[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.]
Part III of this series touched upon the concept of immunities. This post expands on that issue and explains why personal immunities enjoyed by sitting heads of State, heads of government, and ministers for foreign affairs (“the troika”) before foreign domestic criminal courts and tribunals do not represent a bar to their prosecution for crimes under international law before international criminal courts and tribunals, including the proposed Special Tribunal for the Crime of Aggression (“STCoA”).
1. Personal Immunities Do Not Apply Before International Criminal Courts and Tribunals under Customary International Law
The Distinction between National and International Criminal Courts and Tribunals
The International Court of Justice (“ICJ”) is clear that personal immunities do not bar prosecution before certain international courts and tribunals. In its 2002 Yerodia Judgment, the ICJ created a distinction in the enforcement of crimes under customary international law before foreign domestic courts and before international courts and tribunals. It established that a sitting head of state, head of government, or (by analogy) a minister for foreign affairs enjoys personal immunities from jurisdiction before foreign domestic courts (para. 51). Yet, it found that no such immunities apply before international criminal courts and tribunals (para. 61). While the notion of personal immunities before foreign domestic courts remains somewhat controversial (see, e.g., Yerodia, separate and dissenting opinions), the distinction informs the current status of international law. As long as the individual remains in office, only an international criminal court or tribunal may prosecute a head of state, head of government, or minister for foreign affairs for crimes under customary international law. Accountability of an incumbent head of state, head of government, or minister for foreign affairs before foreign domestic courts must wait (unless their personal immunity is waved by their own government) until their term in office ends.
Judicial Rulings Confirm that Personal Immunities Do Not Apply before International Courts and Tribunals
International courts and tribunals have repeatedly recognized that personal immunities do not apply before international criminal courts and tribunals prosecuting crimes under customary international law.
Significantly, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) confirmed the indictment against former President Slobodan Milošević of the Federal Republic of Yugoslavia and transmitted his arrest warrant to all U.N. Member States at a time when Milošević was still a sitting head of state (Decision on Review of the Indictment and Application for Consequential Orders, ICTY, May 24, 1999).
That personal immunities do not attach before an international criminal court or tribunal was then confirmed by the ICJ in its Yerodia Judgment. The Yerodia case concerned a Congolese foreign minister facing an arrest warrant issued by a Belgian court for crimes under international law allegedly committed before his tenure as foreign minister. The ICJ held that the foreign minister enjoyed immunity before the Belgian court. In reaching the ruling, the ICJ differentiated between foreign domestic courts and “certain international criminal courts” before which such immunity for heads of state, heads of government, and ministers for foreign affairs would not attach.
Specifically, the ICJ explained:
an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VI1 of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome [Treaty]. (para. 61, emphasis added.)
Importantly, the ICTY, International Criminal Tribunal for Rwanda, and International Criminal Court (“ICC”) were only given as examples to illustrate the point. The ICJ did not preclude other tribunals from also constituting international criminal courts or tribunals before which personal immunities would not attach.
Applying Yerodia, the Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) ruled in its Decision on Immunity from Jurisdiction, Prosecutor v. Taylor, that no such immunities attach for a head of state before an internationally established court such as the SCSL. The case involved the challenge by Charles Taylor (the Head of State of Liberia at the time) to an SCSL indictment for crimes under international law committed in Sierra Leone. The SCSL later tried Taylor after he left office, but the challenge pertained to whether immunities would preclude his indictment while a sitting head of state.
Specifically, the Appeals Chamber concluded that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” (para 52). This result attaches because of
the principle that one sovereign state does not adjudicate on the conduct of another state; the principle of state immunity derives from the equality of sovereign states and therefore has no relevance to international criminal tribunals which are not organs of a state but derive their mandate from the international community. (para. 51).
As to why the SCSL constituted an international tribunal, the Appeals Chamber noted the SCSL’s establishment by bilateral treaty, initiated by a resolution issued by the U.N. Security Council (UNSCR 1315), although the SCSL observed that the Security Council was not acting under its Chapter VII powers (para. 38). The Appeals Chamber also noted that under Article 24(1) of the U.N. Charter, “in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the United Nations.” Thus, the bilateral agreement between the U.N. and Sierra Leone was “an agreement between all members of the United Nations and Sierra Leone,” which made it “an expression of the will of the international community” as a whole (para. 38), and therefore the court was “truly international.” (para. 38). In reaching its conclusion, the Appeals Chamber clarified that “the Special Court is not a national court of Sierra Leone and is not part of the judicial system of Sierra Leone exercising judicial powers of Sierra Leone.” (para. 40.)
