CHAPTER 3 IMMUNITY
3.4 Immunities of State officials from the jurisdiction of other States
3.4.2 Immunity ratione personae or personal immunity
3.4.2.2 Immunity ratione personae and international crimes
The granting of immunity to State officials from criminal proceedings arising out of gross human rights violations has been described as “artificial, unjust, and archaic”.782 It has also been argued that such immunity would conflict with the jus cogens status of rules of international law prohibiting such crimes as genocide, crimes against humanity, war crimes and aggression.783 In order to determine whether or not international law recognises immunity ratione personae in case of international crimes, it is necessary to investigate the state practice and opinio juris (customary international law) relating to such crimes and critically analyse whether such immunity is or is not in conflict with the jus cogens norms of international law.
3.4.2.2.1 The position under customary international law 3.4.2.2.1.1 Defining customary international law
Custom in international law is defined as “a practice followed by those involved because they feel legally obliged to behave in such a way”.784 Article 38 of the Statute of the International Court of Justice, which is considered as “the traditional starting point for any discussion of the sources of international law”,785 defines customary law as
“international custom, as evidence of a general practice accepted as law”.
From this definition of customary international law, it is possible to detect two basic elements which constitute an international custom. These are the material facts, that is,
781 Gaddafi Court of Appeal of Paris 20 Oct 2000; Court of Cassation 13 March 2001 [2004] 125 ILR 510.
782 Knuchel 2011 Northwestern Journal of International Human Rights 149.
783 See for example, Bassiouni 1996 Law and Contemporary Problems 63.
784 Hillier Public International Law 66.
785 Hillier Public International Law 63.
the actual behaviour of States (material element), and the psychological or subjective belief that such behaviour is “law”.786
It is the psychological element (opinio juris) that distinguishes international law from
“principles of morality or social usage”.787 This is because States do not restrict their behaviour only to what is legally required. For example, States do not have to allow tourists on their territories, nor are they obliged to distribute economic aid to developing nations. The mere fact that such things are done does not mean that they are legally required to be done.788 As the ICJ held in the North Sea Continental Shelf Cases:789
[T]he States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.790
3.4.2.2.1.2 Some State practice relating to international crimes and immunity ratione personae in domestic courts
It has been stated that functional immunity does not apply to international crimes.791 The same cannot be said of immunity ratione personae. State practice indicates that this type of immunity is respected “regardless of the nature of the charges”.792 As Akande793 observes, judicial opinion and state practice on this point are unanimous. No case exists
786 Shaw International Law 70. See also Haust Handbook 6 and Hillier Public International Law 75 787 Shaw International Law 70. See also Enache-Brown and Fried 1998 McGill Law Journal 629:
“At its most basic, opinio juris means that state practice is motivated by a sense of obligation”.
788 Shaw International Law 71.
789 Federal Republic of Germany v Denmark and the Netherlands North Sea Continental Shelf Cases Judgement 1969 ICJ 3 (20 February 1969) para 77.
790 In another case, the ICJ described the two elements forming customary international law as follows: “[f]or a new customary rule to be formed, not only must the acts concerned 'amount to a settled practice', but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is 'evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.'” Nicaragua v United States Military and Para-military Activities in and against Nicaragua Judgement 1986 ICJ 14 (27 June 1986) para 207.
791 See 3.4.1 above.
792 Cryer International Criminal Law 545. See also Steynberg et al Criminal Law 587 and Bassiouni 2001 Virginia Journal of International Law 84: “With respect to certain international crimes, the substantive defense of immunity has been eliminated since the Nuremberg Charter and the judgments of the International Military Tribunal at Nuremberg (IMT). Such removal of substantive immunity means that a defendant cannot rely on his or her status as a head of state or diplomat to interpose as a substantive defence resulting in exoneration from criminal responsibility for these crimes. However, so far, there is no treaty or customary law practice that removes the temporal immunity of heads of state or diplomats while they are in office”.
