The Extent of Applicability of Head of State Immunity Ratione Personae

Transcription

1 The Extent of Applicability of Head of State Immunity Ratione Personae Based the Rome Statute and Customary International Law, in relation to the most serious international crimes. F.F.C.C. Sweep LLB anr: Master Thesis International and European Law Human Rights track Faculty of Law Tilburg University, Tilburg Supervisor: E.V. Moyakine Second reader: S. Musa October 2013

2 Par in parem non habet imperium Acknowledgements This thesis is the final piece of my study of law at Tilburg University. After many hours writing, re-writing and revising this text, I am content to say it is finished. Much have I learned in the process of writing this thesis and much was learned before. I want to thank my professors and lecturers all through this past year, for giving me the opportunity to specialize in this certain area of law, without ever losing the bigger picture out of sight. With regards to this thesis, I wish to thank Professor Willem van Genugten for encouraging me to explore the topic of head of State immunity to the point where it started to sound like a proper thesis proposal, finally resulting in this thesis. Furthermore, I wish to express special thanks to Evgeni Moyakine, for his support and patience during my writing process. His profound comments and critical eye on the text pushed me for the better. I also wish to thank my friends and sister for their support throughout my studies. A special thanks to Joey, Lara and Koen for making the hours spend at campus so much more bearable. I finally wish to express my deep gratitude to Karin, Michael and Bregje, without whom I would have lost my sanity a long time ago. I saw it as a personal challenge to write a thesis I would be completely satisfied with in the end: I wrote this text to the best of my abilities and I have enjoyed (the bigger part of) the writing process and I am content with its outcome. Femke Sweep October 2013, Tilburg 2

3 Table of Content Introduction...5 Chapter 1. Applied Definitions What is the definition of head of State immunity ratione personae? The subject of the immunity Applicability of the immunity Territorial reach of the immunity Temporal reach of the immunity Raison d être of the immunity What is the relationship between applicability of head of State immunity and the most serious international crimes? Genocide Crimes against humanity War crimes Crime of aggression Conclusion Chapter 2. Application How is head of State immunity ratione personae applied in customary international law the jurisdiction of foreign courts? Facts and judgment Legal implications How is head of State immunity ratione personae applied in the Rome Statute Article 27 of the Rome Statute Article 98(1) of the Rome Statute The Al-Bashir Case Facts and procedure

4 Implications and consequences Chapter 3. Conclusion The extent of head of State immunity ratione personae within customary international law Head of State immunity by the ICJ Head of State immunity and international crimes Exceptions based on the Rome Statute and the ICC The Rome Statute The ICC Recommendations Bibliography

5 Introduction The current president of the Republic of Kenya is prosecuted by the International Criminal Court for the counts of crimes against humanity 1. However, under customary international law a head of State enjoys immunity, creating the circumstances under which this head of State cannot be held accountable for the committed crimes before a foreign court. In abstract, the question rises now how the Rome Statute allows for such prosecution of such incumbent State leader. Is there a way for this immunity to protect the State leader from prosecution by the International Criminal Court? Will it make a difference if a State (like Kenya 2 ) successfully withdraws from the Rome Statute? What is the opinion of the International Court of Justice? Question this paper will find answers for. Heads of State are protected against legal proceedings before a foreign court. This protection is called head of State immunity. This immunity has justifiable reasons: if a head of State is indicted, the whole functionality of that State will be in jeopardy and the sovereignty of the State will be affected. Immunity must prevent these negative consequences on a State. However, by doing so, the immunity goes at the expense of the justice sought by the harmed individual. This leaves a large sense of injustice with the harmed individual, since the harm was done by the highest representative of the State, and this offender appears to get away with it. In general it can be said that the immunity of the head of State is not subjected to limitations when the official is still in office. In other words, it is very difficult to bring an incumbent head of State to justice, no matter what crime was committed, according to customary international law (also referred to as customary law). However, exceptions can be made, raising the main question of this paper: to what extent is head of State immunity applicable when the State leader is still in office? The focus of this paper will lie on the Rome Statute and on customary international law, and especially the relation between immunity and the most serious international crimes. 1 (ICC) Prosecutor v Uhuru Muigai Kenyatta, 23 January

