LAW OF HEAD OF STATE IMMUNITY VIS A VIS THE PRINCIPLE OF INDIVIDUAL CRIMINAL LIABILITY
Keywords:
State immunity, criminal responsibility, law, tribunal, trials, war criminalsAbstract
Purpose: Evaluate the relevance of the Law of Head of State Immunity against the principle of individual criminal responsibility.
Methodology: This descriptive and analytical discourse made constructive usage of both primary and secondary data. Primary data entailed basic documents viz; Constitutions, statutes, treaties as well the relevant resolutions by the United Nation. Secondary data comprised majorly of publications by most highly qualified publicists in the nature of Journals and Articles
Results: In the light of the foregoing research, it is true to assert that the in as far as the ICC jurisdiction is concerned; there exists a conflict between the principle of individual immunity and that of executive immunity. This conflict is resolved by the operation of a jus cogens principle of ICR with the effect of nullifying a mere international customary rule of jurisdictional immunities. Further, a party to the Rome Statute is bound by its provision among which is article 25 and 27 of the former. Consent to be bound by article 25 and 27 of the Rome Statute is an equivalence of a waiver of such immunities.
Unique contribution to theory, practice and policy: The ultimate object to resolution of the conflict between the two doctrines is this. That the ‘most serious crimes of concern to the international community of states must not go unpunished.’ Further that the objects and purpose of international criminal justice not to be defeated. The Judgement of the International Military Tribunals, Trials of the Major War Criminals case held that sole rationale of international criminal law regime is to attribute criminal liability to individuals without exception to their official capacity and most importantly to defeat the defence of official capacity or act of state. The position is further buttressed by an internal provision of fundamental importance, article 143 (4) of the Constitution of Kenya. This expressly waives the principle of executive immunity attached to the president for crimes committed within the jurisdiction of the ICC. Thus if this object must be met, the principle of executive immunity must not bar the principle of individual criminal responsibility.
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References
The Prosecutor v. Duško Tadic, Case No.: IT-94-1-T, Trial Chamber II, 7 May 1997; see also Article 25 and 27 of the Rome Statute as well Article 27 of VCLT read together with Article 143 (4) of the Constitution of Kenya.
Malcom N Shaw, International Law, 6th edn, Cambridge University Press 2008 p 49. See also D. Lysons, Ethics and the Rule of Law, London, 1984; R. Dworkin, Taking Rights seriously, London 1977; H.L.A Hart, The Concept of Law, Oxford, 1961; P. Stein and J.Shand, Legal Values in Wersten Society, Edin Burgh, 1974, R. Dias, Jurisprudence, 5th edn, London, 1985.
The Speluncean Explorers (1949) in the Supreme Court of Newgarth, 430, per Foster J at Harvard Law Review
Vol. 62, No. 4, February 194, a model of which is that of R v Dudely Stephens 14 Queens Bench Division 273 (1884). See also A.W.B. Simpson, Cannibalism and the Common Law (1984).
See also M.D.A Freeman, LLyod’s Jurisprudence, 8th edn, Sweet & Maxwell, 2008 p 59.
Supra note 3.
The punishment of death by hanging the respondents.
Supra note 5 [Foster J].
Akande, international law immunities and the international criminal court, The American Journal of International Law, Vol. 98, No. 3 (Jul., 2004), pp. 407-433
Akande and Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, EJIL21 (2011), 815–852
Kiyani G, Al-Bashir & the ICC: The Problem of Head of State Immunity, Chinese Journal of International Law (2013) 12(3): 467-508.
Gevers C, Immunity and the Implementation Legislation in South Africa, Kenya and Uganda, Kai Ambos, Ottilia A. maunganidze , African Expert Study Group on International Criminal Law edns, Vol 24, Gottingen Studies in Criminal Law and Justice, Universitatseverlag Gottingen 2012.
Yang X, Immunity for International Crimes: A Reaffirmation of Traditional Doctrine, The Cambridge Law Journal, 61 [2002], pp 242-246
I.C.J. Reports 2002, p. 3
Dinstein Y, Diplomatic Immunity from Jurisdiction Ratione Materiae, The International and Comparative Law Quarterly, Vol. 15, No. 1 (Jan., 1966), pp. 76-89
Sliedregt E, The Curious Case of International Criminal Liability, J Int Criminal Justice (2012) 10 (5): 1171
The two characteristics include the intrinsic feature and the extrinsic feature of the doctrine of Individual Criminal Liability.