793 Akande 2004 American Journal of International Law 411.
thus far in which it was held that a State official who would ordinarily enjoy immunity ratione personae can be subjected to the criminal jurisdiction of a foreign State on the ground that he is accused of an international crime.794
The view that immunity ratione personae is not removed even in cases of allegations of international crimes was confirmed, albeit obiter, by the House of Lords in the first Pinochet case.795 The Court held that the former Chilean president who was accused of torture, which is an international crime,796 would have been entitled to immunity had he been still in office.797 This view was confirmed in the third Pinochet case,798 where the House of Lords stated that:
[T]he immunity of a serving head of state is enjoyed by reason of his special status as the holder of his state's highest office. He is regarded as the personal embodiment of the state itself. It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign states to subject him to the jurisdiction of the municipal courts of another state, whether in respect of his public acts or private affairs. His person is inviolable; he is not liable to be arrested or detained on any ground whatever.799
The House of Lords held that if Senator Pinochet were still the head of State of Chile, he would be in a position to complain that the entire process of his extradition to Spain was a violation of the duties owed under international law to a person of his status.800 Immunity was denied to Pinochet since he was a former, not sitting head of State.801
794 Akande 2004 American Journal of International Law 411.
795 R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 4 All ER 938.
796 Torture is also recognised a “jus cogens” crime. See Prosecutor v Anto Furundzija Judgement ICTY IT-95-17/1-T (10 December 1998) paras 153-154: “because of the importance of the values it protects, [the prohibition of torture] has evolved into a peremptory norm or jus cogens, that is a norm that enjoys a higher rank in the international hierarchy than treaty law and even
‘ordinary’ customary rules […] this [prohibition of torture] [...] is an absolute value from which nobody must deviate”.
797 R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte [1998] 4 All ER 938: “[t]here can be no doubt that if Senator Pinochet had still been the head of the Chilean state, he would have been entitled to immunity”.
798 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 97.
799 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 171.
800 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 171: “This immunity is not in issue in the present case. Senator Pinochet is not a serving head of state. If he were, he could not be extradited. It would be an intolerable affront to the Republic of Chile to arrest him or detain him”.
801 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 181: “A head of state on a visit to another country is inviolable. He cannot be arrested or detained, let alone removed against his will to another country, and he is not subject to the judicial processes, whether civil or criminal, of the courts of the state that he is visiting. But Senator Pinochet is no longer head of state of Chile”.
Two cases in which immunity ratione personae of foreign officials accused of international crimes was judicially recognised are discussed below.
3.4.2.2.1.2.1 The Sharon case
The House of Lords dictum in Pinochet was followed by the Court of Cassation of Belgium in 2003, in a case against Ariel Sharon, then Prime Minister of Israel.802 The case against Sharon related to an alleged massacre in a Lebanese refugee camp in 1982 when hundreds of Palestinian civilians in the Sabra and Chatila refugee camps near Beirut were said to have been slaughtered by a Lebanese Christian militia allied with the State of Israel.803 An Israeli inquiry had found Sharon indirectly responsible and forced him to resign as defence minister in 1983.804
In 2001 twenty-four individuals of Palestinian and Lebanese origin, brought an action before the Belgian courts against Mr Ariel Sharon, then Israeli Prime Minister, and Mr Amos Yaron, Director General at the Israeli Ministry of Defence. The allegation was that Ariel Sharon and Amos Yaron had been complicit in the massacres, and that they had failed to intervene to stop them, and therefore they were guilty of serious violations of international humanitarian law.805 Section 7 of the Belgian Law 1993, granted Belgian courts universal jurisdiction over a series of violations of international humanitarian law, in particular war crimes, genocide and crimes against humanity, irrespective of the place where the crimes were committed.
The Court of Cassation found that customary international law prohibited heads of State and governments from being the subject of proceedings before the criminal courts of foreign States806 and, accordingly, the Court held that Ariel Sharon as Prime Minister of Israel was entitled to immunity and the proceedings against him were inadmissible.807 The court emphasised that any domestic legislation that would provide the contrary
802 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 110.
803 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 111.
804 Haaretz 2003 http://www.haaretz.com/news/belgium-s-highest-court-throws-out-case-against- sharon-1.101075
805 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 111.
806 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 123.