6 It was chosen to focus on the Rome Statute since this treaty upholds a rather radical, unique and controversial vision on head of State immunity. Especially with the arrest warrant 3 standing out for the current President of Sudan, President Al-Bashir 4, and the recent developments in Kenya regarding its withdrawal from the ICC, to avoid prosecution of the State leader, the ICC and its Statute are very relevant to this paper s topic. In later Chapters it will be shown how rigidly the ICC ignores the immunity of heads of State. The contrast with customary international law could not be greater, creating an interesting overview on the different perspectives on head of State immunity: the strict application of immunity in the inter-state relationship, dominated by customary international law, on one side, opposed to the lean application of immunity by the International Criminal Court (ICC). To answer the main question, several sub questions must be answered first. These questions will be answered through the study of current literature. This desk study will allow me to form my own opinion in the matter, an opinion and personal analysis, I will share all throughout the course of this paper. Chapter 1 will be fully based on the legal authors, in Chapter 2 I will rely on case law of the ICC, to elaborate on the working of the Rome Statute and on case law of the International Court of Justice, to exemplify on customary international law. In the last Chapter, Chapter 3, I will draw my conclusions, supported by the literature used all throughout this paper. The first sub question that needs answering, dealt with by Chapter 1, is that of the definition: what is the definition of head of State immunity? Here the difference between immunity ratione personae (immunity when in office) and immunity ratione materiae (immunity when resigned) will be set out. This division must be made to fully understand the problem of the paper and the difference is therefore only explained to the extent of relevance to this paper: if the focus would lie on head of State immunity ratione materiae, many of the crimes could be prosecuted. The definition of head of State immunity ratione personae will be set out in detail, it will be explained what the core of this immunity is, as well as the boundaries. Division must be made between prosecution before a foreign court and before the International Criminal Court. 3 (ICC) Prosecutor v Omar Al-Bashir Case, 21 July A full description of these cases and their implications regarding immunity will be given in Chapter 2. 6

7 To fully understand the conflict between on the one hand the necessity of immunity and on the other hand the de facto impunity of the most severe crimes, the most gravest crimes will be discussed briefly, as well as the relation they hold towards head of State immunity ratione personae, answering the question: what is the relationship between the applicability of head of State immunity and the most serious international crimes,, such as the crime of genocide, crimes against humanity, war crimes and the crime of aggression. This brief discussion is necessary to full grasp the essence of these crimes to get a better understanding of the tense relation between immunity and impunity. Chapter 2 will be completely devoted to the two main instruments on which this paper focusses. The first question answered in this Chapter will be: how is head of State immunity ratione personae applied within customary international law. This will be seen from an inter-state relationship. It is therefore that the ICJ has an interesting light to shine on this matter: the ICJ established the existence on immunity for the Minister of Foreign Affairs within the inter-state relationship, equal to head of State immunity. It will be seen what this implies, and what this says about the view of head of State immunity within customary law. The second question that will be answered by Chapter 2 will be: what is the view of the Rome Statute on head of State immunity ratione personae, and how is this immunity applied. This sub question will be answered based on Article 27 and Article 98 (1) of the Rome Statute. The ICC case law of the case Prosecutor v Omar Al-Bashir 5 will be used to practically elaborate the theoretical approach of immunity within the Rome Statute. It is then that finally in the last Chapter that the main question can be answered: what is the extent of application of head of State immunity ratione personae? Here all aspects will come together in the part where I will give my opinion on the matter and the approaches of both customary international law and the Rome Statute. After this systematic conclusion, I can draw my general conclusion to finally answer the main question: to what extent is head of State immunity ratione personae applicable when focused on the Rome Statute and on customary international law. 5 (ICC) Prosecutor v Omar Al-Bashir Case, 21 July

8 Chapter 1. Applied Definitions To get a better understanding of the full concept of head of State immunity ratione personae a few elements of this concept need to be examined more closely. The first element to remember is that States 6 are sovereign. State sovereignty is the principle which grants the State the privilege to act according to its own free will within the limits of the law of nations 7. The term sovereignty has become an all-encompassing term and entails jurisdiction over home territory and the people living there. This then implies the duty to not intervene in the jurisdiction of other States 8 : State sovereignty is exercised vis-à-vis other States. It is not absolute: the sovereignty of the State is restricted by treaties and customary international law 9. States are not superior to other States: they are equal and in their equality they are independent from each other 10. As sovereignty is a product of Statehood 11, State immunity is a consequence of this sovereignty. To circumvent the possibility to prosecute a State before a domestic court and to maintain this sovereignty, States are granted some forms of immunity, namely the immunity from interference by a foreign State 12 and immunity from a foreign judiciary 13. A State has an artificial personality 14 and must be governed by or through real people, such as a head of State, Government officials and senior members of parliament 15. However, if these people are not granted an extent of the State immunity, the principle of State sovereignty will be void in the sense that through the State representatives the sovereignty of the State can be violated, when instead of the State, the State leader will face legal proceedings. In this sense the head of State acts as the prime 6 Those meeting the criteria of Statehood. 7 Verzijl 1968, p Crawford 2012, pp. 447, Kreijen 2003, p.29, Kreijnen 2002 p Alebeek, Van 2008, p Kreijen 2003, p.28, Nguyen et al. 1987, p This immunity can be limited on several grounds, all of which fall outside the scope of this thesis. 13 Cassese 2005, p Fox 2002, p Cassese 2005, p

