CHAPTER 1 INTRODUCTION AND PROBLEM STATEMENT
1.2 Statement of the problem
1.2.2 The problem of foreign immunities
One of the fundamental principles on which international law and international relations rest is that of State sovereignty. The Charter of the United Nations52 (hereafter referred to as the UN Charter) reaffirms this principle, stating that the Organization is based on the principle of the “sovereign equality” of all its Members.53 One of the consequences of this principle is the respect due by a State to the officials of another State. One way this respect is symbolised is by granting to state representatives, especially high- ranking officials such as heads of State and ministers of foreign affairs, immunity from the courts of foreign States.54
The international law rule of immunity that State officials are accorded before the courts of foreign States was reaffirmed in Democratic Republic of the Congo v Belgium55 (herein referred to as the Arrest Warrant case) which arose before the International Court of Justice (ICJ) between the Democratic Republic of the Congo (DRC) and Belgium over the legality of an international arrest warrant issued by Belgian authorities against Mr Abdulaye Yerodia Ndombasi, then the foreign affairs minister of the DRC.
This warrant had been issued pursuant to a 1993 Belgium statute concerning the
52 Charter of the United Nations (1945).
53 Article 2(1) UN Charter.
54 Akande 2004 American Journal of International Law 407.
55 Democratic Republic of The Congo v Belgium Case Concerning The Arrest Warrant of 11 April 2000 Judgement 2002 ICJ 3 (14 February 2002). The case shall be referred to hereafter as the Arrest Warrant case.
punishment of grave breaches of international humanitarian law.56 The warrant alleged that prior to becoming foreign affairs minister, Yerodia was the perpetrator or co- perpetrator of crimes against humanity and of war crimes under the Geneva Conventions of 1949 and Additional Protocols I and II. In particular, 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.57 The ICJ ruled that, under customary international law, foreign ministers and other high-ranking officials such as the head of State, have immunity from prosecution in foreign national courts while in office,58 and ordered Belgium to cancel the arrest warrant.59
Immunity may relate either to conduct of State agents acting in their official capacity (functional immunity or immunity ratione materiae) or the protection of the private life and honour of a State official (personal immunity or immunity ratione personae).60 Functional immunity is enjoyed by all foreign officials, regardless of rank,61 in regard to the acts performed in an official capacity.62 It is grounded in the notion that States must not interfere with the allegiance that a State official may owe to his State,63 and, for that reason, this immunity does not cease even when the official leaves government service.64 A question arises, however, whether this immunity also covers serious violations of human rights that constitute the crimes of genocide, crimes against
56 Law of 16 June 1993 Relating to the Repression of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Protocol I and II of 8 June 1977 (Belgian Official Journal of 05 August 1993).
57 Orakhelashvili 2002 American Journal of International Law 677.
58 The Court held (at 33) that: “the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law”.
59 Arrest Warrant case 33.
60 Knushel 2011 Northwestern Journal of International Human Rights 151 and Murungu Immunity of State Officials 35.
61 Knushel 2011 Northwestern Journal of International Human Rights 151.
62 Dugard International Law 253.
63 Cassese International Criminal Law 302.
64 Knushel 2011 Northwestern Journal of International Human Rights 152; Henrard 1999 Michigan State University Detroit College of Law Journal of International Law 612 and Murungu Immunity of State Officials 36. See also Foakes “Immunity for International Crimes?” 8: “All state officials, including those who do not enjoy personal immunity while in office, are entitled to immunity from the jurisdiction of other states in relation to acts performed in their official capacity. Such immunity attaches to the official act, not to the office of the individual concerned, and can therefore be relied upon by former officials as well as incumbent officials”.
humanity and war crimes? May a person accused of such crimes successfully plead this immunity before South African courts exercising their universal jurisdiction in terms of the Implementation Act?
Personal immunity, on the other hand, is granted by international customary law to some categories of individuals on account of their functions and are intended to protect both their private and their public life or, in other words, to render them totally inviolable while in office.65 Such individuals comprise heads of State, ministers of foreign affairs and diplomats.66 The purpose of this immunity is to ensure that high-ranking officials may “act freely on the inter-state level without unwarranted interference”.67 Conversely, since immunity ratione personae is connected with the position occupied by the official in government, it is of temporary character and ceases when he or she leaves that post.68
The question that arises in regard to immunity ratione personae is whether or not such officials may be arrested and tried in the courts of foreign States while they are still in office when they are suspected of having committed serious violations of human rights which constitute international crimes over which all States have universal jurisdiction.
The position before international criminal tribunals is that the official position of a state agent, including an incumbent head of State is not a bar to his prosecution.69 This is clearly established in the jurisprudence of various international criminal tribunals. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL) indicted, respectively, Slobodan Milosevic70 and Charles
65 D’ Argent “Immunity of State Officials and Obligation to Prosecute” 5.
66 Cassese International Criminal Law 2nd ed 302
67 Knushel 2011 Northwestern Journal of International Human Rights 151 and Foakes “Immunity for International Crimes?” 4.
