Home Archive for category "State Immunity"

South African Withdrawal from the International Criminal Court – Does the ICC Statute Lead to Violations of Other International Obligations?

Published on October 22, 2016        Author: 

The relations between the International Criminal Court (ICC) and African States have come to a head once again this week with situation now at its lowest point. The government of South Africa has announced (see here) that it is withdrawing from the Statute of the ICC and that it has submitted its instrument of withdrawal to the UN Secretary General in accordance with Article 127(1) of the ICC Statute. Under that provision, the withdrawal shall take effect one year after the date of receipt of the notification of withdrawal (unless the state specifies a later date in the notification). South Africa, which had previously been a strong supporter of the Court, thus becomes the first state to withdraw from the ICC. To add to the sense of crisis, the South African withdrawal follows on from the decision over the past couple of weeks of the President and Parliament of Burundi to also withdraw from the ICC Statute. Although the Burundi Parliament has voted to do this and the President has signed a decree to this effect(see here and here), Burundi does not appear to have, as yet, notified the UN Secretary-General of its intention to withdraw to the ICC. There are fears that other African states will follow suit. [Lost in all of this was the news that, by contrast, another African country, Gabon, referred the situation in that country to the ICC less than4 weeks ago (see here for statement of ICC Prosecutor).]

South Africa’s Reasons for Withdrawal

The South African notification of withdrawal has not yet been released publicly but we have a detailed statement from the Minister of Justice regarding the reasons behind the withdrawal. One of the major grounds on which the South African government justifies its withdrawal is that:

“the Rome Statute [and the domestic Act implementing it] compel South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the court.”

The government claim is thus that complying with the ICC Statute will cause South Africa to breach its obligations to other states. The Minister suggests that resolving this conflict of obligations is important, because it undermines the ability of South Africa to work towards peaceful resolution of disputes and to promote the important objective of bringing conflicts to an end. The Minister went on to say that: “South Africa has had to do so [arrest people wanted by the ICC], even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries”. He stated further that:

“We wish to give effect to the rule of customary international law, which recognises the diplomatic immunity of heads of state and others in order to effectively promote dialogue and the peaceful resolution of conflicts wherever they may occur, particularly on the African continent”.

Does the ICC Statute Require States to Violate the Customary International Law of Immunity?

I do not intend to address the broader peace vs justice debate in this post (Is South Africa right to seek to pursue peace over immediate claims to justice in particular situations?) Reasonable minds can disagree on this. However, I wish to question the claim by South Africa that the Rome Statute requires it to violate customary international law of immunity. Read the rest of this entry…

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Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related Money Laundering by Foreign Officials?

Published on July 29, 2016        Author: 

On 14 June 2016, the International Court of Justice (ICJ) announced that Equatorial Guinea had instituted proceedings against France before the Court. Equatorial Guinea’s claims arise from the French prosecution of Teodoro Nguema Obiang Mangue, First Vice-President of Equatorial Guinea, on charges of corruption-related money laundering. This is the first time that allegations related to large-scale corruption – often dubbed as ‘kleptocracy’ or ‘grand corruption’ – engender a dispute before the ICJ. This post offers an overview of some of the legal issues that the Court may address in the course of this litigation.


Mr Obiang is First Vice-President of Equatorial Guinea and the son of the country’s president, Teodoro Obiang Nguema Mbasogo (who is, incidentally, the world’s longest-serving president, in power since 1979). At the time when the proceedings were brought, Mr Obiang was Second Vice-President in charge of defence and security, having been promoted to his current post on 22 June 2016.

The two statesmen are no strangers to controversy. Allegations of corruption have been levelled against them repeatedly (see, e.g., here and here). In 2014, Mr Obiang surrendered part of his US-based property in settlement of US v One White Crystal-Covered ‘Bad Tour’ Glove et al, an asset forfeiture case brought by the US Department of Justice that involved his collection of Michael Jackson memorabilia and real estate. A criminal investigation is reportedly underway in Spain and corruption-related human rights litigation against Equatorial Guinea is pending in the African Commission on Human and Peoples’ Rights.