9 representative of a State and is capable in carrying out international relations 16. In addition, international law recognizes the office of the head of State as an attribute to Statehood 17. It can therefore be concluded that head of State 18 immunity is a mere consequence of State immunity 19. There is no uniformity to be found in the sorts of heads of State: States are free to decide their own constitutional structure, including the form and attached powers of the seat of their State leader and since there are many different titles and there is a large variety of functionalities, no two leaders are exactly alike 20. Traditionally, a head of State holds a ceremonial, constitutional or political function or holds a combination of these three 21. What all State leaders have in common, regardless of their function, is the uniformed equal treatment they receive: immunity. A very important aspect is the distinction made in law between immunity while in office and immunity after leaving the office. More accurately, the distinction is (respectively) personal immunity (hereafter also referred to as immunity ratione personae), and functional immunity (hereafter also referred to as immunity ratione materiae). Literature tells us that both forms of immunity are without certain limitations, such as the need to be present on foreign territory, on an official visit for the immunity to apply. To put it in the words of Rosanne Van Alebeek, head of State immunity can be perceived as erga omnes 22. This paper questions this erga omnes perception, since this paper expresses the view that head of State immunity has limitations in its extent, and this paper aims at discovering these limitations. Personal immunity encompasses the largest scope of protection: it grants the bearer not only immunity over official acts but also immunity over personal acts: all acts of a State leader are practically included. This immunity is only applicable for as long as the State leader is in office. Since all acts are protected, also international crimes fall within the scope of protection: if they are not seen as official acts, they are seen as personal acts, which are equally protected. It is therefore (almost) impossible for foreign jurisdictions to prosecute a head of State suspected of committing an international crime. 16 Fox 2002, p Ibid, p This also applies to government and (senior) members of cabinet, for the continuity of this paper only the term head of State will be used hereafter. 19 Cassese 2005, p Watts 1994, p Fox 2002, p Alebeek, Van 2008, p

10 This extensive form of immunity is lost when the office is left 23 : when the head of State is no longer incumbent, immunity ratione personae is replaced with immunity ratione materiae. Immunity ratione materiae only covers the official acts: personal acts are retroactively prosecutable, while official acts remain protected. The general rule, derived from the Pinochet case 24, heard by the British House of Lords, affirms that international crimes such as genocide, crimes against humanity and war crimes are hardly seen as official acts, as a form of State policy, therefore falling within the scope of personal acts and are no longer protected through immunity 25. This British case law is not binding within the international community, yet it reflects a tendency on how head of State immunity is perceived in relation to the international crimes. The idea behind the distinction between acts is that State leaders must have the freedom to act within their sovereign territory within their term, as they see fit, without any interference of others. However, the premise of this paper is the view that immunity is not absolute: there are several scenarios imaginable where especially international criminal law prevails over any claim of immunity. Having established these basic elements, it is time to focus fully on the problem at hand: to what extent is head of State immunity ratione personae applicable with regards to the Rome Statute and customary international law, in relation to the most severe international crimes? It is important to set out the working definitions of this paper. In the next Paragraph (1.1) the working definition of head of State immunity ratione personae will be given, which will be applied in this paper. In addition its boundaries and its purpose will be set out more in detail. This is to get a better understanding of why immunity is upheld. In Paragraph 1.2 the most severe international crimes will be set out: their core elements will be discussed, as well as the relation they have with immunity ratione personae. This is to get a better understanding of what the friction is with the international crimes. 23 Cassese 2005, p (UKHL) re Pinochet, 17 December 1998, (1999). 25 Cassese 2005, p

