In these recent days, violent fights and bloody attempts to tame down rebellions in Northern Africa have become the breaking news of all the newspapers. The Western Powers seem more and more leaning towards an intervention in these countries in order to prevent wicked and violent reactions from the contested regimes: an intervention in Libya, where the contestations are sweeping around the country and the Gadhafi power seems less inclined to give in, has been envisaged by both the US and the EU. However, several concerns about the legality of this international intrusion have been evoked recently.
As Lord Millett in Holland v. Lampen-Wolfe puts it “State immunity . . . is a creature of customary international law and derives from the equality of sovereign states”: this doctrine, nowadays wholly accepted as an international custom norm, finds it roots from the Roman maxim “par in parem non habet imperium” which means that the principles of equality, independence and dignity of states prevents one state from judging over the other.
However, this immunity can be considered in two different ways: immunity over the acts of a state, considered as a community, or immunity over the acts of a personality exercising sovereign powers. In both cases, it is important to remember that, as Hazel Fox QC states[1], “State immunity is a procedural rule going to the jurisdiction of a national court. … it merely diverts any breach of it to a different method of settlement”. This means that a distinction concerning the immunity from jurisdiction, which is a procedural rule, has to be made from impunity in respect of any crimes, which is a matter of substantial law.In this paper, I will focus on the issue of the immunity from jurisdiction of both a national court or an international tribunal of persons exercising sovereign powers and concerning core international crimes. Indeed, while the immunity doctrine dealing with state’s acts immunities in general or mere civil matters follows the doctrine of relative immunity, which is now enshrined in both the 1972 European Convention on State Immunity and the 2004 UN Convention on Jurisdiction and Immunity of States and their Property, the Immunity of High ranking officials from international core crimes is still under debate and needs to be analyzed in more depth.
As a logical consequence of what I’ve already said, state immunities extends to the high ranking officials of that state, for “the foreign states’ right to immunity cannot be circumvented by suing its servants or agents”[2]. Furthermore, this immunity can be broken down into two different aspects:
- The immunity ratione personae, which prevents a person from being sued in a national or international tribunal because of the mere fact of exercising a sovereign function of a state. This complete immunity aims at preventing any external interference from hindering the performance of his/her duties and usually covers both civil and criminal acts.
- The immunity ratione materiae, on the other hand, covers the acts of an high ranking official with the exception of acts of “private capacity”. The justification is that, in merely complying with the state’s will, the person cannot be held liable for these acts. This type of immunity of course extends beyond the end of the official’s mandate.
Moreover, the doctrine of state immunity shouldn’t be confused with those of “act of state” or “non-justiciability” which can be found in the UK and US domestic jurisprudence. According to the former, a national court will not question a legislative or any other act of a foreign state with effects in that state’s territory, while the latter one deals with the restraint of those courts from adjudicating upon the transactions of foreign states.
All in all, the main question which I would like to tackle in this paper is to what extent state immunity can be opposed in a judgment concerning core international crimes. I will try to give an answer by dealing first of all with national courts and the restrictions which are imposed on their jurisdiction and secondly with the different international tribunal, which, for the first time, have extensive jurisdiction over international core crimes.
I. National courts and the State’s immunity exception
Thanks to either the development of the international community relations which has brought before national courts cases relating to other states or thanks to the implementation by several state of the doctrine of universal jurisdiction, national courts have had to deal more and more with cases in which the adjudication of the outcome depended on the maintenance or the withdrawal of a foreign state’s immunity.
a. Ratione personae: the problem of incumbent Heads of State’s responsibility
The first and foremost obstacle for the exercise of jurisdiction is the problem of immunity ratione personae or the impossibility of impleading an incumbent Head of State/Minister of Foreign Affairs because of its mandate. According to the House of Lord in the Pinochet part.3 case, “This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae”[3].
Peculiar cases are those of Al-Adsani and of Congo v Belgium. Despite leading to the same outcome, these cases are quite different one from the other. A neat distinction has to be made from civil liability (Al-Adsani case) and criminal liability (Congo v Belgium case).