The French investigation against Mr Obiang arises from a criminal complaint submitted by Transparency International France and Sherpa, two anti-corruption NGOs. Their allegation is that he has pilfered the coffers of Equatorial Guinea and invested the proceeds in France. The French authorities launched an enquiry after the Cour de Cassation’s 2010 judgment that confirmed the standing of NGOs to bring criminal complaints. On 13 July 2012, France issued an international arrest warrant against Mr Obiang. As of now, the pre-trial investigation has been concluded and the investigating magistrate shall decide whether to refer the case to court. Mr Obiang’s attempt to invoke immunity in France fell through as the Cour de Cassation ruled that (1) immunity under customary international law is limited to heads of states, heads of governments, and foreign ministers, and (2) at the time of the alleged commission of the imputed offences, Mr Obiang was merely a minister of agriculture and forests.

In another twist of events, in 2011 – that is, after the Cour de Cassation’s 2010 ruling that paved way for his prosecution – Mr Obiang sold his Parisian mansion to the state of Equatorial Guinea. Equatorial Guinea asserts that the property has henceforth formed part of the premises of its embassy to France. Unimpressed by the manoeuvre, the French investigating magistrate ordered the seizure of the building in 2012.

In Equatorial Guinea’s contention, (1) the French criminal proceedings constitute an unlawful interference with its internal affairs because alleged wrongdoing would fall within the exclusive jurisdiction of Equatorial Guinea, (2) Mr Obiang is entitled to immunity from the French criminal jurisdiction, and (3) the seizure of the building is in breach of the Vienna Convention on Diplomatic Relations 1961. Read the rest of this entry…

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Three New ICJ Cases Filed, Including Iran v. United States

Published on June 16, 2016        Author: 

In some ten days the International Court of Justice got three new cases on its docket. First, on 6 June Chile instituted proceedings against Bolivia with regard to a dispute concerning the status and use of the waters of the “Silala River system.” The jurisdictional basis of the case is the compromissory clause in the Pact of Bogota, and the cases raises issues of international watercourses and environmental law.

Second, on 14 June Equatorial Guinea instituted proceedings against France with regard to the immunity from criminal jurisdiction of its Second Vice-President in charge of State Defence and Security, and the legal status of the building which houses its Embassy in France. The Guinean Vice-President is under investigation for corruption offences by French authorities, on the basis that he invested the proceeds of that corruption in France. French prosecutorial and judicial authorities have held that he has no claim to immunity. The building in question was first bought by the Vice-President and then sold by him to the Guinean Embassy; French authorities assert that it is not protected by immunity since it was bought out of the proceeds of the offences for the which the Vice-President in being prosecuted for, and is not part of the diplomatic mission. The jurisdictional basis for the case is the compromissory clauses in the protocol to the Vienna Convention on Diplomatic Relations and the UN Convention against Transnational Organized Crime.

Finally, yesterday Iran instituted proceedings against the United States in a dispute concerning alleged violations of the 1955 Treaty of Amity, and on the basis of the compromissory clause in that Treaty. The case essentially concerns the alleged US failure to respect the immunity of the Iranian Central Bank/Bank Markazi and other Iranian entities, as well as other rights conferred by the Treaty (the Court will not have jurisdiction for violations of customary international law directly, but only insofar as these rules are referred to or assist in the interpretation of the provisions of the Treaty). Enforcement proceedings have been brought in the US against these Iranian entities for Iran’s involvement in terrorist activities; see more on the whole affair the previous post by Victor Grandaubert.

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Is there a place for sovereign immunity in the fight against terrorism? The US Supreme Court says ‘no’ in Bank Markazi v. Peterson

Published on May 19, 2016        Author: 

The US Supreme Court’s judgment of 20 April 2016 in the case of Bank Markazi, aka The Central Bank of Iran, Petitioner v. Deborah Peterson, et al. highlights the increasingly isolated nature of US practice on sovereign immunity. As well as addressing issues of constitutional law, the judgment is also significant from an international law perspective; the highest jurisdiction of the US took a dangerous step toward the effective application of its terrorism exception to sovereign immunity.