807 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 124.
would violate the “principle of customary international criminal law relating to jurisdictional immunity”, when the person who is protected is prosecuted, “before national courts of a State which asserts universal jurisdiction”.808
3.4.2.2.1.2.2 The Arrest warrant case
On 17 October 2000 the DRC instituted proceedings before the ICJ against Belgium in respect of a dispute concerning an international arrest warrant issued by a Belgian investigation judge against Mr Abdulaye Yerodia Ndombasi, then the foreign minister of the DRC. The warrant was issued pursuant to Belgium's 1993 statute concerning the punishment of grave breaches of international humanitarian law. Yerodia was accused of inciting (through his speeches) racial hatred against the Tutsi population in the DRC, resulting in several hundred deaths and summary executions, arbitrary arrests, lynchings, and unfair trials.809
The DRC argued that Belgium had violated its right to conduct its foreign relations through being appropriately represented by its foreign minister.810 The ICJ held that the absolute nature of the immunity from criminal proceedings in a foreign State accorded to a serving Foreign Minister ratione personae subsists even when it is alleged that he has committed a crime under international law.811 Accordingly, the ICJ ruled that foreign ministers (and other high-ranking officials such as the Head of State or Head of Government) have immunity from prosecution in foreign national courts while in office for official actions812 and ordered Belgium to cancel the arrest warrant.813
The ICJ emphasised that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities, as jurisdiction does not imply absence of immunity.814 It stated that although all States have (universal) jurisdiction over a range of international crimes, “extension of jurisdiction” in no way affects immunities under customary international law. The Court held that personal
808 Re Sharon and Yaron Court of Appeal of Brussels 26 June 2002; Court of Cassation 12 Feb 2003 [2005] 127 ILR 124.
809 Orakhelashvili 2002 American Journal of International Law 677.
810 Arrest Warrant case para 42-43.
811 Arrest Warrant case para 55. See also Wickremasinghe “Immunities” 401.
812 Arrest Warrant case para 78 (2).
813 Arrest Warrant case para 78 (3).
814 Arrest Warrant case para 59
immunity remains opposable before the courts of foreign States, even in cases involving the crimes over which universal jurisdiction applies.815
The ICJ thus affirmed that customary international law precluded national courts from trying high-ranking officials of foreign States, including ministers of foreign affairs, who are required to travel abroad in the performance of their official duties.816 Some scholars have expressed opposition to the ICJ decision in the Arrest Warrant case. Dugard817 has described this decision as “controversial, and short-sighted”. In particular, Dugard818 argues that:
it would be ridiculous to allow a foreign head of state or government responsible for committing genocide in his own country successfully to plead immunity before a South African court when he could not do so before the ICC.
It is submitted that the above argument is not correct because it overlooks the fundamental rationale behind immunity ratione personae. This immunity is necessary for the maintenance of a system of peaceful coexistence and cooperation among States.
Without the guarantee that States’ representatives will not be subjected to trial in foreign courts, they may simply choose to stay at home rather than to run the risks of engaging in international diplomacy.819 As Yitiha820 notes, the “lack of mobility” of such persons, due to fear of arrest, would seriously infringe the functioning of States. In the Arrest Warrant case, the ICJ inferred from this rationale of immunity ratione personae that any prejudice to the effective performance by States’ high-ranking officials of their duties as representatives of their States must be prevented.821
Immunity ratione personae also helps to avoid abuses and imprudent misuses of criminal jurisdiction. Universal jurisdiction can cause disruptions in world order when
815 Arrest Warrant case para 59.
816 Arrest Warrant case para 58. See also Aust Handbook 161 and Cassese 2003 Journal of International Criminal Justice 594.
817 Dugard 2002 Annual Survey of South African Law 165.
818 Dugard 2002 Annual Survey of South African Law 166. See also Bianchi 1999 European Journal of International Law 276-277: “the very notion of crimes of international law is inconsistent with the application of jurisdictional immunities…particularly as regards those crimes which by their very nature either presuppose or require state action. If immunity were granted to state officials […] prosecution of such crimes would be impossible and the overall effectiveness of international criminal law irremediably undermined”.
819 Tunks 2002 Duke Law Journal 656.
820 Yitiha Immunity 136.
821 Swanepoel 2007 Journal for Juridical Science 134. See also Wickremasinghe “Immunities” 409:
“The reason for this is that the functions which these officials serve in maintaining international relations are such that they should not be endangered by the subjection of such officials (whilst they are in office) to the criminal jurisdiction of another State”.
used in a politically motivated manner or for vexatious purposes.822 Also, even with the best of intentions, universal jurisdiction can be used imprudently, and that could lead to frictions between States if the targeted persons are high-ranking officials of a State.