Most recently, in the May 2019 Judgment in the Jordan Referral re Al-Bashir Appeal, the ICC’s Appeals Chamber considered Jordan’s failure to arrest then Sudanese President Al-Bashir (against whom warrants had been issued for crimes under international law), when he traveled to the territory of Jordan. In holding that Jordan was under an obligation to arrest Al-Bashir, the Appeals Chamber unanimously ruled: “There is neither State practice nor opinio juristhat would support the existence of Head of State immunity under customary international law vis-à-vis an international court. To the contrary, such immunity has never been recognised in international law as a bar to the jurisdiction of an international court” (para. 1, emphasis added). Accordingly, the Appeals Chamber ruled that the Pre-Trial Chamber did not err when it concluded that “there was no Head of State immunity that would have prevented Jordan from executing the [ICC] warrant for the arrest and surrender” of Al-Bashir (para. 162).
Significantly, the Appeals Chamber confirmed that Article 27(2) of the Rome Statute reflects customary international law (para. 103). That article provides that “[i]mmunities … 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.”
It is worthy of note that during the proceedings, the African Union had not contested the customary nature of Article 27, but only its applicability on the horizontal level between state parties and non-state parties to the Rome Statute. As regards the position vis-à-vis international courts, the African Union had explicitly recognized the non-applicability of personal immunities of sitting heads of states before the ICC. It confirmed that Article 27(2) “concerns the exercise of jurisdiction by the Court over a person” and “excludes the operation of immunity before the International Criminal Court” (Submission of the African Union, para. 14). Most importantly, this assessment was not based on the Security Council’s referral of the situation; the African Union expressly stated its view that Security Council Resolution 1593 “did not have the effect of removing, whether directly or indirectly, the immunities of President Al Bashir” (id., para. 10).
While there remains some controversy among international legal scholars about the ICC Appeal Chamber’s legal reasoning (for a comprehensive overview see Kress, Commentary on Article 98, paras 90 et seq.), international case law clearly confirms that there is no personal immunity for heads of state, heads of government, and ministers of foreign affairs before an international criminal court or tribunal in proceedings for crimes under customary international law.
2. What Makes an International Court or Tribunal Prosecuting Crimes under Customary International Law an “International” One?
To qualify as a international criminal court or tribunal, a court must fulfill two conditions: (1) it must be established under international law, and (2) it must sufficiently reflect the will of the international community as a whole to enforce crimes under customary international law.
Establishment under International Law
There are two ways of establishing an international criminal court or tribunal under international law: (1) it can be created directly on the basis of a source of international law, or (2) it can be created on the basis of authority derived from a source of international law.
(1) International criminal courts and tribunals can and have been established through international treaties. These treaties may take the form of a multilateral treaty between States, such as the ICC. Alternatively, they may take the form of a bilateral treaty between a State and an international organization, the U.N. for instance, such as with the SCSL.
In the last two decades, international criminal law has also been enforced through “hybrid tribunals.” Internationalized or hybrid courts can offer a broad level of flexibility regarding applicable law, composition of staff, or financialcontributions. However, the establishment of a tribunal as such cannot be “hybrid”; a hybrid tribunal is either established under international law or under domestic law.
Against this background, among frequently cited examples of contemporary internationalized or hybrid courts and tribunals, only the SCSL meets the criteria of a hybrid or internationalized court established by international treaty law. (Article 1 of the Agreement between the United Nations and the Government of Sierra Leone on the establishment of a SCSL clearly announces “[t]here is hereby established a Special Court for Sierra Leone ….”).
By contrast, the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) were established on the basis of a domestic law. The ECCC’s domestic status is recognized by the accompanying bilateral Agreement, which regulates “the cooperation between the United Nations and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible ….” (Art. 1 of the Agreement). A bilateral Accord foresees the establishment of Extraordinary African Chambers within the domestic judicial system of Senegal (Art. 1 of the Accord). Similarly, the Kosovo Specialist Chamber was established under domestic law, after an exchange of letters that may amount to an international treaty.
