Abstract
Diplomatic immunity, as well as the immunity of individuals that either used to or still do hold an official capacity is a matter of great importance in the ICCRSt, addressed in Article 27 ICCRSt.
Article 27 ICCRSt consists of two paragraphs, each of which serves different aims, and is often misunderstood. The first paragraph of Article 27 ICCRSt originates from earlier legal texts, such as the Charter of the International Military Tribunal of Nuremberg, the International Military Tribunal for the Far East Charter, the Convention on the Prevention and Punishment of the Crime of Genocide and from the ICTY and ICTR Statutes. It stipulates that official capacity as a Head of State or Government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. On the other hand, the second paragraph of Article 27 ICCRSt constitutes and indirect but obvious waiver, of their states parties’ right to invoke the immunity of their Head of State before the ICC, pursuant to international customary law.
Additionally, and in a sense contrary to Article 27 ICCRSt, Article 98 ICCRSt with the lengthy title “Cooperation with respect to waiver of immunity and consent to surrender” stipulates in its first paragraph that the ICC “may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity”.
The present chapter through an intriguing analysis of the interrelation between Articles 27 and 98 ICCRSt, as well as the Chad, Malawi, Jordan and Belarus cases advances the necessity of a calm and lege artis analysis of immunity in international criminal law.
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Notes
- 1.
Article 27 - Irrelevance of official capacity: 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
- 2.
Article 7: The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) < https://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3ae6b39614 > (last accessed 8 January 2019).
- 3.
Article 6 - Responsibility of accused: Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires. International Military Tribunal for the Far East Charter (IMTFE Charter) < http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf > (last accessed 8 January 2019).
- 4.
Article 7 - Individual criminal responsibility: [...]2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, as amended by Resolution 1877/7-07-2009 < https://www.un.org/ruleoflaw/blog/document/updated-statute-of-the-international-criminal-tribunal-for-the-former-yugoslavia/ > (last accessed 8 January 2019).
- 5.
Article 6 of the ICTR Statute is identical to Article 7 of the ICTY Statute.
- 6.
Claus Kreβ and Kiberly Prost, “Article 98” in Triffterer, Commentary 1604.
- 7.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (OUP 2010) 1037.
- 8.
Warrant of Arrest for Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-1) 04 March 2009, Pre-Trial Chamber I < https://www.icc-cpi.int/CourtRecords/CR2009_01514.PDF > (last accessed 8 January 2019).
- 9.
Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Chad to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 13 December 2011 < https://www.icc-cpi.int/CourtRecords/CR2012_04203.PDF > (last accessed 8 January 2019).
- 10.
Decision Pursuant to the Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011 < https://www.legal-tools.org/doc/476812/pdf/ > (last accessed 8 January 2018).
- 11.
UNSC Resolution 1593 (31 March 2005) UNSC Doc. SC/RES/1593 < https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf > (last accessed 8 January 2019).
- 12.
ibid.
- 13.
African Union, Peace & Security Council Communiqué, PSC/Min/Comm. (CXLII) para 7 < http://www.iccnow.org/documents/AU_142-communique-eng.pdf > (last accessed 8 January 2019).
- 14.
ibid.
- 15.
In Resolution 1828 (2008), the UNSC appears to at least take into consideration the existence of this particular request by the African Union, formally including it in the text of its Resolution and expressing its intention to “consider these matters further”. UNSC Resolution 1828 (31 July 2008) UNSC Doc. SC/RES/1828 < https://www.legal-tools.org/doc/cf90b5/pdf/ > (last accessed 8 January 2019).
- 16.
African Union, Peace & Security Council Communiqué, PSC/Min/Comm. (CXLII) para 7 < http://www.iccnow.org/documents/AU_142-communique-eng.pdf > (last accessed 8 January 2019), 175, para 11.
- 17.
Article 16 - Deferral of investigation or prosecution: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
- 18.
Emphasis added. Situation in Darfur, Sudan, In the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Public Redacted Version, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3 4 March 2009, para 41 < https://www.icc-cpi.int/CourtRecords/CR2009_01517.PDF > (last accessed 8 January 2019).
- 19.
Request to All States Parties to the Rome Statute for the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, Situation in Darfur (ICC-02/05-01/09-7 1/6 EO PT), Registry, 6 March 2009.
- 20.
Supplementary Request to All States Parties to the Rome Statute for the Arrest and Surrender of Omar Ηassan Ahmad Al Bashir, Situation in Darfur (ICC-02/05-01/09-96 1/6 RH PT) Registry 12 July 2010.
