With the issuance of the arrest warrant for the acting head of state of the Russian Federation, the issue of immunity before the International Criminal Court (referred to as “the ICC“) has come back into discussion. Whether or not Heads of State may bank on immunity under customary international law vis-à-vis an international court will determine whether or not immunities prevent the ICC from prosecuting the current Head of State who has not signed the Statute. If the response to the question were “no,” it would suggest that there is no barrier to the prosecution of nationals of both member and non-member States of the Statute under Article 27(2). A second interesting query is if the lack of immunity from the jurisdiction of the International Criminal Court (ICC) also has a horizontal impact, – i.e., between the State that arrests an accused person in order to bring them to the ICC and the State of the accused person’s nationality. Through this article, the author attempts to draw conclusions regarding the necessity to detain the President of the Russian Federation in order to prosecute him at the ICC from the current international judicial practice.
IMMUNITY UNDER CUSTOMARY INTERNATIONAL LAW
There exist two kinds of immunities from the jurisdiction of the courts of other States that are recognized by international law for heads of state. Moreover, according to the principle of ratione personae immunity, Heads of State are impregnable against foreign courts if they are in office. This would be regardless of whether the crimes they undertook were carried out in an official or individual capacity, whether they were undertaken before they joined the office or while they were there, according to the International Court of Justice (the “ICJ”) in the case of DRC v. Belgium. Furthermore, in the same case the ICJ highlighted the idea of ratione materiae immunity, i.e. when heads of state leave their positions they are not subject to prosecution before the courts of other States for actions they committed while carrying out their duties. Any purported “official function” exception, it could be argued, cannot safeguard against international crimes because many of these crimes have an underlying characteristic of State policy, and if immunity were to apply to them as being of public nature, their purpose would be rendered meaningless. Nonetheless, the ICJ asserts that immunity does not prevent the prosecution of a current or former official who is subject to an international criminal court’s jurisdiction.
In relation to Al-Bashir, who was the head of state at the time, the ICC had to address the issue of immunity on multiple occasions, and the Court’s strategy evolved over the years. For instance, in 2011, it was determined that the Republic of Malawi had disobeyed the Court by refusing to turn over Al-Bashir. In this case, the Court stated: “The norm of international law is that immunity of either previous or sitting Heads of State cannot be invoked to resist an international court’s prosecution.” The international community’s resolve to deny immunity in situations where international tribunals pursue arrest for international crimes has attained a saturation point. In contrast, in the South African Decision, the Pre-Trial Chamber II gave the responsibility under UN Security Council Resolution 1593 more weight than it did to customary international law. It was asserted that Sudan possessed rights and obligations comparable to those of States Parties to the Statute as a result of the UN Security Council’s referral, which had the effect of lifting the immunity. In 2019, both the Pre-Trial Chamber and the Appeals Chamber concluded that Jordan had broken its duty to cooperate with the Court by neglecting to detain and turn over Al-Bashir, however, their respective justifications for their conclusions were different. The Pre-Trial Chamber’s judgement was heavily influenced by the UN Security Council Resolution because Sudan is not a State party to the Statute. While, the Appeals Chamber made it clear that Al-Bashir did not, in any case, have immunity from prosecution at the ICC under customary international law. Instead of attempting to create an exemption to the Head of State immunity, which only applies in relationships between States, it deftly shifted the burden of proof from Jordan to establish the presence of the rule on immunities.
The Appeals Court further determined that counting on any immunity before the ICC, which includes issues of cooperation, is prohibited under Article 27(2) as a matter of customary law. It would seem that all 123 States parties to the Rome Statute would be required to work with the ICC and collaborate in the arrest and transfer of Russian President Vladimir Putin if he happens to be on their territory in light of the ICC Appeals Chamber’s most recent strategy. However, the Statute does not impose any obligations on non-State parties to work with the Court. The ICC may call upon non-State parties to help on an as-needed basis in accordance with Article 87(5) of the Statute, but doing so is not obligatory.
EXTRADITION UNDER THE GENEVA CONVENTIONS
According to Article 146 of the Fourth Geneva Convention (GCIV), every State is obligated to pursue those who are allegedly responsible for serious violations of the GCIV. The language of the clause makes it plain that by extraditing the guilty; States may be released from their duty to bring domestic legal action. From one perspective, the duty of national prosecution would not begin until personal privileges present a legal barrier to prosecution. In the case of DRC v Belgium, it was held that any procedural barrier to prosecution in no way invalidates a person’s personal criminal culpability; criminal liability is a matter of substantive law, whereas jurisdictional immunity is of a procedural nature. Jurisdictional immunity may prevent trial for a specific length of time or for a specific offence, but it cannot absolve the individual from all criminal culpability. Thus, there is no rational explanation for why a State ought not to be obligated to do so when it can absolve itself of its obligation to punish severe violations by submitting an accused to the ICC in response to the Court’s request. Like the previous example, a State would unquestionably have a duty to turn over an accused if its national State, to whom immunity does not apply, wishes to bring charges or if it has renounced immunity.
Immunities would not be granted where non-State parties to the Statute choose to work with the ICC rather than bring their own cases. If the states mentioned above would not be in violation of their international obligations concerning immunities, then the same rationale would apply to any other State that might detain a criminal in order to send them to the ICC when they are acting at the latter’s request. As the concerned States would not be employing their own criminal jurisdiction or bringing the accused before their own domestic courts, the maxim par in parem non habet imperium would not be violated in such a situation. Additionally, the ICC can only act in accordance with the complementarity principle, which means that the accused was not subject to criminal prosecution by the domestic authorities because they were unwilling to do so. As a result, when a State carries out an ICC arrest order, it is only acting as the ICC’s “substitute” and upholding jus puniendi on behalf of the global community.
(This post has been authored by Shirin Suri, a second-year student at National Law Institute University, Bhopal.)
Cite as: Shirin Suri, ‘The ICC and the Obligation to Arrest an In-Office Head of State’ (The Contemporary Law Forum, 10 April 2023) <https://tclf.in/2023/04/10/the-icc-and-the-obligation-to-arrest-an-in-office-head-of-state/> date of access.