(2) International criminal courts and tribunals may also be established by authority derived from a treaty as a source of international law. For instance, this could be done through a decision of an organ of an international organization acting within the competencies given to that organ under the treaty establishing the organization. The most prominent examples of such an establishment are the creation by the U.N. Security Council of the ICTY (UNSCR 827) and the ICTR (UNSCR955). (The Special Tribunal for Lebanon (“STL”) (UNSCR 1757), created by the Security Council after the Lebanese Parliament failed to act, only prosecuted crimes under Lebanese law (STL Statute, Arts. 1-2)).
A Court or Tribunal that Sufficiently Reflects the Will of the International Community as a Whole
If incumbent members of the troika enjoy personal immunity before domestic courts but do not enjoy such immunity before international criminal courts or tribunals, the nature of an international criminal court or tribunal must be such that, through its establishment and its institutional design, it is sufficiently detached from national jurisdictions and sufficiently reflects the will of the international community to collectively enforce crimes under customary international law. (See the criteria of an “international criminal court with a credible universal orientation,” Kress, Commentary on Article 98, para. 123 et seq.)
This threshold question has come up regarding international criminal courts and tribunals established by a treaty between States. Could two States create an international criminal court or tribunal on the basis of a bilateral treaty and legitimately dispose of the principle that one sovereign cannot assert jurisdiction over another? What is the necessary number of States participating in a treaty to legitimately create a truly “international” criminal court or tribunal? What number of States Parties would a multilateral treaty need to have to be an expression of the will of the international community as a whole?
The Rome Statute is based on the understanding that there are no immunities applicable before international criminal courts and tribunals. True, Article 27(2) is a treaty provision, by which ratifying States might be considered to have lawfully waived the immunity of members of their national troika. But Article 27(2) is not only applicable to nationals of States Parties that have ratified or accepted the Rome Statute. It is applicable to all accused facing the Court, including nationals of third States (independent of how the jurisdiction of the ICC was triggered in accordance with Article 13). As confirmed by the ICC Appeals Chamber, it is a reflection of customary international law. (Judgment in the Jordan Referral, para. 103). The ICC, and, with it, Article 27, as a reflection of international customary law, became operative upon the deposit of the sixtieth instrument of ratification of the ICC Statute (Art. 126). The drafters of the Rome Statute—as well as the ICJ in its judgment the Yerodia case and the ICC in its Al-Bashir judgment—thus believed that a joint effort of 60 States to adjudicate crimes rooted in customary international law on the basis of a treaty open to universal accession was sufficient to establish a treaty-based international criminal court, which qualifies as a court that could legitimately apply the rule of the non-applicability of personal immunities.
Thus, a court with jurisdiction over crimes under customary international law based on a multilateral treaty open for universal accession with 60 ratifications qualifies as an international criminal court that sufficiently reflects the will of the international community as a whole. Therefore, it seems even more self-evident that an international criminal court or tribunal established by, or on the basis of, a treaty with the U.N., an international organization with 193 member states, qualifies as such. An international criminal court or tribunal established by or with the U.N. would reflect the will of the international community as a whole in the broadest possible way. This holds true for the creation of the ICTY and the ICTR by the Security Council, as a U.N. organ. This holds equally true for the creation of the SCSL through a bilateral treaty between the U.N. and Sierra Leone. Requested by the U.N. Security Council, the Secretary-General entered the bilateral treaty as a representative of the U.N., and as a representative of the international community as a whole.
But the U.N. Security Council is not the only U.N. organ that is competent to address matters of international peace and security. Under the U.N. Charter (Art. 11.1), the General Assembly may also do so. While the General Assembly, unlike the U.N. Security Council, can only make recommendations, this does not prevent it from recommending the establishment of an international criminal court or tribunal by way of a treaty concluded between one or more States and the U.N. (see also Johnson). Such a court or tribunal would not have mandatory enforcement powers over all States, as the General Assembly cannot delegate powers that it does not possess. (See also on the treaty-making capacity of international organizations: Preamble and Art. 6 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.) Therefore, States that do not become a party to the treaty are under no obligation to cooperate with the court or tribunal, including carrying out an arrest warrant. Yet, such a court or tribunal would be in a position to exercise criminal jurisdiction over individuals for crimes under customary international law.