Pinochet No. 3 [2000] 1 A.C. 147.
See note 1 per Lord Wilkinson.
See also Orakhelashvili, Pre-emptory Norms in International Law (2000), at pp. 343.
H. Fox, ‘The Law of State Immunity’ 2nd edn 2008 at pp. 455-464.
See also the preamble of VCDR.
The Schooner Exchange v Mc Fadden 11 US 116 (1812) US Sup Ct per Marshall CJ.
Supra Note 2.
Supra note [Akande & Sangeeta]
Gaddafi case French Court of Cassation I.L.R., 490, 497 [2004].
Supra note 9.
New York Convention on Special Missions 1400 UNTS 231/9 ILM 127 (1970).
Article 21 (2) provides ‘2.The Head of the Government, the Minister for Foreign Affairs and other persons of high rank, when they take part in a special mission of the sending State, shall enjoy in the receiving State or in a
Third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law.’
Charter of the United Nations Article 2(4).
Charter of the United Nations Article 2(1).
Supra note 1 [Fox].
Military and Para-military Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14 at para 202.
Supra note 16.
Supra note 16.
Anthony Aust, ‘Handbook of International Law’ (2nd edn Cambridge 2010) at pp. 127.
note 1[Fox] at pp. 445.
For instance, The Constitution of Kenya Article 1 (2) states that ‘The people may exercise their sovereign power either directly or through their democratically elected representatives.’
VCDR preamble para 4.
Supra note 14 pp. 76-89.
Supra note 23.
Oppenheim, ‘International law, I,’ 1038 (Jennings and A. Watts eds.,9th ed.,1992).
Institut de Droit International, Resolution, ‘Immunities from Jurisdiction and Execution of Heads of State and Government in International Law,’ 69 AIDI 743, 753 (Vancouver, 2001) (Article 13(2))
Ex parte Pinochet Ugarte (No.3)(House of Lords), [1999] 2 ALL ER 97, 152
Supra note 25.
Jurisdictional immunity ratione personae applies to Heads of State though it has similar legal implications to that of diplomatic immunity ratione personae for diplomats.
Supra note 23 [Y Dinstein].
Concepción Escobar Hernández, Second report on the immunity of State officials from
foreign criminal jurisdiction, International Law Commission Sixty-fifth session Geneva, 6 May-7 June and 8 July-9 August 2013 at para 50.
Art. 20 of the Havana Convention (155 L.N.T.S. 269) and Art. 39 (2) of the Vienna Convention on Diplomatic Relations (Vienna Records, Vol. 2, p. 86). In the legal literature see American Draft, p. 354 (Art. 29); Hill, ‘Sanctions Constraining Diplomatic Representatives to Abide by the Local Law ‘ (1931) 25 A.J.I.L. 252-269 at 258; American Institute of International Law, Diplomatic Agents (1925), (1926) 20 American Journal of International Law, (A.J.I.L.) Supp. 350-355; Jones, " Termination of Diplomatic Immunity " (1948) 25 British Year Book of International Law 262-279 at 262-275.
The Supreme Court of Israel in Attorney General of Israel v. Eichmann 36 ILR 277, 308-09 (Sup. Ct. 1962)
asserted that;
‘The theory of "Act of State" means that the act performed by a person as an organ of the State-whether he was Head of the State or a responsible official acting on the Government's orders-must be regarded as an act of the State alone. It follows that only the latter bears responsibility therefor, and it also follows that another State has no right to punish the person who committed the act, save with the consent of the State whose mission he performed. Were it not so, the first State would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of States based on their sovereignty.’
Supra note [Yoram] at pp. 84
Article 39 (1) of the Vienna Conventions on Diplomatic Relations.
Article 39 (2) of the Vienna Conventions on Diplomatic Relations.
M.H. Mendelson, “The Formation of Customary International Law”, 272 Recueil des Cours (1998), 155, 188; See also K. Wolfke, “Some Persistent Controversies Regarding Customary International Law”, Netherlands Yearbook ofInternational Law, 24 (1993) 1, 15.