11 1.1 What is the definition of head of State immunity ratione personae? With all the different courts, national and international, including the Tribunals, with all their different laws, jurisdictions and their different case law, it is not surprising that there is not one uniform application of head of State immunity: the definition is often more or less the same, the application of this definition is not uniform. In addition, and as was stated in the previous Chapter, no two heads of State are equal 26 and there is no directly applicable treaty on head of State immunity, just bits and fragments scattered over different legal documents. There are treaties and conventions that apply indirectly to this issue, such as the 1961 Vienna Convention on Diplomatic Relations, which is applicable by analogy: in the Djibouti v France case the ICJ has stated that Article 29 of the Vienna Convention on Diplomatic Relations is necessarily applicable to heads of State. Naturally, other treaties, such as the Rome Statute, make mention of the immunity, yet a clear policy, located in one legal document, was not established. In order to establish the scope of head of State immunity, it is essential to establish a definition of this form of immunity. This will be the working definition as it is: it will be elaborate enough to give sufficient space to look for the boundaries in the next Chapter. The definition will give a clear framework with regards to this paper. This definition is a conglomeration of different definitions given all scattered throughout the international legal community, which does not differ all that much. It is not an addition, just a clarification. The problem as such is not to give wording to the definition: head of State immunity ratione personae is comprised of the immunity of a head of State for all his actions, both personal and official, for the time being in officio. This form of immunity grants the official full immunity without exception, under customary international law, from any form of foreign jurisdiction. The main objective is to protect and maintain the international relations of the State leader which will be endangered if they were to be subjected to criminal jurisdiction 27. The difficulty of the definition lies within the boundaries and their justification: where does the immunity end and what is the exact purpose of its application? 26 Watts 1994, p Evans 2010, p

12 The first part of this Chapter will deal with these aspects of the definition: the boundaries and their justifications as well as the purpose of immunity, will be given based on the aspects of the subject, the applicability, the territorial jurisdiction of the immunity and the temporal jurisdiction and the raison d être of immunity ratione personae The subject of the immunity Saying that the addressee of head of State immunity is, in fact, the head of State is not only a tautology, it is also not completely accurate. Analogically, Ministers of Foreign Affairs enjoy a similar immunity as the head of State, since their function is conceived as very similar in its execution as the one of the head of State, especially with regards to international relations 28. This derives from the Democratic Republic of the Congo (hereafter referred to as the DRC ) v Belgium case, a decision by the ICJ that is still lacking (consistent) State practice 29. Ministers of Foreign Affairs enjoy immunity ratione personae, without limitations, which means they also enjoy their immunity during private visits abroad 30 : all the rules and rights that apply to the head of State apply to the Minister of Foreign Affairs. The ICJ has confirmed that it is impossible to distinguish between acts performed in the private sphere or in the official representation of the State, requiring the application of immunity ratione personae 31. Since the extensive implications of this case on this paper, with regards to the application of head of State immunity within customary international law, this case will be described more in detail in the next Chapter. Concerning the immunity ratione personae, only the head of State and the Minister of Foreign Affairs can call upon this immunity, as is directed from the DRC v Belgium case. The immunity can be said to also apply to the direct family of the head of State. This is not absolute and usually only applies to the formal visits of the family members. As head of State immunity is derived from State immunity, the immunity for family members is derived from head of State immunity, making it a weaker link in the chain. 28 Ibid, p Akande et al. 2011, p (ICJ)The Arrest Warrant of 2000 (DRC/Belgium) Judgment of 14 February 2002, para Fox 2002, p

13 Another group of individuals who enjoy some sort of derived immunity are the officials of international organizations. It suffices to just name this category 32 without further mentioning, since this immunity shows too little resembles with head of State immunity, this form of immunity falls outside the scope of this paper Applicability of the immunity The immunity applies to all claims made before a court (foreign national courts and international courts such as the ICC and the Tribunals) within and throughout all jurisdictions 33. Immunity is applicable for all legal claims made, based both on public (criminal) law and on civil law 34 and on both national and international law. There is however a difference made between the immunity before a foreign court and the ICC. As said, immunity within the proceedings before a national court are dominated by customary international law, while the proceeding before the ICC is dominantly prescribed in the Rome Statute. Any sort of breach of any type of law can be the reason to bring a State official before a court and therefore can trigger the immunity. State officials will be hampered in the exercise of their duties when there is a possibility to be detained, therefore the prohibition to exercise criminal jurisdiction is absolute 35. In this paper, the reach is limited, since only the most appalling crimes will be looked at: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. These crimes will be looked at more elaborately later in this Chapter. Only these crimes are looked at, since these crimes form a post Pinochet exception for immunity ratione materiae 36 and are the most serious international crimes. However, contrary to the Pinochet case, these officials committing these crimes remain to be protected in an absolute fashion under immunity ratione personae, causing the implications to be different, creating an interesting relationship between head of State immunity ratione personae and these crimes, in the light of the Rome Statute and customary international law 32 For more reading regarding officials of international organizations see: Evans 2010, pp Alebeek 2008, p Civil law will be left out of this paper completely. For more reading on head of State immunity regarding civil law see: Alebeek, Van Akande et al. 2011, p It is not possible to invoke immunity ratione materiae if prosecuted for these crimes. 13

