Pre-Trial Chamber I of the International Criminal Court issued a ruling earlier this week that has the consequence of stripping Obama, Medvedev and Hu Jintao of their immunity before the Court. This would mean, for example, that charges could be introduced against President Obama for the conduct of US forces in Afghanistan (which is a State Party to the Rome Statute) in the same way as they have been introduced against President Bashir for the conduct of Sudanese forces in Darfur (where jurisdiction results from a Security Council).
The decision does not of course mention Obama, Medvedev and Hu Jintao. It concerns the possible immunity of President Bashir.
Over seven pages, in a decision condemning Malawi for its failure to arrest Bashir, the Pre-Trial Chamber reviews a number of authorities. The decision reads like a lawyer’s brief, in that it is entirely one-sided. The Chamber does not address the difficulties or the arguments that go against its position. This is regrettable, but perhaps to be expected when it is a decision is issued in the absence of representations from the defence. Can it be a wise practice for the Pre-Trial Chamber to attempt to address serious and difficult matters of international law in the absence of detailed argument. Under such circumstances, shouldn’t a Chamber at least make an effort to confront the inconvenient arguments that stand in its way.
For example, it reaches the rather trite conclusion that there can be no immunity of a head of state before an ‘international tribunal’. But nowhere does it define an international tribunal or suggest how one is to be identified. It may well be that there are various types of international tribunal, and that rules of immunity apply differently depending upon the type of tribunal. In the famous Arrest Warrant case, the International Court of Justice said that immunity would not be available before ‘certain international criminal courts, where they have jurisdiction’. By implication, the International Court of Justice was saying that immunity would remain before ‘certain international criminal courts’. The Pre-Trial Chamber’s statement is much more absolute.
The issue of immunity was already addressed by the Pre-Trial Chamber that issued the arrest warrant against Bashir in March 2009. It is not apparent why this differently constituted Pre-Trial Chamber felt compelled to issue a new opinion, presenting the matter somewhat differently. Perhaps, in another year, yet another Pre-Trial Chamber, with different members, will issue yet another ex parte decision on the matter.
The legal argument of the Pre-Trial Chamber this time around is not very compelling. It cites authority from the 1919 Commission on Responsibilities but without noting that this was not the position taken by the Paris Peace Conference and is not reflected in the Treaty of Versailles. The Treaty of Versailles does indeed propose to try the German Emperor, in art. 227, but with the consent of Germany. That is why it is in the Treaty. If Germany’s consent were no required for the victors to try its head of state, then the proposed international tribunal would have been found in a separate agreement between the victors alone.
Then the Pre-Trial Chamber turns to the post-second world war tribunals. The citations do not refer to the issue of head of state immunity but rather to the defence of official capacity. There is a distinction. This can be seen in the Rome Statute itself, where article 27(1) deals with official capacity and article 27(2) deals with immunity.
I could go on. This is a complicated question. Much has been written. The Chamber does not refer to any of the thoughtful academic contributions on this subject, by scholars like Dapo Akande and Paola Gaeta.
There is an argument – although it is not without its own problems – by which there is no immunity for the likes of Bashir before the International Criminal Court because this is implied by the Security Council resolution referring Sudan to the Court. That, at least, is a more nuanced and subtle proposition. It would mean that Obama, Medvedev and Hu would continue to enjoy immunity from the Court except in the unlikely event of a Security Council referral that concerned them. In the final sentence of its opinion, the Pre-Trial Chamber notes that jurisdiction results from a Security Council referral, but it does not indicate why this might be significant.
But the Pre-Trial Chamber has gone much further in this recent ruling. Indeed, it seems to take the position that there is no immunity given that the International Criminal Court is an international tribunal. Presumably therefore article 27(2) is entirely superfluous.
Authority cited by the Pre-Trial Chamber includes some simplistic rulings from the ad hoc tribunals. But the ad hoc tribunals can claim to have been the offspring of the Security Council. Immunity would not be applicable there because the Tribunal is not created by a State but rather by the international community acting collectively.
The reason that the same analysis cannot apply to the International Criminal Court is that it is created by the 120 States Parties. The International Criminal Court is a treaty-based court. In principle, the Rome Statute can only bind member states. Article 27(2) removes immunities from heads of state. This only applies to heads of state of States Parties and cannot be invoked against heads of state of non-party States.
Some will argue that with 120 States Parties, the Court has reached a critical mass whereby it can really claim a degree of universality. This is not too convincing an argument either. The Court may have more than half the States in the world, but it does not represent half the population of the world. Vanuatu (population 250,000), the latest State to join the Court, did not make much impact in this respect.
If there is no immunity before any international criminal court, as the Pre-Trial Chamber seems to hold, would it be possible for Nauru, Monaco, Andorra, Taiwan and the Palestinian Authority to join together and create an international criminal tribunal where the President of the United States would be stripped of the immunity that he would otherwise possess before the national courts of those countries?
The immunity of heads of states results from customary international law. They cannot be deprived of it because other States so decide, whether they do this by their domestic law or by treaty. It is precisely for that reason that article 27(2) was included in the Statute. In the absence of article 27(2), even States Parties would be able to invoke immunity.
It would be very interesting to hear the position of the United States, Russia and China on this point, because it concerns them and their heads of State. In the 2005 report on Darfur, the late Antonio Cassese suggested that rulings by international criminal tribunals on points of law that are not subsequently contested by States may become accepted as custom. So it might be useful for the big powers that have not joined the Court to make their views on this known. I suspect that they agree with Bashir, and not with the Pre-Trial Chamber.