The terrorism exception was introduced to the Foreign Sovereign Immunities Act of 1976 (FSIA) by an amendment made in 1996, and then further revised in 2008.  28 U.S.C. §1605A reads:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case […] in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

The court can hear a case under this provision provided the foreign State has been designated as a State sponsoring terrorism by the Department of State and the claimant or the victim was at the time of the act a US national. This law aims at providing justice for victims through massive civil liability judgments, punishing foreign States committing or sponsoring terrorism, and discouraging them from doing so in the future.

In this post I focus not on the content of the judgment, but rather on the impact of US practice, which has recently seen all assets of the Iranian Central Bank located in the US subject to execution, on international law. Read the rest of this entry…

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An International Court of Justice Advisory Opinion on the ICC Head of State Immunity Issue

Published on March 31, 2016        Author: 

Earlier this week, I wrote about the recent decision of the South African Supreme Court of Appeal holding that the South African government had violated its obligations in failing to arrest Sudanese President Bashir when he attended the African Union Summit in South Africa last June. That decision is just the latest in the ongong saga about whether serving heads of States, particularly heads of states not party to the Rome Statute of the International Criminal Court (ICC), have immunity when they are wanted by the ICC. The issue has been a particularly toxic one in the relations between the African Union (AU) and the ICC. The AU continues to insist that Bashir and all serving heads of states are immune from arrest and prosecution and Bashir has now travelled to numerous African (and other states) including a number of states that are party to the ICC Statute (see the Bashir Watch website – and also here – for information on the states that Bashir has travelled to, as well as those which have denied him access). The AU Assembly (of heads of states and governments) has made a number of proposals in an attempt to put an end to the prosecution of Bashir, including a proposal for deferral of the case under Article 16 of the Rome Statute ( see Assembly/AU/Dec.547(XXIV) (June 2015)). It has also encouraged African states to put forward amendments to the Rome Statute (see Ext/Assembly/AU/Dec.1(Oct.2013). Following that suggestion, Kenya proposed an amendment to Article 27 of the Rome Statute which would provide for immunity of heads of states and their deputies (see p. 16 of this report of the ICC Assembly of States Parties Working Group on Amendments). I am sure that everyone knows that the chances of success on such an amendment is precisely zero. For the amendment to come into force, seven-eights of the parties to the ICC Statute would have to ratify it (under Art. 121(4) of the Statute) and it is inconceivable that this will happen.

However, the AU has made one suggestion which I think ought to be taken up. This is the proposal (see p. 9-10 of this document) that the International Court of Justice be asked to render an advisory opinion on the immunity of heads of states or other senior officials of states not party to the ICC (for earlier discussion of this proposal see my posts here and here). Despite the fact that the ICC has ruled on the question of Bashir’s immunity on several occasions (including in cases regarding non-cooperation by Malawi and Chad, DRC and South Africa), there are, in my view, good reasons to try to have the ICJ address the issue. Some of those reasons are legal and others political. Read the rest of this entry…

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The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?

Published on March 29, 2016        Author: 