14 Territorial reach of the immunity Head of State immunity applies to all States, without any restrictions: meaning that, regardless the State official is present in the home State 37 or a host State 38, the immunity prevails 39. If the immunity is not waived, the claims before national courts are inadmissible: any attempts to arrest or prosecute the head of State or the Minister of Foreign Affairs will be a direct violation of the immunity. It is important to mention at this stage of this paper that the jurisdiction of the International Criminal Tribunals for the former Yugoslavia (hereinafter: ICTY) and of the International Criminal Tribunals for Rwanda (hereinafter: ICTR), do not recognize the immunity of a head of State as a legitimate argument to relieve criminal responsibility nor mitigate punishment according to both Article 7(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia and Article 6(2) of the Statute of the International Criminal Tribunal for Rwanda. Fox mentions in her book The law of State immunity the precedence both Tribunals take over the principle of head of State immunity: the Statutes of both Tribunals are binding to all member States of the United Nations since both Tribunals were established by the Security Council of the UN (UNSC). These waivers apply to any case falling under the jurisdiction of the Tribunals. Both Tribunals have a fairly limited jurisdiction: The jurisdiction of these tribunals is limited to the territory of Rwanda (ICTR) and the territory of former Yugoslavia (ICTY) and are limited by the crimes it can prosecute 40. The views of these Tribunals are relevant in contrast to the ICC: the Statute of the ICC is treaty based and therefore based on the principle of consent to be bound. Additionally, the Rome Statute creates a radical position with regards to the waiver of immunity, as will later be shown: the application of immunity by the ICC will require a more elaborate description, given in the next Chapter Temporal reach of the immunity It is important to keep in mind that the immunity ratione personae is only applicable when the State official is still in office: the problems that arise in this paper would not arise when the head of State is no longer the incumbent leader, as is mentioned above. After the Pinochet case, torture is not seen as a 37 The home State is the State where the head of State has the nationality of and is the State leader. 38 The host State is the State where the head of State has not the nationality of, but is only visiting. 39 Alebeek, Van 2008, p Fox 2002, pp. 431,

15 protected official act and therefore falls outside the scope of the ex officio form of immunity. The full reasoning of all Lordships goes far beyond the scope of this paper, but to put it briefly, the Lords in Appeal based their judgment on the Torture Convention: without the waiver of immunity, this Convention would lose most of its meaning: the actual perpetrators would be fully protected against legal proceedings due to their immunity. It was therefore a necessity to not allow the immunity to intervene in the proceedings against such forbidden acts. The British Judges created the analogy that one cannot rely upon immunity ratione materiae to oppose criminal responsibility for such serious crimes within international law 41. However, they do not stretch this analogy to the immunity ratione personae. In the DRC v Belgium case it is even stated that the Court was unable to deduce ( ) that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity Raison d être of the immunity In the shadow of the serious crimes it is difficult to keep in mind why there is something like immunity ratione personae. Head of State immunity, both ratione personae and ratione materiae, serve the greater good: the immunity protects the smooth conduct of international relations, within the communication between states. The representatives must be free to act as they see fit in carrying out their duties. It is only because of this reason that immunity still exists: its raison d être. The immunity is essential in a peaceful cooperation and co-existence of States in the international community, especially in the current climate of globalization Evans 2010, p (ICJ) The Arrest Warrant of 2000 (DRC/Belgium) Judgment of 14 February 2002, para Akande et al. 2011, p

16 1.2. What is the relationship between applicability of head of State immunity and the most serious international crimes? In order to see whether head of State immunity ratione personae is applicable when a serious international crime is committed, it is important to establish the scope of this crime and the relation it has with the immunity. It is important to see the seriousness of these crimes, in relation to the necessity of immunity. The most serious crimes within international criminal law create victimization on a systematic and large scale on a non-international playing field, yet overreaching the harmfulness of international conflicts, both quantitatively and qualitatively 44. These crimes are the crime of genocide, crimes against humanity, war crimes and the crime of aggression. All these crimes have in common are the grave violations of universally accepted human rights, and the general notice is that the perpetrators of these crimes need to be brought before justice. When a crime threaten[s] the peace and security of humankind and (..) shock the conscience of humanity 45, it is most likely seen as part of compelling law. These are the fundamental rules of customary international law, and cannot be changed or breached. These norms are most commonly referred to as jus cogens norms. These norms are non-derogable and peremptory. Some international crimes are labeled as jus cogens: crime of genocide, crimes against humanity, war crimes, the crime of aggression, torture, piracy, slavery and all slave-related practices. Labeling these crimes as such has severe implications: this characterization creates the obligato erga omnes within the entire international community, both on national level and on international level, not to grant impunity to the violators of these crimes 46 : all States have a (legal) interest in the protection against these crimes, creating the obligation towards the entire international community. This is giving them a higher level of importance 47, yet complicating the principle of immunity ratione personae. The criminal liability of an individual can be expanded through modes of liability. Not only the footmen (those who physically commit the crime) at the bottom of the food chain are then liable: the puppeteers 44 Bassiouni 2008, p Ibid, p Ibid, pp Ibid, pp

