The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia hearing the Karadzic case issued a ruling on Wednesday granting in part a defence motion seeking disclosure of potentially exculpatory documents relating to an alleged defence of immunity (see http://www.icty.org/case/karadzic/4#tdec). Karadzic has claimed that in July 1996 American diplomat Richard Holbrooke promised him immunity from prosecution if he would withdraw from public life. He says the Prosecutor may have relevant information in his possession, and he wants it disclosed.
The Trial Chamber writes (at para. 17): ‘According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals.’ Furthermore (at para. 25), ‘The Trial Chamber considers it well established that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law.’
I think this may be overstating things.
In support, the Trial Chamber cites article 7(2) of the Statute, and similar provisions in other statutes of international criminal tribunals. These texts deal with a defence of official capacity, which is not quite the same thing as immunity. Basically, the defence of official capacity is relevant to prosecutions under national law where a defendant claims he or she was not acting as an individual but rather as an agent of the State. It has been rejected since Nuremberg.
But immunity is different. It involves an argument that a tribunal is without jurisdiction out of respect for the sovereignty of some other authority. Thus, as the International Court of Justice has made clear, the courts of a State cannot exercise jurisdiction over the head of State of another country, whatever the crime, and even in the case of genocide and crimes against humanity.
But what about international tribunals? The fallacy of the absolute statement by the Trial Chamber can be seen in article 19 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. According to article 19, in the event that the International Criminal Court seeks to prosecute a United Nations official who benefits from immunity, the United Nations agrees to cooperate in waiving the immunity. But this would be unnecessary if there was no immunity anyway, as the Trial Chamber of the Yugoslavia Tribunal seems to claim. How can the United Nations agree to waive something it doesn't have in the first place?
When the Negotiated Relationship Agreement was being drafted, Belgium proposed an amendment that affirmed the premise that there was no immunity before international tribunals for international crimes (‘Proposal submitted by Belgium concerning document PCNICC/2000/WGICC-UN/L.1’, PCNICC/2000/WGICC-UN/DP.18, art. 8) but it was withdrawn and replaced with the current article 19.
The argument is important to the extent it concerns heads of State and others who might enjoy immunity when faced with the International Criminal Court. Article 27(2) of the Rome Statute says they have no immunity. But article 27(2) is a treaty provision and it only binds States that have ratified the treaty. In other words, article 27(2) cannot apply to heads of State of countries that have not joined the International Criminal Court. The result must be, in my opinion, that they still have immunity before the International Criminal Court, even for genocide, crimes against humanity and war crimes. This is because the Rome Statute cannot take away from them something to which they are entitled under customary international law.
In my view, the argument that Karadzic is without immunity before the Yugoslavia Tribunal should not be based on the proposition that there is no immunity before ‘international courts’ for such crimes. Rather, it is an implicit consequence of the creation of the Tribunal by a Security Council resolution pursuant to Chapter VII of the Charter of the United Nations. But I would be prepared to bet money on the proposition that the Legal Adviser to the United Nations considers that United Nations officials still enjoy immunity from the Yugoslavia Tribunal unless this has been formally waived.