- 21.
Decision on the Meeting οf African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc. Assembly/AU/13(XIII), Assembly/AU/Dec.245(XIII), Rev.1 < https://au.int/sites/default/files/decisions/9560-assembly_en_1_3_july_2009_auc_thirteenth_ordinary_session_decisions_declarations_message_congratulations_motion_0.pdf > (last accessed 8 January 2019).
- 22.
ibid para 2.
- 23.
ibid para 3.
- 24.
ibid para 10.
- 25.
The Decision does not mention this summit at all. Instead in para 3: “The Registry informed the Chamber in its ‘Report on the second visit of Omar Al Bashir to Chad’ dated 9 August 2011 (‘First Report of the Registry’) that, according to media reports, Omar Al Bashir had visited the Republic of Chad on 7 and 8 August 2011 for the purposes of attending the inauguration ceremony of Chad’s Head of State, Idriss Deby Itno.” < https://www.icc-cpi.int/CourtRecords/CR2012_04203.PDF > (last accessed 8 January 2019).
- 26.
Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09-139-Corr) (Pre-Trial Chamber) ICC, 15 December 2011, para 10.
- 27.
Section V. Cooperation under article 98, Rule 195 – Provision of Information
1. When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court.
- 28.
A term through which the author attempts to imply all the recognised States in the world, and not simply the seven to ten states implied by the common but “misty” term “international community”.
- 29.
Decision Pursuant to the Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011 < https://www.legal-tools.org/doc/476812/pdf/ > (last accessed 8 January 2018), para 8.
- 30.
ibid para 14. Admittedly, the two arguments presented are so closely linked that one could reasonably argue that they are actually one.
- 31.
ICC, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para 41 < https://www.icc-cpi.int/pages/record.aspx?uri=639096 > (last accessed 8 January 2019); Decision Pursuant to the Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011, para 14 < https://www.legal-tools.org/doc/476812/pdf/ > (last accessed 8 January 2018).
- 32.
Decision Pursuant to the Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011, para 18 < https://www.legal-tools.org/doc/476812/pdf/ > (last accessed 8 January 2018).
- 33.
ICC, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para 42 < https://www.icc-cpi.int/pages/record.aspx?uri=639096 > (last accessed 8 January 2019).
- 34.
ibid para 43.
- 35.
Article 21 - Applicable law: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as interpreted in its previous decisions.
3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
- 36.
ICC, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009, para 44 < https://www.icc-cpi.int/pages/record.aspx?uri=639096 > (last accessed 8 January 2019).
- 37.
ibid.
- 38.
ibid para 45; Decision on Application under Rule 103 (ICC-01/05-185) para 31.
- 39.
The Prosecutor v. Taylor (SCSL-03-01-I-059) (Appeals Chamber), Decision on Immunity from Jurisdiction, Special Court for Sierra Leone, 31 May 2004 < http://www.worldcourts.com/scsl/eng/decisions/2004.05.31_Prosecutor_v_Taylor.pdf > (last accessed 8 January 2019).
- 40.
ICTY, The Prosecutor v. Slobodan Milosevic, Decision on Preliminary Motions, 8 November 2001 para 26-34 < http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/1110873516829.htm > (last accessed 8 January 2019).
- 41.
Contra Dire Tilde, “The ICC Decisions on Chad and Malawi: On Cooperation, Immunities, and Article 98” (2013) JICJ 11 199, 208, where she points out that “In particular, in cases of Security Council referrals, the Security Council could decide that all states have an obligation to cooperate with the ICC in the arrest and surrender of suspects such that states would have the obligation to arrest and surrender heads of state notwithstanding the AU interpretation of Article 98(1).”
- 42.
Decision Pursuant to the Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011, para 23-35, 38 < https://www.legal-tools.org/doc/476812/pdf/ > (last accessed 8 January 2018).
- 43.
ICTY, The Prosecutor v. Slobodan Milosevic, Decision on Preliminary Motions, 8 November 2001, para 28 < http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/1110873516829.htm > (last accessed 8 January 2019); Τhe Prosecutor v. Anton Furundzija (IT-95-17/1-T) (Trial Chamber) (Judgment), ICTY, 10 December 1998, para 140.
- 44.
Decision Pursuant to the Article 87(7) on the Failure of the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmed Al-Bashir, Al-Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, 12 December 2011, para 39 < https://www.legal-tools.org/doc/476812/pdf/ > (last accessed 8 January 2018).