17 pulling the strings in the background also can be found liable, without physically hurting anybody themselves. Geographically, these senior superiors are remote from the actual and factual committing of the crime, however, there are still ways to hold them responsible under criminal law. These modes of liability are (as they are named in Article 25 (3) (b) to (3) (d) of the Rome Statute): ordering, soliciting, inducing, aiding, abetting, assisting and in any other way contributing 48. The liability can range from actual giving the orders, without leaving the option to refuse, to specifically condoning others to commit the acts 49. These forms of liability also fall under the protection of the immunity and are very relevant, since it is more likely that a head of State is liable under extended liability, than by actually and physically committing the crime. Each crime (genocide, crimes against humanity, war crimes and the crime of aggression) will be elaborated briefly below: the core of the crime will be discussed, as well as the relation between the crime and the head of State and in that extension to head of State immunity. It is important to understand the severity of these crimes to understand better how they can form an exception to head of State immunity: it might clarify the dilemma between (de facto) impunity and immunity: on the one hand immunity serves a clear purpose, on the other hand this leaves these crimes unprosecuted Genocide The crime of genocide knows a long history, even though the term was only invented at the end of World War II, to describe the atrocities of the Holocaust. The term is based on the Greek word for people or race genos and the Latin word for to kill: cide, putting the focus on the very core of the crime: the killing of a specific group of people. In 1948 the Genocide Convention came about, giving a definition, which was then almost verbatim repeated by the Rome Statute 50. The most important element of this crime is the mental element: the direct intent to destroy. This goes quite far since even if one person is killed, but the intent is to destroy (part of) the group, it suffices as 48 Stahn et al. 2010, p If the head of State physically commits the crime, there is no need for modes of liability, since they enlarge the liability. 50 Evans 2010, pp

18 genocide 51. However a contextual element is added in the ICC definition of genocide, to prevent hate crimes to fall under the broad scope of genocide: there must be a manifest pattern of similar conduct before an act is genocide, or the perpetrator must be able to destroy (part of) the group 52. Genocide is not a crime that requires any form of official status, however, it can still be committed at any level: Article 33 of the Rome Statute states that orders to commit genocide (..) are manifestly unlawful, making it easier to prosecute all chains of command, all the way up to the highest rank Crimes against humanity Crimes against humanity is a general term for a variety of crimes and was initially used to fill in the gaps that remained in the law of war crimes, however, crimes against humanity often overlap with war crimes. The main difference would be that there is no need for an armed conflict to speak of crimes against humanity 53. The definition in the Nuremberg International Military Tribunal Statute, the Tokyo International Military Tribunal Statute, the ICTY Statute and the ICTR Statute and the Statute for the Special Court for Sierra Leone all overlap, yet are not completely the same, creating a (messy) patchwork of crimes. The ICC Statute then came with a widely ratified definition of the crimes 54. Article 7 of the Rome Statute states a list of all acts that crimes against humanity entails and these acts must be part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. This attack must be widespread, which means large-scale both in nature and in number of victims. In addition, it must be systematic, which refers to an organized nature, excluding random attacks: it must be a policy of some sort 55. This policy-aspect as a contextual element to the crime opens the possibility for modes of liability vis-á-vis the head of State: it must be the policy of the Government, and to that extent to the head of State, to commit these acts. 51 Cryer et al. 2007, p Ibid, pp. 208, Ibid, pp. 230, Evans 2010, pp. 758, Ibid, p

19 War crimes War crimes can be committed during an interstate armed conflict as well as an intrastate armed conflict. War crimes are the criminal phase of humanitarian law 56. This means there is a narrow relation between humanitarian law and war crimes: the violation of the Geneva Conventions have been criminalized 57. A distinction is made between interstate conflict and intrastate conflict and both are relevant with regards to the head of State. The ICC requires some sort of plan or large-scale commission before an act can be a war crime, according to Article 8 (1) of the Rome Statute. A specific reference is made in the second Paragraph under (a) of Article 8 to the Geneva Conventions, the listed crimes all include a grave breach of the Geneva Conventions. Under (b) the crimes based on customary law are included. Crimes breaching common Article 3 of the Geneva Convention are criminalized under Article 8 (2) (c), only applicable to non-international armed conflict. Under (e) other crimes than common Article 3, yet within a non-international armed conflict, are criminalized. The necessity of a plan or a large-scale commission implies a form of command, or a chain of command, making it relevant to head of State immunity: the Government can pull the strings to make lower rank officials to commit these crimes. In addition, it often occurs that the head of State is also Commanderin-Chief, making him automatically responsible for the atrocities committed under his command Crime of aggression The crime of aggression is the most controversial crime within international criminal law. It was firstly named crime against peace during the Nuremberg trials and the Tokyo trials, however never was a clear cut definition of the crime given 58. The controversy remained while drafting the ICC statute. It was only during the conference in Kampala, Uganda, that the elements of the crimes have been established, giving the ICC the jurisdiction over this crime. The Rome Statute defines the crime of aggression in Article 8bis as follows: the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, 56 Ibid, p Cryer et al. 2007, p Evans 2010, p