As regards the first case, a Kuwaiti national complained before an UK court that he had been subject of several tortures by the Sheikh of the Emir of Kuwait and by other state security guards. The applicant decided to bring civil proceedings in the English High Court for damages against the Sheik and the Government of Kuwait. In spite of the default judgment against the Sheikh, the ECHR didn’t accept his claims of denial of justice from the UK court, which had opposed the state immunity, putting forward these justifications. In its judgment, the Court found that the state immunity doctrine constituted a legitimate and proportionate limitation of the right of a fair trial. Nevertheless the most interesting argument arises from the ius cogens nature of the prohibition of torture.
In this case, we can see how the customary rule of state immunity conflicts with that of the prohibition of torture. Despite recognizing the importance of the Furundzija case and the Pinochet one, the Court cannot upheld the plaintiff’s argument dealing with the overriding legal force of the torture prohibition over every type of customary rule, such as that of state immunity: incapable of finding adequate state practice consistent with the waiving of immunity and despite the sympathy that some national courts had shown for this argument, the Court concludes that “neither of these developments provides it with a firm basis on which to conclude that the immunity of states ratione personae is no longer enjoyed in respect of civil liability for claims of acts of torture”[4].
Same outcome in the second case: given the Belgian universal jurisdiction, a case is brought before the ICJ because of the issue of an arrest warrant by the Belgian authorities against the then-incumbent Minister of Foreign Affairs M.Yerodia for alleged breaches of the 1949 Geneva conventions and crimes against humanity. After having assessed the equivalence in right of immunity between an incumbent Head of State and an incumbent Minister of Foreign Affairs, the Court states that “ it has been unable to deduce from this practice 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”[5].
Is there as a consequence some sort of impunity for those crimes? The Court is keen on explaining the difference between state immunity, which regards only a procedural matter, and criminal responsibility, which is a matter of substantial law. Furthermore, it goes on to detail in which cases the immunities of an incumbent or former Minister of Foreign Affairs don’t hinder the criminal prosecution: first of all, there is no criminal immunity vis-à-vis the domestic jurisdiction of his own country and secondly, the State which he represent can at any time waive that immunity. The other two options will be dealt with later when we will be talking about international tribunals and the immunity ratione materiae.
All in all, there seems to be from the case law no exception to the rule of immunity ratione personae of high ranking officials as they cannot be held liable for any civil or criminal offence during their mandate.
However, a landmark decision of the International Criminal Tribunal for the Former Yugoslavia seems to have introduced a little exception, at least as far as the prohibition against torture is concerned. In the Furundzija case, the court recognized not only the erga omnes obligation of the prohibition but also its status of jus cogens, which puts it on the top of any international customary norm as “the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind”[6].
Furthermore, this supremacy of the torture prohibition reflects consequently on the criminal liability of the individual who committed the crime. The Court states in fact that “at the individual level … it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction”[7].
In conclusion, a feeble breach in the doctrine of state immunity ratione personae is progressively taking place as we see that both national courts and international tribunals start accepting several exceptions to the overall concept of immunity from jurisdiction.
b. Ratione materiae: is there a derogation for core international crimes?
The immunity of a high ranking official ratione materiae is quite different from the previous case since it can be extended even after the individual is no more in post. In the Pinochet case, the House of Lords explains that “in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. Accordingly under Article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official”[8].
More precisely, as the Court underlines in the Congo v Belgium case, there are a few exceptions to the immunity of a Head of State or high ranking official when he is no more in post. Namely, “in respect of acts committed prior or subsequent to his her period of office, as well as in respect of acts committed during that period of office in a private capacity”[9]. Here the ICJ, while saying that previous and subsequent acts are not more covered by the immunity after the person has finished his/her mandate, stresses that the only exception to the immunity concerning acts done in post is the acts of “private capacity” thus excluding any other type of core international crimes. As a consequence, no room for the punishment of torture or any other ius cogens norms seems to be left.
