The Telegraph has indulged in a bit of sensational journalism today with a story about a complaint concerning Barack Obama being filed at the International Criminal Court by a Spanish lawyer. The charge is that by his involvement in killing Osama Bin Laden, the President has committed crimes against humanity.
Such silliness has no legal foundation. My dear hope is that The Telegraph follows the example set last week by the News of the World.
Whether or not the assassination of a single individual could ever be a crime against humanity need not be considered. There are some preliminary issues that must be addressed.
The only way that I can see Obama falling under the jurisdiction of the Court is if we get his Kenyan birth certificate. Kenya is a State Party to the Rome Statute, and under article 12 the Court may exercise jurisdiction over a national of a State Party for a crime committed anywhere.
Absent a copy of Obama's Kenyan birth certificate, the problem is that the crime took place on the territory of a State that is not a member of the Court and was committed by someone who is allegedly a citizen of a country that is not a member of the Court.
That's the first obstacle.
One way to solve it would be to get the Security Council to adopt a resolution, as it has done with Sudan and Libya. I wonder why that won't happen.
But even with the Kenyan birth certificate, there is another problem, although it is more controversial. The Court has already held, in two arrest warrant decisions, that head of state immunity cannot be invoked, even with respect to the head of state of a country that has not joined the Court. In so doing, the Court has given a literal and rather simplistic reading of article 27(2) of the Statute. The United States seems to be rather pleased with the arrest warrants directed at President Bashir of Sudan and 'president' Gadaffy of Libya by the Court.
However, I suspect that the real position of the Department of State is that article 27(2) does not apply to heads of state of countries that have not joined the Court. Thus, the Court cannot prosecute Obama (and, logically, Bashir and Gadaffy). Article 27(2) is an exception to customary international law, which enshrines the immunity of heads of state from courts other than those of their own country. States that join the International Criminal Court renounce to this immunity. But they cannot take it away from States that have not joined the Court. And that's the rule even if Obama is a Kenyan citizen!
We don't need international law to prosecute the killers of Bin Laden. The provision on murder in the Pakistan criminal code will do just fine. Pakistan can prosecute the Seals who did the killing, and the generals who ordered them. But it can't prosecute Obama, because of his head-of-state immunity. Obama can only be prosecuted by the courts of the United States.