20 constitutes a manifest violation of the Charter of the United Nations. In Paragraph 2 act of aggression is further defined as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. The controversy lies within the manifest violation of the Charter of the United Nations, but no controversy on the perpetration by high ranked officials only 59. This crime resolves around the State responsibility for aggressive acts: this crime can only be committed on behalf of a State and as a part of a State plan or policy 60. With special regards to head of State immunity, this is very interesting, since this crime can only be committed by (State) leaders and other high-level policy makers (both political and military policy making) 61, which creates an analogy with the Pinochet case. As Paragraph 2.2 will show, prosecuting an incumbent head of State by the ICC is not all that easy, making this crime difficult to enforce, yet not impossible. 1.3 Conclusion The crimes described above are the most serious of all and generally speaking, impunity is unacceptable to both the victims and the international community. The prosecution of these crimes by foreign courts only becomes problematic when committed by an incumbent head of State, since the immunity ratione personae is upheld more absolute than the ratione materiae, in the sense that the application of immunity ratione materiae knows more exceptions than the application of immunity ratione personae (following the Pinochet case). Especially the crime of aggression has a complicated relationship with head of State immunity, since this crime can only be committed by a State leader, or at least by one with effective control over his State. In general this crime cannot be prosecuted by foreign courts when the head of State is still in function. It would be possible to prosecute under immunity ratione materiae. However, the fact that these crimes could not be seen as acts that should be protected under immunity ratione materiae, does not change the protection under 59 Ibid, p Cryer et al. 2007, pp. 317, Ibid, pp. 318,

21 immunity ratione personae. The ICC has methods of prosecuting incumbent State leaders, however, these methods are not always very effective. Foreign courts in a host State are always unable to prosecute due to the immunity ratione personae: prosecution then is only possible when the State official leaves his office. However, then the problem could arise that the State leader remains in office for decades and decades and might even die on his throne (metaphorically speaking): the State leader cannot be prosecuted. However, these crimes are described in and will be prosecuted under the Rome Statute, even while the head of State is still in office. In the next Chapter the relationship between head of State immunity and the Rome Statute will be displayed in further detail. Of course, the principle is that heads of State do not commit crimes as described above. In reality, most of them do abstain from committing such atrocities. However, there are exceptions to this rule, such crimes are committed by heads of State and with extension committed by the Minister of Foreign Affairs. With these exceptions in mind, it can be concluded that head of State immunity is inseparably linked with the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Having established in the first part of this Chapter, in detail, what head of State immunity entails and what its raison d être is and in the second part what the core elements of the most serious crimes are, it is important to see how these components relate. Especially important is the viewpoint that is upheld by the Rome Statute and the implications of this viewpoint. Equally important is the case law of the ICC on this relation. This issue will elaborately be dealt with in the next Chapter. 21

22 Chapter 2. Application In this Chapter all elements, which are previously touched upon, will be discussed in detail. Firstly, customary international law concerning head of State immunity ratione personae vis-à-vis other States will be discussed more in detail. To clarify this even more the DRC v Belgium case, an ICJ case, will be discussed. This case was the first one in which the ICJ gave its broadened vision on the matter of head of State immunity ratione personae. As will be seen, the immunity got expanded to the protection of Minister of Foreign Affair as well, making this a very relevant case when looked at the scope and extent of head of State immunity. Then, in Paragraph 2.2 the Rome Statute will be covered. Here the Articles 27 and 98 (1) of this Statute will be discussed (Paragraph respectively Paragraph ). These two Articles create the (not very straightforward) possibility for the ICC to prosecute any incumbent head of State. This Paragraph is directly followed by a discussion of the ICC case of President Al-Bashir (2.3). This case is a complex case before the ICC regarding a current head of State, making this a very relevant case with regards to this paper. Here the theoretical working of the Rome Statute will be seen executed in practice on the case of Al-Bashir. The final conclusion, where all these elements will come together in the answer to the question: to what extent is Head of State immunity ratione personae applicable with regards to international crimes, if looked at the Rome Statute and customary international law, will follow in the next Chapter. 2.1 How is head of State immunity ratione personae applied in customary international law the jurisdiction of foreign courts? Based on the Statute of the International Court of Justice, there are four types of binding international law. Firstly, there are the treaties or conventions, secondly, international customs, thirdly general principles of law and finally judicial decisions and the teachings of the most highly qualified publicists of the various nations. Only the first two (treaties and customary international law) will be discussed in this paper. Before the application of head of State immunity within customary international law can be 22