Nonetheless, the international community has proven capable of developing new and brilliant responses to that issue, one of the most important was the Pinochet case, dealt with by the House of Lords. Two main arguments are put forward by the court: according to the first one, no crime of torture could be considered as an act done in an official capacity on behalf of the state because “for international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal state and not to the individuals who ordered or perpetrated it is both unrealistic and offensive to common notions of justice”[10]. The second arguments explains that international law cannot prevent a head of state from being judged and at the same time condemn torture and require Member States to outlaw and ban it, for it would lead to a conflicting interpretation. As a consequence the Court states that “all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention.”[11]
An interesting opinion on this subject is given by the dissenting opinion of several judges in the Al-Adsani case: according to them, the resolution of the legal issue has to be dealt with according to a simple principle of hierarchy of norms. In fact, “by accepting that the rule on prohibition of torture is a rule of ius cogens, the majority recognize that it is hierarchically higher than any other rule of international law, be it general of particular, customary or conventional…”[12]. It follows that “the acceptance of the ius cogens nature of the prohibition of torture entails that a state allegedly violating it cannot invoke hierarchically lower rules (in this case, State immunity) to avoid the consequences of the illegality of its actions”[13] and that the illogic distinction between criminal proceedings, where the immunity doesn’t apply, and the civil ones, where the immunity is not overridden by the ius cogens norm, “is not consonant with the very essence of the operation of the ius cogens norm”[14].
In conclusion, while state immunity can be lawfully claimed for high ranking officials during their mandate (even though several exceptions are progressively being made by courts dealing with gross violation of human rights), immunity ratione materiae seems no more legally acceptable under an international point of view. Such type of acts, even if conducted while in post, cannot be claimed to be covered by immunity after the expiring of the mandate for they are not considered acts done in an official capacity and especially because such an immunity would conflict with a logic interpretation of the bulk of the international norms.
II. The special powers of international tribunals
Differing from the national courts, the international tribunals need to be dealt with more carefully.
As a matter of fact, these tribunals take their origins from the growing need, after the carnages of the World War I and II, to re-establish justice and confidence as far as the punishment of core international crimes is concerned.
Notably, after WWI, a primer of international individual responsibility is enshrined in art.227 of the Versailles treaty, establishing the personal responsibility of the German Keiser. However, it not until the Nuremberg tribunal that a real international court charged to punish the atrocities of the WWII was set up.
The punishment of these international crimes, namely genocide, crimes against peace, war crimes and crimes against humanity is by definition a matter of international concern and which, according to the UN General Assembly resolution n.96 (I), must be dealt with the international community co-operation.
a. The cutting-edge position of International Criminal Tribunals
However, it was only in 1991, following the terrible events in Yugoslavia and in Rwanda that a real international jurisdiction charged with the prosecution of these crimes were put in place by two different UN Security Council Resolutions, respectively n.827 and n.977 establishing the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
The main characteristic of these tribunals were the ability to put aside any kind of High ranking officials’ immunity and have jurisdiction on almost every case for which the Tribunal was established: more precisely, the principle of “superior responsibility” stated that “The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility… ”[15] and “The official position of the individual who commits a crime against the peace and security of mankind and particularly the fact that he acts as head of State or Government, does not relieve him of criminal responsibility”[16]. As a consequence, thanks to this explicit provision of the statute of these Tribunals, any immunity ratione personae or materiae could be opposed to the trial of whatsoever former or incumbent Head of State or Government.
As the International Court for Sierra Leone stresses in its judgment of Liberia President Charles Taylor, who had evoked the Lotus case in order to plead for his immunity, that “on a combined reading of Art.1 and art.6 of the Statute of the Special Court in which it is clear that the Court has competence to prosecute persons who bears the greatest responsibility for serious violation of international humanitarian law and Sierra Leonean Law (art.1) and the official position (including as Head of State) of such persons shall not relieve them of criminal responsibility nor mitigate the punishment (art.6.2)”[17].
Going even further, on July 17 1998 the Rome statute was signed constituting the International Criminal Court in the Hague: that international court, established by explicit agreement, constitutes a permanent jurisdiction with the aim of prosecuting every international crime which the court is competent with, even if the individual held responsible is an incumbent high ranking official. As art.27 of the Rome Statute claims “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.”