Asylum (Columbia. v Peru) 1950 I.C.J. 266, 277, defined a custom as ‘a constant and uniform practice accepted as law.’
Bodansky D, ‘Customary (And Not so Customary) International Environmental Law’ Indiana Journal of Global Legal Studies, Vol. 3, No. 1, Symposium: International Environmental Laws and Agencies: The Next Generation (Fall, 1995), pp. 105-119.
Supra note 62 [Bodansky] at pp. 109.
Military and Para-military Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14.
Wood M, First report on formation and evidence of customary international law, International Law Commission Sixty-fifth session Geneva, 6 May-7 June and 8 July-9 August 2013.
Supra note 1. see also Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, 3 February 2012, para. 73 provides that ‘for the purposes of the present case the most pertinent State practice is to be found in national judicial decisions.’
Supra note 29.
Supra note 32.
Supra note 13.
Supra note 13.
Hernández C, Second report on the immunity of State officials from foreign criminal jurisdiction, International Law Commission Sixty-fifth session Geneva, 6 May-7 June and 8 July-9 August 2013 at para 31.
Supra note 62[Bodansky] at pp. 108.
The North Sea Continental Shelf cases, ICJ Reports, 1969, pp. 3, 38, 130; 41 ILR, pp. 29, 67, 137; T. Stein, ‘The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law’, 26 Harvard International Law Journal, 1985, p. 457, and J. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’, 56 BYIL, 1985, p. 1. See also Malcom Shaw, ‘International Law’ 6th edn Cambridge University Press, 2008 at pp. 91.
Prosecutor. Blaskic No. IT-95-14-AR 108 bis (Oct. 29, 1997), 110 ILR6 09,707.
Judgement of the International Military Tribunals, Trials of the Major War Criminals, 1947, Official Documents, Vol 1, p 223.
Tadic at para 186.
Parks W, ‘Command Responsibility for War Crimes’ (1973) 62 Military Law Review at 1-5.
Article 1 of the Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907.
Available at http://www.icrc.org/ihl/INTRO/195?OpenDocument < accessed on the 20th May 2014 at 1230hrs>.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Also available at http://www.icrc.org/ihl/INTRO/470.
Supra note 5.
Lord Justice Lawrence speech at The Trials of The Major Criminals by the IMT on the 14th November 1945. Also recorded in American Journal of International Law, 43 (1949) pp. 223.
Article 7 of the Nuremberg Treaty.
United States v. Carl Krauch et al (The Farben Case), Trials of War Criminals, Vol. VIII, p. 1179.
Available at http://en.wikipedia.org/wiki/International_Military_Tribunal_for_the_Far_East.
Supra note 9.
International Military Tribunal for the Far East, judgment of 12 November 1948, in John Pritchard and Sonia M. Zaide (eds.), The Tokyo War Crimes Trial, Vol. 22
See note 87 above.
They Include, Againstaraki, Sadao; Dihihara, Kenji; Hashimoto, Kingoro; Hata, Shunroku;
Hiranuna, Kiichiro; Hirota, Koki; Hoshino, Naoki; Itagaki, Seishiro; Kaya, Okinori; Kido, Koichi; Kimura, Heitaro; Koiso, Kuniaki; Matsui, Iwane; Matsuoka, Yosuke; Minani, Jiro; Muto, Akire; Nagano, Osami; Oka, Takasumi; Okawa, Shumei; Oshima, Hiroshi; Sato, Kenryo; Shigemitsu, Mamoru; Shimade, Shigetaro; Shiratori, Toshio; Suzuki, Teiichi; Togo, Shigenori; Tojo, Hideki; Umezu, Yoshijiro.
Article 7 of the Tokyo Tribunal Charter.
Tadic at para 186 of the judgment of the case. See also national case laws on the subject, viz; R v Dalloway (1847) 3 Cox CC.
Supra note 1.
Supra note 17[ Falco].
Rome Statute Article 25(3)
ICTY Article 7.
ICTR Article 6.
For instance Article 27 para 1 of the Italian Constitution on La Responsibilita penale e personale (that Criminal responsibility is personal.)
For instance the Article 121-1 of the French Code Penal; International Crimes Act of Kenya section
Supra note 15.
Supra note 19 [Cassese].