Earlier this month, the South African Supreme Court of Appeal decided unanimously (see the judgment here) that the South African government had breached its obligations under the South African domestic statute implementing the Rome Statute of the International Criminal Court (ICC), and under the Rome Statute, by failing to arrest and detain for surrender to the ICC Sudanese President Omar Al-Bashir. Bashir visited South African in June 2015 to attend the African Union summit held there. As will be explained below, although the decision was ultimately based on domestic law, it is potentially very far reaching in the effect that it will have in South Africa and possibly internationally. In summary, the Court held that under the South African Implementation of the Rome Statute of the ICC Act 2002, any head of State subject to an ICC arrest warrant may be arrested in South Africa and surrendered to the ICC. However, the Court also held that under the same Act international law immunities, including the immunity of heads of states, do not apply under South African law when a person is sought for domestic prosecution in South Africa for genocide, war crimes and crimes against humanity. This aspect of the decision is particularly remarkable given that the same South African Act provides for universal jurisdiction over those crimes, and the South African Constitutional Court held in 2014 that the South African Police Service may commence an investigation of these crimes even if the person is not present on South African territory. Although the aspect of the Bashir decision relating to domestic prosecution in South Africa, is in my view obiter and not part of the ratio decidendi of the decision, if it stands, it means that South Africa would be a very rare example of a State that claims the authority to prosecute serving heads of state for international crimes.

The lead judgment of the South African Supreme Court of Appeal was given by Wallis JA, with whom two judges concurred. A further two judges concurred in the result but agreed with the lead judgment only in in so far as it was based on South African ICC Implementation Act. Read the rest of this entry…

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New German Constitutional Court Decision on “Treaty Override”: Triepelianism Continued

Published on February 29, 2016        Author: 

By Court order of decision of 15 December 2015 (2BvL 1/12), published only recently, the German Constitutional Court (second Senate) has confirmed the practice of treaty override in tax law. The euphemism “treaty override” means that the German legislator adopts a law which violates a prior international treaty (often a treaty on double taxation). The Federal Tribunal on Finances (Bundesfinanzhof) had doubts about the constitutionality of this practice. It was convinced that a recent amendment of the Income Tax Act which is incompatible with a German-Turkish dual taxation treaty of 1985 is unconstitutional, exactly because it violates the treaty.

If in a pending judicial proceeding, a German court is convinced that a legal provision, which it needs to apply to resolve the case under scrutiny, is unconstitutional, that court must stay the proceeding and pose a reference question on the law’s constitutionality to the German Constitutional Court (Art. 100(1) German Basic Law). Such a reference procedure guarantees that the Constitutional Court retains the monopoly for declaring a law unconstitutional, and is thus a hallmark of the concentrated system of constitutional control in Germany.

Translation into constitutional questions
The judicial proceeding under Art. 100(1) Basic Law is available only for questions of constitutionality, not for questions of compatibility with international law. This worked, because the courts involved in fact “translated” the question of the relationship between international law and domestic law into a constitutional law question of the separation of powers and of constitutional principles: rule of law versus democracy.

The Federal Tribunal on Finances deemed the treaty override unconstitutional for violation of the rule of law and of the German constitutional principle of “friendliness towards international law” (“Völkerrechtsfreundlichkeit”).

The Constitutional Court did not follow this view. It opined that the constitutional principle of democracy (which includes the principle of discontinuity of parliament following elections) demands that the German Parliament is free to change its mind and to make or amend a law even if this violates an international treaty which had been ratified by a previous Parliament (Order of 15 Dec. 2015, paras 53-54). Read the rest of this entry…

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The Dust Has Not Yet Settled: The Italian Constitutional Court Disagrees with the International Court of Justice, Sort of

Published on November 12, 2014        Author: 

As Riccardo Pavone surmised last March, the ICJ judgment in Jurisdictional Immunities (here) has not been the last word in the matter of reparations for the forced labour of Italian prisoners of war in Germany. As reported by Christian Tams (here), the Italian Constitutional Court (here) has found the provisions adopted by Italy to implement the ICJ’s judgment contrary to the Italian Constitution, more precisely to the guarantee of access to a court. Those provisions had been meant to oblige Italian courts to follow the judgment of the ICJ, which required those courts to extend jurisdictional immunity to a foreign State (ie Germany) also for actions which constitute war crimes and crimes against humanity violating inviolable human rights.