An international criminal court or tribunal established upon recommendation of the General Assembly would be comparable to the establishment of the SCSL. In establishing the SCSL, the Security Council did not act under Chapter VII of the U.N. Charter, but requested the Secretary-General to negotiate an agreement with Sierra Leone despite the lack of a binding Chapter VII decision (UNSCR 1315). Accordingly, the SCSL was an international criminal court but it did not benefit from the Security Council’s mandatory enforcement powers over all U.N. Member States.
3. Why the STCoA Would be An “International” Criminal Tribunal Before Which Immunities Would Not Attach
As detailed in earlier posts, the proposed STCoA would be created: (1) after a request by the Government of Ukraine; (2) upon a resolution of the U.N. General Assembly; (3) which would request the Secretary-General of the U.N. to initiate negotiations between the Government of Ukraine and the U.N.; (4) with the STCoA ultimately created by a bilateral treaty concluded between the Government of Ukraine and the U.N.
There are several reasons why the resulting international criminal tribunal would constitute an “international” tribunal before which personal immunities would not apply.
First, the STCoA would be established under international law. A treaty between the U.N. and Ukraine would constitute a source of international law, just like the treaty between the U.N. and Sierra Leone.
Second, the STCoA would also meet the requirement that an international criminal court or tribunal must sufficiently reflect the will of the international community as a whole to enforce a crime under customary international law. (SeeReisinger Coracini on the customary law status of the crime of aggression.)
Establishment of the STCoA by a bilateral treaty between the Government of Ukraine and the U.N. upon a recommendation by the General Assembly would mean that the creation of the tribunal reflects the will of the U.N., which must be considered to constitute a sufficient expression of the will of the international community as a whole. The SCSL Appeals Chamber noted that the Security Council, in issuing its resolution which triggered the establishment of the SCSL, was acting within its competence under the U.N. Charter, specifically, it was acting on behalf of U.N. Member States. (SCSL Appeals Chamber, Charles Taylor case, para. 38). The General Assembly, in issuing a resolution recommending the establishment of the STCoA would similarly be acting through its powers under the U.N. Charter and acting on behalf of U.N. Member States. Indeed, a mandate by the General Assembly could be seen as even more representative of the will of the international community, as it consists of 193 member states, while the Security Council consists of only 15 U.N. Member States. Furthermore, due to the activation of the Uniting for Peace process by the Security Council related to Ukraine (UNSCR 2623), the U.N. General Assembly can be said to have a particular mandate to act in this situation, within its Charter powers, given the deadlock that exists within the Security Council due to Russia’s veto power. (See also Johnson; the Uniting for Peace process – established under General Assembly resolution 377(V)—may be triggered by decision of either the Security Council or General Assembly, and causes the General Assembly to hold a special emergency session on the topic at issue.)
Thus, the proposed STCoA would clearly fit within the description of an “international criminal tribunal.” It would be a tribunal prosecuting a crime under customary international law, which (1) would be established by a bilateral treaty between the U.N. and Ukraine as a freestanding new tribunal, not a tribunal within the court structure of any one State; and (2) would be created upon the recommendation of the U.N. General Assembly which would sufficiently reflect the will of the international community as a whole. Accordingly, immunities that could otherwise attach regarding a head of state, head of government, or minister for foreign affairs, would not apply before the STCoA. As any international criminal court or tribunal, the STCoA would also need to adhere to internationally recognized fair trial right and due process protections.
The state of customary international law regarding personal immunities is considerably less clear regarding tribunals established with the involvement of an ad hoc group of States or a regional organization. This constitutes another reason why the best way to create a STCoA would be through a bilateral treaty between the U.N. and Ukraine, upon the recommendation of the U.N. General Assembly. Under the prevailing circumstances, establishing the tribunal in that way constitutes the most effective legal avenue to ensure that heads of state, heads of government, and ministers of foreign affairs would not enjoy personal immunities in the proceedings.