Part 6 Sections L-N, International criminal law training materials for the Extraordinary Chambers in the Courts of Cambodia International Criminal Law Services and Open Society Justice Initiative February 2009 version, para 9.
Article 7(1) of the ICTY Statute and 6(1) of the ICTR Statute.
Supra note 1.
Prosecutor v. Akayesu, Judgement, Case No. ICTR-96-4-T, T. Ch. I, 2 September 1998, para. 480;
Supra note 104.
Prosecutor v. Kordic and Cerkez, Judgement, Case No. IT- 95-14/2-A, App. Ch., 17 December 2004, para. 26.
Supra note 106.
Prosecutor v. Fofana & Kondewa, Judgement, Case No. SCSL-04-14-A, App. Ch., 28 May 2008, para. 54.
Prosecutor v. Rutaganda, Judgement and Sentence, Case No. ICTR-96-3-T, T. Ch. I, 6 December 1999, para. 38.
Supra note 109.
Prosecutor v. Brdanin, Judgement, Case No. IT-99-36-T, T. Ch. II, 1 September 2004, para. 269;
Supra note 37.
Prosecutor v. Blaskic, Judgement, Case No. IT-95-14-A, App. Ch., 29 July 2004, para. 660.
Supra note 23.
Prosecutor v. Galic, Judgement, Case No. IT-98-29-A, App. Ch., 30 November 2006, para.176.
Supra note 21 at para. 42.
Prosecutor v. Gacumbitsi, Judgement, Case No. ICTR-2001-64-A, App. Ch., 7 July 2006, paras. 181-183.
Prosecutor v. Naletilic and Martinovic, Judgement, Case No. IT-98-34-T, T. Ch. I, 31 March 2003, para.
; see also Prosecutor v. Ntagerura, Judgement, Case No. ICTR-99-46-T, T. Ch. III, 25 February 2004, para. 659.
Supra note 118.
See Prosecutor v. Delalic et al. (Celebici case), Judgement, Case No. IT-96-21-T, T. Ch. IIqtr, 16 November 1998, para. 327.
Prosecutor v. Blagojevic and Jokic, Judgement, Case No. IT-02-60-A, App. Ch., 9 May 2007, para. 127;
Refer to the definition of aiding and abetting at note 121.
See Tadic judgement at para 199.
Prosecutor v. Krstic, Judgement, Case No. IT-98-33-A, App. Ch., 19 April 2004, paras. 137, 138, 144;
Prosecutor v. Brima, Kamara & Kanu, Judgement, Case No.: SCSL-04-16-T, T. Ch. II, 20 June 2007, para.
Article 25 (3) of the Rome Statute.
See also the obiter dicta in Prosecutor v. Tadic, Judgement, Case No. IT-94-1-A, App. Ch., 15 July 1999 at para
Trial of Gustav Alfred Jepsen and Others, Proceedings of War Crimes Trial held at Luneberg, Germany (13-23 August,1946), judgement of 24 August 194 at pp. 241.
C. Barthe, Joint Criminal Enterprise (JCE)—Ein (originar)volkerstrafrechtliches Haftungsmodell mit Zukunft?, 2009; A. Cassese, International Criminal Law, 2008, 2nd edn, 187.
The jurisprudence on joint criminal enterprise and its correlation with that of IDR has been established in the following seven major decisions; Prosecutor v. Tadic, Judgement, Case No. IT-94-1-A, App. Ch., 15 July 1999; Prosecutor v. Krnojelac, Judgement, Case No. IT-97-25-A, App. Ch., 17 September 2003; Prosecutor v. Vasiljevic, Judgement, Case No. IT-98-32-A, App. Ch., 25 February 2004; Prosecutor v. Elizaphan Ntakirutimana and Gerard Ntakirutimana, Judgement, Cases No. ICTR-96-10-A and ICTR-96-17-A, App. Ch., 13 December 2004; Prosecutor v. Stakic, Judgement, Case No. IT-97-24-A, App. Ch., 22 March 2006; Prosecutor v. Brdanin, Judgement, Case No. IT-99-36-A, App. Ch., 3 April 2007 and Prosecutor v. Martic, Judgement, Case No. IT--95-11-A, Ap. Ch., 8 October 2008.