- 45.
ibid para 40.
- 46.
ibid para 41-46.
- 47.
ibid para 14.
- 48.
Case Concerning the Arrest Warrant of 11 April 2000 (DRC v. Belgium) Judgment 14 February 2002, ICJ Reports (2002) 3 para 48 < https://www.icj-cij.org/files/case-related/121/121-20020214-JUD-01-00-EN.pdf > (last accessed 9 January 2019).
- 49.
ICTY, The Prosecutor v. Slobodan Milosevic, Decision on Preliminary Motions, 8 November 2001, para 34 < http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/1110873516829.htm > (last accessed 8 January 2019).
- 50.
Τhe Prosecutor v. Anton Furundzija (IT-95-17/1-T) (Trial Chamber) (Judgment), ICTY, 10 December 1998.
- 51.
Taylor Case, Decision on Immunity from Jurisdiction, para 140.
- 52.
Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender or Omar Al-Bashir, ICC-02/05-01/09-309, 11 December 2017 < https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-309&ln=fr >, (last accessed 8 March 2019).
- 53.
ibid para 5, p. 4.
- 54.
ibid para 7, pp. 4-5.
- 55.
ibid.
- 56.
ibid para 16, p. 7.
- 57.
ibid para 39, p. 15.
- 58.
Ibid.
- 59.
Request to the Republic of Belarus for Cooperation in the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09, 4 December 2018 <https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-395 >, (last accessed 8 March 2019).
- 60.
Article 32 - Supplementary means of interpretation: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.
- 61.
Article 31 - General rule of interpretation:
-
1.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
-
2.
The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
-
3.
There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties.
-
4.
A special meaning shall be given to a term if it is established that the parties so intended.
-
1.
- 62.
The Prosecutor v. Joseph Kony and Vincent Otti (ICC-02/04-01/05) < https://www.icc-cpi.int/uganda/kony > (last accessed 9 January 2019).
- 63.
The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute (ICC-01/04-01/06-2842) 05 April 2012, Trial Chamber I < https://www.icc-cpi.int/pages/record.aspx?uri=1379838 > (last accessed 9 January 2019).
- 64.
The Prosecutor v. Bosco Ntaganda (ICC-01/04-02/06) < https://www.icc-cpi.int/drc/ntaganda > (last accessed 9 January 2019).
- 65.
Article 31 of the Vienna Convention.
- 66.
D. Akande, “International Law Immunities and the International Criminal Court” (2004) 98 AJIL 407.
- 67.
ibid 424.
- 68.
ibid 425.
- 69.
Article 13 - Exercise of jurisdiction: The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
- 70.
D. Akande, “The Legal Nature of the Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities” (2009) 7 JICJ 333, 340-342.
- 71.
Dire Tladi, “The ICC Decisions on Chad and Malawi On Cooperation, Immunities, and Article 98” (2013) 11 JICJ 199, 212.
- 72.
ICC, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, 4 March 2009 < https://www.icc-cpi.int/pages/record.aspx?uri=639096 > (last accessed 8 January 2019).
- 73.
ibid para 51.
- 74.
ibid para 53.
- 75.
ibid para 54-55.
- 76.
ibid para 56.
- 77.
ibid.
- 78.
ibid para 58.
- 79.
Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Judgment 4 June 2008, ICJ Reports of Judgements, Advisory Opinions and orders (2008) para 174 < https://www.icj-cij.org/files/case-related/136/136-20080604-JUD-01-00-EN.pdf > (last accessed 9 January 2019).
- 80.
ibid.
- 81.
Separate Οpinion of Judge ad hoc Yusouf < https://www.icj-cij.org/files/case-related/136/136-20080604-JUD-01-09-EN.pdf > (last accessed 9 January 2019).
- 82.
ibid para 37.
- 83.
ibid.
- 84.
Dissenting Opinion of Judge Van den Wyngaert, para 15 < https://www.icj-cij.org/files/case-related/121/121-20020214-JUD-01-09-EN.pdf > (last accessed 9 January 2019).
- 85.
I. Brownlie, Principles of Public International Law (OUP 2003) 323.
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Tsilonis, V. (2019). Immunities Under Art. 27 ICCRSt and the ICC’s Jurisdiction. In: The Jurisdiction of the International Criminal Court. Springer, Cham. https://doi.org/10.1007/978-3-030-21526-2_7
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