This article represent a landmark provision in international law as it provides the permanent court with the right of impleading over incumbent Head of State and putting an end to their immunity ratione personae. Thomas Lubanga, the first Head of State in post having received an arrest warrant in 2006 or Omar Al-Bashir, the first sitting Head of State ever indicted by the ICC and charged with genocide in 2010, are good examples of the special power of the ICC to override the customary principle of state immunity.
However, the ICC jurisdiction is limited on a territorial and personal basis: the Court can, consistently with art.11, exercise its jurisdiction only to crimes committed after the entry into force of the Statute (1st July 2002) and only if the crime is committed in a state party of the statute or by a national of a state party of the statute, art.12.2.
Moreover, the fact that the number of states parties of the Rome statute is increasing every year, reaching the number of 114 as of March 2011, can’t help but show how the legitimacy of the court is being progressively accepted by the international actors.
b. International community interests vs State’s prerogatives: which to hold sway?
Nonetheless, if the ICC represents on the one hand the most advanced attempt in International Law to create a universal jurisdiction capable of dealing with the most brutal and bloody crimes, it constitutes on the other hand one of the most striking examples of the interference of an international actor in the domestic field of sovereign states: being capable of indicting even the Head of State and of carrying out arrest warrant on an international scale, the ICC impinges onto one of the most sensible aspects of a state’s sovereignty, the territorial jurisdiction.
This constant fight against national states trying to retain competence on pure internal facts and on the other hand, international society dealing more and more with acts considered nowadays as of worldwide concern, can be easily observed when dealing with the negotiations and the ratification of the Rome statute.
First of all, differing from the ICTY or the ICTR, the ICC was not established by a UN Security council Resolution but with an international agreement, because the majority of the States didn’t agree on the setting up of such a unfettered tribunal without their explicit consent. As a consequence, the Rome statute took the form of an international agreement which would have entered into force only at the 60th ratification (which happened on July 1, 2002). Several countries, however, despite having signed the Statute, haven’t ratified it yet. The most remarkable exception is represented by the US.
Secondly, the ICC jurisdiction is concurrent with that of the Member States in so far as the ICC can deal with a case only if the State competent has not begun to try the suspect, it has already tried the person but the proceedings were not impartial or independent or if the state is unwilling or unable to conduct the case (art.17).
Thridly, national countries have been struggling to counteract the powers of the ICC by putting as many obstacles and by taking advantage of all the derogation the statute allows them. As regards the exceptions from jurisdiction, France and Colombia have been keen on accepting a reserve to the inquiry powers of the court allowed by art.124 which provides this countries with a limitation of its jurisdiction for war crimes committed for a period of seven years subsequent the entry into force of the treaty.
Furthermore, Israel, Sudan and the US have not only not yet ratified but expressly “unsigned” the Rome statute, indicating their willingness of not becoming party and as such, of not having any obligation whatsoever arising from their signature. Surprisingly, the US have tried also to exploit a loophole contained in art.98 which provides that the Court may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements, by concluding bilateral agreements with several countries providing that no US nationals will be transferred to the ICC in case of formal accusation.
All in all, the ICC extremely mighty means and powers with which it is endowed has inevitably to clash with the national states’ reluctance to lose ground as the delicate matters of territorial jurisdiction and of criminal offences are concerned. This can be easily understandable as the progress of international law doctrine and practice pleads for a progressively more restricted state immunity regarding both the state as a community or individuals serving it: the customary tradition of state immunity granted on state official ratione materiae or ratione personae have been tackled by the emergence both in domestic national courts and in international tribunal of the concept of international crimes having the rank of ius cogens and consequently overriding every other customary rule.
However, to what extent will the international community be capable of imposing that doctrine without triggering the resentment of the different national states?
[1] Hazel Fox QC “The Law of the State Immunity” (2004)
[3] R v Bow Street Magistrates Ex P Pinochet (2000), House of Lords
[5] Democratic Republic of Congo v Belgium (2002) par. 58
[6] Prosecutor v Furundzija (2002) par.147
[7] Ibidem par.156
[12] Dissenting opinion on the Al-Adsani v the UK ECHR (2001) par.1
[16] Ibidem art.13
Aucun commentaire:
Enregistrer un commentaire