23 explained, it must firstly be determined what customary law is, and if there is customary international law concerning head of State immunity ratione personae. Customary law exists of two elements, two conditions that must be fulfilled before one can speak of customary law. These two elements are best explained in case law of the ICJ. The first of these elements is the State practice: customary law is based on the activities of States 62 and is therefore also known as the law of nations 63. Giving a definition to State practice that includes all its elements is impossible: it will be incomplete. Therefore a guiding definition can be used, which includes, yet is not limited to: actual activities of States, statements, national law and the practice of international organizations 64. The ICJ holds in the Lotus case that it is essential that the activity of the State is practiced consistently and uniformly 65. This is not absolute: the more fundamental the customary norm is, the more consistent the State practice must be 66. This practice must occur for some amount of time, yet the ICJ refrains from defining a specific timeline in its case law: customary law is based on development and cannot be accurately measured in time. It is learned from the North Sea Continental Shelf cases 67 that the length of State practice depends per subject. The second element is that of opinio juris, meaning that States must see this practice as binding, as if it were a binding norm. This element became obligatory after the North Sea Continental Shelf cases of the ICJ. This opinio juris is a rather subjective element which makes it difficult to explore how it was established 68. The mere fact that States decided to behave a certain way, does not establish that these States feel obliged to do so. Same as the State practice, the presence of opinio juris must be established on a case to case basis. This is done by the ICJ: as will be seen later in the Arrest Warrant case, the ICJ can acknowledge the fact that there is customary international law, but this is not the same as making law: even the ICJ cannot make customary international law. 62 Dixon 2013, p Cabranes 2011, p Dixon 2013, pp. 32, (ICJ) The Case of the S.S. "Lotus" (France v. Turkey), Judgment of 7 September Dixon 2013, p (ICJ) North Sea Continental Shelf (Federal Republic of Germany v. Denmark, joined with Federal Republic of Germany/Netherlands), Judgment of 26 April Dixon 2013, pp. 36,

24 Norms regarding head of State immunity are dominantly found within customary international law, completely risen from State practice and opinio juris 69. State leaders are treated as they wished to be treated themselves. In addition, there is a feeling of necessity to treat these leaders this way since this head of State immunity, as described before, smoothens the international cooperation between States. Immunity of diplomats and other representatives is codified in treaties. Head of State immunity is somewhat derived from these forms of immunity. The ICJ even states that the Vienna Convention on Diplomatic Relations of 18 April 1961 is a reflection of customary international law on head of State immunity 70. Customary law on head of State immunity regulates the interstate relations, therefore focusing only on the immunity before foreign courts, since it is always allowed for the home State to prosecute their own leader. Before these foreign courts, immunity ratione personae is rigidly upheld, as can be drawn from the DRC v Belgium case: there is only one circumstance that would allow for a foreign court to be allowed to prosecute an incumbent State leader of a different State, and that is when the home State of this leader waives the immunity of their leader. Under no other circumstances than these is a foreign court allowed to prosecute a sitting head of State. This includes issuing the warrant for its arrest. In the case of the DRC v Belgium, this strict application of this form of immunity can be deducted. In addition, the ICJ goes as far as enlarging the scope of immunity to the extent where it includes the Minister of Foreign Affairs. After a small discussion of the facts of the case and the judgment, an analysis of this judgment will be given, as well as the legal implications it entails Facts and judgment On 11 April 2000 an investigating judge of the Brussels Tribunal de Première Instance issued an international arrest warrant in absentia for Abdulaye Yerodia Ndombasi, the then serving Minister of Foreign Affairs of the DRC. This warrant was circulated by Interpol to all States, including to the DRC. The DRC disagreed to the legality of this warrant since it claimed it to be a violation of the immunity that the Minister of Foreign Affairs enjoys and say the issuing of the warrant as a breach of rights of the State. The DRC therefore asked the Court whether or not Belgium violated customary international law 69 Watts 1994, pp. 36, (ICJ)The Arrest Warrant of 2000 (DRC/Belgium) Judgment of 14 February 2002, para