68 Markovich 2009 Potentia 59; Wickremasinghe “Immunities” 390; Steynberg et al Criminal Law 579 and Bantekas and Nash International Criminal Law 169.
69 Dugard International Law 251; Steynberg et al Criminal Law 580; Jia 2012 Journal of International Criminal Justice 1318 and Shaw International Law 655-656.
70 The Prosecutor v Slobodan Milosevic Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic Decision on review of indictment and application for consequential orders ICTY IT-05-87-PT (24 May 1999).
Taylor71 when they were still serving as heads of State. This rule was also affirmed by the ICJ in the Arrest Warrant case,72 where the court stated that:
[A]n incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations and the future International Criminal Court created by the 1998 Rome Convention.
This principle is also enshrined in article 27(2) of the Rome Statute which provides that:
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.
The question which arises is whether South African courts, acting under the complementarity regime of the Rome Statute, are also entitled to prosecute those persons who, according to international customary law enjoy immunity ratione personae from the courts of foreign States, but whose immunity would be irrelevant if they were prosecuted before the ICC in terms of article 27(2) of the Rome Statute. Section 4(2) of the Implementation Act provides as follows:
Despite any other law to the contrary, including customary and conventional international law, the fact that a person-
(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official [...], is neither-
(i) a defence to a crime; nor
(ii) a ground for any possible reduction of sentence once a person has been convicted of a crime.
Some have interpreted this article as entitling South African courts to disregard immunities of foreign officials accused of international crimes. Du Plessis73 says that South African courts, acting under the complementarity principle, “are accorded the same power to 'trump' the immunities which usually attach to officials of government”.
This, he argues, signals South Africa's intention of “acting hand in hand” with the ICC in
71 Prosecutor v Charles Ghankay Taylor Decision Approving the Indictment and Order for Non- Disclosure SCSL-2003-01-I (7 March 2003). The case shall be referred to hereafter as the Taylor case.
72 Arrest Warrant case para 61.
73 Du Plessis 2003 South African Journal Criminal Justice 6.
bringing State officials, “whatever their standing”, to justice.74 This interpretation has also received judicial endorsement in Southern African Litigation Centre v National Director of Public Prosecutions75 where Fabricius J said:
It must not be forgotten that the ICC Act itself denies explicitly diplomatic immunity to government officials accused of committing ICC Act crimes. (See s 4(2) (a)). The recent trial of Taylor, in the International Criminal Court in The Hague, is a case in point.76
It should be noted, however, that in the Taylor case referred to by Fabricius J, the accused, Charles Taylor, was in fact prosecuted before the Special Court for Sierra Leone (not the ICC as mentioned by Fabricius J) which is an international criminal tribunal,77 while the Implementation Act deals with the prosecution of international crimes in South African courts.78 In addition, the wording of Section 4(2) of the Implementation Act is not as unequivocal as article 27(2) of the Rome Statute. While the Rome Statute provides that the position of a person accused of international crimes before the ICC “shall not bar the Court from exercising its jurisdiction over such a person”, section 4(2) of the Implementation Act only provides that the official position of a person shall not be “a defence to a crime”. Does section 4(2) of the Implementation Act carry the same meaning as article 27(2) of the Rome Statute? If yes, would that be consistent with the principle of “sovereign equality” of states in international law? Would it also be consistent with the UN Charter’s aim of developing “friendly relations among nations based on respect for the principle of equal rights”, and to “strengthen universal peace”?79 If no, which law should be applied should a case concerning immunity ratione
74 In support of the view that immunities (whether functional or personal) do not apply when a State official is accused of international crimes in foreign States, see Lee “Universal Jurisdiction” 24.
75 Southern African Litigation Centre v National Director of Public Prosecutions 2012 JDR 0822 (GNP).
76 2012 JDR 0822 (GNP) 129.
77 The Special Court for Sierra Leone (hereafter SCSL) was set up jointly by the government of Sierra Leone and the United Nations (Security Council Resolution 1315 of 14 August 2000). By Resolution 1688 of 16 June 2006 the Security Council determined that the presence of Charles Taylor in Sierra Leone was an impediment to stability and a threat to the peace of Liberia, Sierra Leone and of the region in general, and then transferred the trial by the Special Court to the building of the ICC in The Hague.
78 In the Taylor case the accused had applied to the SCSL to quash his Indictment and set aside the warrant for his arrest on the grounds that he was immune from any exercise of the jurisdiction of the Court by virtue of the fact that at the time the indictment and the warrant of arrest were issued he was a sitting Head of State. The Appeals Chamber rejected Taylor’s application on the ground that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal. Prosecutor v Charles Ghankay Taylor Decision on Immunity from Jurisdiction SCSL-2003-01-AR72(E) (31 May 2004) para 52.
See also Akande 2009 Journal of International Criminal Justice 335.
79 Art 1(2) UN Charter.
personae of a foreign State official arise before a South African court? If this immunity should be granted, which, apart from the head of State, ministers of foreign affairs and diplomats, are the other foreign State officials who are entitled to this immunity? Should this immunity also be granted when those officials are in South Africa on private visits?