Read the rest of this entry…

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Domesticating the Law of Immunity: The Supreme Court of Canada in Kazemi v Iran

Published on November 7, 2014        Author: 

International lawyers typically think that when a case deals with a matter of international law, once you know the position under international law, then this will give you the answer. Unfortunately, before domestic courts, that is not always the case. Late last month, the Canadian Supreme Court issued its judgment in Kazemi Estate v. Islamic Republic of Iran [2014] SCC 62 (the Quebec Superior Court Judgment was discussed on the blog here). The case, following on the Ontario Court of Appeal’s earlier judgment in Bouzari, serves as a stark reminder that the application of international legal principles in domestic proceedings will frequently be governed or mediated by domestic legislation, which often reflects domestic priorities in addition to international principles. The role that international law should play in such cases, as either a source or a means of interpretation, may be contested. The Kazemi v Iran Judgment is the latest instalment in a series of important domestic court decisions on the law of State immunity.


Ms. Zahra Kazemi was a Canadian citizen and freelance photographer and journalist who died in custody in Iran in 2003, following her detention, torture and sexual assault in prison The authorities refused to return her body to Canada and buried her in Iran. Although a domestic investigation reported links between the Iranian authorities and her torture and death, only one person was charged and he was acquitted after a trial which lacked transparency.

Seeking justice for his mother’s death, Ms. Kazemi’s son, Mr. Stephan Hashemi, sued the Islamic Republic of Iran, Ayatollah Sayyid Ali Khamenei (Iran’s Head of State), Mr. Mortazavi (Chief Public Prosecutor of Tehran), and Mr. Bakhshi (former Deputy Chief of Intelligence at the prison where Ms. Kazemi was detained), claiming damages for his mother’s suffering and death, and for the emotional and psychological harm that this caused him. Predictably, the defendants sought to dismiss the motion based on claims of state immunity, which is implemented in Canada by the State Immunity Act (SIA). This challenge ultimately reached the Supreme Court of Canada, Read the rest of this entry…

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English Court of Appeal rejects De Facto Immunity for UK officials & Act of State Doctrine in Torture Claims

Published on November 3, 2014        Author: 

Following a number of high profile but ultimately failed inquiries into the UK’s ‘complicity’ in US extraordinary rendition, some further light may be shed on the matter by the UK courts. Such is the significance of the judgment given last week by the English Court of Appeal in Belhaj & Anor v Jack Straw & Ors [2014] EWCA Civ 1394, which reversed the decision of Simon J to strike out claims brought by Abdul-Hakim Belhaj and Fatima Boudchar against a number of UK officials for their alleged involvement in their unlawful abduction, detention and renditions. The claimants alleged that they were unlawfully detained and mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft, by agents of those states. Documents uncovered after the fall of Gaddafi allegedly show the complicity of UK officials in the kidnap of Belhaj and his then pregnant wife, Boudchar, and their rendition back to Libya. In a thorough and careful judgment, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) held that the claims are not barred by state immunity and, while they did engage the act of state doctrine, the claims fell within the public policy limitation applicable in cases of violation of international law and fundamental rights.

Permission to appeal to the Supreme Court has been granted only in relation to the act of state doctrine. Whatever the Supreme Court decides to do, this judgment marks another bold stand for the rule of law in the context of events arising from the so-called global war on terror, as well as providing further clarification on the scope of both doctrines.

State immunity: indirect impleader

Seemingly emboldened by the recent decision of the European Court of Justice in Jones v the United Kingdom, the Respondents sought to argue that state immunity may be invoked where, as in the present case, the claims necessarily require findings of illegality in respect of the acts of foreign officials for which they could claim immunity if they had been sued directly. It was argued that the claims indirectly implead the states concerned because they affect their interests and that, accordingly, state immunity applies to bar the claims.

Interestingly, the Respondents sought to derive support for this submission from the reference to both “rights” and “interests” in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of State and their Property, which they argued has the effect that a state is indirectly impleaded where its interests are affected in a broad sense. In its judgment, the Court cited academic commentary in support of the contention that the final words of Article 6(2)(b) should be given a limited reading, such that “interests” of states is confined to legal interests as opposed to interests in some more general sense Read the rest of this entry…

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