceedings before international criminal tribunals. The decision was the first occasion on which the question of state immunity has been raised before the ICC and the first time an international criminal tribunal has considered the issue in respect of an incumbent head of state. This article will first consider the current status of head of state immunity in customary international law. It will then assess the applicability of the immunity of heads of state or government before international criminal tribunals, in particular the ICC, before examining the decision of the PTC as to whether the immunity enjoyed by President Bashir precluded proceedings before the ICC. Finally, the article will discuss the obligation of states, including Sudan, to comply with the Court's request for cooperation in the execution of the arrest warrant.

Tatchell v. Mugabe

572State immunity — Head of State immunity — Allegations of torture — Whether universal jurisdiction principle overriding immunity afforded to Head of State — Common law embodying customary international law — Absolute immunity — State Immunity Act 1978 — Whether Head of State liable to arrest or detention — The law of England