Prosecutor v. Tadic, Judgement, Case No. IT-94-1-A, App. Ch., 15 July 1999, para. 190; Prosecutor v.
Vasiljevic, Case No. IT-98-32-A, Judgement, 25 February 2004, para. 95; Prosecutor v. Krnojelac, Case No.
IT-97-25-A, Judgement, 17 September 2003, paras. 28-32, 73.
These may include official capacity, self defence, superior or government orders, duress, necessity, mental disease or defected, alibi, intoxication, reprisals, tu quoque etc.
Article 5 ILC Code; See also United States v. Carl Krauch et al (The Farben Case), Trials of War
Criminals, Vol. VIII, p. 1179.
Article 27 of the ICC Statute.
International jurisdiction for purposes of this paper means international criminal tribunals (such as the International Criminal Court) that have relevant mandate to nationals of party states to the Rome Statute.
Arrest warrant at para 60.
Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012. The judgment and all other materials related to the ICJ are available on the Court’s website at www.icj-cij.org.
Supra note 137 at para 58.
See also Stefan Talmon ‘Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished’; Contra G. Schwarzenberger, International Law, Vol. 1 (1957), 584, 611.
Supra note 139 [Talmon].
Supra note 139 [Talmon].
Supra note 139.
These may include official capacity, self defence, superior or government orders, duress, necessity, mental disease or defected, alibi, intoxication, reprisals, tu quoque etc.
Article 5 ILC Code; See also United States v. Carl Krauch et al (The Farben Case), Trials of War Criminals, Vol. VIII, p. 1179.
Article 27 of the ICC Statute.
Article 27(2) Rome Statute.
Supra note [Akande D] at pp. 420.
Supra note 94,95, 96.
Supra note 148.
Article 27 of the Rome Statute.
Arrest Warrant case para 61. Other exceptions include (a) the state official does not enjoy criminal immunity in their own country and thus is subject to prosecution under relevant domestic laws (b)The state official is devoid of immunity in the event the sending state elects to waive the immunity (c)In cases where the state official ceases to hold the position he can be tried in a foreign state with jurisdiction for acts during the period of their tenure but in private capacity (d)Incumbent state officials can still be tried in international criminal tribunals with requisite jurisdiction their official capacity notwithstanding.
Supra note 151.
Preamble of the Rome Statute para.4.
Judgement of the International Military Tribunals, Trials of the Major War Criminals, 1947, Official Documents, Vol 1, p 223.
Article 1 of the Rome Statute.
Supra note 8 [Akande].
Article 1 of the Rome Statute read together with article 5 of the same.
Article 26 of the Vienna Conventions on the Law of Treaties providing for the doctrine of pacta sunt servanda, that agreements must be respected.
Supra note 153.
Article 53 of VCLT.
Tadic per Judge Antonio Cassese.
Supra note [C EHernández].
ILC, Arts 40– 41 on State Responsibility ,Report of the International Law Commission(2001), Official Records of the General Assembly, Fifty-sixth session, Supp. No. 10 (A/56/10).
Orakhelashvili , ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ EJIL (2007), Vol. 18 No. 5, 955−970.
A l-Adsani v. UK (2002) 34 EHRR (2002) 280.
Siderman de Blake v Republic of Argetina 965 F 2 d 699, at 713 (CA 9th Cir. 1990).
Orakhelashivili, ‘Peremptory Norms in International Law’ (2000) at 305 & 343.
Supra note 8 [Akande D].
Preamble of the Rome Statute para.4.
Supra note 10.
Article 143 (4) of the Constitution of Kenya states that ‘The immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity.’
Article 53 of VCLT.
Tadic per Judge Antonio Cassese.
Supra note [C EHernández].
ILC, Arts 40– 41 on State Responsibility ,Report of the International Law Commission(2001), Official Records of the General Assembly, Fifty-sixth session, Supp. No. 10 (A/56/10).
Orakhelashvili , ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’ EJIL (2007), Vol. 18 No. 5, 955−970.
A l-Adsani v. UK (2002) 34 EHRR (2002) 280.
Siderman de Blake v Republic of Argetina 965 F 2 d 699, at 713 (CA 9th Cir. 1990).
Orakhelashivili, ‘Peremptory Norms in International Law’ (2000) at 305 & 343.
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