Thus, as Bassiouni says, without immunity ratione personae, universal jurisdiction may become a “wildfire” and “destructive of the international legal processes”.823 Immunity ratione personae of States’ officials is thus also mandated by the requirements of friendly foreign relations as enshrined in the UN Charter,824 and, accordingly, in order to maintain good relations between States and preserve international peace, immunity ratione personae in domestic courts must prevail even over the very important value which is addressed by criminal prosecution of international crimes, namely, the protection and vindication of human rights.825
The next section will consider the question whether immunity ratione personae is not perhaps in conflict with the jus cogens status of international law rules prohibiting international crimes.
3.4.2.2.2 Is immunity ratione personae in conflict with the jus cogens character of international crimes?
Since the end of World War II, the perception has grown that serious international crimes can no longer be considered to be the internal domain of one State, but the concern and responsibility of the international community as a whole.826 This perception was further nourished by the progressive recognition of the superior status of a number of international law norms, known as peremptory norms of international law or jus cogens, deemed to possess a greater normative weight and which must be adhered to in all circumstances.827 Their higher rank in the hierarchy of international rules has been
822 Bassiouni 2001 Virginia Journal of International Law 82 and Macedo et al “Princeton Principles”
24-25. See also Cryer et al International Criminal Law 546: “Its [immunity ratione personae]
purpose is to preclude any pretext for interference with a State representative, in order to allow international relations between potentially distrustful States”. See also Colangelo 2005 Virginia Journal of International Law 3: [universal jurisdiction has been decried as ] “a dangerously pliable tool for hostile states to damage international relations by initiating unfounded proceedings against each other’s officials and citizens”. See further Human Rights Watch 2009 http://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction
823 Bassiouni 2001 Virginia Journal of International Law 154. See also Zappalà 2001 European Journal of International Law 167.
824 Art 1(2) UN Charter.
825 Wirth 2002 European Journal of International Law 888.
826 Redress “Immunity v Accountability” 49.
827 Knushel 2011 Northwestern Journal of International Human Rights 153.
put forward as the justification for lifting immunity ratione personae in claims arising from their violations.828
3.4.2.2.2.1 The notion of jus cogens
Under international law, a norm having the character of jus cogens is a norm from which States are not allowed to depart under any circumstances.829 These norms are often referred to as “peremptory norms of international law”.830 Unlike other international legal norms, States cannot choose to reverse these norms by either treaty or practice.831 Jus cogens norms relate to the recognition that certain values or interests are common to and affect the international community as a whole.832 The violation of these values or interests threatens not just the interests of a particular State but the whole world order.833 The legal effect of the characterisation of a norm of international law as a jus cogens norm was aptly explained in Al-Adsani v United Kingdom as follows:
The basis characteristic of a jus cogens norm is that, as a source of law in the now vertical international legal system, it overrides any other rule which does not have the same status. In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or in any event, does not produce any legal effects which are in contradiction with the content of the peremptory rule.834
This notion was codified in the Vienna Convention on the Law of Treaties, which defines a peremptory norm of international law as a norm:
accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.835
In its commentaries to the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, the ILC gave as examples of jus cogens norms the prohibition of aggression, slavery and slave trade, genocide, racial discrimination and apartheid, torture, the basic rules of international humanitarian law applicable in armed
828 Knushel 2011 Northwestern Journal of International Human Rights 153.
829 Redress “Immunity v Accountability” 28 and Knushel 2011 Northwestern Journal of International Human Rights 153.
830 Rakate The Duty to Prosecute and the Status of Amnesties 173.
831 Knushel 2011 Northwestern Journal of International Human Rights 153.
832 See also Costelloe 2011 Washington University Jurisprudence Review 5.
833 Redress “Immunity v Accountability” 28.
834 Al-Adsani v The United Kingdom ECHR Application No 35763/97 Joint Dissenting Opinion of Judges Rozakis and Caflisch Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic (21 November 2001) para 1.
835 Art 53 Vienna Convention on the Law of Treaties (1969).